Law | Opinion

David Wilkins: Justice Antonin Scalia's anti-Indian track record

The late President Ronald Reagan and the late Antonin Scalia at the White House on July 7, 1986. Reagan nominated Scalia for seat on the U.S. Supreme Court. Photo by Bill Fitz-Patrick / White House

All five of the Indian law opinions written by Antonin Scalia went against tribal interests. Professor David E. Wilkins, a member of the Lumbee Tribe, looks at the impact the late justice leaves behind at the U.S. Supreme Court:
Of the more than 115 Indian law cases delivered between 1975 and April 2015 five justices “have perfect records of their opinions always being against Indian interests:” Clarence Thomas (six opinions), Antonia Scalia (five opinions), Samuel Alito (three opinions), and Chief Justice Roberts (one opinion.) Let us look quickly at the five Scalia anti-native cases that he authored and see if we can tease out his underlying ideology regarding Native peoples.

Employment Division v. Smith (1990)
This was a devastating blow to the First Amendment religious freedom rights of Native American Church (NAC) members. Two men had been fired from their counseling jobs in Oregon and denied unemployment compensation because of their use of peyote, deemed a “prohibited drug” by state law.

Blatchford v. Native Village of Noatak (1991)
In this case the Noatak Village sued a state official in federal court seeking payment of funds of money that the village believed was due under a state revenue sharing plan. The state claimed that it was immune from suit by the Village under the Constitution’s 11th amendment. Scalia, for a 7-2 majority, sided with the state.

County of Yakima v. Confederated Tribes and Bands of Yakama Nation (1992)
Here, Scalia wrote that the General Allotment Act of 1887 permitted Yakima County to impose an ad valorem tax on reservation land that had been patented in fee and owned by individual Yakama’s or the Yakama nation itself.

Nevada v. Hicks (2001)
Scalia, for the court, wrote that tribal courts lacked jurisdiction to regulate state game wardens who were executing a search warrant on the reservation for an incident that had happened off the reservation. This case contains the devastating line: “State sovereignty does not end at a reservation’s border.”

U.S. v. Navajo Nation (2009)
Writing for a unanimous court, Scalia said that the Navajo nation’s complaints against the Secretary of Interior for allegedly violating its trust responsibility by having colluded with a coal company did not rise to a claim under the Indian Mineral Leasing Act and that the nation was not entitled to compensation.

Get the Story:
David Wilkins: Scalia Had Ragged Track Record on Native Issues (Indian Country Today 2/17)

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