Opinion

Steve Russell: The Indian law Hall of Shame

Friday, January 11, 2008

"It's hard to overstate the significance of Brown v. Board of Education to the mainstream (African-American) civil rights movement. Here's why. Congress passed the 14th Amendment as part of Reconstruction after the Civil War. However, the Supreme Court was the one branch of government still controlled by Democrats, who in those days represented the status quo against the interests of the former slaves. The court gutted the ''privileges and immunities'' clause of the 14th Amendment in the Slaughter-House Cases (1873). Then the court gutted the Equal Protection Clause in Plessy v. Ferguson (1896), holding that facilities lawfully could be ''separate but equal.'' There the process of freeing the slaves stalled until Plessy was reversed in Brown v. Board of Education of Topeka (1954). This history undergirds the symbolic value of Brown in the struggle for African-American rights and leads to the question of what would have the same impact for Indians?

Other Indian lawyers might disagree on what follows, because immoral federal Indian law cases provide such a target-rich environment, but I will offer the following in chronological order. ''Immoral'' is the key. I am looking for cases that require no more than common sense and instinct for right and wrong. Low-hanging fruit. Cherokee Nation v. Georgia (1831) fits much of the bill in that it decided that an Indian nation is not a foreign nation for purposes of invoking the original jurisdiction of the U.S. Supreme Court when it sues a state. The moral aspect is that an Indian nation can plainly cede land and get into a dispute with a state over the nature of the cession. Why, then, should that dispute be litigated any differently than the border dispute between Texas and Oklahoma? However, this case cannot be fixed by Congress. It would require a constitutional amendment, so it does not make the cut.

Lone Wolf v. Hitchcock (1903) would probably be the choice of most Indians because it is about treaty abrogation and disregard of treaties is a major sore spot for us in our relations with the colonists. Adding insult to injury, the case not only allows Congress to abrogate Indian treaties outside the reasons recognized in international law but the claim in Lone Wolf is that the treaty abrogation was for our own good!

Tee-Hit-Ton Indians v. United States (1955) was the case in which the United States refused to recognize aboriginal title - title based on use of the land from time immemorial. Therefore, the Tee-Hit-Tons had no right to compensation under the Fifth Amendment for the taking of timber from their tribal lands. If there is no aboriginal title, then I suppose that all land titles in the United States rest not on land cession treaties by Indian nations but on the Doctrine of (European, Christian) Discovery. The moral bankruptcy of that position is self-evident. Congress could recognize aboriginal title by law."

Get the Story:
Steve Russell: An Indian Brown v. Board of Education? (Indian Country Today 1/11)