In 2001, the U.S. Supreme Court rendered its decision in the case Nevada v.
Hicks. The Hicks case resulted from the execution of a search warrant by
Nevada game wardens on the property of Mr. Floyd Hicks, on the Fallon
Paiute-Shoshone Reservation. Mr. Hicks filed a civil action against Nevada
game warden officials in Fallon Paiute-Shoshone Tribal Court.

Eventually the case reached the 9th Circuit Court of Appeals, which held in
Hicks’ favor. However, Justice Scalia delivered the opinion for the Supreme
Court, holding that, while state officials may be sued in state or federal
court for damaging conduct and civil rights violations involving actions on
Indian reservation lands, state officials are immune from lawsuits in
tribal courts.

In one of the most troubling statements found in the Hicks decision, Scalia
wrote: “‘Ordinarily,’ it is now clear, ‘an Indian reservation is considered
part of the territory of the State.’” Furthermore: “When … state
interests outside the reservation are implicated, States may regulate the
activities even of tribal members on tribal land …” Clearly, on the basis
of these two sentences alone the Hicks decision sets a terribly damaging
precedent that significantly erodes some of the most commonly understood
and fundamental principles of federal Indian law.

While recently going over the legal briefs filed in the Hicks case, I
wondered why federal Indian law attorneys so often presume U.S. authority
over Indians as their starting point. For example, I noticed the following
language in the brief filed by the Native American Rights Fund (NARF) on
behalf of the Fallon Paiute-Shoshone Tribe: “… in Cherokee Nation v.
Georgia … the Court held that an Indian tribe could not engage in foreign
relations. This result stemmed from the treaty involved in which the tribe,
as with tribes generally, had placed itself under the authority of the
United States.” (emphasis added.)

Not recalling this language from the Cherokee Nation ruling, I went back
over the decision, and found only one sentence that somewhat resembles
NARF’s characterization: “They [the Indians] acknowledge themselves in
their treaties to be under the protection of the United States.” (emphasis
added.) Notice that the Court used the word “protection” rather than the
word “authority,” and importantly, Marshall said in Worcester v. Georgia
that “protection” agreed to by treaty in no way diminished the sovereignty
or independence of Indian nations.

Some might say the difference between the NARF brief and the precise
wording of the Cherokee Nation decision is simply a matter of two different
interpretations. But then why not go ahead and interpret the word
“protection” that the Court actually used in Cherokee Nation rather than
replace that word with “authority,” a term much more damaging to Indian
nations by unnecessarily buying into the presumption of U.S. plenary power
over Indians?

James Anaya, Robert A. Williams, Julie Fishel, and Jennifer K. Harvey are
listed as the attorneys of record in the legal brief filed on behalf of Mr.
Hicks. This brief contains the following statement about the doctrine of
discovery: “The doctrine’s effects… operated only in the past, at
discovery, and those effects were quite limited. The doctrine does not
continue to affect the present rights and sovereignty of Indian tribes
protected under United States law, beyond the rights necessarily divested
under the doctrine.”

The Hicks attorneys said that the Johnson v. McIntosh ruling “makes clear”
that “inherent tribal rights which survived” the doctrine of discovery “can
only be diminished or extinguished by purchase or conquest, i.e., by the
exercise of Congressional plenary power.” The attorneys thereby identified
“plenary power” with the Johnson ruling, while bundling “purchase,”
“conquest,” and “plenary power” together. They did not explain how
“inherent” rights could be diminished or extinguished if they are truly
inherent.

Given that the claim of “Congressional plenary power” over Indians is
ongoing in the present, and given that “plenary power” stems from the
doctrine of discovery, doesn’t this directly contradict the claim made by
the attorneys for Hicks that the doctrine of discovery “operated only in
the past” and “does not continue to affect the present rights and
sovereignty of Indian tribes?” Indeed, the very claim on the part of the
United States that it has plenary power “over” Indians, as well as its
actions on the basis of that claim, operate in the present and therefore
“affect the present rights and sovereignty” of Indian nations and peoples.

There are other inconsistencies in the Hicks brief. As mentioned above, the
attorneys for Hicks said that the Johnson ruling held that the doctrine of
discovery had only the two affects on the Indians: 1) preventing them from
selling their lands without congressional permission (this claim is
contradicted by the 1835 ruling Mitchell v. U.S.) and, 2) preventing them
from entering into relations with countries other than the United States
(Vine Deloria and DeMaille’s two-volume treaty study shows this claim to be
historically false). So, then, where did the third limiting affect come
from, namely, “Congressional plenary power”? Strangely, in their legal
brief the attorneys for Hicks never specifically identified the source of
“plenary power.”

The attorneys’ omission of the source of plenary power is made all the more
strange by other parts of the Hicks brief favorable to Indians. For
example: “As this Court has acknowledged in Blatchford v. Native Village of
Noatak …, Indian tribes were not parties to the constitutional
convention. Hence they are not subject to constitutional limitations on
their authority …[citing Santa Clara Pueblo v. Martinez].”

Given the above quote, the question arises: If Indian nations are not
subject to constitutional limitations on their authority because they were
not participants in the formation and ratification of the Constitution,
then what is the unconstitutional or non-constitutional source of the
assumed limitation on the authority of Indian nations known as the plenary
power doctrine? The only readily available answer seems to be “the doctrine
of discovery.”

The 18 states that jointly filed an amicus brief in the case, said the
attorneys for Hicks, were arguing that Nevada game wardens are immune from
“tribal courts” on the basis of “the colonial era doctrine of discovery or
by related attempts to characterize tribes as inherently inferior
sovereigns.” But by conceding to “Congressional plenary power,” the
attorneys for Hicks were themselves characterizing “tribes as “inferior
sovereigns.”

The attorneys for Hicks offered a partial assertion of Indian nation
sovereignty when they stated: “The ‘state of things,’ Johnson & Graham’s
Lessee v. M’Intosh …, today must be one in which the contemporary reality
is reconciled with an understanding of tribes as – like states – having
retained ‘the dignity, though not full authority of sovereignty.’”

I am awaiting the day when attorneys who work in the field of federal
Indian law will truly and bravely advocate for Indian nations and peoples
with the following argument: “As originally free and independent sovereigns
pre-existing the Constitution, Indian nations have the inherent right to
exist free and unconstrained by the non-constitutional assertion of plenary
power made by the United States on the basis of the doctrine of Christian
discovery and dominion.”