NATIVE INTELLIGENCE

A Column By

Jack D. Forbes

THE REHNQUIST-SCALIA COURT:

LEGISLATIVE AND ANTI-NATIVE

It will come as no surprise to Indians that the Supreme Court, dominated by the "Gang of Five" who cleared the way for George Bush's contested victory, is anti-Native. Decision after decision, especially since the G-O Road attack on Indian religion of the mid-1970's, has gone against tribal land rights, governments, and sovereignty.

The Gang of Five are often referred to by the press as "conservatives" and as supposed "strict" interpreters of the Constitution, but I disagree. In fact, what we are experiencing is an un-elected "House of Lords," a third and supreme legislative body appointed for life, which does not simply interpret the Constitution but which revises and amends the latter in virtually every 5-4 decision.

Many examples come to mind, but the decision to give dollar bills a guarantee of free speech even though the speech of the rich owners of the most dollar bills is able to completely drown out the speech of ordinary citizens, is a case in point. The Constitution guarantees that there would be no "abridgment" of free speech, a guarantee which should apply to all of us and not only to the wealthy.

There is little conservative about Antonin Scalia and his clone, Clarence Thomas, as they invent new doctrines not found in the Constitution. On the contrary, they and their allies appear to me to be radical legislators who are determined to go to almost any lengths to advance the interests of powerful white people and corporations. On occasion, this means strengthening state governments as against tribes, sometimes it means favoring the enhancement of federal police powers, and often it means the reduction of the value of the Bill of Rights for ordinary persons and especially people of color and workers.

The Constitution and all treaties (contracts) ratified by the United States Senate with a 2/3 majority are the "supreme law of the land." No acts of Congress or of any state legislature, nor any decisions of any court are directly part of the "supreme law" according to the Constitution. But yet we find Rehnquist-Scalia and allies repeatedly amending or ignoring the Constitution and adopted treaties (including not only Indian treaties but also important other treaties which guarantee human rights).

Where I disagree with much of so-called "Indian law" is that it often is thought to include Supreme Court decisions, acts of Congress, and bureaucratic actions which are totally at odds with the Constitution, ratified treaties, and basic principles of international law (such as the Universal Declaration of Human Rights).

To be a "strict constructionist," in my opinion one must place the Constitution and treaties above all inferior actions. One must begin with the Constitution, placing its language first, and making sure that all decisions are in precise agreement with it and with duly ratified treaties. At the time of its adoption, Native Nations and communities (called "towns" in Virginia and elsewhere) were completely self-governing. The U.S. did not attempt to regulate the internal affairs of the Nations and Towns until after the Civil War (See my book The Indian in America's Past [1965] for data on the gradual usurpation of Native self-governance).

The punishment of criminals, regulation of marriage and divorce, all questions of property and use of property, and all other internal matters were never subject to any general U.S. authority prior to the colonial onslaught after the 1860's. The pre-Civil War behavior of the U.S. is in agreement with the specific language of the Constitution which, in the so-called Commerce Clause (section 8), gives that government authority over commerce "with foreign nations, and among the several states and with Indian tribes."

This is the only power given to Congress directly over the tribes and it is limited to regulating trade with tribes, not between tribes. From the 1780s through the 1870s or later it would have made absolutely no sense to try to control commerce between tribes because such inter-tribal communication was totally beyond the scope of federal power or even knowledge.

The growing of hemp at Pine Ridge, for example, cannot be legally halted by the Drug Enforcement Agency because the DEA cannot know if the hemp is intended for internal Sioux use or for inter-tribal trade. The DEA's authority under strict constituional law cannot extend to the internal affairs of the Oglala Lakota.

But Scalia, Thomas et al care nothing for the Constitution's clear language. Instead, they have based their decisions on Court precedents and congressional acts which are at odds with the Constitution and which, in many cases, are in disagreement with the Supreme Court's decisions during the pre-Civil War period ( as with John Marshall's famous decisions in Worcester v. Georgia and Cherokee Nation v. Georgia).

The Constitution has not changed - but we have had plenty of anti-Indian judges, most of them dedicated to getting land and resources transferred from Indian to white hands. Perhaps this is why the Universal Declaration of Human Rights (1948), which guaranteed that Natives are "persons" under U.S. law, is never cited, since as "persons" Indians would be protected by both the Fifth and Fourteenth amendments, which would make the taking of Native lands without genuine "just compensation" illegal.

Very few if any of our Nations have ever been formally incorporated into any state. Instead there has been a "creeping annexation" going on since the 1870's, with no constitutional basis. The Constitution makes clear that "tribes" are a fundamental part of the U.S., co-equal (if not superior to) the states and other territories. (See my article on "The Constitutional Powers of the U.S. Government ...." in Warpath II(2) Late 1970, pp. 4-5; also a monograph of the same title, UCDavis, 1971, 16pp. available from UCDavis Bookstore, Davis, CA 95616).

(Check Prof. Forbes' web page at <http://cougar.ucdavis.edu/nas/faculty/forbes/jfhome.html>)