A crowd watches as the body of the late Justice Antonin Scalia is taken into the U.S. Supreme Court in Washington, D.C., on February 19, 2016. Photo by Indianz.Com
Retired professor Peter d'Errico urges Indian Country to take a closer look at opinions written by Justice Clarence Thomas of the U.S. Supreme Court. His latest includes a critique on the basis of federal Indian law in the otherwise unanimous decision in US v. Bryant, a domestic violence case:
In Bryant, Thomas wrote that the contradiction between "tribal sovereignty" and "plenary power" doctrines "exemplify a central tension within our Indian-law jurisprudence." On one hand, federal Indian law doctrine states "tribes [hold a] status as 'separate sovereigns pre-existing the Constitution.'" On the other hand, a contrary doctrine states "Congress [holds] 'plenary power' over Indian tribes." Indian Country lawyers have steered clear of responding to Thomas or even acknowledging his critique, despite the fact that cases stretching back to the beginning of federal Indian law in the "Marshall trilogy" bear him out. It seems to be in bad form to admit that chaos reigns in federal Indian law, although no less an authority than Vine Deloria, Jr., pointed this out long ago in "Of Utmost Good Faith" (1971): The Supreme Court, he wrote, as it creates federal Indian law, "skips along spinning off inconsistencies like a new sun exploding comets as it tips its way out of the dawn of creation." Justice Thomas seems intent on uprooting the inconsistencies of federal Indian law, but his intent and his goal are not clear. He shows no awareness of the formative premise underlying the contradictions: Christian Discovery Doctrine (more on this in a moment).Get the Story:
Peter d'Errico: Clarence Thomas Again Critiques Federal Indian Law (Indian Country Today 6/22) Supreme Court Decision:
US v. Bryant (June 13, 2016) Supreme Court Documents:
Oral Argument Transcript | Docket Sheet No. 15-420: US v. Bryant | Question Presented 8th Circuit Decisions:
US v Harlan (February 16, 2016)
US v. Cavanaugh (July 6, 2011) 9th Circuit Decisions:
US v. Bryant (July 6, 2015)
US v. Bryant (September 30, 2014) 10th Circuit Decision:
US v. Shavanaux (July 26, 2011)
Join the Conversation
Related Stories
Supreme
Court enters final stretch of historic yet unusual term (6/20) Noah Feldman: Supreme Court puts more Indian people in federal prison (06/16)
Supreme Court decision hailed as a victory for tribal sovereignty (06/14)
Matthew Fletcher: Takeaways from Supreme Court's new decision (06/14)
Supreme Court upholds use of tribal convictions in federal system (06/13)
Supreme Court debates 'inherent' tribal sovereignty in new ruling (6/9)
Supreme Court posts audio from hearing in domestic violence case (04/25)
SCOTUSBlog: Supreme Court has few questions in Indian law case (4/20)
Supreme Court case prompts spirited defense of tribal judiciary systems (4/19)
Turtle Talk: Commentary on oral argument in Supreme Court case (4/19)
Supreme Court ready to hear fourth Indian law case on the docket (4/18)
Bill in Senate expands tribal jurisdiction over non-Indian offenders (04/14)
Mary Annette Pember: Missing and murdered Indian women go forgotten (04/14)
Native Sun News: Wheels of justice slow for Oglala Sioux woman (04/08)
Vacancy on Supreme Court already impacts high-profile cases (03/30)
Leader of Navajo Nation pushes for action on Supreme Court pick (03/22)
Chair of Sault Ste. Marie Tribe calls for action on court nominee (03/17)
Supreme Court nominee comes with some Indian law experience (03/16)
Editorial: Scales of justice often lean wrong way for Indian people (03/15)
Alaska Natives seek fair consideration of Supreme Court nominee (03/14)
Supreme Court schedules hearing in Indian Country domestic violence case (03/11)
Diane Humetewa not under consideration for Supreme Court seat (3/11)
Gyasi Ross: Nominate Diane Humetewa to serve on Supreme Court (03/09)
Joe Biden: Senate Republicans must act on pick for Supreme Court (03/04)
Aaron Payment: Tribal sovereignty hangs in the balance at Supreme Court (02/29)
Steve Russell: Looking for an unbiased justice on Supreme Court (02/29)
Steven Newcomb: Justice Scalia didn't know anything about Indian law (02/26)
Updates from Day 2 of National Congress of American Indians winter session in D.C. (02/24)
Stakes raised as Supreme Court weighs domestic violence case (2/16)
John Lavelle: Supreme Court weighs key tribal sovereignty issue (2/10)
Samuel Winder: Indian defendants face harsher criminal penalties (2/4)
Ex-US Attorney welcomes review of domestic violence case (12/17)
Supreme Court agrees to review yet another Indian law dispute (12/14)
Former US Attorney backs review of domestic violence case (11/13)
Obama asks Supreme Court to hear domestic violence case (11/11)
Vice President Joe Biden reflects on triumphs of Obama's Indian policies (10/28)
Tribes still waiting on funds from Violence Against Women Act (10/16)
Pioneering tribes share experiences with prosecuting non-Indians (10/7)
DOJ awards $97M in grants for public safety in Indian Country (09/16)
Alaska to recognize tribal domestic violence protection orders (07/31)
Congress fails to provide funds to help tribes comply with VAWA (07/29)
Ambassador Harper discusses violence against indigenous women (07/09)
9th Circuit divided on tribal convictions in domestic violence cases (7/7)
Native Sun News: Oglala leader blames deaths on domestic violence (07/06)
Supreme Court won't accept tribal domestic violence case (3/19)
Supreme Court won't hear Indian domestic violence case (02/21)
Two Indian domestic violence cases before Supreme Court (12/12)
10th Circuit allows use of tribal court conviction in federal court (7/27)
8th Circuit accepts tribal court convictions for federal prosecution (7/7)
