The Erosion of Tribal Power: The Supreme Court's Silent Revolution

The Erosion of Tribal Power: The Supreme Court's Silent Revolution Dewi Ioan Ball's dense descriptions of Supreme Court decision making from 1959 to 2001 draw on case law, enriched by the open-to-the-public papers of seven justices: Harry Blackmun, Thurgood Marshall, William Brennan, William Douglas, Hugo Lafayette Black, Earl Warren, and Lewis Powell. Ball argues for a “silent revolution” as key justices eroded the “Indian sovereignty doctrine” to favor an “integrationist” stance that allowed significant intrusions of state law onto reservations (pp. 4, 33). The Court usually supported inherent sovereign authority over tribal members on reservation (tribal or trust) lands but systematically attacked tribal authority over nonmembers, first on nonmember (fee) land and then on trust or tribal lands. Why Ball calls the revolution “silent” rests on two assertions: that the Court's revolution was never challenged by Congress and that the Court's “mindset” developed out of public sight (p. 4). The Court's “sweeping ideological changes” are revealed through analysis of the papers accessed in the Library of Congress and the National Archives and Records Administration (p. 6). Ball's deep dive into the archive is welcome. Occasional frustrations—that the William H. Rehnquist Papers are closed when William H. Rehnquist articulated strong antinative opinions in the papers cited here—are offset by insights into the degree that the opinions of the justices and their clerks were shaped by mythologies of U.S. exceptionalism, the inevitability of indigenous land loss, and the naturalization of constructed legal doctrines such as native wardship and congressional plenary power. Those insights are embedded in the evidence; Ball does not make much of them. For example, I believe he only twice acknowledges instances of clearly racialized thinking as racialized. Ball's detailed descriptions of the Court's thinking in taxation, civil law, and criminal law help answer the question of how Court interpretation shifted. His thick descriptions of the justices' papers are illuminating, and the two last chapters—on the effects of the revolution in Indian country, and native nation building in this era—are engaging. I found the book unsettling, however, because of the lack of analysis. Why did the trend of “silent revolution” unfold? Trained as a historian in Wales, Ball gives us no clues to connection with the discourses or theoretical paradigms of U.S. indigenous studies or federal Indian law. Bringing fresh eyes can generate innovative insights; it is no inherent flaw. Much in the introductory framing, however, is disturbing. Ball uses “tribe” and “nation” interchangeably, when the distinctive status each implies carries weight in the history of indigenous sovereignty. Similarly, he notices the difficulty of defining “tribal sovereignty” but fails to notice that attaching “tribal” to diminish the concept is a well-established technology of settler colonialism. Ball concludes with a rosy optimism about Congress: “it will take the resolve of strong, ethical, and supportive Congress to reverse the Court's trend” (p. 220). Once again, I return to the question of why we should expect that. © The Author 2018. Published by Oxford University Press on behalf of the Organization of American Historians. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png The Journal of American History Oxford University Press

The Erosion of Tribal Power: The Supreme Court's Silent Revolution

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Publisher
Oxford University Press
Copyright
© The Author 2018. Published by Oxford University Press on behalf of the Organization of American Historians. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com.
ISSN
0021-8723
eISSN
1945-2314
D.O.I.
10.1093/jahist/jax439
Publisher site
See Article on Publisher Site

Abstract

Dewi Ioan Ball's dense descriptions of Supreme Court decision making from 1959 to 2001 draw on case law, enriched by the open-to-the-public papers of seven justices: Harry Blackmun, Thurgood Marshall, William Brennan, William Douglas, Hugo Lafayette Black, Earl Warren, and Lewis Powell. Ball argues for a “silent revolution” as key justices eroded the “Indian sovereignty doctrine” to favor an “integrationist” stance that allowed significant intrusions of state law onto reservations (pp. 4, 33). The Court usually supported inherent sovereign authority over tribal members on reservation (tribal or trust) lands but systematically attacked tribal authority over nonmembers, first on nonmember (fee) land and then on trust or tribal lands. Why Ball calls the revolution “silent” rests on two assertions: that the Court's revolution was never challenged by Congress and that the Court's “mindset” developed out of public sight (p. 4). The Court's “sweeping ideological changes” are revealed through analysis of the papers accessed in the Library of Congress and the National Archives and Records Administration (p. 6). Ball's deep dive into the archive is welcome. Occasional frustrations—that the William H. Rehnquist Papers are closed when William H. Rehnquist articulated strong antinative opinions in the papers cited here—are offset by insights into the degree that the opinions of the justices and their clerks were shaped by mythologies of U.S. exceptionalism, the inevitability of indigenous land loss, and the naturalization of constructed legal doctrines such as native wardship and congressional plenary power. Those insights are embedded in the evidence; Ball does not make much of them. For example, I believe he only twice acknowledges instances of clearly racialized thinking as racialized. Ball's detailed descriptions of the Court's thinking in taxation, civil law, and criminal law help answer the question of how Court interpretation shifted. His thick descriptions of the justices' papers are illuminating, and the two last chapters—on the effects of the revolution in Indian country, and native nation building in this era—are engaging. I found the book unsettling, however, because of the lack of analysis. Why did the trend of “silent revolution” unfold? Trained as a historian in Wales, Ball gives us no clues to connection with the discourses or theoretical paradigms of U.S. indigenous studies or federal Indian law. Bringing fresh eyes can generate innovative insights; it is no inherent flaw. Much in the introductory framing, however, is disturbing. Ball uses “tribe” and “nation” interchangeably, when the distinctive status each implies carries weight in the history of indigenous sovereignty. Similarly, he notices the difficulty of defining “tribal sovereignty” but fails to notice that attaching “tribal” to diminish the concept is a well-established technology of settler colonialism. Ball concludes with a rosy optimism about Congress: “it will take the resolve of strong, ethical, and supportive Congress to reverse the Court's trend” (p. 220). Once again, I return to the question of why we should expect that. © The Author 2018. Published by Oxford University Press on behalf of the Organization of American Historians. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com.

Journal

The Journal of American HistoryOxford University Press

Published: Mar 1, 2018

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