With a picture, no less:
by Marie Price
The Journal Record September 14, 2009
OKLAHOMA CITY – Attorneys who represent Indian tribes say Native American rights can be a tough sell before the federal courts.
Michigan State University law professor Matthew Fletcher at the Federal Bar Association meeting Friday. (Kendall Brown)
Michigan State University law professor Matthew Fletcher told the Federal Bar Association meeting Friday in Oklahoma City that since the advent of the Rehnquist U.S. Supreme Court in 1986, tribes’ overall success rate before the high court has declined from about 60 percent to 25 percent. He said that gives them a worse win-loss ratio than convicted criminals.
Fletcher is a member of the Grand Traverse Band of Ottawa and Chippewa Indians.
Tulsa attorney Walter Echo Hawk said the courts are ripe for reform in how they approach Native American religion, sovereignty, self-determination and other issues.
“The law is a double-edged sword,” said Echo Hawk.
He said legal history has shown that the law can reflect the highest in human nature or be used to achieve unjust ends or as an instrument of terror.
Expressing some optimism, Echo Hawk said the Supreme Court is rowing against the tide in its decisions against tribes, with the executive and legislative branches of government leaning more in favor of the rights of Native Americans.
Indian law attorney Michael McBride said the outcome of tribal-related cases has tended to swing back and forth over the years, although decisions in favor of the states have increased. Oftentimes, McBride said, tribes are a casualty of that pendulum swing.
“Indian tribes have a love/hate relationship with the United States government,” he said.
McBride, with Crowe & Dunlevy, said the government has a trust relationship with the tribes, but tribes can suffer due to abuse of that relationship. McBride is also a justice on the Supreme Court of the Pawnee Nation.
Echo Hawk said practitioners have observed a retreat in recent years from the legal principles established during the rise of modern Indian nations from 1970-1985. He said tribes lost about 80 percent of their cases under Rehnquist, a trend that appears to have continued under Chief Justice John Roberts.
Echo Hawk called the situation a crisis, saying that some wonder whether death of Indian law may be at hand.
Among Supreme Court decisions that should be reversed, Echo Hawk mentioned Johnson v. McIntosh, an 1823 opinion that he said pegs its result on the doctrine of discovery and conquest. He said the result of that decision was to strip Indians of legal title to their lands, turning them into mere occupants.
He said another decision “actually closed the courthouse doors to the Cherokee Nation,” with the justices’ failure to act on behalf of the tribe in that 1831 case allowing Georgia to deprive Cherokees of their rights and lands. Echo Hawk said that in Lone Wolf v. Hitchcock (1903), the court held that the plenary power of Congress authorized it to break treaties with tribes with impunity.
“None of these cases have ever been reversed,” Echo Hawk said.
He said such decisions arose from the concept of colonialism, with some of them referring to Indians as inferior savages, but are still cited in modern cases.
In addition to overturning those decisions, Echo Hawk said that Indian law should be elevated to meet the minimum standards of the 2007 United Nations Declaration on the Rights of Indigenous Peoples.
Echo Hawk is an associate justice on the Pawnee Nation Supreme Court and has worked with the Native American Rights Fund for more than 35 years. He is of counsel with Crowe & Dunlevy.
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