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Supreme Court Cases Probe Conflict Between Constitution And Native American Rights

About the Grand River Country Documentary: Iroquois Wars of National Liberation : Forums : 12. General Discussions : Supreme Court Cases Probe Conflict Between Constitution And Native American Rights

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    A trio of cases before the U.S. Supreme Court, plus another one waiting in the wings involving native Hawaiians, all tackle the same question: Where do the universal human rights of indigenous people end and the specific rights of American citizens begin?

    It’s a tough question that has bedeviled courts and legislators since European settlers first set foot in North America, and it tends to scramble the traditional ideological positions of liberals and conservatives alike. Looming in the background is the United Nations, which has its own conventions regarding the rights of indigenous peoples that may conflict with the U.S. idea of one nation under a single Constitution.

    In U.S. v. Bryant, for example, the court must decide whether Michael Bryant can be indicted under a federal law providing for stiffer sentences for repeat offenders in domestic-abuse cases if one of his earlier convictions came in a tribal court where he didn’t have a defense lawyer. Most Americans take it for granted they will be given a lawyer if they can’t afford one under the 1963 Supreme Court decision Gideon v. Wainwright, considered a triumph of liberal jurisprudence. But Gideon doesn’t apply in tribal reservations — and the Obama administration finds itself arguing against the right to court-appointed defense counsel in Bryant’s case because that would undermine the rights of Native Americans to administer tribal justice the way they see fit.

    Conservatives who favor states’ rights, local control and religious freedom, meanwhile, aren’t so ardent when it comes to Indian tribes: In the case of Dollar General, they would allow the company to remove a lawsuit against it from tribal court to the perceived safety of federal court. The third case,Nebraska v. Parker, asks whether tribes can exert their taxing authority in territories they sold more than a century ago, essentially granting them sovereignty over land that has been occupied and ruled by non-Indians since the 1800s.

    President Barack Obama presents the Presidential Medal of Freedom to Peggen Frank on behalf of her father-in-law, Native American environmental leader and treaty rights activist Billy Frank, Jr. (Photo by Alex Wong/Getty Images)

    Indian tribal societies predated the settlers, of course, yet in a bit of legal legerdemain the European colonists who wrote the U.S. Constitution placed the Indians under the protection of Congress and subject to most of its laws. For most of this country’s history, official government policy toward native Americans was assimilation, with an assumption the limited sovereignty Indians held within their reservations would fade away as they became farmers and their lands were absorbed into the surrounding states.

    That changed in the 1960s.

    “We switched from the idea of trying to take apart and dismantle Indian tribes to giving them the tools for self-determination,” said Tim Purdon, a former U.S. Attorney in North Dakota who recently formed an Indian-focused litigation group at Robins Kaplan along with Brendan Johnson, the former U.S. Attorney for South Dakota. “One of the keys to self-determination is running an effective court system.”

    Now some Indian activists are saying “we have these human rights that predate your Constitution,” Purdon said. “Are we at a tipping point for the next phase of Indian policy for the human rights era?”

    The conflict between self-determination and the Constitution is at the center of U.S. v. Bryant, which challenges a Ninth Circuit decision reversing the indictment of a man under a federal statute that provides stiffer penalties for repeat offenders. Bryant argues, and a divided Ninth Circuit agreed, that allowing him to be indicted under the three-strikes law would violate his Sixth Amendment right to counsel under Gideon v. Wainwright.

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