When it comes to Indian Law, the United States Supreme Court is a joke.
To the surprise of nobody, the Supreme Court has struck a blow against tribes yet again, this time in a case involving the Prairie Band of Potawatomi Indians. There, the court allowed the State of Kansas to essentially impose a tax on gasoline sold at the tribe's on-reservation gas station.
This is only the most recent episode in the Supreme Court's crusade against tribal sovereignty. In carrying out its crusade, the court quite literally makes up the rules as it goes along. To borrow a painfully overused clichˇ from my conservative nemeses, this is "judicial activism" at its zenith.
As many of you have read in this column before, tribes simply can't win at the Supreme Court. On average, we lose eight out of every 10 cases argued there. And the few victories we manage to steal are always qualified, leaving the door open for states and local governments to chip away at what little sovereign rights we have left.
If there's one thing that tribes know, especially gaming tribes, it's that the house always wins. Always. Here at Bay Mills, we've based our entire economy on that premise. The house stacks the odds heavily against all bettors so that, at the end of the day, it is guaranteed a "net win." So if you head off to play against the house, the odds say that you're better off staying home. When it comes to the Supreme Court, that's exactly what tribes should do.
The Supreme Court has stacked the odds so heavily against tribal sovereignty that, at the end of the day, "states' rights" are guaranteed a "net win." By participating in this sham process we only serve to legitimize it.
Boycotting the Supreme Court is not unprecedented, if that's what you're wondering. The State of Georgia refused to argue before the court in Worcester v. Georgia, the seminal case in Indian Law. Georgia lost the case, but won its war with the infamous "Trail of Tears."
Despite what we were all taught in high school civics, the Supreme Court is not unresponsive to political pressure. The advances of the Civil Rights Movement were largely due in part to overwhelming pressure put upon the court by a minority determined to seize the spotlight. A highly publicized tribal boycott of the Supreme Court would shine that light on the unethical conduct of the court. Given the current atmosphere surrounding "judicial activism" created by the Republican Party, tribes could potentially spin the situation to their political advantage.
As a corollary to the boycott, tribes could demand that Congress exercise its power under the Constitution to establish an "independent forum" to adjudicate all matters in which tribal sovereignty is implicated, which is, of course, a long shot. Or, alternatively, tribes could utilize their moral authority to simply shame the court into following the law.
It is tough to ask tribes to stay away when they are seeking to vindicate long-held sacred rights. Many hope that they'll be one of the lucky two out of 10 to hit the "judicial jackpot."
Michigan tribes are about to go back to court to defend our treaty rights, which could potentially reach the Supreme Court. In such an instance, a boycott would mean a certain loss. However, tribes really need to come to the realization that there is really no difference between "certain defeat" and "probably-most-likely-all-signs-point-to-yes defeat."
Do we want to legitimize the stripping of our sovereignty by participating? Or do we wish to retain our moral authority for the next seven generations?
Bryan Newland is a Bay Mills Indian Community Member and a student at Michigan State University College of Law in East Lansing. He is the oldest son of Gordon and Vickie Newland of Bay Mills. He has written columns and letters that have appeared in local, regional, and national publications. You can respond to his column at 517-420-0808 or tikro6@yahoo.com.
