Opinion, Berkeley Blogs

Overturning Roe: The Supreme(ly Colonial) Court

By Nazune Menka, JD

The Supreme Court as composed October 27, 2020

The Supreme Court as composed October 27, 2020

 

The United States Supreme Court’s history and jurisprudence is rooted in a colonial violence, Indigenous land dispossession, genocide, and slavery, but we are still surprised when, in 2022,  it determines a woman no longer has a constitutional right to bodily autonomy. Why? I turned this question inward and now share my thoughts about it as an Indigenous lawyer in the field of federal Indian law, and as someone who has an interest in seeing this country turn from its violent colonial origins toward mutually beneficial governance practices rooted in trust.

 

In June, I participated in “Native Peoples, American Colonialism, and the U.S. Constitution” an interdisciplinary workshop in constitutional studies at Yale hosted by the NYU-Yale American Indian Sovereignty Project. Legal, political science, and history scholars reviewed and discussed scholarship on Indigenous Peoples, and the colonial and diplomatic origins of the United States Constitution. Our aim was, in part, to begin a discussion on how to decolonize our respective fields by illuminating Indigenous participation in, and impact on, the development of constitutional law, history, and theory. As a general principle the first step of decolonization requires eliminating the erasure of Indigenous Peoples, and other “subordinated” communities, from the scholarly landscape. Decolonization is about widening the path to knowledge by incorporating, and recognizing as valid, Indigenous knowledge(s), languages, histories, and institutions. In constitutional studies scholarship has largely centered on the Revolutionary War, the Continental Congress, Hamilton, Madison, and the Reconstruction Era. However, over the last decade or so, scholars have begun to address the role Native Nations played in this history with an emphasis on what role the U.S. Constitution plays in shaping the federal and state governments interactions with Native Nations going forward.

 

In examining this history one can’t ignore the colonial origins of the country, and the violent federal and state-sanctioned “removal” of Indigenous peoples from their homelands in service of the settler-colonial project.[1] The Supreme Court has often been heavily involved in this colonial violence. But despite the imagery we might conjure up about U.S. history during this time, at spaces and places between 1492 and 1871 (when treaty making formally ended),[2]  was an era of diplomacy by and between early colonists and Native Nations. This era had moments of multicultural jurisgenesis where mutually beneficial arrangements were codified in the sacred  text of treaties.[3] Still yet, this early federal government vacillated between being an eager diplomat in treaty making and wielding imperial violence in its legislatures and judiciaries. In jurisprudence defining this  early relationship between Native Nations and the federal government the Supreme Court recognized it had a trust responsibility to Native Nations stemming from these early diplomatic relationships, and the changing circumstances of increased  U.S. strength and power. (See Cherokee Nation v. Georgia (1831)). The Court also created the doctrine of federal plenary power over Indian affairs which it viewed as necessary in 1832 to protect Tribes from the state of Georgia. Indeed Native Nations have historically and contemporarily sought federal protection from state persecution by invoking the trust responsibility and even plenary power.  Unfortunately, the federal government often breached this responsibility by breaking its promises, canceling treaties, and fraudulently ceding Indigenous lands under this self dealt doctrine of power which is not enumerated in the Constitution. (See e.g. Lone Wolf v. Hitchcock (1903)). NYU Law Professor Maggie Blackhawk, one of the workshop hosts,  might call these types of self dealing cases “common law colonialism” as they illustrate both the dangers of an unrestrained federal power, and dangers of states encroaching on our autonomy and freedom.[4] This power struggle is often what interpreting the Constitution is centered around. In federal Indian law, the unyielding advocacy of Indigenous leaders, scholars, organizations, and Tribal governments lobbying for Native Nation sovereignty and power has worked to combat the colonialism of unrestrained federal power and unregulated power grabs by states.

 

In McGirt v. Oklahoma, Herrera, and Cougar Den the Court returned, after a long hiatus, to recognizing treaties with Native Nations as the supreme law of the land–a power explicitly provided for in the Constitution. For a Court with several justices considered to be textualists and/or originalists, this recognition may not be surprising.  Constitutional scholars search to find meaning in the document by focusing on the explicit terms contained therein, seeking to understand the original intent of the framers, positioning rights in the context of historical practice, and, of course, prior case law. Figuring out how the Court will interpret the Constitution without such explicit text– for example when it makes an argument for plenary power over Indian affairs or questions the trust responsibility–is harder as these doctrines are not enumerated in the Constitution.

 

On June 24th this unenumerated rights problem emboldened the Supreme Court to turn to extratextual factors to overturn a woman’s right to bodily autonomy in Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey.  The case, Dobbs v. Jackson Women's Health Org., signifies that the colonial Supreme Court is back in no uncertain terms.  Dobbs reads like a case from the 1800s when the Court found itself searching to rationalize its imperialistic endeavors by citing laws and practices that fly in the face of modern day human rights. (See Johnson v. M’Intosh (1823); Dred Scott v. Sanford (1857); Plessy v. Ferguson (1896)) The Court opines that “liberty” shouldn’t be construed to include a woman’s right to choose, and because that right is neither explicitly enumerated in the Constitution, nor rooted in the Nation’s history, the Court has no choice but allow states to regulate abortion. The opinion places an inordinate amount of focus on legal history in the period between the 1600-1800s. The colonial elephant in the opinion is that during the 1600-1800s legal institutions only granted sovereignty to white property owning men. If we are looking to this colonial Supreme Court to defend any of our rights not explicitly enumerated in the Constitution, and its answer is to look to the legal institutions of the 1600-1800s for what is “deeply rooted in this Nation’s history and tradition” we are in a world of danger.[5]

 

Then, just five days later, on June 29th the Court issued its opinion on Oklahoma v. Castro-Huerta essentially eschewing foundational tenets of federal Indian law and holding that despite Congressional action and treaty language to the contrary a state has concurrent criminal jurisdiction with the federal government over non-Indians who commit crimes in Indian country.[6] The Court cherry picks three cases from the plethora of foundational federal Indian law cases and thinly veils its decision in favor of state power as constitutional under the Tenth Amendment.[7] Dobbs, Castro-Huerta, and numerous other cases from the recent Supreme Court term, indicate the Court is not merely interpreting the Constitution, but drastically reimagining and reinforcing its own power.[8] To be sure the Constitution is a colonial document and the Court sees it as just that.  Until we decide to amend, rescind, or work around this colonial Constitution, the interpretation of the Court will reign supreme and our unenumerated rights, and Tribal sovereignty, may be stripped away by the Court or state by state.

 

In reimagining the Constitution at Yale with the cohort in June I found hope for the first time in the words “We the People.” We discussed the Constitution's foundations in the settler-colonial project, why it is important to name it, and how doing so might shape a more liberatory future. We were no longer ignoring the colonial elephant in the room that has served as an intellectual wedge between my Indigenous identity and U.S. citizenship. It was powerful, and an important paradigmatic moment for me as an early law scholar. The cohort discussed what it might look like to shift from a rights based framework to a structure based framework that would be less reliant on the Supreme Court’s rights limiting colonial jurisprudence.  What might it look like if we all engaged in collaborative and restorative law making, if we cited Indigenous worldviews and laws instead of the colonial era, if the federal trust responsibility applied to all U.S. citizens? If we decolonize the law? We may very well have to lean into our inherent power and sovereignty and leave the Supreme Court to its colonial endeavors and remove our trust from the institution if it refuses to evolve along with the rest of us. In the meantime I hope we can see the value of decolonizing our institutions and look to new ways of knowing and worldviews that center on reciprocity, trust, responsibility, and good governance. For now we should all be lobbying our federal and state legislatures to create the changes we want to see– as Indigenous communities continue to do when the Court behaves colonially and power is stripped from “We the People”.

 

Nazune (Koyukon Athabascan and Lumbee) is currently serving as an Adjunct Professor and Supervising Attorney at the Environmental Law Clinic at Berkeley Law. Originally from Anchorage, Alaska she has also lived and worked in North Carolina, Arizona, Michigan, Hawaii, and New Mexico. In 2021 she designed a new legal studies course being offered in Spring 2023 LS172AC “Decolonizing UC Berkeley” and recently taught “Indigenous Peoples, Law, and the United States” at Berkeley Law. You can reach her at nazune@berkeley.edu &  on Twitter @NazuneJD.

 

 

 

[1] Pub. L. No. 105-06, ch 148, 4 Stat. 411-12 (1830)(more commonly known as the Indian Removal Act of 1830 and now codified as amended at 25 U.S.C. § 174).

[2] Indian Appropriations Act of 1871  ch. 120, 16. Stat. 544, 566 (March 3, 1871) now codified as “Future treaties with Indian tribes” (25 U.S.C.A. § 71 (West)) (providing “[n]o Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty; but no obligation of any treaty lawfully made and ratified with any such Indian nation or tribe prior to March 3, 1871, shall be hereby invalidated or impaired.” ). For an in depth discussion of questionable constitutionality of the Congressional rider ending treaty making see Moore, David H. and Steele, Michalyn, Revitalizing Tribal Sovereignty in Treatymaking (April 22, 2022). 97 N.Y.U. L. Rev. 137 (2022).

[3] See Robert A. Williams, Linking Arms Together: American Indian treaty visions of law and peace, 1600-1800, 28 (1997).

[4] Blackhawk, Maggie, Federal Indian Law as Paradigm Within Public Law, 132 HARVARD L. REV. 7, 1787 (2019), citing Philip P. Frickey, A Common Law for Our Age of Colonialism: The Judicial Divestiture of Indian Tribal Authority over Nonmembers, 109 YALE L.J. 1, 81 (1999) (coining the term “common law of colonization”).

[5] Dobbs at 5, 12, 13, 36, & 75.

[6] See Elkizabeth Reese, Conquest in the Courts, The Nation (July 6, 2022) (calling the  opinion “unmoored from the key cases of federal Indian law and divorced from the realities of American history”),

[7] See Oklahoma v. Castro-Huerta, 142 S. Ct. 2486 (2022) citing Organized Village of Kake v. Egan, 82 S.Ct. 562 (1962) (holding under the Alaska Statehood Act that although the federal government retained absolute jurisdiction and control over Indian lands and Indian property Alaska Natives were still subject to state hunting and fishing laws); United States v. McBratney, 104 U.S. 621 (1881) (finding the Act of March 3, 1875 granting Colorado statehood, and granting criminal jurisdiction over Colorado’s citizens and other white persons in the state, necessarily repealed any existing Treaty language to the contrary); and Draper v. U.S., 164 U.S. 240 (1896) (holding the language of the enabling act of Montana stating the federal government retained absolute jurisdiction over Indian lands did not include federal jurisdiction over crimes committed by non-Indians).

[8] See generally New York State Rifle & Pistol Assn., Inc. v. Bruen, 142 S. Ct. 2111 (2022)(finding a New York law reasonably restricting concealed gun carry unconstitutional and heavily focusing on 18th century law as a rationale); Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407 (2022) (finding prayer, on public school grounds and during official school events by a football coach, guaranteed as free speech under the Constitution in “ accor[d] with history and faithfully reflec[t] the understanding of the Founding Fathers”); W. Virginia v. Envtl. Protec. Agency, 142 S.Ct. 2587 (2022)(limiting the EPA’s ability to regulate carbon emissions under Section 111(d) of  the Clean Air Act) ; Egbert v. Boule, 142 S. Ct. 1793 (2022)(limiting redress for a Fourth Amendment excessive force violation for victims of harassment by federal officers at the border); and (Vega v. Tekoh., 142 S.Ct. 2095 (2022)(when filing a § 1983  civil rights claim a Miranda violation does not constitute the deprivation of a right secured by the Constitution).