My most enduring memory of Supreme Court Justice Anthony Kennedy is watching him lean over the bench, red-faced and angry, lecturing attorney Neal Katyal during the Dollar General Corp. v. Mississippi Band of Choctaw Indians oral argument.
At issue in that case was whether tribal courts had jurisdiction over civil claims: Dollar General had opened a store on the Mississippi Band of Choctaw Indians’ reservation and signed a lease saying that legal disputes would be tried in Choctaw court. When the store’s non-Indian manager made sexual advances toward a 13-year-old Choctaw boy, the boy’s family took the matter to tribal court. Dollar General decided that tribal court was unacceptable and took the matter to the Supreme Court.
That day, I finally understood that Kennedy was so disturbed by tribal jurisdiction over non-Indians that he would angrily protect a sexual predator from the horror of being subject to a tribal court, a position completely in line with his previous stands on Indian cases.
Kennedy, who announced his retirement in June, was confirmed to the Supreme Court in 1988. He heard around 60 Indian law cases, and during his tenure, tribal interests won 15 cases and lost 40. Just under 30 percent of cases were won by tribal interests, making Kennedy’s time on the court a bad time for Indian people and Indian tribes.
His voting record was overwhelmingly oppositional to tribes. He voted in favor of tribal interest 11 times and against 45 times. He wrote only a small number of opinions in Indian law cases.
The most important majority opinion Kennedy wrote was Duro v. Reina. In Duro, the Salt River Pima-Maricopa Indian Community attempted to prosecute Albert Duro, a member of the Torres-Martinez Desert Cahuilla Indians who had been living and working on the Pima reservation. The Supreme Court held that tribes could not prosecute non-member Indians because they were not citizens of the tribes prosecuting them.
Kennedy’s Duro opinion shouldn’t be considered important as it was clearly wrong on many levels – Congress enacted a fix restoring tribal jurisdiction within weeks of the decision – but it could be examined as the climax of decades of legal thinking. The principles Kennedy advanced in Duro were principles he had been working on since at least the 1970s, when he dissented as a 9th Circuit Court of Appeals judge in Oliphant v. Suquamish Indian Tribe. The Supreme Court later adopted the same position, ruling that tribes had no criminal jurisdiction over non-Indians that committed crimes in tribal territories.
In Kennedy’s America, non-Indian and Indian alike must consent to the state; Indians consent to being the subject of tribal jurisdiction while non-Indians lack the ability to consent because they cannot be tribal citizens. Perhaps the biggest problem for Kennedy’s consent theory is that it’s non-sensical and not grounded in either the constitution or reality. He laid out his consent theory in United States v. Lara, the case confirming the Duro fix, and waited for an opportunity to challenge the fix, but that vehicle never came.
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For all my criticism, I do have a favorite Kennedy opinion: United States v. Finch. In that case, Kennedy faithfully applied Indian law by writing strongly in favor of the Crow Nation’s ownership of the Bighorn River as guaranteed by treaty. Justice William Rehnquist’s Supreme Court took up the case in 1980 in Montana v. United States, and decided that the Crow did not possess the river because Crows only ate bison, never fish, and therefore wouldn’t have even wanted the Bighorn River.
If Kennedy had respected the foundational principles of Indian law he showed in Finch during his tenure as a Supreme Court justice and refused to side repeatedly with the likes of Rehnquist, he’d be celebrated, even worshipped, by Indian Country. Instead, it’s the red-faced Kennedy shown in the Dollar General case that we’ll remember most.
Matthew L.M. Fletcher is professor of law at Michigan State University College of Law and director of the Indigenous Law and Policy Center. He is a member of the Grand Traverse Band of Ottawa and Chippewa Indians. Find his writing on Turtle Talk.
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