By Jim Adams. Indian Country Today
Reprinted, with permission, from Indian Country Today,
Posted on line, September 14, 2005, at:
http://www.indiancountry.com/content.cfm?id=1096411592.

Supreme Court nominee John Roberts Jr. might be admirable in many respects, but as a private attorney he committed an act of intellectual dishonesty that is drawing attention from one group - the American Indian - that already fears the worst from the current court.

In a brief submitted to the Supreme Court in 1997, Roberts distorted the language of a well-known precedent in a way that can only be called a blatant misrepresentation. Writing for the state of Alaska in its suit against the Native village of Venetie's tribal government, he twisted a quote from the court's 1886 United States v. Kagama decision to say ''reservation Indians ... were often 'dead[ly] enemies' of the States.'' The inserted brackets created a statement evoking a deep-seated stereotype of marauding savages, scalping and murdering innocent pioneers. But it is exactly the opposite of the meaning of the famous opinion by Justice Samuel Freeman Miller, a Lincoln appointee.

The original passage, which is often cited in Indian country, is worth quoting in full, because a lot hangs on it. Miller wrote: ''These Indian tribes are the wards of the nation. They are communities dependent on the United States - dependent largely for their daily food; dependent for their political rights. They owe no allegiance to the states, and receive from them no protection. Because of the local ill feeling, the people of the states where they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the course of the dealing of the federal government with them, and the treaties in which it has been promised, there arises the duty of protection, and with it the power.'' [Emphasis added]

Instead of the lethal enemies of the states and their citizens, the Indians of that day were more often their victims. The issue involved the trial jurisdiction for a murder on the Hoopa Valley reservation within Humboldt County, Calif. Although the crime involved only Indians, the settlers of northern California had made massacres of local tribes into something of a weekend sport. Recognizing that background, Miller ruled that ''major crimes'' prosecutions of reservation Indians belonged in federal court, not state courts. States simply couldn't be trusted with power over the tribes.

In spite of changed circumstances, similar issues arose in the case that Roberts argued. The Gwich'in Indian village of Venetie in north-central Alaska had gained control of land allotted to Native corporations under the 1971 Alaska Native Claims Settlement Act and proceeded to exercise the sovereign power of taxation. Alaska hired Roberts to argue that the ANCSA lands were not ''Indian country'' like the tribal lands of the lower 48. Instead of constituting a separate sovereignty, the state argued, Native corporation lands had been integrated into the state and were subject to state and local tax and regulation.

Along the way, Roberts praised the Native corporate scheme, which gave tribal members shares in state-chartered for-profit businesses. (It also allowed the free sale of Native land, a great help to development of North Slope oil.) He called it a ''dramatic break'' from the ''paternalism'' of reservations in the lower 48. Previous Indian policy, he wrote, ''has left in its wake a decidedly mixed legal legacy.'' He properly attacked some of the undeniably racist and condescending assumptions behind the federal treatment of Indians as its wards.

But in disparaging the ''paternalism'' of the reservation, Roberts offered the alternative of assimilation. The last two versions of this policy, the Allotment Act of 1887 and the termination and relocation program of the Eisenhower years, were unmitigated social disasters. Roberts deliberately ignored the third choice, self-determination.

Yet self-determination, the exercise of tribal sovereignty, has impeccably conservative credentials. It was formally announced as federal policy by Richard Nixon just two years after ANCSA. Every president since, including the present incumbent, has endorsed the principle that Washington has a ''government-to-government'' relationship with the tribes. Although deep social problems remain in Indian country, the past decades have also seen dramatic successes. As Harvard Professor Joseph Kalt once put it, self-determination is not only the most successful federal policy for alleviating Indian poverty; it is the only federal policy that has ever had any success at all.

This policy requires recognition of the deeply ingrained Indian insistence on tribal sovereignty, the stubborn reminder that Indian nations were governing themselves on this continent long before the arrival of the European and that their rights as constituents of the United States are co-equal with ''states' rights.'' One of the most puzzling inconsistencies of some present-day conservatives is their hostility to this principle. It appears that self-rule, self-reliance and tax cuts for economic development are fundamental tenets of the Right, unless Indians are involved.

For better or worse, Roberts would be one of the few Supreme Court justices with any background in Indian law. Indian law practitioners understand that he gave tribal sovereignty short shrift in his brief because he was an advocate for a state government. Lawyers tend to be forgiving of the arguments that their colleagues make on behalf of clients. But Indian country is deeply concerned to know if he will respect the tradition of tribal rights, or at least quote the precedents properly.

Jim Adams, Ph.D., is a research fellow of the American Indian Policy and Media Initiative at Buffalo State College and is the associate editor of Indian Country Today.