The Native American Law Students Association at Yale Law School held its first ever Alumni Achievement Awards Dinner October 23, 2014. The recipient, Kevin Washburn (Chickasaw), class of 1993, is Assistant Secretary for Indian Affairs at the U.S. Department of the Interior.
Yale College sent over the Blue Feather Drum Group to offer a welcome song and an honor song for Secretary Washburn. One of the drummers added to the enthusiasm with an announcement that the college now enrolls a higher percentage of Native students than any other ivy-league school.
Secretary Washburn well deserves the honor of receiving the Alumni Achievement Award. His long and distinguished record in academic and governmental aspects of federal Indian law attracted the attention of President Obama, who nominated him for the top position in Indian Affairs in the U.S. government.
As Assistant Secretary, Mr. Washburn holds responsibility for promoting Indian self-determination under the federal Indian law system. The position requires a delicate sense of balance, not only among competing constituencies, but—more profoundly—among competing legal principles.
Vine Deloria, Jr., described federal Indian law as “spinning off inconsistencies like a new sun exploding comets as it tips its way out of the dawn of creation” (“Of Utmost Good Faith”). Any lawyer working in federal Indian law, up to and including the assistant secretary, faces these inconsistencies. It takes a special deftness to handle competing claims for federal attention and services on one hand and competing legal principles—the “inconsistencies”—on the other hand.
Secretary Washburn demonstrated his deft touch and his commitment to do the right thing from his first week in office, when he rejected a proposed gaming compact between the Commonwealth of Massachusetts and the Mashpee Wampanoag Nation. He resisted pressure from both parties to the proposal—the Massachusetts governor (and congressional delegation) on one side and the Mashpee Wampanoag leadership on the other.
Washburn’s rejection ended up benefitting the Mashpee financially. The new compact—eventually approved—provides a better revenue-sharing arrangement between Massachusetts and the Mashpee, in keeping with Mr. Washburn’s commitment to prevent over-reaching by state parties to gaming compacts.
The terms in which Secretary Washburn couched the rejection benefitted the Mashpee in another way. The rejected compact included language apparently aimed at affirming Mashpee Wampanoag fishing rights. The rejection stated this issue may not be negotiated as part of a gaming compact.
Furthermore—and here is an example of the Assistant Secretary’s deft touch—the rejection stated that Mashpee Wampanoag fishing rights need no negotiation, because Massachusetts law already affirms those rights. This language strengthened the hand of the Mashpee Wampanoag in their effort to eliminate state and local interference with fishing rights.
The turns, twists, and inconsistencies in federal Indian law mark it as a difficult field, and as a field ripe for new analysis. This calls for special vigilance, because the forces pressing for change include not only Indians, but also anti-Indians.
Federal Indian law started out as an analytical problem. In the foundation case of Johnson v. McIntosh (1823), the U.S. Supreme Court held the doctrine of ‘Christian Discovery’ to be the basis for federal power over Indian lands. The court described the doctrine as an “extravagant pretension,” and upheld it even though it is “opposed to natural right and to the usages of civilized nations.” In other words, federal Indian law doesn’t have to be right or make sense!
Nonsense and inconsistencies are easy enough to find. In 1978, the Supreme Court went from almost completely subordinating Indian sovereignty in Oliphant v. Suquamish to affirming it as a third kind of sovereignty in the United States in United States v. Wheeler. Wheeler, in turn, was a complete contradiction of the Court’s analysis in U.S. v. Kagama about a hundred years earlier, despite which Kagama is still regarded as valid law. These contradictory decisions are still part of federal Indian law.
In 1997, in Idaho v. Coeur d’Alene Tribe, the Supreme Court held that “Indian tribes … should be accorded the same status as foreign sovereigns, against whom States enjoy Eleventh Amendment immunity.” This is a startling contradiction of the foundational 1831 decision in Cherokee Nation v. Georgia that the Cherokee were not sovereign as a “foreign nation.” Yet both cases are regarded as valid in federal Indian law!
Federal Indian law puts Indian self-determination in a precarious environment, intensified by the fact that federal Indian law includes explicitly political doctrines, such as the “plenary power of Congress.” The “plenary power” doctrine sometimes helps Native governments defend themselves against attacks by states or agencies, but offers no protection and great vulnerability against attacks by Congress itself.
The so-called “termination era” of the 1950s provides numerous examples of Indian vulnerability to “plenary power.” But even recent courthouse “wins” for Indians show the danger lurking, as in the May 2014 U.S. Supreme Court decision upholding the “tribal sovereign immunity” of Bay Mills Indian Community against the state of Michigan. The surface of the decision appears favorable to Indian self-determination, but the depths reveal serious danger.
The Michigan v. Bay Mills decision held that “tribal sovereign immunity” protects the Bay Mills Community “unless Congress provides otherwise,” because “tribes are subject to plenary control by Congress.” Four Justices—Thomas, Scalia, Ginsburg, and Alito—would have denied Bay Mills sovereignty outright. Thus, the entire court appears to be of the opinion that the U.S. government can abrogate tribal sovereignty, as if that sovereignty depends on the U.S. and not on Indian nations themselves.
In a sign of the difficulties of working within federal Indian law, the lawyers for Bay Mills and the United States (as amicus curiae) argued the very same principle that was used against Bay Mills, saying, “Congress is ‘at liberty to dispense with tribal immunity.'” They intended this argument to protect Bay Mills from Michigan, but it left Bay Mills completely vulnerable to anti-Indian forces elsewhere.
Gridlock in Congress may prevent things from changing soon in federal Indian law, but that is slim comfort for Indian governments. The hard work facing law students, as well as teachers, lawyers, and scholars, involves preparing for when the gridlock ends, or when the make-up of the supreme court changes by a single vote.
When I graduated from Yale Law School in 1968, there were not—to my knowledge—any Native law students at the school and no classes on federal Indian law. Nevertheless, more of our class went to work for Dinebeiina Nahiilna Be Agaditahe—Navajo legal services—than went to any single law firm in New York City or elsewhere. That was a milestone in its own right.
Something happened at Yale Law between 1968 and 2014, as represented by the Native Students Association and by the fact that the curriculum now includes two Indian law courses. The emerging presence of Indian students and Indian law courses are a welcome development, but they only set the stage for the hard work to come.
We need to be ready to go back to fundamentals, including challenging the “extravagant pretension” of Christian Discovery doctrine that underlies “plenary power” and undercuts Indian self-determination.
Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on indigenous issues.