The U.S. Supreme Court this year will hear several cases that Indian rights advocates consider important, and which all have a similar theme: the line of demarcation between specific rights granted to U.S. citizens and special rights granted to Native Americans.
In the case U.S. vs. Bryant, the court will decide whether one Michael Bryant may be indicted under a federal law that provides harsher punishments for repeat domestic abuse offenders, even though one of his earlier convictions came from a tribal court. That court did not require that Bryant have a defense lawyer, although the U.S. constitution requires that for U.S. citizens.
The landmark 1963 case that affirmed this principal, Gideon v. Wainwright, did not apply to reservations. The Obama administration supports the tribal interpretation holding that tribes should have more weapons for curbing domestic violence.
Another case involves a plea from a private non-Indian business located on a reservation, Dollar General, to move a lawsuit against it from tribal court to a federal court. At its simplest the case challenges the power of a tribal court over a non-Indian. The store’s manager is accused of attacking a tribal member’s child. The Obama administration supports the tribe, arguing that the non-Indian subjected itself to tribal justice by operating on the reservation, in spite of the fact that tribal justice sometimes disagrees with constitutional previsions of due process.
In Nebraska v. Parker the high court will consider whether tribes can tax non-Indians in territories that they sold a hundred years ago.
In the 1880s Congress allowed the Omaha Tribe to sell 50,000 acres. The question is whether Congress intended that this would reduce the size of the reservation. The Eight Court of Appeals has ruled that it did not and that the tribe therefore had the right to tax liquor sales on this land. The State of Nebraska opposes this interpretation, as do several local municipalities. They argue that such a judgment would open the door for tribes to try to reassert jurisdiction on other lands that they lost in the past.
In the last few decades the federal government has gone from actively trying to dismantle the reservation system to promoting the idea of an independent court system within tribal jurisdictions.
As one attorney who specializes in tribal law puts it, “One of the keys to self-determination is running an effective court system.” Some Indian activists don’t stop there. They want to apply United Nations provisions about indigenous peoples to Native American law and get the U.S. government to recognize the idea that Native American human rights predate the Constitution.
That dynamic is at work in U.S. v. Bryant, where the Ninth Circuit Court of Appeals has already reversed Bryant’s indictment, holding that it would violate his Sixth Amendment right to counsel to do so.
