American Judges Association


Date of this Version



Court Review, Volume 45, Issues 1-2, 40-46


Copyright © 2009 American Judges Association. Used by permission.


Two Indians refuse to move until their complaints are heard. Stoically they stand. Waiting. Eventually a staffer promises them a meeting. This image of stoic and mostly silent Indians formed a mini-drama on the TV-show The West Wing. The treatment of Indian issues on HBO’s The Sopranos was similarly curt: sitting out on the curb, mobsters complain that Indians are getting stuff – from gambling – without having to work for it like Italian-Americans have had to. This anger culminates in an attack on Indians protesting Columbus Day. Largely missing from both stories are Indian voices; instead, Indians are understood only as they relate to non- Indians. The same holds true for how the U.S. Supreme Court understands Indians, or doesn’t understand them.

Awareness and understanding – real or assumed – of Indian legal issues varies considerably by location. Non-Indians in Arizona or New Mexico living near an Indian reservation have a distinct set of experiences from, say, Connecticut residents reading about the rise of Foxwoods Casino. And judges or justices living in large metropolises such as Washington, D.C. may have to go far out of their way to learn a little bit about the continent’s original inhabitants. Unfortunately, an assumption that Indians harm non-Indians can be found throughout the relatively recent Indian-law jurisprudence of the U.S. Supreme Court.

The recent decision in City of Sherrill v. Oneida Indian Nation of New York attests to the power of this assumption of harm. Briefly, Sherrill involved a tribe that, after buying up land within its original reservation boundary, claimed the right not to pay taxes on this property because through such purchases the tribe had unified fee and aboriginal title. The Supreme Court disagreed and under an (un-briefed) laches theory ruled that too much time had passed since the land had passed out of Oneida hands for the tribe to assert such sovereignty. A secondary basis for the decision was the idea that were the Oneida to be successful in reasserting sovereignty it would be disruptive and harm the expectations of non-Indians in the area.

Indian-law academics have focused their ire on Oliphant v. Suquamish Indian Tribe, which rejected tribal criminal jurisdiction over non-Indians. The Oliphant assumption that non- Indians would not be treated justly by tribal courts, to say nothing of the case’s denial of Indian sovereign territorial rights, has been rightly criticized by scholars. Just as the Oliphant assumption that non-Indians would be harmed by Indian courts is problematic, so too are assumptions regarding how Indian land holdings impact neighboring non-Indians and off-reservation communities.