Some of the Supreme Court’s most consequential decisions are nail-biters. And for Native Americans, a single vote can be what affirms their sovereignty.
One Supreme Court Justice who could offer that crucial single vote – Ruth Bader Ginsburg – died Friday.
But Ginsburg’s allyship with Native communities was not straightforward, leaving her legacy muddied. At times, she voted against Native interests.
“It is very complicated,” said Margo Hill, Spokane tribal member and professor of law at Eastern Washington University. “But she was fair. She fought for equity.”
At the same time, Ginsburg played a key role in two narrow victories for Pacific Northwest American Indians.
“In this one case, this one little case, the judges are reading the law the way they’re supposed to,” Hill said of the 2019 ruling at the time. “It’s a small justice, but we’ll take it.”
And in the final spring of her life, Ginsburg seemed to have come to a realization. She shared with close colleagues and clerks one of her greatest regrets and one of her greatest hopes – the regret, a Supreme Court decision many American Indians considered racist; the hope, that the next Supreme Court Justice nominated be Indigenous.
The remorse over that 2005 decision was so strong, Ginsburg regretted it more than any other she made in the U.S. Supreme Court over 27 years, the Buffalo Chronicle reported.
For years, the Oneida Nation had been buying back land of which it was defrauded in the early 19th century, parcel by parcel, in Sherrill County in the Mohawk River Valley of Upstate New York.
But Ginsburg, writing for the 8-1 majority in the Sherrill v. Oneida Indian Nation decision, refused to allow the Oneida Nation to restore those lands. Motivated not by law but by a personal sensibility, she told colleagues 15 years later, she argued at the time that the tribe’s retrieval of its land was not enough to revive its sovereignty.
That meant the federal government would hold those lands in a trust for the Oneida people. Rather than governing their land themselves, the tribe would need approval from the Secretary of the Interior for decisions as basic as lease arrangements.
“Oneidas long ago relinquished the reins of government and cannot regain them” by repurchasing property in the reservation, she wrote. Her decision took into account, “the longstanding non-Indian character of the area and its inhabitants … and the Oneidas’ long delay in seeking judicial relief.”
Put simply, the area’s population was too white and the land had been taken too long ago for the Oneidas to govern it now.
As summarized by Michael Oberg, a blogger and historian at one of upstate New York’s state universities: Ginsburg’s words sent the message to Native Americans that, “History, and the law, are written by the winners. You are out of luck.”
But in the Pacific Northwest, two of her decisions marked “small” victories for Native Americans in acknowledging their sovereignty, Hill said.
In 2001, the U.S. Supreme Court awarded ownership of a portion of Lake Coeur d’Alene to the Coeur d’Alene Indians in a 5-4 decision Ginsburg supported.
The ruling upheld lower court rulings that gave the tribe ultimate authority over boating, fishing, environmental stewardship and marine patrols on the southern third of the lake.
“It makes us stand a little taller,’’ Tribal Chairman Ernie Stensgar said in 2001. “The lake is the heartland of our country. It was inconceivable to anyone of Coeur d’Alene descent to think that our ancestors would give away our heartland.”
Tribal members hoped the decision might be a springboard for the tribe to file suit seeking ownership of the entire lake, Stensgar said.
In another tight, 5-4 decision in 2019, the court ruled the state was wrong to assess a Yakama Nation fuel distributor $3.6 million in taxes, penalties and fees based on Washington fuel taxes.
The decision was a “small justice” in a sea of “a huge number of historical wrongs,” Hill said.
In that case, the court was simply reading the law and keeping the United States’ promise, signed into the Yakama Nation treaty of 1855. The Yakama Nation had specifically negotiated the right to travel and trade, “so the supreme court was following the law,” Hill said.
The Cougar Den, owned by Yakama tribal member Kip Ramsey, is a fuel station and convenience store seated deep in the Yakama reservation. Ramsey had battled the state Department of Licensing over taxation for years.
On the reservation prior to the 2019 court ruling, tribal members were already exempt from state cigarette, fuel and retail taxes, in acknowledgment of their sovereignty from the United States. But the Department of Licensing had complained for years that the exemption leads to non-Native Americans flocking to reservation shops to avoid state taxes.
“The State of Washington includes millions of acres that the Yakamas ceded to the United States under significant pressure,” Hill said in 2019. “In return, the government supplied a handful of modest promises. The State is now dissatisfied with the consequences of one of those promises. It is a new day, and now it wants more.”
The Cougar Den had already won in two lower courts. In 2002, Ramsey had been refunded close to half a million dollars in federal highway-use and diesel fuel-excise taxes he’d paid. The court ruled he was exempt from those taxes thanks to provisions of the 1855 treaty between the United States and the Yakama Tribe.
The court’s narrow decision that a tribe member operating a business on tribal land should not be subject to state fuel taxes was a long-deserved recognition of the Yakamas’ negotiated independence, Hill said.
American Indians are sophisticated, independent and “our voices are being heard,” Hill said.
Hopi United States District Court Judge Diane Humetewa, Ginsburg’s suggestion for the next seat on the Supreme Court, would certainly understand Indian country and tribes’ sovereignty, Hill said.
Former President Barack Obama nominated her to the federal bench in 2014 and she secured Senate confirmation in a 96-0 vote. In 2007, former President George W. Bush nominated her to serve as United States Attorney for Arizona, and she came recommended by both Senators John McCain and John Kyl.
“We will one day have somebody on the United States Supreme Court bench. But until that time, we only ask that they interpret the laws and the treaties the way it’s supposed to be,” Hill said. “We want the treaties we negotiated for to have value. That’s the word of the United States government. The United States government should keep their word.”
Despite missing the mark for Native Americans on some occasions, Hill said, Ginsburg is an icon and hero who fought long and hard for equity – particularly for women.
“We appreciate her fight,” she said. “Even if it didn’t always go our way, we appreciate her fight.”