April Youpee-Roll: Supreme Court makes up Indian law decisions

April Youpee-Roll. Photo from Facebook

April Youpee-Roll, a member of the Fort Peck Tribes, went to the U.S. Supreme Court when she was 10 years old to hear arguments in her grandfather's case, Babbitt v. Youpee. She shares her encounter with the late Justice Antonin Scalia years later in underscoring the impact of the nation's highest court in Indian Country:
When my grandfather died without a will, a federal law resulted in some of his land reverting to the tribe instead of passing to his heirs. That's unconstitutional. It's a violation of the takings clause of the Fifth Amendment. Simple enough, but maybe a little advanced for fifth grade social studies. What did stick with me was respect for the institution. I thought that those nine justices must be omnipotent, the smartest of the smart. Not only had they taken our case, they'd found in our favor. To a 10-year-old, that was enough to consider the Supreme Court my friend.

Twelve years later, I was working in Washington, D.C., when I met Justice Antonin Scalia. He was giving a lecture and signing copies of his new book; I was on the fence about whether or not to attend. Instead of flipping a coin, I decided Scalia's vote in my family's case would make the decision for me. If he'd come down on our side, I'd go. It turns out that our case was an 8-1 decision, and Justice Stevens—not Scalia—was the lone dissenter. So, I went.

As I handed over my book, I decided to go with, "I just wanted to thank you. When I was 10, I came to watch oral arguments in my family's case, and you joined the majority in our favor."

Justice Scalia looked up at me and smiled, "What was the case?"

"Babbitt v. Youpee. It was in 1997."

He paused and I prepared to be ushered along in line. "That was a takings case, right?"

I nodded, more than a little surprised at his memory.

He signed my book, and as he handed it back to me, he said something I'll never forget: "You know, when it comes to Indian law, most of the time we're just making it up."

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April Youpee-Roll: Just making it up: On Justice Scalia, Indian law and the Supreme Court's future (The Missoula News 2/18)

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