Vol. 10 No. 2 (February 2000) pp. 169-171.

AMERICAN INDIAN SOVEREIGNTY AND THE U.S. SUPREME COURT: THE MASKING OF JUSTICE by David E. Wilkins. Austin: The University of Texas Press. 1997. 403 pp. Cloth $40.00. ISBN 0-292-79108-9. Paper. $.24.95.

Reviewed by Mark Rush, Washington and Lee University

David E. Wilkin's AMERICAN INDIAN SOVEREIGNTY is a fascinating account of fifteen key cases in which the Supreme Court disavowed indigenous nations'
rights. Despite the bleak picture he paints, Wilkins acknowledges that the Court has the BEST track record of the branches of the federal government when it comes to respecting indigenous sovereignty and treaty rights. Nonetheless, Wilkins demonstrates that, despite the Court's relatively solicitous disposition towards Native American rights, its interpretation of the Constitution and American law has rendered the Indians a subservient nation -- not a coequal partner to treaties and other international agreements.

Wilkins argues that the Court "masked" Indians in the same way that it masked the humanity of blacks in decisions such as SCOTT v. SANFORD (1858) and PLESSY v. FERGUSON (1896). As a result, the Court was able to rationalize the withdrawal of constitutional protections from both groups. Wilkins describes three judicial "dispositions" through which various masks were imposed on the Indians. The "Constitutional/Treaty" disposition is the most favorable to Indians because it masks tribes as foreign, sovereign powers. In this role, the Court is a "legitimator of the policies developed by the political branches" (p. 11) and serves to arbitrate disputes between two sovereigns. The "Civilizing/Paternalistic" disposition masks Indians as "savages" and "inferiors" who are essentially a domestic problem with which the federal government, masked in moral terms as a Christian, missionary force, is forced to contend. Whereas the constitutional/treaty disposition masks the law as a tool for negotiating between sovereigns, the civilizing/paternalistic approach masks it as a tool for civilizing "culturally inferior" native peoples.

Finally, the "Nationalism/ Federalism" disposition perceives the law as an instrument of empire building. In this respect, the Indians' mask of extra-constitutional sovereignty from the constitutional/treaty disposition is replaced with one of sub-constitutional inferiority. In this disposition, tribes are regarded as wards of the national government whose interests were rendered inferior to those manifested in Congress' expansionist agenda (p. 16).

Wilkins concludes by noting that "the Justices of the Supreme Court, both individually and collectively, have engaged in the manufacturing, redefining and burying of principles, doctrines, and legal tests to excuse and legitimize constitutional, treaty and civil rights violations of tribal nations and, in some cases, of individual Indians" (pp. 297). Although each of the 15 decisions he analyzes could certainly be described as "lawful," they nonetheless inflicted one injustice after another on the Indian tribes.

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The book presents a readable but disheartening narrative. One comes away from this book with a deep appreciation for the terrible experiences visited upon Indian tribes that have sought to preserve their sovereignty in the face of what can best be described as American national hubris. Yet, despite his meticulous documentation of the losses suffered by Native Americans, his criticism of the Supreme Court is not as compelling. Wilkins clearly believes that the Court is guilty at best of retreating from confrontations with the other two branches of the federal government and, at worst, of assisting the other branches in their callous disregard for the rights and sovereignty of the Indians.

Despite the terrible setbacks to tribal rights, Wilkins acknowledges that tribes did sometimes manage to use the courts to protect some rights or, at least, extract concessions from the United States. However, he also demonstrates that such "victories" were Pyrrhic at best because the Court cast them in terms that actually undermined the tribes' sovereignty despite the legal victory.

An illuminating example of such a hollow victory occurred in U. S, v. SIOUX NATION OF INDIANS (1980). Although the Supreme Court ruled that the United States had acted unconstitutionally (in violation of the Fifth Amendment) by taking the Black Hills from the Lakota without adequately compensating them. Accordingly, the Lakota were entitled to an award in the amount of 105 million dollars. However, the Sioux refused the compensation because the thrust of the decision overlooks deeper claims of tribal sovereignty.

In this respect, SIOUX NATION manifests the general trend of the demise of Indian sovereignty. The federal judiciary transformed the tribes from independent sovereign nations (U. S. v. BAILEY, 1834) to dependent wards subject to the authority of the federal government (U. S. v. KAGAMA, 1886). New rights imposed by the American constitution between the national government and the tribes, which became regarded as just another constituent part of the nation, supplanted obligations and rights imposed by treaties among equals. Thus, in SIOUX NATION, treaty rights and responsibilities were replaced by those embodied in the takings and due process clause. The SIOUX NATION settlement transforms from a settlement between sovereigns to a sale of sovereignty. Accordingly, the Sioux refused to accept it.

However, cases such as SIOUX NATION also highlight the paradigmatic difficulty of dealing with Indian claims. On the one hand, we would conceive of the tribes as independent sovereigns because they existed prior to and outside of the constitutional structure. If so, then their treaty disputes would not fall neatly into the jurisdiction of the national court. On the other hand, unlike a true sovereign, they have been forced press their claims legally and therefore submit to judicial rule-thereby essentially denying or, at least, denigrating their sovereign status. Of course, the fact that the Indians were in no position to force the United States to honor its treaty obligations rendered their recourse to American Courts necessary as a tactical matter.

The author demonstrates starkly that "the core democratic concepts of fairness, justice and consent of the governed have not yet been fully realized for tribal nations and

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their citizens despite clearly pronounced treaty rights" (p. 5). Although this seems to be an indictment of the Court, Wilkins' analysis indicates that the Indians' fate is tied inextricably to their nebulous state of sovereignty and the realities of American conquest of the continent.

In the end, one is left wondering how and whether the Supreme Court could have done anything to preserve Indian sovereignty. From the outset, decisions such as WORCESTER v. GEORGIA (1832) manifest the inherent weakness of the judicial branch that was first noted by Hamilton in THE FEDERALIST. Despite the efforts of John Marshall, Andrew Jackson's response to WORCESTER v. GEORGIA indicates clearly the relative weakness of the Court's position vis-a-vis the other two federal branches.

In sum, I reviewed this book out of a desire to learn more about an aspect of constitutional law with which I was unfamiliar. AMERICAN INDIAN SOVEREIGNTY is an illuminating description of the dark side of American constitutional history. It is a great resource for scholars looking to get an overview of the Court's decisions concerning Indian law and would serve as a wonderful eye-opener to undergraduates.

REFERENCES:

PLESSY v. FERGUSON, 163 U.S. 537 (1896).

SCOTT v. SANFORD, 19 How. 393 (1857).

UNITED STATES v. BAILEY, 24 F.Cas. 937 (1834).

UNITED STATES v. KAGAMA, 118 U.S. 937 (1886).

UNITED STATES v. SIOUX NATION OF INDIANS, 448 U.S. 371 (1980).

WORCESTER v. GEORGIA, 31 U.S. 515 (1832).