Matter of Opinion 4/1996

It's A Matter Of Opinion

by elmer m. savilla
March 1996





Will we live and die by the courts?





On March 26, the US Supreme Court decided that the power of Congress was limited by the Constitution. Now I wonder why no one thought of that before? America's EAGLE has long questioned the constitutionality of Congress' assumed plenary power over Indian affairs.

In the suit brought against the state of Florida by the Florida Seminole Tribe, in a case involving the failure of the state to negotiate a compact which would have allowed the tribe to conduct casino-type gambling, the high court narrowly ruled that the 11th Amendment has always been interpreted as reinforcing the sovereign immunity of states, meaning that the state cannot be sued in a Federal court by an individual or an Indian Tribe without its consent. This brings up some serious questions about our Federal court system AND the Supreme Court.

Question: Why does the perception persist that our Federal courts are becoming more politicized than ever? Justice and fairness seems to have become a commodity in our fair land and the Supreme Court, where Justice is supposed to be blind (color blind, too), is almost a mirror-image philosophically of the Republican Congress.

Now, there are other analysts around our capital city who have noticed the high court's shift away from the center. Here we have a chief justice and four others who hewed the party line long before they were nominated, and frankly, that's why they were chosen. Two of the most outspoken right-wingers before they ever got on the bench were chief justice Rehnquist, who served Republican presidents faithfully since joining the court in 1971 and was later appointed as chief justice by Reagan in 1986, and Justice Clarence Thomas who was determined to be confirmed come Hell or high water. He would have served as a lawn jockey at the White House if it would get him appointed to the Supreme Court. Justice Sandra Day O'Connor has a large ranch back in Arizona and has no reason whatsoever to root for the little guy. As for Scalia and Kennedy, well...

Under Rehnquist's leadership the five have been trying to quietly shift governmental power from Congress to the states. They are well on the road to success and the heck of it is, they are all relatively young people and they will be around awhile.

Chief Justice Rehnquist makes no bones about his view that in the past, Congress intruded on state control unconstitutionally. What Rehnquist wants is for the federal government to leave the states alone, which in itself may not be an entirely bad idea. Over the past centuries it has been a heavy-handed government that has caused any number of civilian casualties and armed revolutions. Examples: the Revolutionary War, the Civil War, the second Wounded Knee incident, the incident in Waco, Texas, the Ruby Ridge incident in Idaho, and the present stand-off between a civilian militia group and the fed's in Montana.

Publicly, Rehnquist has said that under the Constitution "all power resides in the people of the states." Sandra O'Connor wrote that "the true essence of federalism is that the states...have legitimate interests which the national government is bound to respect." The problem to come for Native Americans is that the concept of Federalism has no place in it for sovereign Tribal Governments.

The premise of the court's views, as expressed by Rehnquist and O'Connor may be arguable, but for Native Americans who for years have said, "We have treaty rights," and "We are sovereign," the time to put up or shut up may be near. As respected Lakota lawyer Sam Deloria told a gathering in 1994, "Sovereignty, use it or lose it." It may already be too late to use it. The writing on the wall now is that nowhere in their discussions did the Supreme Court mention the phrase "sovereign tribes," instead the word "individuals" was used in place of the Seminole Tribal Government.

The primary issue in any lawsuit to enforce treaties or sovereignty should not be a gambling issue. Gambling is the wrong venue on which to stake tribal futures.

This ruling in Seminole Tribe of Florida v. Florida et al, in a gambling issue, is a far reaching ruling which will touch on more than the gambling issue not only for Native Americans, but for the nation as a whole. It's effect is to reduce the power of Congress to allow lawsuits in a Federal court against states for a failure to comply with federal legislation which requires the state to deliver services or certain rights under federal legislation.

Historically, America's native tribes have not been united in many issues--but where unity is especially needed is in the matter of important litigation involving repression of their sovereign rights. Those cases which involve national issues, i.e., those which will affect every tribe without exception, e.g., sovereignty, trust, and constitutional issues ought to be carefully considered by all Native American nations before the suit is filed.

Another important question which Native American Tribal Governments should be considering, if they're not doing so already, is, "What happened to the other part of the Constitution?"

You remember, that's the part which acknowledged the Native American status of nationhood, the part which acknowledged that treaties with Native Americans were "the law of the land" and that Congress could only deal with the Native American nations in matters of commerce or to make treaties. Nowhere in that same US Constitution does it bestow on Congress full plenary power over all of Indian affairs, i.e., the power to make laws and regulations which affects the daily life of "enrolled" Native Americans from birth to death.

Another question is "Since when did the status of Native American nations become reduced to that of an "individual?"

If the Federal government, which includes the US court system, has recognized the sovereign status of Native American nations in word, deed, and writing, when did they reverse it? If a sovereign nation can be reduced by our courts to the status of an individual, the Native American individual is also reduced and is under the complete power of the state. The individual is no longer a citizen of his or her indigenous nation, except when it suits the motives of the state or Federal government.

The Supreme Court justice's were careful in the wording of their decision to not use the words Indian Tribe or to even hint at a tribal sovereign status. It appears that they deliberately wanted to subtly drive another nail into the coffin of "tribal sovereignty" for purely political reasons. The justices who held the hammer which drove the nail are now waiting to decide other cases which they have already said they oppose: minimum wage legislation and affirmative action cases.

If the Seminole Tribe had studied the issues just a little more, they might have based their case on something other than questionable legislation which required tribes to give up that sovereignty to the state just to operate a casino. It probably never occurred to them that their sovereignty, if real, already gave them that right as well as among other things, the right to practice religion in their own way. Yet tribes all over the country jumped for joy when the Congress passed the American Indian Religious Freedom Act, as if it couldn't happen any other way. Go figure.

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