With little fanfare behind the winds of Katrina, a historic moment has
arrived in the relations of American Indian nations with the constitutional
structure that now rules the land. The death of Chief Justice William H.
Rehnquist Sept. 3 opened a double vacancy on the U.S. Supreme Court and the
possibility that it could take a decisive turn on Indian law for the next
generation.

In some respects, the passing of Rehnquist might lessen the immediate
impact. By giving nominee John Roberts a pre-confirmation promotion and
putting him forward not as a justice of the court but as chief justice of
the United States, President Bush actually enhanced the temporary
continuity of the court. Roberts is said to be much closer to the outlook
of Rehnquist, for whom he once served as law clerk, than he was to Sandra
Day O’Connor, whom he was originally meant to replace. O’Connor conditioned
her retirement on confirmation of a successor, so she might stay on the
bench well into the upcoming fall term.

But both vacancies will eventually be filled, and more might open. (The
best friend of tribal sovereignty on the court, John Paul Stevens, is also
its most senior member.) Indian nations have an urgent task ahead in
persuading the new appointees — and many of the current incumbents — that
self-determination and government-to-government relations are the most
just, practical and theoretically sound principles for an accommodation
between the first self-governing inhabitants of this country and its
present regime.

The word “accommodation” is the crux. This newspaper has long rejected the
premise that Indian law can be defined solely by the U.S. Constitution and
its institutions, including the Supreme Court, by unilateral fiat. The law
schools that teach that Congress has “plenary power” over tribes are
leading Indians down a path that will quickly peter out in a morass of
unprincipled laws. As our columnist Steven Newcomb has systematically
demonstrated, there is no validity left in the principles, such as the
“right of Christian discovery,” that underlie Euro-American jurisprudence
toward the original inhabitants.

“Sovereignty” is shorthand for the most promising alternative: the
principle that the tribes, the political and social organizations that
predated contact, have original rights that survive and can even thrive
within the United States. Constitutional government, in fact, has to
recognize these rights to make good on its claim to be a rule of justice
and not brute force.

There are traps in the word, which derives from 16th-century French
political theory. A great many practical aspects have to be worked out (and
have been worked out). But our experience indicates that the vast majority
of Indian country eagerly and energetically embraces this basis for
accommodating and contributing to the dominant culture. In the three or
more decades since President Nixon embraced the obvious benefits of Native
self-determination, some tribal enterprises have flourished to the point
where they are the economic engines of their regions.

Some Supreme Court decisions furthered this growth under Rehnquist’s
tenure. (The Cabazon ruling, of course, was the basis for Indian gaming,
although that opportunity is only part of the success story.) But others
have whittled away at its core. They show unease with the idea of
self-governing Indians and, yes, substantial confusion about the basic
principles.

An anecdote from Rehnquist’s career shows the sometimes trivial origin of
the Supreme Court’s floundering. According to the Robert Woodward and Scott
Armstrong book “The Brethren,” Rehnquist was thrust into Indian law because
of a skit he produced at the court’s 1976 Christmas party. The parody of
President Ford’s search for a successor to Justice William O. Douglas did
not amuse then-Chief Justice Warren Burger. As a rebuke, wrote Woodward,
Burger assigned Rehnquist only one case for the next term: “an
insignificant Indian tax dispute in Montana [Moe v. Confederated Salish and
Kootenai Tribes of the Flathead Reservation].”

“Rehnquist had nothing but contempt for Indian cases,” wrote Woodward. But
“never one to let an opportunity pass,” he “turned an opinion that was in
favor of Indians into one that indicated that in most cases they would
lose.”

We grant that Woodward should be taken with a grain of salt. (No Indian tax
case is “insignificant” — they all cut to the heart of sovereignty.) But
his frivolous treatment is almost justified by subsequent cases decided
with a lack of principle and, sometimes, with downright ignorance.

The criticism of the court would probably be different if Roberts becomes
chief justice, as seems very likely. The concern with Roberts is not that
he knows too little about Indian law, but that he knows a great deal —
from the wrong perspective. He has been a major influence on the court,
even as a private attorney; but he has been hostile to the expansion of
tribal sovereignty, at least in its territorial scope. His imprint shows
clearly on the two court rulings prohibiting the “unilateral” extension of
Indian country.

Although he clearly understands the meaning of sovereignty, his major
writing on Indian law, his 1997 opening brief in State of Alaska v. Native
Village of Venetie Tribal Government, systematically obscured it. He
denounced the paternalism of the reservation system and its “decidedly
mixed legal legacy.” He praised the “new approach” of the Alaska Native
Claims Settlement Act of 1971, a spiritual successor to the Dawes Allotment
Act of 1887.

ANCSA, like Dawes, dissolved reservations to make the land easier to
exploit for the mainstream economy. True, it gave Natives a greater stake,
through inalienable shares in Native corporations, but the conversion
subjected them to state control in the name of assimilation. And once the
land was taken from tribal control, as Roberts persuaded the court with an
impact that lasted through this year’s City of Sherrill v. Oneida Indian
Nation of New York decision, it couldn’t revert “unilaterally” to sovereign
status.

Roberts said this approach was “freed from outworn entanglements with an
Indian policy formed for a different time and place,” but within two years
federal policy veered in an opposite and far more fruitful direction.
Nixon’s support of self-determination fanned the “dying embers of
sovereignty” within the territorial base of the reservation. There is no
question now which path Indian country wants to take.

Leading Indian law organizations are taking “a measured response” to
Roberts, hoping that he argued as he did in Venetie because he represented
the state of Alaska. Lawyers are very forgiving of the positions their
colleagues take on behalf of clients. But it will be an urgent task of the
hearings, which begin Sept. 12, to learn where Roberts truly stands on
tribal sovereignty. We hope senators are lined up to question him closely
on this principle and possibly even to educate this highly intelligent man
on its benefits. This is clearly the historic moment for making the Native
case.