Law | Opinion

Peter d'Errico: Justice Antonin Scalia scorned tribal sovereignty

Leaders of the Omaha Tribe of Nebraska stand in front of the U.S. Supreme Court on January 20, 2016, after oral arguments in Nebraska v. Parker. Photo form Facebook

Retired professor Peter d'Errico doesn't think the death of Justice Antonin Scalia will fundamentally alter the way the U.S. Supreme Court views Indian law and policy:
The death of U.S. Supreme Court Justice Antonin Scalia raised the temperature of ongoing electoral campaigns, increased the intensity of Congressional gridlock, and left the court itself in a precarious balance. What, if anything, it means for Indian Country remains to be seen.

The Supreme Court has taken Indians for many rides on the legal roller coaster called federal Indian law, starting with the very first decision in Johnson v. McIntosh (1823), which enshrined the Doctrine of Christian Discovery as the basis for the claim that the United States has title to all Indian lands. The Doctrine still stands.

In the years since that strange beginning, the court has struggled to justify keeping Indians under Uncle Sam's thumb, while simultaneously acknowledging that Indian Nations existed before the U.S. was founded… and still exist. That effort has led to the contradictory "trust" and "plenary power" doctrines. For example, the "government-to-government," "trust" relationship with the U.S. has to bear the stress of the so-called "plenary power" of Congress to do whatever it wants with Indians and Indian lands.

In practice, "plenary power" tends to cannibalize "trust," as shown in Scalia's opinion for a unanimous court in U.S. v. Navajo Nation (2009), which decided the U.S. owed no "trust" duty to the Navajo for mismanagement of Navajo coal contracts, even though the U.S. maintained "comprehensive control over coal on Indian land."

Get the Story:
Peter d'Errico: Scalia's Death: Will It Affect Indian Country? (Indian Country Today 2/18)

Also Today:
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Blacks See Bias in Delay on a Scalia Successor (The New York Times 2/18)
Supreme Court Vacancy Has Left and Right Ready to Pounce (The New York Times 2/18)
The Potential for the Most Liberal Supreme Court in Decades (The New York Times 2/18)

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