How the Rehnquist Court Hijacked Indian Sovereignty in Broad Daylight

1. How the Rehnquist Court Hijacked Indian Sovereignty in Broad Daylight Michael Lerma University of Arizona Department of American Indian Studies lerma@email.arizona.edu

2. I am not a lawyer • Things I don’t know (not exhaustive) • I don’t have court case outcomes memorized • That is what case books are for • I don’t know who has standing in civil court at Dessert Diamond Casino • I don’t know what court you need to sue in if you slip and fall in the bathroom and need a $52,000 settlement • I’m a sort of a pseudo “expert” witness (lol!)

3. Objectives • Discuss some Terminology • Explore Normative Objectives of Rehnquist Court • Look at assumptions • Alternatives to Normative Approach • Objective/subjective dichotomy • How do I know it’s normative?

4. Definitions • What is Normative? • What is “logic” and logical? • What is an assumption? • What is subjectivity/objectivity? • How do normative assumptions interfere with logical conclusions?

5. How to have normative assumptions screw up logical conclusions • The gap between order and chance is filled by subjective judgment of the observer • My argument: • There is a huge gap in FIL • Order • Chance • The Rehnquist Court filled that gap subjectively • With self interest in normative notions of what is best for the U.S.

6. So What? • This research aims to fill the gap between order and uncertainty given the decisions handed down by Rehnquist Court concerning FIL • Gap is filled with a systematic count of case decisions based on a typology of outcome categories

7. Four Normative Assumptions • The European Christian Government Must Remain the More Powerful Actor • Discovery Grants Right to Extinguish Indian Title • Indians Enjoy Right of Occupancy at the Pleasure of the European Sovereign • Europeans Must Help the Indian be like the European Individual (Male)

8. Where did these assumptions come from? • When the four normative assumptions were not normative • M’Intosh case – the normative assumptions cited here were stated literally making them “rules” and not unstated or unwritten rules (norms) • Why normative now? • The era of politically correct banter in FIL via the Supreme Court

9. The Oliphant Case Study 1978 • In the words of Rob Williams, “Do ndns have the right to lock up white people?” • Oliphant Cherry Picking! • Ex parte Kenyon (1878) “ndns don’t want the right to lock up non-Indians” (Kenyon overturned before 1978) • President Jackson opinion (1834) (what do you think Jackson opined?) • Termination era congressional hearings (what do you think these hearings stated?)

10. General Assumptions in Oliphant • General assumptions based on the citations used in the court case • US domination • Exclusive right to acquire • Indian right to occupy • Indian improvement via civilizing • But what’s the difference between “rules” and “norms” • Norms are not explicitly stated!

11. Oliphant Citations – The Power of Ellipses! • Oliphant (1978) • The United States was seeking to extend United States S "law, by argument and inference only,... over aliens and strangers; over the members of a community separated by race [and] tradition,... from the authority and power which seeks to impose upon them the restraints of an external and unknown code...; which judges them by a standard made by others and not for them.... It tries them, not by their peers, nor by the customs of [*211] their [***223] people, nor the law of their land, but by... a different race, according to the law of a social state of which they have an imperfect conception...." Id., at 571.I

12. Exparte Crow Dog Quote in Full • It is a case where, against an express exception in the law itself, that law, by argument and inference only, is sought to be extended over aliens and strangers; over the members of a [***1036] community separated by race, by tradition, by the instincts of a free though savage life, from the authority and power which seeks to impose upon them the restraints of an external and unknown code, and to subject them to the responsibilities of civil conduct, according to rules and penalties of which they could have no previous warning; which judges them by a standard made by others and not for them, which takes no account of the conditions which should except them from its exactions, and makes no allowance for their inability to understand it.

13. Exparte Crow Dog Continued • It tries them, not by their peers, nor by the customs of their people, nor the law of their land, but by superiors of a different race, according to the law of a social state of which they have an imperfect conception, and which is opposed to the traditions of their history, to the habits of their lives, to the strongest prejudices of their savage nature; one which measures the red man's revenge by the maxims of the white man's morality.

14. A splice with color • It is a case where, against an express exception in the law itself, thatlaw, by argument and inference only, is sought to be extendedover aliens and strangers; over the members of a community separated by race [and], bytradition, by the instincts of a free though savage life, from the authority and power which seeks to impose upon them the restraints of an external and unknown code, and to subject them to the responsibilities of civil conduct, according to rules and penalties of which they could have no previous warning; which judges them by a standard made by others and not for them, which takes no account of the conditions which should except them from its exactions, and makes no allowance for their inability to understand it.It tries them, not by their peers, nor by the customs of their people, nor the law of their land, but by superiors ofa different race, according to the law of a social state of which they have an imperfect conception, and which is opposed to the traditions of their history, to the habits of their lives, to the strongest prejudices of their savage nature; one which measures the red man's revenge by the maxims of the white man's morality.

15. Inappropriate Rehnquist Story

16. Working w/ Qualitative and Quantitative Approaches • What do we know about the Rehnquist? • Do we really know what prejudices existed? • How can we dismiss what I have just gone over with you? • Are there other ways to make the points raised here? • Can we point to everyday, independently verifiable information? • What can be deduced from such information?

17. A Quantitative Research Design • Make a list of Rehnquist Court cases • Categorize cases based on several observable criteria • Present descriptive statistics based on the above • Simmer and stir constantly • Now you decide!

18. Rehnquist Era 1972-2005 • Associate Justice 1972-1986 • Chief Justice 1986-2005 • Addressed 45 cases involving Federal Indian Law • Delivered 10 majority or dissenting opinions • Joined 32 opinions (excluding delivery) • Dissented on 4 majority opinions • Joined in part/dissented in part on 2 (excluded from analysis)

21. Data/Indicators • Take Descriptive Data and link it with a qualitative analysis of court case outcomes • Descriptive Data is treated as a condition • Do the ‘conditions’ outlined have an impact on the outcome of court cases? • Do the conditions work to fill the gap of uncertainty?

22. The Conditions • Mutually Exclusive Conditions • Delivered only • Joined only • Dissented only • Associate or Chief • Combination of Conditions • Delivered or Joined (1 + 2) • Delivered or dissented (1 + 3) • Delivered Majority (1 – 3) • Delivered Dissent (3 - 1)

23. The Outcomes • What impact do the cases have concerning the Sovereignty of Indigenous Tribes in the US? • Expand – increasing beyond level it was before the case was decided • Neutral – level remains as it was prior to case decision • Diminish – level decreases from what it was before case decision • Unclear – ambiguous – very dry cases

24. Ideal Types for Outcomes • Expand – Mille Lacs • Neutral - Ramah • Diminish - Oliphant • Unclear – Three Affiliated Tribes

25. MINNESOTA, ET AL., PETITIONERS v. MILLE LACS BAND OF CHIPPEWA INDIANS ET AL. • Majority Holding • Usufructuary rights to land ceded to U.S. in 1837 treaty remain with Mille Lacs Tribe • The 1837 treaty did not address usufructuary rights • Rights not terminated in 1850 executive order • 1855 treaty dealt only with purchase of land • 1858 admission of Minnesota to U.S. did not address usufructuary rights • Dissent (by Rehnquist) • 1850 executive order was a valid revocation of rights • 1855 treaty was broad enough to terminate rights • 1858 admission eliminated rights

26. RAMAH NAVAJO SCHOOL BOARD, INC., ET AL. v. BUREAU OF REVENUE OF NEW MEXICO • Majority Holding • Navajo School Board and a construction company do not have to pay taxes to New Mexico for gross receipts involving construction of a school for Navajo children. • Federal law pre-empted state law • Dissent (by Rehnquist) • “. . . court accorded a dependent Indian tribal organization greater tax immunity than the court accorded the sovereignty of the United States . . .”

27. OLIPHANT v. SUQUAMISH INDIAN TRIBE ET AL. • Suquamish do not have criminal jurisdiction over non-Indian residents of the Suquamish reservation • Treaty of Point Elliot – tribe acknowledged its dependence on the US – probability is that tribe recognized that U.S. would arrest and try non-Indian intruders • Criminal jurisdiction over non-Indians must be a power delegated by Congress to the tribe • Treaty provisions not enough to protect tribal sovereignty • Powers can be terminated by Congress • Powers inconsistent with status of tribal power are gone

28. DEPARTMENT OF THE INTERIOR AND BUREAU OF INDIAN AFFAIRS v.KLAMATH WATER USERS PROTECTIVE ASSOCIATION • Coded as unclear because it confuses me • Klamath sued to gain access to info about water allocation • BIA did not want to disclose water allocation data supplied to them by various tribes • Holding • BIA must disclose documents because the transmission of data from tribe to agency was not intra nor inter agency transmission • Based on assumption that economic interest trumps others • What if the documents outlined sacred knowledge of secret places?

29. Tables • Tables 3-10 – descriptive statistics (go here) • Table 11 – necessary conditions • Table 12 – truth table

30. Necessary Conditions • If Delivered, court always expanded sovereignty • Based on 1 case and Rehnquist dissented • If joined, court consistently left sovereignty neutral or diminished • 84% of the time the court was neutral as evidenced by 45% of all cases • 94% of the time the court diminished as evidenced by 68% of all cases

31. More Necessary Conditions • As Associate Justice: • 76% of the time the court was neutral as evidenced by 62% of all cases • As Chief Justice • 73% of the time the court was diminished as evidenced by 71% of all cases

32. Conclusions • When Rehnquist delivered, Court expanded • Grain of Salt – • Court only ever expanded once • Rehnquist Dissented – objected to expansion • As Chief Justice, Rehnquist always expanded • Same reasoning as above

33. Conclusion Part II • Playing it Safe • As an associate Justice, Rehnquist agreed to leave sovereignty neutral 76% of the time covering 62% of all FIL cases • Overall • As a member of the Court, Rehnquist joined in 84% of Court cases which left sovereignty largely in the same shape as he found it

34. Conclusion Part III • Playing hard ball • As Chief Justice, Rehnquist switched his tune and was part of the majority opinion 73% of the time covering 70% of all FIL cases • As Chief, Rehnquist most often diminished sovereignty • Overall, Rehnquist is not a sovereignty fan • 94% of the time Rehnquist diminished covering 68% of all FIL cases