Law 6842-01  Winter 2011
American Health Care Law
Professor Vernellia R. Randall
The University of Dayton School of Law


Understanding Indian Sovereignty

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Paul VanDevelder

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
                natural resources.

                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.
                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 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.
Lessons - Unit 01
01 Health and Illness                                               x
02 Assuring Public Health                                              x
03 Organization                                              x
04 Structuring the System                                              x
05 Tax Exemption                                              x
06 Professionall Relationships                                              x
07 Antitrust I                                              x
08 Antitrust II                                              x





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Professor Vernellia R. Randall
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