“Dissents speak to a future age. It’s not simply to say, ‘My colleagues are wrong and I would do it this way.’ But the greatest dissents do become court opinions and gradually over time their views become the dominant view. So that’s the dissenter’s hope: that they are writing not for today, but for tomorrow.” – Ruth Bader Ginsberg
As a woman, the loss of Ruth Bader Ginsburg feels overwhelmingly profound. Living in the Pacific Northwest, I often find myself searching for a ray of sun breaking through the clouds. As sunlight hits the waters of the Puget Sound, it brings a sense of anticipation for the future. A ray of hope can be found in Federal Judge Diane Humetewa, the first Native American woman and enrolled tribal member to serve as a federal judge in history. And she was one of RBG’s picks for the next nominee of the U.S. Supreme Court.
In an era where the fight for racial equality has taken center stage, there is no population that deserves acknowledgement and respect more than the Indigenous. And there has never been a better time for this nation to throw our unanimous support behind finding a Supreme Court Justice who recognizes the importance of tribal sovereignty.
The Supreme Court has always been a reflection of its’ members. Between 1969 and 1986, when Warren Burger was Chief Justice, tribal interests prevailed 58% of the time. During William Rehnquist tenure as Chief Justice the win rate declined to 29%. The Roberts Court has harmed tribal sovereignty even more, winning just 18% of the time. The pattern of tribal cases accepted by the Supreme Court tend to favor petitions seeking review of rulings favoring tribal sovereignty, likely because they are seen as matters of “national importance.” In contrast, petitions seeking review of rulings against tribal interests are declined fairly often by the highest court in the land, reflecting a blind spot.
Surprisingly, on the topic of tribal sovereignty, opinions of individual Supreme Court Justices have little to do with political ideals. Liberal justices, such as Justice Ginsberg, Stevens, and Souter often side against tribal interests using very little in the way of legal precedent. Whereas, conservative-leaning Justice Neil Gorsuch, a Colorado native and judge on the 10th Circuit, seems familiar with legal doctrine recognizing tribes as a third sovereign within the United States.
Like every Supreme Court Justice who preceded her, RBG was a product of her background, life experience, and perspective. Without question, she was a tireless warrior for women and the marginalized, yet, her decisions were mixed with regard to tribal sovereignty. She shared with colleagues that the one decision she regretted more than any other during her 27 years on the Supreme Court was Oneida vs. Sherrill.
The story behind this tragic 2005 case involved the Oneida nation lawfully buying land parcel by parcel in Sherrill County, an area in the Mohawk River valley of Upstate New York, of which it had been defrauded during the early 19th Century. The Oneida tribe wanted to re-establish sovereignty of their tribal land and be exempted from state and local taxation. In an 8-1 ruling, Ginsberg wrote the majority opinion where the Court held that repurchase of traditional tribal lands after 200 years did not restore tribal sovereignty to that land.
Relatively indifferent to tribal claims at the time, RBG opined that the tribe’s retrieval of its land was not enough to revive its sovereignty. She wrote, “Oneidas long ago relinquished the reins of government and cannot regain them” by repurchasing property in the reservation.” Her decision weighed “the Oneidas’ long delay in seeking judicial relief” with the “longstanding non-Indian character of the area and its inhabitants.”
In later life, Ginsburg had a change of heart and her opinions began to reflect a better understanding of tribal perspective. In 2001, the US Supreme Court rightfully awarded ownership of a portion of Lake Coeur d’Alene to the Coeur d’Alene people in a 5-4 decision (Idaho v. United States.) The ruling upheld a lower court ruling giving the tribe ultimate authority over boating, fishing, and environmental stewardship on the lower third of the lake.
In 2019, another 5-4 decision—where Ginsburg supported tribal sovereignty—favored tribal rights in Washington Department of Licensing v. Cougar Den. The Yakama tribe had specifically negotiated the right to travel and trade in the Yakama Nation Treaty of 1855. Tribal members were exempt from state cigarette, fuel and retail taxes on the reservation, in acknowledgement of sovereignty from the US. Washington State complained that the exemption led to non-Native Americans flocking to reservation shops to avoid state taxes. In this particular case, the law was very clear. The Supreme Court held that Washington State was wrong to assess a Yakama Nation fuel distributor $3.6 million in taxes, penalties and fees based on state fuel taxes.
During her final two years on the Supreme Court, her opinions reveal strong reverence for tribal treaties as the law of the land. And in all four cases, Wash DOL v. Cougar Den, Herrerra v. Wyoming, McGirt v. Oklahoma, and by default, Sharp v. Murphy, decisions were split, 5 to 4. The 5 were Ginsburg, joined by Sotomayor, Breyer, Kagan, and Gorsuch. The 4 dissenters in these tribal cases were Roberts, Thomas, Alito, and Kavanaugh.
Echoing the sentiment of RBG, my greatest hope is that the next Supreme Court justice nominee is Indigenous.
Despite the fact that President Trump currently trails Biden, if he took RBG’s salient advice and nominated Diane Humetewa, someone the entire nation could celebrate, he would change his fortune. With a sensible choice, Trump would thwart the U.S. Senate from descending into pandemonium, foil the chance for U.S. legislators to look like a bunch of toddlers fighting over a new favorite toy, and wrap-up the sudden-Supreme-Court-vacancy-during-a-contentious-election-year kerfluffle with a shiny red bow.
For now, just as the rays of sun are breaking through the wildfire smoke, I have hope.
“It is hard to describe the legacy of Justice Ginsburg. Her life’s work was aimed at achieving equality for all, not just for women. She gave a voice to those who were unfairly quieted, and that voice, her voice, will be sorely missed. As only the second woman nominated and confirmed to the Supreme Court, she was a real inspiration to me, at the time, a third-year law student. I extend my deepest sympathies to her family and her extended court family,” said Diane J. Humetewa, Hopi, U.S. District Judge District of Arizona.