John Paul Stevens served on the U.S. Supreme Court between December 17, 1975, and June 29, 2010. He passed away at the age of 99 on July 16, 2019. Photo: Steve Petteway / U.S. Supreme Court

Mark Trahant: The Indian law legacy of Justice John Paul Stevens

Treaties are a contract between sovereigns; the legacy of Justice John Paul Stevens
The 1979 Boldt decision -- or United States v. Washington -- was one of the many cases that Stevens helped shape
Indian Country Today

John Paul Stevens joined the Supreme Court as a conservative member appointed by President Gerard Ford.

Yet when Stevens retired as a justice he was known as a leader of the liberal bloc and the justice who often supported the rights of tribes.

Stevens’ story is about the independence of the judiciary. He was the third-longest serving justice in U.S. Supreme Court history. The Associated Press reported that he died Tuesday in Florida after suffering a stroke Monday.

“Loosely speaking, Justice Stevens is the sitting justice most likely to support tribal interests in the last decade, but his voting record in the 1980s and 1990s was overwhelmingly opposed to tribal interests. His seeming reversal in this context is fairly remarkable,” wrote Matthew L.M. Fletcher in the Turtle Talk legal blog when Stevens retired in 2010.

“Justice Stevens generally speaking favored tribal interests in treaty rights cases and statutory interpretation cases (less so), but was a serious opponent in tribal immunity and taxation cases,” Fletcher wrote.

The justices of the U.S. Supreme Court sit for their official portrait at the start of the October 2009 term, the last for John Paul Stevens before he retired. Top row, from oeft: Associate Justice Samuel A. Alito, Associate Justice Ruth Bader Ginsburg, Associate Justice Stephen G. Breyer, and Associate Justice Sonia Sotomayor. Bottom row, from left: Associate Justice Anthony M. Kennedy, Associate Justice John Paul Stevens, Chief Justice John G. Roberts, Associate Justice Antonin G. Scalia, and Associate Justice Clarence Thomas. Photo: Steve Petteway / Collection of the Supreme Court of the United States

The 1979 Boldt decision -- or United States v. Washington -- was one of the many cases that Stevens helped shape. The Supreme Court did not review the Boldt case, but it denied the state of Washington’s appeal from the U.S. 9th Circuit. However Washington would not give up and refused to enforce the court's orders. That brought the matter back to the Supreme Court where it mostly affirmed Judge George Boldt’s 1974 decision. The state supreme court had ruled that the fisheries department need now comply with federal law and that “the treaties did not give the Indians a right to a share of the fish runs.”

Stevens disagreed and wrote for the majority that tribes “both sides have a right, secured by treaty, to take a fair share of the available fish.”

Stevens called treaties “essentially a contract” between two sovereigns. And, “When Indians are involved … the treaty must therefore be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians.’”

The message that the Supreme Court sent to Washington was clear and unequivocal. “The District Court may assume direct supervision of the fisheries if state recalcitrance or state law barriers should be continued,” Stevens wrote for the court.

Billy Frank, Nisqually, often said that this decision saved salmon in the Pacific Northwest because it made tribes co-managers of a scarce natural resource. And tribal governments spent the decades that followed putting resources into science, habitat, and sound management of the salmon.

However Stevens also ruled against tribes on the issue of taxation. In a 1989 case, Cotton Petroleum Corp v. New Mexico, the Court held that a state and a tribe may impose a tax for oil and gas production. The court said that the state “provides substantial services” to the tribe and a state tax is justified. “The tax imposes no economic burden on the tribe; and federal and tribal regulation is not exclusive, since the state regulates the spacing and mechanical integrity of on-reservation wells,” Stevens wrote for the court.

The court also rejected the argument that states do not provide enough benefits to tribal citizens for this taxing authority. The court said: “There is no constitutional requirement that the benefits received from a taxing authority by an ordinary commercial taxpayer -- or by those living in the taxpayer's community -- must equal the amount of its tax obligations.”

Indian Country Today columnist Steve Russell called this one of the dumbest decisions ever in a 2015 essay. “Then we learn that it’s OK for Congress to take Indian property in violation of a treaty because an emergency might come up that requires taking Indian property really quickly. Even when Congress does not take Indian land, the SCOTUS says states can tax the minerals under what little land we have left and making the minerals cost more than the same minerals off the reservation is not an act of discrimination because, you know, that’s where God put the minerals.”

Stevens was often in dissent. As Fletcher wrote in Turtle Talk, “Justice Stevens wrote the dissents (often scathing dissents in a trademark style) in the following decisions that form the remainder of the bedrock of Indian law favoring tribal interests — Bracker (1980); Merrion (1983); Oneida II (1985); Iowa Mutual (1987); Cabazon Band (1987); Holyfield (1989); Citizen Potawatomi (1991); and Kiowa Tribe (1998).”

He was the lone justice to object in Carcieri v. Salazar. In that case he said the Secretary of Interior clearly had the power to take lands into trust on behalf of a tribe.

“The court’s decision can be best understood as protecting one sovereign (the state) from encroachment from another (the tribe). Yet in matters of Indian law, the political branches have been entrusted to mark the proper boundaries between tribal and state jurisdiction,” Stevens wrote. “Congress drew the boundary in a manner that favors the Narragansett.”

Squaxin Island tribal members, including Patrick Braese, harvest manila clams on a privately owned beach on Hammersley...

Posted by Northwest Treaty Tribes on Wednesday, July 10, 2019

President Donald J. Trump ordered the flag at the White House and government buildings to be flown at half-staff “as a mark of respect for the memory and long standing service of John Paul Stevens.”

“Justice Stevens was a true guardian of the Constitution," said Speaker of the House Nancy Pelosi, D-California. "He made history not only as one of the longest-serving Justices, but as one of its finest. Despite being nominated by a Republican president, he leaves behind a legacy of progressive rulings that have transformed countless lives and helped build a fairer and more just future for all Americans."

His support for the Court’s decisions on habeas corpus and detainees held at Guantanamo Bay honored his lifelong belief that America must always strive to live up to its fundamental values, even in times of crisis," Pelosi said. "In his dissents, Justice Stevens wrote eloquently of American peoples’ ability, under our Constitution, to protect our democracy with commonsense campaign finance reform, as well as our communities with responsible gun safety laws."

Statement of Chief Justice John G. Roberts, Jr.:
On behalf of the Court and retired Justices, I am saddened to report that our colleague Justice John Paul Stevens has passed away. A son of the Midwest heartland and a veteran of World War II, Justice Stevens devoted his long life to public service, including 35 years on the Supreme Court. He brought to our bench an inimitable blend of kindness, humility, wisdom, and independence. His unrelenting commitment to justice has left us a better nation. We extend our deepest condolences to his children Elizabeth and Susan, and to his extended family.

Statement of Justice Clarence Thomas:
Virginia and I were deeply saddened to learn of the passing of Justice Stevens. In almost two decades as colleagues on the Court, he was an unfailingly collegial, courteous, and kind colleague. Since his retirement, we have missed him greatly as a member of the Court, and now will miss him even more profoundly as a friend.

Statement of Justice Ruth Bader Ginsburg:
From my first year at the Court, Justice Stevens was my model for all a collegial judge should be. Circulations from other chambers invariably took precedence over all else on his work table. His manner at oral argument typified both his civility and the quality of his mind. He preceded his questions with the politest “May I . . .,” then invited advocates to train their attention on the issue likely to be dispositive. In a Capital City with no shortage of self-promoters, Justice Stevens set a different tone. Quick as his bright mind was, Justice Stevens remained a genuinely gentle and modest man. No jurist with whom I have served was more dedicated to the judicial craft, more open to what he called “learning on the job,” more sensitive to the wellbeing of the community law exists (or should exist) to serve. In a letter applauding Justice Stevens on the 30th anniversary of his appointment to the Court, President Gerald Ford commented that Supreme Court nominations are seldom considered when historians assess Presidencies. “Let that not be the case with my Presidency,” Ford continued, “[f]or I am prepared to allow history’s judgment to rest (if necessary, exclusively) on my nomination . . . of Justice John Paul Stevens to the U.S. Supreme Court.” I am among the legions of lawyers and judges who would concur heartily in President Ford’s praise for the “dignity, intellect[,] and [absence of] partisan political concerns” that characterized Justice Stevens’ service on the Court, and to the country.

Statement of Justice Stephen G. Breyer:
John Stevens was a superb Justice. He was blessed with a brilliant mind, which he put to the service of his strong humane instincts. When I first came to the Court and thereafter, I found that John was a considerate, helpful, good-natured, and insightful colleague. Those who have read his most recent book will know that he had an adventurous side to his nature as well.

John understood how the rule of law forms a necessary part of our constitutional democracy. He understood that laws are designed primarily to serve those who live under them. His work reveals that understanding. The Nation will long benefit from that work; and he will be long remembered. John’s family, his friends, his colleagues, and the legal community will cherish John’s memory. And I shall very much miss my dear friend, John Paul Stevens.

Statement of Justice Samuel A. Alito:
I will always remember John Paul Stevens as a warm, engaging, and unfailingly cordial colleague who went out of his way to make me feel at home from my first day on the Court. Throughout his long and dedicated career, he brought a penetrating, pragmatic, and distinctively singular intellect to bear on the most important legal issues of the time. Historians will note his many important contributions to the Court’s work, and those of us who had the privilege of knowing him as a person will surely miss him.

Statement of Justice Sonia Sotomayor:
Justice Stevens was not only a great public servant, but an extraordinary mentor and role model to me personally. We hit it off from my first day on the Court, when he was the first Justice to welcome me. We must have talked for hours that day. Justice Stevens was impossible not to like: affable, humble, and unfailingly kind. Though we overlapped on the bench for only a year, I learned much of what I know about being a Justice from him. His decency, integrity, and commitment to principle were unparalleled. His body of work reflected his deep regard for the Constitution, unflinching commitment to individual rights, and refusal to ignore even the smallest injustices. Justice Stevens embodied the very best of our common profession, and the Court and our nation will miss him dearly.

Statement of Justice Elena Kagan:
I was honored to succeed Justice John Paul Stevens on the Court, and his extraordinary tenure has inspired me ever since. He was one of a kind — a brilliant lawyer with a passion for justice, a person of rare independence who modeled collegiality and valued institutions, a modest man who achieved greatness in both his majority and his dissenting opinions. The Court and this country are far better for his service. And I will miss his counsel and his friendship.

Statement of Justice Neil M. Gorsuch:
I am very sad to hear about the loss of Justice Stevens. His life and legacy will be remembered as one of dedication to his country with his admirable service to the U.S. Navy and on this Court. Louise and I extend our most heartfelt condolences to his children, grandchildren, and the entire Stevens family.

Statement of Justice Brett M. Kavanaugh:
Like the President who appointed him, Justice Stevens was a patriotic son of the Midwest who performed his constitutional duties with quiet dignity. Justice Stevens’ contributions to the law are immense and will guide this Court’s decisions for years to come. But for those who appeared before him in court or who sat beside him as judges, the most distinctive Stevens quality was his civility. In court, he treated others with extraordinary respect and established an enduring model of decency and courtesy for all judges and lawyers. The Court and the Nation will greatly miss Justice Stevens. Ashley and I will pray for him and his family.

Statement of Justice David H. Souter (Retired):
He was the soul of principle and an irreplaceable friend.

Statement of Justice Anthony M. Kennedy (Retired):
For over 20 years it was my high privilege to be on the Supreme Court with Justice John Paul Stevens. There were just nine of us at the conference table of course, and it was often John who proposed arguments that we simply had to address. He was remarkably well prepared in every case. He was emphatic always in asking this question: Is what the Court about to do fair to the injured party? He was brilliant at interpreting the law in a way to reach what he considered to be the fair result.

We became close personal friends. John had a brilliant mind. He enjoyed discussing literature, sports, history, the law, and endless other subjects. We used to say that we should not visit each other’s chambers too often because once we started to talk it was hard to stop.

He extended a gracious welcome to Mary and me when we came to Washington. This was the beginning of our long friendship. To have this distinguished World War II veteran, this brilliant attorney, this remarkable judge as our close friend gave us new energy and drive to meet the expectations of all of my colleagues.

We send our deepest sympathies to his family, and of course to our own colleagues, who will always remember and always miss John Paul Stevens.

Mark Trahant is the editor of Indian Country Today. He is a member of the Shoshone-Bannock Tribes. Follow him on Twitter @TrahantReports.

This story originally appeared on Indian Country Today on July 17, 2019.

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