John Marshall, Sitting Bull, and the Law of Nations

The storm of public bitterness that has attended several recent U.S. Supreme Court decisions issued from Indian country dramatically illustrates how few facts of American life have more deeply contentious freight than Native-American sovereignty. What is Indian sovereignty? Who dreamed it up? And why are the tribes winning all these cases?

We would do well to study these questions, laws and legal relationships.

There is a perception afoot that we are a nation defined by competing political agendas. In fact, politics is just so much weather. It comes and it goes and it comes and it goes. We are instead, and thankfully so, a nation of laws.

The courts control the helm of the ship of state. Courts steer us toward reckonings with the shoals of public opinion that few politicians have the courage or the vision to articulate; i.e., civil rights, reproductive freedom, sovereignty. Judges embrace the thorny axiom that the crossing is worth the storm. That's a good thing. As seen from Indian Country in the first years of the twenty-first century, storms are brewing on every horizon.

As U.S. congressmen and congresswomen learned in a workshop on Indian law several summers ago, Native-American sovereignty is about to get very, very expensive. The 550 federally recognized tribes own the last great deposits of natural resources on the North American continent. Among the looming legal battles -- as huge as they are inevitable -- are resource allocation, water, timber, salmon, land, gold, copper, zinc, oil and gas, uranium, coal, and aquatic management on the Columbia, Colorado, Missouri rivers and the disposition of the Snake River dams, as well as water quality, fish harvest and heavy metal poisoning on the Great Lakes.

The nation's governors, whipped into a frenzy by former Wisconsin Governor Tommy Thompson ("These Indian environmental standards are going to sweep across the nation. They must be stopped!" ), petitioned Congress to roll back Native environmental standards and to declare state supremacy in matters concerning natural resources. Thompson's battle cry, by no means a unique event, demonstrated an appalling ignorance of both federal and Indian law on the part of his audience. Congress turned its head from the foul odor put off by Thompson's petition and respectfully declined to yield its constitutional power.

An Offer of Peace

The states and the feds have been hurtling toward this train wreck with the tribes for 200 years, and there is nothing anybody can do to stop it. There is so much at stake, so much jurisdictional overhead and racial undertow bound up in its making, that to survey the landscape from the legal high country is to feel historical ironies intensely.

Between 1790 and 1871, the U.S. Senate ratified 380 treaties with Indian nations. Congress entered into treaties with the tribes to acquire land which it could sell to pay off its huge debts. Start-up costs for a nation, even back then, were staggering and the U.S. was too weak to take the land by force. What it had to offer the tribes, in return, were sovereignty and peace.

When the legal concept of sovereignty was first challenged in the Supreme Court by the state of Georgia in the 1820s, Chief Justice John Marshall took pains to examine this legal apparatus and to explain how it functions. He knew battles with the tribes would only escalate over time. Arguably, Marshall was addressing his wrongheaded nemesis Thomas Jefferson. The two men suffered a mutual enmity that was vitriolic; Marshall bested Jefferson in the end.

The brace of cases, known as the Marshall Trilogy, held that every treaty ratified by the U.S. Senate under Article VI, Clause 2 of the Constitution, was now the"supreme law of the land." Sovereignty, explained Marshall, exists as a pre-condition among self-governing entities and acts as a legal shield protecting all rights and privileges reserved and implied by nationhood. In fact, treaties were a granting of rights from the tribes, to the federal government.

Legal Firepower

President Andrew Jackson was so infuriated by Marshall's opinion that he declared:"Let him enforce it!" then sent thousands of Cherokee to their death on the Trail of Tears (an act which today would get President Jackson indicted by The Hague as a war criminal). But back then, the attitude of lawmakers was"not to worry" about the consequences of conducting long-term government-to-government relationships with 380 foreign Indian nations. After the smoke cleared at Wounded Knee in 1890 the prevailing wisdom among lawmakers held that the American Indian would be a vanquished race by the turn of the century.

Fast forward a hundred years. Recent legal opinions have signaled a gradual but inevitable return to the Marshall Trilogy and to what is known in the federal judiciary as the"foundational principles of federal Indian law." This swing has grown out of the fact that gambling proceeds and education (there are more than 2,000 Indian lawyers in the U.S.) have empowered once-passive tribes to acquire the cash and the legal fire power to strike decisively when states trespass on their sovereignty.

For twenty years, Chief Justice William Rehnquist and his ideological cohorts have done their damnedest to dismantle Marshall. In one case Justice Antonin Scalia wrote that the interpretation of Indian law acts as a search for"what the current state of affairs ought to be." This is a startling confession from a judge who has consistently argued that the fundamental role of the court is:". . .not to determine what seems like good policy at the present time, but to ascertain the meaning of the text." Scalia could have added,"when your political agenda happens to agree with it."

In the end, we were a nation of laws that would not easily bend to the political judgments of high-court judges. The foundational law articulated and refined by Marshall has held.

-- In Cobell v. Gale Norton, Native Americans have brought a class-action suit against the Department of Interior's Bureau of Indian Affairs for tens of billions of dollars in misused Indian assets.

-- December 1997: The Supremes enforced Isleta Pueblo water-quality standards on the Rio Grande River on the upstream city of Albuquerque, standards that cost Albuquerque $400 million in capital improvements. The Isleta combined their Amendment freedom of religion (water ceremonies) with treaty rights in an argument that had never before been heard in a court of law. City officials are still trying to gather their wits.

-- October 1998: The 9th Circuit Court of Appeals did the same thing for the Salish and Kootenai tribe of Western Montana. Montana Governor Marc Racicot promised to fight it out at the Supreme Court. He did. He lost.

Twelve more tribes have won similar approval from the federal Environmental Protection Agency under Section 519 of the federal Clean Water Act, while 20 more tribes are in line for approval, and 120, from Maine to California, have initiated the scientific and legal processes.

-- September 1998: A federal court cited a treaty between the Sandia Pueblo and the King of Spain to restore to the tribe thousands of acres of land surrounding the city of Albuquerque (including the land under the governor's house.) Dozens of similar cases are currently working their way through the federal courts, both here and in Canada.

-- September 1998: Federal court Judge Lawrence Piersol"dismissed with prejudice" the claims of South Dakota Governor William Jankow and restored jurisdiction and treaty rights to the Yankton Sioux tribe (the tribe that welcomed Lewis and Clark into the Dakota territory) over 360,000 acres of South Dakota prairie, ending a century-long battle over a treaty signed in 1858.

-- March 1999: Writing for the majority in a 5-4 split, upholding the fishing and hunting treaty rights of the Mille Lacs band of Chippewa against the state of Minnesota, Justice Sandra Day O'Connor reminded dissenting justices Scalia and Rehnquist that the court has a historical obligation to interpret treaties in favor of the tribes and in the spirit in which the Indians would have understood them when they were signed.

-- The din from Chippewa had scarcely subsided when the High Court shocked the state of Washington by declining to hear an appeal on shellfish harvesting by 17 tribes on Pudget Sound. In this case, Washington state agencies closed ranks with private landowners and commercial shell fishermen to bring counter suits against tribes that were were asserting treaty rights of access across state and private land to their ancestral shellfish beds.

In Washington state this case was the number one deal. White fishermen and state lawmakers had been waiting for two decades to extract revenge for the Boldt decision, the 1974 ruling that awarded tribes half the salmon caught in western rivers. This was it. This was one roll of the dice for all the chips on the table.

The Last Word?

Of course, the particulars in these cases are window-dressing. Unfortunately, it is the window-dressing that gets the ink in the mainstream media. Strip away the clams, the oysters and the fishing rods and these cases are ultimately about wielding enormous power, about the subjugation of political will of one governmental body by another. What is at stake are the same bitterly contested principles that hurled the North against the South at Shilo and Gettysburg. Who controls the legal high ground? Who decides? Who gets the last word?

In 1787, James Madison and Alexander Hamilton knew this question had been finessed -- for the time being. They both knew that hammering out an answer would be bloody and costly. The 14th Amendment, which denies to states that which is denied to the federal government, was an answer that was written in the blood of a deeply wounded nation in a civil war, not to mention in the tortured lives of millions of slaves.

In Puget Sound, on the Rio Grande and on the boundary waters of Minnesota, the 14th Amendment today translates into a vigorous defense by the federal government of its dominion over national waterways, air quality, and public lands, through its"supreme law of the land" contracts with the tribes.

Government attorneys argued that the state of Washington was never party to the treaty with the tribes. Therefore, it had no standing to claim jurisdiction over federal waterways. The Supreme Court agreed.

State officials and private landowners were thunderstruck. As it has so often in the past, arrogance (and the blindness it causes) was the hallmark of their crusade from the very beginning. They failed to recognize that this opinion was written and proclaimed to the world on a spring day in a farmhouse in Appomattox, Va., 134 years ago. The state of Washington championed politics and fell in a whimpering heap at the feet of our nation's foundational law. The feds and the tribes are partners who go way, way back, even before the states. Without treaties and concessions from the tribes, states, beyond the original 13, would not exist.

Indians paid for the protection of the 14th Amendment in advance. Their names are carried on the winds of a profoundly shameful history; Crazy Horse, Red Cloud, Geronimo, Standing Bear, Black Elk, Looking Glass, Plenty-Coups, Sitting Bull, Joseph, Sealth, Black Kettle. They were vanquished by politicians hell bent on prosecuting the mythology of the Doctrine of Discovery -- that great fault line on which the American house of democracy was erected, the official fiction that the continent was void of inhabitants when Europeans stepped out of their boats.

And the rest, as they say, is history, but the future will remain in the hands of the courts. Not, thankfully, in the hands of politicians. And if the states choose not to learn this lesson, if they press on with their self-serving agendas at the expense of the tribes, hocking their consciences for political and economic gains, future relations with the tribes promise to be very bitter and very expensive, because"the supreme law of the land" will be the final word.