Steve Russell: Justice Antonin Scalia was wrong about Indian law

At my age, you don’t make light of anybody’s death, but I care about the interests of Indians because they are family and friends. In virtually everything I’ve said or published about what federal Indian law ought to be, Justice Scalia was a worthy adversary, a man of talent and skill. He was just wrong.

Whether or not we agree about his talents, Justice Scalia’s death changes the shape of several playing fields, but the most important are the SCOTUS itself and the road to the presidency.

The SCOTUS matters because it created a doctrine out of whole cloth called “plenary power” over Indian nations. Justice Scalia and all good conservatives should have disrespected the doctrine, because you would have to waterboard the Constitution to get it to utter such nonsense. But plenary power is the law.

The SCOTUS created the power but located it in Congress, where Indian needs get substantially less attention than who gets a corner office. It’s the legislative equivalent of “a chickenshit Indian law case.” When things change on the ground for Indians, it’s often the SCOTUS making the change and, lately, not for the better.

The current Justices split 4-4 too often for the comfort of people who think words have meaning. Until Justice Scalia is replaced, that 4-4 split will leave the judgment of the last court to hear the case on the way up standing.