WASHINGTON — For better or worse, Supreme Court nominee John Roberts knows
more about Indian law than any nominee in recent memory. Now that his
nomination has been upgraded to that of Chief Justice of the Supreme Court,
following the death of Chief Justice William Rehnquist, he could be the
major force in the court’s decisions on Native issues for the next
generation.

His hand is already evident in two important rulings. A look at his
influence on State of Alaska v. Native Village of Venetie Tribal Government
in 1998 and this spring’s City of Sherrill v. Oneida Indian Nation of New
York suggests that it will be for the worse.

(The Oneida Nation, loser in the Sherrill case, owns Four Directions Media,
publisher of Indian Country Today.)

Roberts contributed arguments — and one piece of misinformation — that
helped severely limit the scope of Indian country and tribal sovereignty.
In fact, the unanimous ruling in Venetie, written by Justice Clarence
Thomas, tracks Roberts’ brief so closely that it could count as one of his
own.

Supreme Court justices treated Roberts with unusual deference even when he
was a private attorney, suggest the transcripts of Roberts’ Dec. 10, 1997
oral argument in the Venetie case. Appearances before the Supreme Court can
be intimidating and even brutal. The justices are in the habit of
interrupting pleaders frequently, even in mid-sentence, with rapid-fire
questions, and they will curtly cut off long-winded answers.

But with Roberts they took a different tone right from the beginning. In
introducing the case, recalled one participant, Rehnquist leaned over the
bench and asked Roberts how to pronounce the name of the village. (For the
record, it is “ven-ee-tEYE”.) Rehnquist very likely had relied on Roberts
for many such details when the nominee served as his law clerk in 1981.

But the other justices turned to Roberts for what amounted to a tutorial in
tribal sovereignty. Venetie, a village of the Gwich’in people, was
asserting the sovereign right to tax, saying its land was still Indian
country. (The issue in the case was whether Congress had abolished Indian
country in Alaska when it passed the Alaska Native Claims Settlement Act in
1971. Gwich’in leaders vehemently opposed ANCSA and had tried repeatedly to
opt out.)

Justice Ruth Bader Ginsburg asked, “The label, ‘Indian country,’
apparently, if it’s proper, would allow this tax; so what else is gained by
having this label, ‘Indian country’?”

“Oh, it has broad jurisdictional significance,” replied Roberts. “If land
is Indian country, we start with the presumption that tribal and federal
jurisdiction controls, and that state jurisdiction is generally displaced.

“If land is not Indian country, state jurisdiction applies as it does in
other areas; so it has significance not only with respect to taxes, but to
environmental regulation, hunting and fishing, gaming regulation, health
and safety regulation, a broad range of day-to-day regulation. It answers
the basic question, ‘Who is in charge?’”

This is a much more balanced statement of sovereignty than Roberts gave in
his own brief for the case, but he went on to argue for his client, the
state of Alaska, which wanted to limit tribal control.

ANCSA had given aboriginal land to state-chartered Native corporations,
which could dispose of it as they wished (a useful if unnecessary condition
for the impending exploitation of North Slope oil.) But if a corporation
gave the land back to the tribe (the situation in Venetie), why, asked
Justice Stephen G. Breyer, wouldn’t it revert to Indian country?

“The reason is,” replied Roberts, “that the decision to create Indian
country is up to Congress. It’s not up to, as in this case, the two ANCSA
corporations that received the land.” The reversion to Venetie, he said,
was “a unilateral act of the corporations not approved and not joined in
any way by the government.”

The word “unilateral” sank in with the court. It resurfaced when Ginsburg
wrote the 8 — 1 ruling in the Sherrill case this March 29. The court
rejected the Oneidas’ assertion of sovereignty over former reservation land
it had repurchased because it was a “unilateral” act. “The Tribe cannot
unilaterally revive its ancient sovereignty,” wrote Ginsburg.

Roberts gave the court misinformation in his Venetie appearance that also
resurfaced in Sherrill. Justice Antonin Scalia asked him, “Is there any
other Indian country where the land in question is owned by the Indians and
not held in trust by the government?”

After mentioning the New Mexico pueblos, which owned their land in fee,
Roberts replied, “I’m aware of no other case, no case where the government
doesn’t have control over the land.”

He overlooked the lands of the Haudenosaunee (Iroquois) Confederation
within New York state. Reservations there of the Mohawk, Seneca and Oneida
are restricted fee land, meaning they can’t be sold, but they are not held
in trust by the government. They have what the law calls allodial status,
meaning their title does not derive from any other sovereign.

But Ginsburg apparently relied on Roberts rather than the facts in New York
when she framed the Sherrill decision. She wrote that the Oneidas had the
option of the Interior Department’s land-into-trust mechanism to
re-establish sovereignty. She did not seem aware that this process had
never applied to New York.

BIA officials are still trying to figure out how to apply her suggestion.
“It doesn’t quite fit,” said one.

In the hearing with Roberts, at least one justice admitted that the Supreme
Court was floundering on Indian law. Said Justice John Paul Stevens, “But
it is true, isn’t it, that … if we mix it up and get it all wrong,
Congress can always straighten it all out, either way.”

“Well, yes,” replied Roberts.