Indigenous Sovereignty Is Under Attack as Supreme Court Bends Rules for Settlers

The Supreme Court has made headlines in recent years for a variety of controversial rulings — for gutting affirmative action, granting the president broad immunity and overturning the constitutional right to an abortion. As the Supreme Court has moved further to the right (and struggles with a legitimacy crisis thanks to compounding ethics scandals), a growing portion of the U.S. population is concerned by how much power the court has. But long before Dobbs, Citizens United or even Bush v Gore, the Supreme Court was wreaking havoc in an area of the law that doesn’t often make mainstream news headlines: the sovereignty of Indigenous nations.

The legislative and executive branches of the U.S. government have of course done immeasurable harm to Indigenous nations for centuries, but that started to shift in the 1970s as Indigenous advocates and nations gained more power. At the time, tribes were pulling themselves out of the termination era (during which Congress “terminated” over 100 tribes by writing them out of legal existence). In response, grassroots activists started the Red Power and American Indian Movements, and tribal leaders lobbied hard in D.C. Together, they brought about the self-determination era, during which Congress finally recognized that tribal governments know what is best for their citizens and land. In the decades following, Congress passed laws protecting religious freedom, Native families, sacred sites and tribal self-governance. While far from perfect, the laws coming from Congress after this period started to do more good than harm. At the same time, large setbacks for tribal sovereignty started to come from the Supreme Court. From the 1950s to 1990, tribes or tribal interests lost the majority of cases brought before the high Court, but by a small margin. Starting in the ‘90s, that margin grew. In the past 30 years, tribal interests have lost two-thirds of all Supreme Court cases. Rather than counting on the Supreme Court to advance or even uphold the sovereignty of Indigenous nations, tribal leaders have watched the high Court roll those rights back.

In 1978 — the same year Congress passed laws protecting Native families and restoring religious freedom — the Supreme Court decided Oliphant v. Suquamish Indian Tribe. On the Suquamish reservation, a white man named Mark Oliphant got in a drunken fight with another person. When tribal police tried to place Oliphant under arrest, he fought back. In tribal court, he was charged with disorderly conduct and resisting arrest. Before Mark Oliphant was brought to trial, he filed a federal habeas petition arguing that the Suquamish Indian Tribe couldn’t prosecute him because he wasn’t Native American. He lost twice in federal court but appealed his case all the way to the Supreme Court. The Supreme Court ruled in his favor, concluding that “while Congress never expressly forbade Indian tribes” from imposing “criminal penalties on non-Indians” it was “the commonly shared presumption” that tribes could not.

Today, other than exceptions carved out by the Violence Against Women Act, tribes are prohibited from prosecuting non-Natives who commit crimes on tribal land. What followed Oliphant was an explosion of violent crime in Indian country, especially against Native women, children and Two Spirit people (Two Spirit is an umbrella term for Native LGBTQ folks). According to the Department of Justice, four out of five Native women will experience violence in their lifetime. Ninety-seven percent of these women have been the victims of crimes perpetrated by someone who is not Native.

On the heels of Oliphant, the Supreme Court ruled in Montana v. United States that tribes didn’t have civil jurisdiction over non-Natives either. Criminal jurisdiction is simply the authority to prosecute crimes, but civil jurisdiction is much broader. It includes the ability to bring forth lawsuits, enact family law, regulate pollution, or grant business licenses. The case began when James Junior Finch posed for a photograph while casting his lure into the Bighorn River on the Crow reservation. According to the laws of the Crow Tribe, Finch couldn’t fish there, but Finch didn’t think the tribe could tell him what to do. The litigation took place against a background of racial hostility; local white residents, in defiance of tribal law, fished anyway, leaving their beer cans, threatening tribal police and even calling them racial slurs.

In Montana v. United States the Supreme Court said tribes do not have civil jurisdiction over non-Natives on what’s called “fee land” (land within reservation boundaries, but which broadly speaking is privately owned) except for two special circumstances: when a non-Native person or business has entered into a consensual relationship with the tribe — like a contract — or if their conduct threatens “the political integrity, the economic security, or the health or welfare of the tribe.”

Illegal fishing did not meet the elusive “Montana exceptions” — a bar that has since proven difficult for all tribes to meet. That means if a non-Native business pollutes a reservation, a pharmacy floods tribal communities with opioids, or a domestic violence survivor needs a protective order, there is little the tribe can do.

Harmful Supreme Court decisions continued into the 21st century. In 2005, one came from a Justice you might not expect: the late Ruth Bader Ginsberg. In City of Sherrill v. Oneida Indian Nation of New York the Supreme Court ruled that land illegally taken from the Oneida Nation, which the nation later repurchased, could not be placed back under tribal jurisdiction because the original theft happened so long ago and correcting the wrong now would cause too much of a disruption. Writing for the majority, Justice Ruth Bader Ginsberg told a distorted history, claiming “it was not until lately that the Oneidas sought to regain ancient sovereignty over land converted from wilderness to become part of cities like Sherrill.” Now, it was too late, she opined, for the tribe to rekindle “embers of sovereignty that long ago grew cold.”

All three cases began with white people or states breaking the law — Oliphant resisting arrest, Finch fishing and New York illegally taking Oneida land. Instead of being held accountable — or even restrained — for their illegal behavior, the parties were rewarded. In a move repeated throughout our history, rather than uphold the law to protect Indigenous nations, the Supreme Court remade the law to fit settlers’ needs.

One of the biggest barriers that Indigenous nations face in front of the Supreme Court is the sheer ignorance of its Justices. During oral arguments in Sherrill, then-Justice Sandra Day O’Connor asked if all white people living on Oneida land would be evicted if the tribe’s land rights were upheld. In 2013, while reviewing Adoptive Couple v Baby Girl, Chief Justice John Roberts asked a series of questions betraying the fact that he did not understand how tribal citizenship works or what, really, a federally recognized tribe is, including if tribal membership could be open for “people who want to apply, who think culturally they’re a Cherokee.” During the same case, about a law protecting the rights of Native parents, then-Justice Stephen Breyer asked if the law would allow Native men to rape non-Native women and keep the baby. “The child would be taken and given to the father,” he worried out loud, “who has never seen it and probably just got out of prison.” As recently as 2022, Justice Samuel Alito argued that Indigenous nations do not share a common political interest, because “before the arrival of Europeans, the tribes were at war with each other.” An entire area of American law — going all the way back to the founding — protects the sovereignty of Indigenous nations. But that law is meaningless if the people in charge of interpreting it — and the citizenry that puts them in power — don’t know what it is.

By decree, the role of the Supreme Court is to interpret American law, not write it. Starting in the 1950s, however, the court gave itself more power, shifting the balance away from Congress and the president. Many legal scholars attribute this shift to a backlash against civil rights legislation, large swaths of which (like federal oversight and protections for voters of color) the Supreme Court has declared unconstitutional. Today, in our democracy, the Supreme Court, not the president or Congress, often has the final word.

In the arena of federal Indian law, that shift produced two competing doctrines: the Supreme Court sometimes deferring to Congress and other times “usurping the power of the Congress to decide what it wants in federal Indian law,” NYU law professor Maggie Blackhawk, from the Fond du Lac Band Ojibwe, told me. Blackhawk says in the past 70 years these doctrines have existed side-by-side. Sometimes, the Supreme Court constrained itself to interpreting what Congress said. But in other cases, like Oliphant, Montana and Sherrill, it went way off track. When the court follows the law as written, tribes usually win. When the Supreme Court makes up or changes the rules, tribes lose.

These competing doctrines can be seen in the modern Supreme Court. In 2020, the Supreme Court delivered a historic victory for tribes. In McGirt v Oklahoma, the court upheld the reservation of Muscogee Nation — which had been denied by the state for over a century. Subsequently eight other reservations in Oklahoma were affirmed, resulting in the largest restoration of tribal land in U.S. history. To make history, the Supreme Court didn’t overturn anything or strike anything down; all the court did was follow the law.

But that victory upset the state of Oklahoma, which asked the Supreme Court to reverse its decision — over 50 times. Instead of a complete reversal, in Oklahoma v. Castro-Huerta the Supreme Court gave the state back some of the power it lost on the newly recognized reservations — namely, the power to prosecute crimes if the victim is Native but the perpetrator is not.

Many legal experts warn this will make the crisis of violence against Native women even worse. The decision, authored by Justice Brett Kavanaugh, was based in part on facts and figures Oklahoma shared about criminals walking free and crimes going unprosecuted that were later found to be grossly exaggerated and even wrong. In his opinion, Kavanaugh contradicted several other Supreme Court decisions but didn’t claim to overrule them. Instead, he just ignored them. Even his colleagues on the bench were taken aback. “Truly, a more ahistorical and mistaken statement of Indian law would be hard to fathom,” Justice Gorsuch wrote in the dissent. Instead of following the law, the Supreme Court made it up.

Five days before Castro-Huerta came out, the Supreme Court overturned Roe v. Wade and the constitutional right to an abortion. After the fall of Roe, public faith in the Supreme Court reached its lowest point in 50 years. Three-quarters of Americans say the Supreme Court has become “too politicized” and less than half feel “trust and confidence” in the institution. Some research shows people’s faith in the Supreme Court may be tied to their faith in law itself.

“Like the miner’s Canary,” an early scholar of Federal Indian Law, Felix S. Cohen, once wrote. “The Indian marks the shift from fresh air to poison gas in our political atmosphere.” How our government treats Indigenous peoples, he argued “reflects the rise and fall of our democratic faith.”

Facing harm and capricious disregard for legal precedent from the Supreme Court is a reality Indigenous nations have been living with for a long time. Sometimes, when the law is on our side we win. But more often, we watch the institution depart from law and precedent at will. Now, in the wake of Dobbs, many more Americans are sharing in this reality.

The sovereignty of Indigenous nations long reflected the strengths and weaknesses of the Supreme Court, the chaos of its decision making, and the power it has given itself outside of constitutional bounds. If only more people had been paying attention.