In the oral argument of the Bay Mills case (where Michigan challenged tribal sovereign immunity) Justice Scalia asked: “Who made these Indian tribes sovereign, was it Congress?” The Solicitor General answered: “The Constitution.” Scalia asked, “Who decided that Indian tribes are sovereign?” and the Solicitor General folded, “The Court … but there are treaties and statutes.” Scalia replied, “So I assume that this Court could also determine the scope of their sovereignty.”

Justice Scalia’s erroneous view that the Supreme Court “decided” Indian nations are sovereign is discriminatory. Just as the Constitution recites that “We, the People” are the source of U.S. Sovereign power—We, the Native Peoples, are the source of Indian sovereignty. Just powers of government flow from the consent of the governed, and as Native peoples, we consent to self-government.

Indian sovereignty, treaty rights, and self-government are our “unalienable rights” and the United States has no legitimate authority to take them from us. The United States violates our inherent human rights when it overrides Indian sovereignty or the Supreme Court redefines sovereign immunity.

Scalia’s position is a denial of our humanity as Native peoples, a denigration of our treaties, and a whitewash of America’s history. Given Justice Scalia’s discriminatory views, the Supreme Court is a biased forum for Indian sovereignty, Indian treaties, and Native peoples.