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Rehnquist's tenure saw erosion of tribal sovereignty
Tuesday, September 6, 2005

As an associate justice, then chief justice, William H. Rehnquist oversaw the near wholesale dismantling of tribal sovereignty in a slew of U.S. Supreme Court cases.

During Rehnquist's 33 years on the bench, the court abandoned its traditional role as a protector of tribal interests. In decisions affecting jurisdiction, taxation and immunity, the justices began to discard the notion that tribes possessed inherent sovereignty, treating tribes separately from states and, when the two collided, favoring states.

As a conservative proponent of states' rights, Rehnquist was at the forefront of this shift. In 1978, he started the trend with the Oliphant v. Suquamish decision, holding that tribes lack criminal jurisdiction over non-Indians because it is "inconsistent" with their status.

"By submitting to the overriding sovereignty of the United States, Indian tribes therefore necessarily give up their power to try non-Indian citizens of the United States except in a manner acceptable to Congress," Rehnquist wrote in the precedent-setting opinion on March 6, 1978, seven years after he joined the court.

Three years later, the court used Rehnquist's words to extend this philosophy to civil jurisdiction. In Montana v. United States, the justices held that tribes lack authority over the activities of non-Indians except in certain cases.

"Though Oliphant only determined inherent tribal authority in criminal matters, the principles on which it relied support the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe Rehnquist would expand that philosophy to civil jurisdiction," the court wrote on March 24, 1981. Rehnquist joined the majority in the 6-3 case.

Three years after that, Rehnquist voiced deep concerns about the very notion of tribal sovereignty. On September 10, 1984, he issued a stay in National Farmers v. Crow Tribe, a case that tested the limits of tribal court jurisdiction over non-Indians. Although the stay didn't resolve the underlying legal issues, Rehnquist nonetheless indicated where he stood on the matter.

"But if because only the National and State Governments exercise true sovereignty, and are therefore subject to the commands of the Fourteenth Amendment, I cannot believe that Indian tribal courts are nonetheless free to exercise their jurisdiction in a manner prohibited by the decisions of this Court, and that a litigant who is the subject of such an exercise of jurisdiction has nowhere at all to turn for relief from a conceded excess," he wrote in the stay.

Several months later, on June 3, 1985, the court issued its opinion in the case, holding that non-Indians must first exhaust their tribal court remedies before seeking relief in the federal courts.

The following year, Rehnquist was elevated to the chief justice position by the late president Ronald Reagan. The next 19 years saw the court continue its trend of chipping away at tribal rights, culminating in the 2000-2001 term, in which tribes lost five out of six cases.

Among the opinions that Rehnquist authored during this period was Seminole Tribe v. Florida, decided by a 5-4 vote. On March 27, 1996, he held that state sovereign immunity protected Florida from being forced to negotiate a gaming compact. Tribal leaders, and even some federal officials, believe the decision has contributed to adverse state-tribal relations and has led to increased demands by states for a greater share of tribal gaming revenues.

Rehnquist didn't always go against tribal interests, though. In Oklahoma Tax Commission v. Citizen Band Potawatomi, his majority opinion refused to discard the notion of tribal sovereign immunity. In the February 26, 1991, decision, he wrote that Congress "has never authorized suits to enforce tax assessments" on tribes for failing to pay state taxes.

But more often than not, Rehnquist was on the other end of the stick during his tenure as chief justice. In March 1999, he sided against treaty rights in Minnesota v. Mille Lacs Band, a close 5-4 decision. His dissent criticized the majority for holding that the Mille Lacs Band enjoys off-reservation fishing and hunting rights in Minnesota.

In another 5-4 case, Rehnquist filed a dissent in Idaho v. United States from June 2001. In this tribal-state dispute, he contended that the Coeur d'Alene Tribe is not entitled to ownership of the southern third of Lake Coeur d'Alene.

Even in cases where he didn't author an opinion, Rehnquist's views were felt. The most significant case is Duro v. Reina from 1990, which extended Oliphant by holding that tribes lack criminal jurisdiction over Indians who are members of other tribes.

Yet 14 years later, Rehnquist showed that he could change his mind. In Lara v. United States from April 2004, he agreed that an act of Congress "recognized" and "affirmed" inherent tribal jurisdiction over "all Indians." Some constitutional doubts, however, remain.

In October 2004, the Supreme Court announced that Rehnquist had been diagnosed with thyroid cancer. His health kept him from attending oral arguments in two Indian law cases.

His absence wasn't a factor in Cherokee Nation v. Thompson. In an 8-0 decision on March 1, 2005, the court held that the Cherokee Nation is entitled to contract support costs for an underpaid federal health contract.

But a few weeks later, Rehnquist joined the court in its most recent Indian law decision, one that has been roundly criticized as one of the most devastating. Even though he didn't participate in arguments for Sherrill v. Oneida Nation, he agreed with the majority that the passage of time can erode tribal sovereignty, an issue that wasn't briefed in the case.

"The Rehnquist court's decisions, meandering from the settled principles and approaches embraced by all its predecessors, have created a judicial atmosphere that threatens economic development efforts as well as the political and cultural survival of Indian tribes," David H. Getches, a University of Colorado law school professor and noted Indian law expert, said in Senate testimony in February 2002.

Relevant Links:
National Indian Law Library - http://www.narf.org/nill/index.htm
Tribal Court Clearinghouse - http://www.tribal-institute.org

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