Category Archives: Indians

Lyng v. Northwest Indian Cemetery Protective Assn.

485 U. S. 439

April 19, 1988

The government wanted to build a road and harvest timber on federal lands that some Indians considered sacred sites integral to their faith.The Indians claimed that this would run afoul with the Free Exercise clause. The government responded that they were neither positively forcing nor coercion the Indians to do anything contrary to their religion. And thus was the issue joined.

The Court ruled 5-3 that the Indians lost (Kennedy did not participate). O’Connor said that the government could not function if it had to worry about every action it took that offended someone’s religious sensibilities. She likened the case to Bowen v. Roy (1986), where someone objected to issuance of Social Security numbers. In both cases, the government had the rights to conduct its own business so long as it didn’t actually target religious groups, or affirmatively compel or prohibit activity. O’Connor also worried that Indians might one day demand that no one but them be allowed to even enter the land, and that this particular slippery slope needed to be stopped right now. Finally, an argument about a statutory law for Indian religious rights was turned away because the law had no teeth.

Brennan, joined by Marshall and Blackmun, dissented vigorously. The government’s plan would essentially destroy the ability of Indians to practice their religion. The real world impact was so dire that it was unfair to blandly assert that nothing had been positively compelled or prohibited. He said that Yoder required courts to consider the impact of an action on religious groups, and was flabbergasted that the Court could not distinguish Roy. Issuing a number for internal use in Washington was very different from actually desecrating a sacred site. Brennan concluded that the government had a duty to ask if its action would strike at the central tenets of a religious faith.

So here it is: the first major battle in the great Free Exercise war that rages to this day. Come for the novelty of seeing the liberals stand up for religious freedom; stay for the mind bending philosophical questions that are raised. A few years ago, I sort of naively believed that perfect religious neutrality was mostly possible, with the government accommodating most claims like this one. Now, I’m more seeing that any nation is always going to have a reigning theology, and that rival theologies will inevitably be kept down.

In the Bible, it is shown as perfectly normal for a nation to say that one god is true, and other gods are false, and govern accordingly. Good kings like Hezekiah and Josiah were right to eliminate public practices directed toward other gods. And even America does the same thing today – which is why it’s social suicide to speak against things like democracy, liberty, self-determination, and separation of church and state. These things are part of our national theology. I support robust Free Exercise rights as long as Christians can practice their faith and potentially gain power. But broad Free Exercise governance is not a sustainable model for the long run.

Gary North had it right: “So let us be blunt about it: We must use the doctrine of religious liberty to gain independence for Christian schools until we train up a generation of people who know that there is no religious neutrality, no neutral law, no neutral education, and no neutral civil government. Then they will be get busy in constructing a Bible-based social, political and religious order which finally denies the religious liberty of the enemies of God.”


Haig v. Bissonette

485 U. S. 264

March 21, 1988

A bunch of Native American activists decided to occupy the village of Wounded Knee, South Dakota in 1973. U.S. military personnel were eventually brought in to help control the activists, and things got ugly from there. The activists maintained that authorities had breached a federal law (the Posse Comitatus Act), which prohibited the U.S. military from assisting in domestic brawls. They also maintained that violating the Posse Comitatus Act was equivalent to violating the Fourth Amendment. Lower courts agreed, and the case then went to the Supreme Court.

Here’s where it gets weird: by statute, in order to even consider a case, six Supreme Court Justices must be available. After the Court took the case, Rehnquist, O’Connor, Scalia, and Kennedy all ended up recusing themselves, leaving only five other Justices. Thus, in a surreal per curiam paragraph, the Court said that it was impossible to decide the case, and let the lower ruling stand.

Hodel v. Irving

481 U. S. 704

May 18, 1987

Due to some horrible legislation passed in the 1800s, Indian tribal lands were ridiculously splintered between owners by the 1980s. Forty acre tracts often had literally hundreds of separate owners due to subdivision in wills over several generations. Congress finally passed a law that made very small land interests revert to the tribe upon the death of the owners. The law did not compensate those who would have been the new owners. Mary Irving of the Sioux tribe claimed that this violated the takings clause.

Unanimously, the Court agreed that the law was unconstitutional. O’Connor wrote for seven Justices who thought the takings clause had been violated. The land that Mary Irving and others had been denied the right to own was in some cases worth a few thousand dollars. More than that, the law’s total destruction of a persons right to will property to an heir was said to be without precedent in American law. Even though government interest in preventing further Indian land fractionalization was compelling, O’Connor said that the law simply went too far.

Stevens, joined by White, concurred in judgment. He did not think the law ran afoul with the takings clause, but did think it was a due process violation. The law went into effect immediately upon signature. Owners of the land at issue had no notice, and no opportunity to take any workaround measures to insure that their heirs were not deprived of the land’s financial value. Scalia and Brennan both threw in one paragraph concurrences. Scalia, joined by Rehnquist and Powell, said that the decision effectively nullified a more pro-government takings clause decision called Allard. Brennan, joined by Marshall and Blackmun, said that Allard’s logic had not been nullified at all. I’m too lazy to read Allard for myself, so I have no idea who’s right.

I agree with the majority opinion, and have little to add to it. It is worthy of mention that Hodel contains one of the greatest names in Supreme Court history: a member of the Sioux tribe called Mary Poor Bear-Little Hoop Cross. The decision also points out (quite hilariously) that the law at issue had a glaring typo: “descedent” where “descend” should have been.

United States v. Cherokee Nation of Okla.

480 U. S. 700

March 31, 1987

In 1970, a Supreme Court decision held that the Cherokee Nation and other Indian tribes were given virtually exclusive rights to a portion of the Arkansas River by some old treaties. On the strength of this ruling, the Cherokees sought to obtain compensation under the takings clause for damage that the United States had caused to sand and gravel in the river while working on some channel project.

Unanimously, the Supreme Court rejected the arguments of the Cherokees. Rehnquist explained that the United States still retained a navigational servitude in the Arkansas River even after signing the treaties with the Indian tribes. As far as I can make out, “navigational servitude” essentially means ‘the right to do whatever the **** you want without any consequences whatsoever.’ Court precedents established that the navigational servitude was a part of the commerce clause power of the United States, and that it required absolutely no compensation to property owners. Furthermore, even the aforementioned 1970 ruling that the Cherokees relied on suggested strongly that full navigational servitude rights were retained by the United States. Thus, the United States was immune from having to provide compensation.

So far as I can tell, the existing precedents were correctly applied. That doesn’t change the fact that this decision was utterly atrocious as a matter of natural justice. I loath all manifestations of sovereign immunity in the law, especially this navigational servitude nonsense. No earthly government should have this sort of control over rivers, and far less should one be able to cause grave damage without even being held financially responsible.

Amoco Production Co. v. Gambell

480 U. S. 531

March 24, 1987

The Secretary of the Interior permitted oil companies to search for oil in the Bering Sea next to Alaska. The Native village of Gambell objected, claiming that this permit would interfere with its statutory hunting and fishing rights in the ANILCA law. Despite a report by the Secretary showing that these rights would not be burdened, a Court of Appeals granted a preliminary injunction against the oil companies, arguing that some technical requirements of ANILCA had still been violated, and that government interest in preserving Native rights outweighed the interest in energy independence.

Unanimously, the Supreme Court vacated the preliminary injunction. Writing for the Court, White explained that preliminary injunctions should not be issued for mere technical violations of a law, especially when no evidence existed that the oil exploration would actually jeopardize the subsistence rights of Indians. Thus, there was no irreparable harm which warranted an injunction. White also held that ANILCA did not even apply in this case because its reach was strictly limited to the legal boundaries of the State of Alaska. This was proved by plain language, statutory construction canons, and legislative history. The location of the oil exploration was in waters not under the state’s legal jurisdiction.

Stevens, joined by Scalia, wrote to posit that ANILCA’s geographic reach completely disposed of the case. Accordingly, they did not join the section of the Court’s opinion about the standards for a preliminary injunction. Reading this case, it seems amazing that energy exploration ever happens at all. Apart from frivolous legal challenges like the Gambell case, oil companies have to make it through a red tape obstacle course of doom, as footnote 5 documents. Sadly, that obstacle course has only become more difficult since 1987 (see the Keystone pipeline nonsense).

California v. Cabazon Band of Mission Indians

480 U. S. 202

February 25, 1987

The Cabazon Indian tribe of California regularly conducted bingo and card games for profit, in apparent violation of both state and county ordinances. Federal policy generally exempts Indians from state and local law, but one federal law did give California broad authority in the realm of criminal law, and some narrower authority in the realm of civil law. Another federal law made violations of state gambling laws a federal crime.

Writing for a 6-3 majority, Justice White held that the state and local law did not apply to the Indians. Because California did allow bingo and card games in certain situations, White characterized the state’s laws on the subject as civil rather than criminal. With regard to the law that made violations of state laws a federal crime, White simply reasoned that a federal law could logically not be enforced and prosecuted by a state. Finally, after weighing the federal policy of promoting Indian gambling, and California’s asserted need to crack down on organized crime, he concluded that California’s interests were too weak in the face of Indian sovereignty to justify the enforcement of its civil laws in this instance.

Stevens dissented, and was joined by O’Connor and Scalia. He cited precedents where the Court had held state law applicable to Indian tribes on the civil law issues of alcohol and tobacco. Gambling, he said, should be no different. He also felt that California’s organized crime rationale was persuasive, and that Congress had never explicitly given support to exemptions for Indian gambling.

His dissent also contained this astonishingly bad and inapt analogy: “To argue that the tribal bingo games comply with the public policy of California because the State permits some other gambling is tantamount to arguing that driving over 60 miles an hour is consistent with public policy because the State allows driving at speeds of up to 55 miles an hour.”

Thus, for the second time in two days, Stevens totally brushed aside any respect for Indian sovereignty. I’m not drawing any conclusions yet, but I can’t deny that the word racism has flitted across my mind. To be fair, his discussion of the precedents is more convincing than White’s, but I’m willing to believe that those precedents were wrongly decided. I’m not particularly happy that so many Indian tribes resort to gambling as a means of income, and I’m a bit perturbed that the Department of the Interior would back the practice so vigorously. At the same time though, it was rather heartless for California to try to deprive the Cabazon band of its only real source of sustenance.

Iowa Mut. Ins. Co. v. LaPlante

480 U. S. 9

February 24, 1987

When Edward LaPlante was injured on an Indian reservation in Montana, he brought suit against an Iowa insurance company for not attempting to settle his claim in good faith. LaPlante filed this suit in a tribal court. Iowa Mutual objected, and tried to get the case removed to a federal District Court in diversity. The District Court dismissed the claim, citing a lack of jurisdiction due to a federal policy of deferring to the processes and judgments of tribal courts.

Unanimously, the Court held that subject matter jurisdiction did exist in District Court, but it also held 8-1 that the District Court could not exercise that jurisdiction until the tribal court system procedure had been exhausted. Justice Marshall, writing for the majority, explained that federal policy was to maximize the autonomy and deference afforded to Indian tribunals, and that allowing removal to federal court would short circuit these interests. That the federal statute conferring diversity jurisdiction made no specific mention of a tribal court exception did not matter, since the general policy of deference remains well known.

Stevens dissented. He could not believe that tribal courts should be afforded more deference than state courts. He noted that states had a limited degree of sovereignty and autonomy under the Constitution, but that final exhaustion of state court remedies is not needed before an identical claim can be filed in federal court. Stevens felt that Indian tribes should be treated in the same manner.

This is a tricky issue because the relationship between Indian tribes and the United States is, and will always be, a hopelessly byzantine morass of complexity. On one hand, I kind of want the weird quasi-sovereignty to end, and have Indians be treated just like any other American citizens. On the other hand, their land was cruelly, viciously, and murderously stolen from them over the course of several centuries, so it’s impossible for me to say that they do not deserve a generous degree of independence. In the end, I would err on the side of too much autonomy rather than too little, and join Marshall’s opinion.