|Why sovereignty is winning, from Neah Bay to the Supreme Court
CORVALLIS, Ore. - The storm of public bitterness
that has animated both the Makah whale hunt and a
pair of recent U.S. Supreme Court decisions issued
from Indian country dramatically illustrates how few
facts of American life haul 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 will do well to study these questions, these laws
and legal relationships.
There is a perception afoot in the land 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. They are at peace with the idea
that the crossing is worth the storm.
As U.S. congressmen and congresswomen learned in a
workshop on Indian law last summer,
Native-American sovereignty is about to get very, very
The 550 federally recognized tribes own the last great
deposits of natural resources on the North American
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
Wisconsin Gov. Tommy Thompson ("These Indian
environmental standards are going to sweep across the
nation. They must be stopped!" ) recently petitioned
Congress to roll back Native environmental standards
and to declare state supremacy in matters concerning
The gubernatorial petition demonstrated an appalling
ignorance of both federal and Indian law on the part of
governors. 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 sovereignty and peace
The states and the feds have been hurtling toward this
national 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 suck the wind right out of your lungs.
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
writing to his wrongheaded nemesis Thomas Jefferson
(they enjoyed a mutual enmity that was vitriolic,
though Marshall bested him in the end).
This 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.
They acquired the 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
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 held that the American Indian
would be a vanquished race by the turn of the century.
Wrong. Fast forward 100 years. Recent legal opinions
have signaled a return to the Marshall Trilogy and to
what is known in the federal judiciary as the
"foundational principles of 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 20 years, Chief Justice William Rehnquist and his
ideological cohorts have done their damnedest to
dismantle Marshall. Justice Antonin Scalia recently got
caught with his metaphorical pants in a pile around his
ankles when he wrote that the interpretation of Indian
law in the Rehnquist Court 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
politcal 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 has held.
-- Summer 1999: 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. This case is going to trial this
summer, and Price-Waterhouse accountants say the
particulars line up very nicely in favor of the Indians.
Should get ugly.
-- 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 1st
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 Gov. Marc Racicot
promised to fight it out at the Supreme Court. He did.
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
-- 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 Gov. 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
-- 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.
(Gov. Jesse Ventura's response: "If that's the way they
want it, they can go back to birch bark canoes!")
-- 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
State agencies had closed ranks with private
landowners and commercial shell fishermen to bring
suit against 17 tribes on Puget Sound which were
asserting treaty rights of access across state and private
land to their ancestral shellfish beds.
White fishermen and state lawmakers had been waiting
for two decades to extact revenge for the Boldt
decision, the 1974 ruling that awarded tribes half the
salmon caught in western rivers. This was it. This was
for all the marbles.
Who gets the last word?
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 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, yet the arrogance was theirs to own,
right from the start. 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 the
law. The feds and the tribes are partners who go way,
way back. 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.
The rest, as they say, is history, but the future is in the
hands of the courts. Not, thankfully, in the hands of
And if the states choose not to learn this lesson, if they
choose to 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
Paul VanDevelder is a writer and filmmaker who has
reported from Indian country for numerous national
periodicals and newspapers. His newest
documentary, "Journey to Medicine Wheel," won best
film honors at the San Francisco Film Festival in
1998. He resides in Corvallis, Ore.