Just making it up 

On Justice Scalia, Indian law and the Supreme Court's future

In 1996, I watched my uncle—then an attorney for Montana Legal Services in its Wolf Point office—argue my grandfather's case before the U.S. Supreme Court. Each term, the court receives about 8,000 petitions, but hears only 80 or so of those cases, a cool 1 percent. Back then, this significance eluded me. I was more excited about a week of excused absences from the fifth grade. My mother, however, thought I should learn the basics of Indian law and be able to explain why it was that the highest court in the land would hear our case.

Most of the specifics escaped me back then, but in retrospect the case wasn't that complicated. When my grandfather died without a will, a federal law resulted in some of his land reverting to the tribe instead of passing to his heirs. That's unconstitutional. It's a violation of the takings clause of the Fifth Amendment. Simple enough, but maybe a little advanced for fifth grade social studies. What did stick with me was respect for the institution. I thought that those nine justices must be omnipotent, the smartest of the smart. Not only had they taken our case, they'd found in our favor. To a 10-year-old, that was enough to consider the Supreme Court my friend.

Twelve years later, I was working in Washington, D.C., when I met Justice Antonin Scalia. He was giving a lecture and signing copies of his new book; I was on the fence about whether or not to attend. Instead of flipping a coin, I decided Scalia's vote in my family's case would make the decision for me. If he'd come down on our side, I'd go. It turns out that our case was an 8-1 decision, and Justice Stevens—not Scalia—was the lone dissenter. So, I went.

Justice Scalia, who died last weekend, was kind, funny and met the audience's questions with patience and enthusiasm. (Most of them were about raising his nine children, but a couple touched on his trademark constitutional originalism.) At the end, the organizers of the event sold copies of his book and Justice Scalia graciously signed them. I bought one as a gift for my mother and took a moment to gather myself while I waited in line, wondering what exactly one says to a Supreme Court justice.

As I handed over my book, I decided to go with, "I just wanted to thank you. When I was 10, I came to watch oral arguments in my family's case, and you joined the majority in our favor."

Justice Scalia looked up at me and smiled, "What was the case?"

"Babbitt v. Youpee. It was in 1997."

He paused and I prepared to be ushered along in line. "That was a takings case, right?"

I nodded, more than a little surprised at his memory.

He signed my book, and as he handed it back to me, he said something I'll never forget: "You know, when it comes to Indian law, most of the time we're just making it up."

click to enlarge Justice Antonin Scalia
  • Justice Antonin Scalia

This was a shock. My first encounter with the Supreme Court over a decade earlier had convinced me of their legal omnipotence, and although my subsequent education had taught me to be more critical, especially with regard to Indian law, it was still a surprise to hear a justice admit as much.

Years later, I was even more surprised to learn there really wasn't anything revelatory about Scalia's confession. The "making it up" narrative has been floating around the Indian law circuit for longer than anyone seems to know. Combined with the court's track record of regularly finding against tribal interests since the late 1980s, it's shorthand for the idea that maybe the Supreme Court doesn't really know much about Indian law. In a 2008 law review article, Michigan State professor Matthew Fletcher wrote that even though the court chooses to hear Indian law cases, it then decides them on other, more familiar constitutional or technical issues. This has made for an overcomplicated and bloated set of exceptions, rather than rules, comprising what we refer to as "Indian law," and dealing severe blows to tribal sovereignty in key areas like criminal jurisdiction.

The Supreme Court is, by design, one of the most unchanging American institutions. But that's not to say that change is impossible. Just last month, Justice Sonia Sotomayor hired the first person of Native Hawaiian ancestry to serve as a Supreme Court clerk. This hire seems a furtherance of her commitment to understanding Indian law. Justice Sotomayor has spoken openly about her lack of knowledge on the topic before her appointment and about her efforts to educate herself in preparation for hearing such cases. As a result, she has sided with tribal interests in five of the seven Indian law cases heard by the court during her tenure thus far.

Now, with the opportunity to appoint a justice to fill Scalia's untimely vacancy, I can only hope that President Obama will keep one thing in mind. It's something we already know, but that the court is characteristically slow to reflect: Diversity is important. Not just in terms of gender, race or geography, but diversity of experience. Understanding Indian law isn't about niche expertise or showing favoritism to a particular political group. Rather, it's about valuing the implications of a decision beyond their "made up" logical conclusions and appreciating them for their historical significance and tangible impact on the lives of nearly three million American Indian people, their neighbors, and the states in which they live.

The Indian law cases that land before the Supreme Court have broad implications for real human beings subject to an inordinate amount of federal discretion. So far this term, the court has already taken four. The implications of these decisions will determine, for example, if a tribe has civil jurisdiction over a non-Indian who sexually assaulted a teenager on tribal land, and whether or not Congress' efforts to confront epidemic levels of domestic violence in Indian Country will be thwarted by a lack of respect for the decisions of tribal courts. If the court is truly making anything up, it's the increasing limitations on the breadth and reach of tribal sovereignty, which includes the ability of a tribe to ensure the health and safety of its people. And that's important enough that even a fifth grader could understand.

April Youpee-Roll is a second-year law student at the University of Montana and a member of the Fort Peck Tribes, originally from Poplar.

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