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Steven Paul McSloy

excerpted From: Canary:" a Bird's Eye View of American Indian Law and Its Future, 37 New England Law Review 733-740 (Spring 2003) (63 Footnotes  omitted)

American Indian law is often metaphorical. As Chief Justice Marshall stated in one of the foundational Indian law cases, the relationship between American Indian nations and the United States is like "that of a ward to his guardian." The classic Indian law metaphor, however, is the "miner's canary." As Felix Cohen, the Blackstone of American Indian law, wrote in 1953, the year he died:

[T]he Indian plays much the same role in our American society that the Jews played in Germany. Like the miner's canary, the Indian marks the shifts from fresh air to poison gas in our political atmosphere; and our treatment of Indians, even more than our treatment of other minorities, reflects the rise and fall in our democratic faith. Cohen was right, of course, if a bit Manichean. But we must remember what Cohen was writing about: Federal Indian Law. He was writing as an observer, looking at Indian law from a sympathetic perspective but, nonetheless, he was wearing the miner's headlamp, looking at the canary.

On the other hand, the canary, or the Indian, is like the protagonist in the Talking Heads song who is asking himself, "Well, how did I get here?" The answer, of course, is that the canary was brought down into the coal mine, just as the Indians were, as scholars have politely put it, "incorporated" into the United States. Indian nations were at first just pushed westward, but then gold was discovered in California and settlement leapfrogged the Indians, locking them in the middle--in the coal mine, if you will.

And what sort of place was that? A constitutional federalist republic, split along two major axes, as per Federalist No. 51: the state/federal axis and the separation of powers axis. Indians have been constantly buffeted along these dimensions ever since. David Getches has described Indian law as the "crucible for forging a larger agenda important to majorities of the Court." Similarly, Richard Monette has called tribes "federalism['s] football," but I think the canary metaphor goes the furthest. Remember, the miners did not just plunk the canary down somewhere; they carried it around to explore new areas--to test them, to find the seams and fissures, the dangerous places, the safe harbors. Indians, despite the good arguments by Barsh and Henderson, Carol Tebben and others, are not really part of federalism. They are an instrument of federalism, a means by which the dominant society has explored the boundaries between state and federal power and among executive, legislative, and judicial power.

A cursory review of the Supreme Court's major Indian cases reveals this dynamic. In the 1831 case of Cherokee Nation v. Georgia, an Indian nation challenged the power of the State of Georgia to apply its law in Indian territory. This was an easy result to forecast--the State won. A year later in Worcester v. Georgia the Court was presented with the same case, but Indians were not parties. A Vermont Yankee who was a federal employee living in Indian country was imprisoned by a southern state demanding he take a loyalty oath. The State lost on the ground that its laws were "repugnant to the Constitution, laws, and treaties of the United States." As a result of this Supreme Court decision, the Cherokees won a ringing endorsement of their sovereignty, yet they were not parties in the case.

The 1871 Act that ended treaty-making with Indian tribes also was not about Indians. Instead, it reflected a separation of powers fight. The House, tired of appropriating money for treaties that only the Senate had a role in ratifying, with the Senate, struck a constitutional (or unconstitutional) compromise, ending treaty-making and replacing it with the regular congressional legislative process. Indians were the subject of the Act, but they were bystanders to its passage.

Another example is the 1883 Crow Dog case. By the 1870s, Indians were no longer a frontier concern but rather an "Interior" matter, and the Bureau of Indian Affairs (BIA) was feeling fettered in its efforts to control them. The Commerce Clause, the power constitutionally delegated to the federal government regarding Indians, did not authorize things like criminal laws. To change this, the BIA created a sham case--one it wanted to lose--after Spotted Tail, a Chief popular in the East, was murdered by another Indian, Crow Dog. As Professor Sidney Harring's book uncovered, the BIA actually paid Crow Dog's legal bills in order to get the case to the Supreme Court, where it was held that tribal justice was the only applicable jurisdiction, and Crow Dog would not hang under federal law. The federal government lost the case, but, as predicted, the ensuing outrage about "Red Man's Justice" led to the passage of the Major Crimes Act shortly thereafter--the first direct application of federal criminal law to inter-Indian crimes and the fulfillment of the BIA's long-sought goal. The next year, in Kagama, also an inter-Indian murder case, the BIA obtained another decision it wanted. The Supreme Court held that the federal government had the power to pass laws regulating Indians even if such power was not authorized by the Constitution--even if the power had never been delegated to the federal government by the states or by the people.

On the strength of this holding, Congress passed the General Allotment Act the following year, resulting in the loss of 80% of the remaining Indian-held lands and completing the settlement of America. Commentators frequently call Kagama an "extra-constitutional" case, but in reality it was a "supra-constitutional" case, as it increased federal power beyond the federalist design. Crow Dog and Kagama involved only two dead Indians and their Indian murderers, yet they were used to create the basis for federal plenary power over the Indians and the concomitant loss of huge portions of the continent to settlement by states.

Another example of Indians being caught in a federalism firefight is the 1968 Indian Civil Rights Act, which at first blush seems a noble enterprise, applying the Bill of Rights statutorily to Indian tribes. Yet Indians did not lobby for it. It was a states' rights issue introduced by Sam Ervin, Senator from North Carolina, to take the heat off civil rights violations of southern states by pointing at tribal governments as more egregious violators. However, when the law later came before the Supreme Court in 1978 in Santa Clara Pueblo v. Martinez, the Court realized that it did not want to have to adjudicate all those cases. There was no new money for judges or courthouses from Congress, so the Court left enforcement up to the tribes, denying any federal cause of action under the law despite the fact that the law was an almost verbatim recitation of the Bill of Rights.

The 1978 Indian Child Welfare Act is another seemingly noble statute, one for which Indians did lobby. States had acted inappropriately in removing Indian children to non-Indian foster homes, and the tribes successfully lobbied Congress to uphold tribal jurisdiction over Indian children. In the 1989 Holyfield case, a state court challenged tribal court jurisdiction over adoption matters and lost--but why? The state lost because the federal law was clear in preferring tribal court jurisdiction, and thus, it was a supremacy issue. However, had the case involved inherent tribal authority, as opposed to federal power, the result would have been much different, as it was in the recent Strate, Atkinson, and Hicks cases.

It is the same story with Indian land claims. Whatever the history is regarding the 1790 Non-Intercourse Act, whether it was supposed to apply in the original thirteen colonies or not, the text is clear--no state can buy Indian land. Thus, 200 years later, the Supreme Court held that a state could not have ignored such a clear federal command grounded in the Commerce Clause of the Constitution, even if the case was not filed for two centuries. If, however, a federal command was not so clearly grounded in constitutional bedrock and sought to subject a state to federal court jurisdiction, you get Seminole Tribe v. Florida and an opposite result. In enacting the Indian Gaming Regulatory Act, Congress was explicit in subjecting recalcitrant states to federal court jurisdiction to resolve disputes about gaming, but the Supreme Court in Seminole held that such jurisdiction violated state sovereignty.

Justices Rehnquist, Brennan, and Scalia all have (or had) their miner's headlamps on, dragging the canary hither and yon in search of doctrine, testing the boundaries of the federal/state relationship and the interrelationships among the three branches, including their own. The usual result, however, is that the bird dies.

So what are Indian nations to do? Avoid being a canary. Stay out of the Supreme Court. I am glad to hear about the Native American Rights Fund's Supreme Court Project, which seeks to screen cases before they go before the Court, but to me, taking Indian cases to the Supreme Court has been prima facie malpractice for the last twenty years.

Indian nations should particularly stay away from state/tribal conflicts, and, if they are unavoidable, settle them. Couldn't somebody have just paid Floyd Hicks for his damaged stuffed sheep heads rather than let it go all the way to the Supreme Court? The only time an Indian nation should take a state to court is if the federal government is strongly and soundly on the Indian nation's side, thereby changing the federalism calculus. For example, in the Oneida, Mohawk, and Cayuga land claims, the courts essentially have dismissed all suits against private landowners, saying there can be a complete recovery from the state. This would be problematic but for the fact that the federal government has strongly intervened in all of the cases. If an Indian nation feels the need to sue somebody, it should sue the federal government--it at least has a trust responsibility of some sort.

In general, Indian nations should stay out of court. Cases force a decision-- they put the tribe in the coal mine. Bringing a case means that someone else is doing the deciding. After Justice Rehnquist became ascendant, the courts were no longer the answer. Maybe it is my corporate lawyer bias, but what tribes should do is make deals. Compacts and quasi-treaties have been made about water, roads, taxes, gaming, cross deputizations, full faith and credit agreements, and even land claims. Indian nations should engage other governments and be proactive, not just sit around and then sue when some action is taken against them. Indian nations need to be practical sovereigns--not all or nothing litigants.

The United States is the most powerful nation on earth. Small nations, not just Indian tribes, get caught up in its wheels. Like the canary, they get used by the United States as it experiments in its ongoing journey of self-discovery about its society and federalist structure. Indian nations should thus do what small countries do--make deals. If you have a strong suit, like oil or water, play it. If you have a weak hand, at least market what you do have. Indian gaming, for example, is not a recent idea. Look at Monaco, a principality smaller than many reservations and more controlled by France than Indian tribes are by the United States. The Grimaldi princes, however, realized they were just sovereign enough to legalize gambling when France and Italy banned it. Up in the Pyrenees, Spanish and French people today flock to tiny Andorra to buy cigarettes, just as people in the United States do when they drive out to the reservations.

Indian nations should get out of the sovereignty talk, get out of the rights talk, and get out of the constitutional talk, because it is not going to work before the current Supreme Court. Litigation is only one weapon in the arsenal of tribal sovereignty--it should not be a tribal way of life. The best way for the canary to survive is to stay out of the mine.

[a1]. Associate, Cravath, Swaine & Moore LLP. Formerly General Counsel, Oneida Indian Nation of New York; Assistant Professor of Law, St. John's University School of Law.