Now that Justice Anthony Kennedy has announced his retirement from the U.S. Supreme Court, Indian Country is again asking what a new justice could mean for tribal interests. President Donald Trump’s pick for Kennedy’s replacement, Circuit Judge Brett Kavanaugh, has little experience with Indian law — something that’s in keeping with the court’s history.
Federal Indian law is often unfamiliar territory to Supreme Court justices, even though the court makes significant decisions affecting tribal sovereignty, criminal jurisdiction, and land and water rights. That lack of understanding is reflected in the court’s decision-making: Over the last three decades, the court has ruled against tribal members and nations 72 percent of the time. Now, with the recent addition of Justice Neil Gorsuch, who is fluent in Indian law, and the departure of Kennedy, who actively voted against tribal interests, it remains to be seen how a new combination of justices will affect Indian Country.
“Things have improved in the last 30 years, but the percentage of win-loss is still pretty bad,” said Alex Tallchief Skibine, professor of law at the S.J. Quinney College of Law at the University of Utah.
Starting in the 1820s, the Supreme Court laid the groundwork for the legal relationship between tribal, federal and state governments, acknowledging that tribal nations hold legal and political rights and are on par with the federal government. In the following decades, the court often deferred to Congress, which shifted its policy from subjugation to assimilation, and then to termination of federally recognized tribes in the 1950s. Few tribal nations could afford to hire lawyers.
“That meant they couldn’t defend themselves,” said Charles Wilkinson, Moses Lasky professor of law emeritus at the University of Colorado. “They had no money, and they couldn’t bring cases to assert their rights.”
Eventually, federal policy, spurred by congressional action, shifted towards encouraging self-determination. The modern era of Indian law began in the late 1960s with a series of decisions that expanded the purview of tribal law.
Those favorable decisions came about in part because Indigenous people finally received fair legal representation in court, a change that reflected the broader social and political movements for equality in America during that time. With more access to free legal services, along with newly acquired wealth from Indian gaming, tribal governments were able to challenge corporations and the state when treaty rights were threatened.
“The tribe was optimistic in winning a lot of those battles because they had a lot of positive decisions up until the 1980s,” Skibine said. “And then the court kind of caught on to them.”
After that, a number of decisions during Chief Justice William Rehnquist’s time gave states unprecedented jurisdiction over tribes. Duro v. Reina declared that tribes have no jurisdiction over nonmembers, for example. Tribes lost roughly 75 percent of the cases brought before the court.
That figure has not improved drastically over time. The justices are primarily from the coasts, almost entirely with East Coast educations and with little experience with Indian Country. Justice Stephen Breyer has made efforts to visit and understand tribal courts, and Justices Sonia Sotomayor and Neil Gorsuch have a thorough understanding of Indian law — in Sotomayor’s case, because she made a concerted effort to learn. “Because it was an area that I had no prior exposure to, I had to start from the beginning,” Sotomayor told an Oklahoma news station in 2014. Gorsuch, meanwhile, had experience on the 10th Circuit Court of Appeals, which includes five Western states and 76 tribal nations.
That leaves six justices with little to no experience in Indian law who are wary of recognizing tribal jurisdiction, specifically when it involves power over non-Natives. Dollar General Corp. v. Mississippi Band of Choctaw Indians came to the court in 2015. The case resulted in a 4-4 draw (due to the death of Justice Antonin Scalia) about whether or not the Choctaw could prosecute a non-Native man for allegedly sexually harassing a tribal citizen on tribal land.
The court’s last term offered little indication of how the current court will treat tribal issues, despite a high number of Indian law cases. The biggest case, brought by 21 Pacific Northwest tribes against the state of Washington, raised the question of how far treaty rights protect the tribes’ right to salmon. The court was tied, thus affirming the state’s obligation to help protect the environmental conditions salmon need to survive — a massive win for tribes.
When Kavanaugh’s confirmation battle begins in Congress, questions about his experience with Indian law will likely not take center stage, given other concerns over his judicial record. But with the power to affect all 573 federally recognized tribes in the nation, the next justice has the potential to shape Indian law for decades to come.
Anna V. Smith is an assistant editor for High Country News.