Supreme Court nominee John Roberts Jr. might be admirable in many respects,
but as a private attorney he committed an act of intellectual dishonesty
that is drawing attention from one group — the American Indian — that
already fears the worst from the current court.

In a brief submitted to the Supreme Court in 1997, Roberts distorted the
language of a well-known precedent in a way that can only be called a
blatant misrepresentation. Writing for the state of Alaska in its suit
against the Native village of Venetie’s tribal government, he twisted a
quote from the court’s 1886 United States v. Kagama decision to say
“reservation Indians … were often ‘dead[ly] enemies’ of the States.” The
inserted brackets created a statement evoking a deep-seated stereotype of
marauding savages, scalping and murdering innocent pioneers. But it is
exactly the opposite of the meaning of the famous opinion by Justice Samuel
Freeman Miller, a Lincoln appointee.

The original passage, which is often cited in Indian country, is worth
quoting in full, because a lot hangs on it.

Miller wrote: “These Indian tribes are the wards of the nation. They are
communities dependent on the United States — dependent largely for their
daily food; dependent for their political rights. They owe no allegiance to
the states, and receive from them no protection. Because of the local ill
feeling, the people of the states where they are found are often their
deadliest enemies. From their very weakness and helplessness, so largely
due to the course of the dealing of the federal government with them, and
the treaties in which it has been promised, there arises the duty of
protection, and with it the power.” [Emphasis added]

Instead of the lethal enemies of the states and their citizens, the Indians
of that day were more often their victims. The issue involved the trial
jurisdiction for a murder on the Hoopa Valley reservation within Humboldt
County, Calif. Although the crime involved only Indians, the settlers of
northern California had made massacres of local tribes into something of a
weekend sport. Recognizing that background, Miller ruled that “major
crimes” prosecutions of reservation Indians belonged in federal court, not
state courts. States simply couldn’t be trusted with power over the tribes.

In spite of changed circumstances, similar issues arose in the case that
Roberts argued. The Gwich’in Indian village of Venetie in north-central
Alaska had gained control of land allotted to Native corporations under the
1971 Alaska Native Claims Settlement Act and proceeded to exercise the
sovereign power of taxation. Alaska hired Roberts to argue that the ANCSA
lands were not “Indian country” like the tribal lands of the lower 48.
Instead of constituting a separate sovereignty, the state argued, Native
corporation lands had been integrated into the state and were subject to
state and local tax and regulation.

Along the way, Roberts praised the Native corporate scheme, which gave
tribal members shares in state-chartered for-profit businesses. (It also
allowed the free sale of Native land, a great help to development of North
Slope oil.) He called it a “dramatic break” from the “paternalism” of
reservations in the lower 48. Previous Indian policy, he wrote, “has left
in its wake a decidedly mixed legal legacy.” He properly attacked some of
the undeniably racist and condescending assumptions behind the federal
treatment of Indians as its wards.

But in disparaging the “paternalism” of the reservation, Roberts offered
the alternative of assimilation. The last two versions of this policy, the
Allotment Act of 1887 and the termination and relocation program of the
Eisenhower years, were unmitigated social disasters. Roberts deliberately
ignored the third choice, self-determination.

Yet self-determination, the exercise of tribal sovereignty, has impeccably
conservative credentials. It was formally announced as federal policy by
Richard Nixon just two years after ANCSA. Every president since, including
the present incumbent, has endorsed the principle that Washington has a
“government-to-government” relationship with the tribes. Although deep
social problems remain in Indian country, the past decades have also seen
dramatic successes. As Harvard professor Joseph Kalt once put it,
self-determination is not only the most successful federal policy for
alleviating Indian poverty; it is the only federal policy that has ever had
any success at all.

This policy requires recognition of the deeply ingrained Indian insistence
on tribal sovereignty, the stubborn reminder that Indian nations were
governing themselves on this continent long before the arrival of the
European and that their rights as constituents of the United States are
co-equal with “states’ rights.” One of the most puzzling inconsistencies of
some present-day conservatives is their hostility to this principle. It
appears that self-rule, self-reliance and tax cuts for economic development
are fundamental tenets of the Right, unless Indians are involved.

For better or worse, Roberts would be one of the few Supreme Court justices
with any background in Indian law. Indian law practitioners understand that
he gave tribal sovereignty short shrift in his brief because he was an
advocate for a state government. Lawyers tend to be forgiving of the
arguments that their colleagues make on behalf of clients. But Indian
country is deeply concerned to know if he will respect the tradition of
tribal rights, or at least quote the precedents properly.

Jim Adams, Ph.D., is a research fellow of the American Indian Policy and
Media Initiative at Buffalo State College and is the associate editor of
Indian Country Today.