18 SINGER MACRO.DOC 4/24/2003 6:32 PM Canons of Conquest: The Supreme Court’s Attack on Tribal Sovereignty* Joseph William Singer** We desire you to consider, brothers, that our only demand is the peaceable possession of a small part of our once great country. Look back and review the lands from whence we have been driven to this spot. We can retreat no farther ….1 When the Supreme Court decided Bush v. Gore2 on December 12, 2000, the entire country paid attention. The Court not only decided the presidential election, but did so in a 5-4 vote that split the Justices along ideological lines, creating the appearance, if not the reality, of raw political partisanship. The decision was especially shocking to most lawyers and law professors because the five Justices in the majority acted contrary to their own jurisprudential philosophies and in a manner that was arguably contrary to precedents they themselves had authored. The Court had recently proved a strong champion of state sovereignty, striking down a number of federal statutes that had purported to regulate state government. However, in Bush v. Gore, instead of deferring to the sovereign powers of the State of Florida, three of the Justices who joined the Court majority3 would have held, possibly for the first time ever, that a state supreme court * © 2003 Joseph William Singer. ** Professor of Law, Harvard University. Thanks and affection go to Martha Minow, Carole Goldberg, John LaVelle, Nell Newton, Judy Royster, Rennard Strickland. A version of this article was delivered as the Clason Lecture at Western New England School of Law in January 2002 and benefited from comments by the faculty at WNEC. It also was presented in summary form at the Symposium at New England School of Law held on October 25, 2002 on The Role of Jurisdiction in the Quest for Sovereignty hosted by the New England Law Review. 1. HELEN HUNT JACKSON, A CENTURY OF DISHONOR: A SKETCH OF THE UNITED STATES GOVERNMENT’S DEALINGS WITH SOME OF THE INDIAN TRIBES 42–43 (1881), reprinted in GREAT SPEECHES BY NATIVE AMERICANS 37 (Bob Blaisdell ed., 2000) (quoting unknown author from among Delaware or twelve other tribes). 2. 531 U.S. 98 (2000). 3. Chief Justice Rehnquist and Justices Scalia and Thomas. 64118 SINGER MACRO.DOC 4/24/2003 6:32 PM 642 NEW ENGLAND LAW REVIEW [Vol. 37:3 had interpreted a state statute incorrectly, and in a manner so egregiously wrong that it had purportedly violated the Constitution’s grant of power over state elections to state legislatures rather than to courts. This would have been a striking assertion of federal authority over state election procedures—procedures one might have thought to be at the core of state sovereignty. Those same Justices and others in the majority4 invalidated the state actions on the additional ground that they violated a newly created right grounded in the Equal Protection Clause of the Fourteenth Amendment. This was not exactly an expected development; the Rehnquist Court had not previously been known as a champion of civil rights. In fact, it had been known for its penchant to limit the creation of new constitutional rights—especially rights of equality. The final nail in the coffin was the Court’s suggestion that the case was so unique that it should not be thought to create new rights that might be applied in future cases.5 This last argument especially shocked lawyers because it appeared to suggest that the Court’s ruling was intended to apply to this case alone—a result that would appear to contradict the principle that like cases should be treated alike—a principle at the heart of the rule of law. Six months after the decision in Bush v. Gore, the Supreme Court decided Nevada v. Hicks.6 Like Bush v. Gore, Hicks involved fundamental issues of sovereignty, separation of powers, and equality. This time, however, the issue concerned tribal sovereignty, or the relations among the federal, state, and tribal governments. Like Bush v. Gore, the decision shocked specialists in the field. Hicks changed fundamental norms in the field of federal Indian law in a manner that flew in the face of both established precedent and existing federal policy. If we take the Court at its word, the Hicks decision will radically alter the nature of tribal sovereignty by substantially limiting the power of tribal governments. The ruling ignored, or overturned, prior law while purporting to explicate existing doctrine. It effectively rewrote the law in a manner that stripped tribal governments of powers they had previously possessed. In so doing, it breached existing treaties that remain in force, contravened longstanding congressional and executive policy, and infringed on retained property rights of American Indian nations. Moreover, the Court ignored its recent rulings protecting state sovereignty; if it had used the same principles to define the scope of tribal sovereignty that it has recently used 4. Justices O’Connor and Kennedy. 5. See Bush, 531 U.S. at 109. “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” Id. 6. 533 U.S. 353 (2001).18 SINGER MACRO.DOC 4/24/2003 6:32 PM 2003] CANONS OF CONQUEST 643 to define the scope of state sovereignty, it would have ruled in a manner that protects tribal retained powers rather than stripping them to the bone. As in Bush v. Gore, the opinion in Hicks suggested that the case was a mere application of established precedent and that nothing new or astonishing was occurring. However, one thing was different: unlike the decision in Bush v. Gore, the case of Nevada v. Hicks garnered almost no public attention. Neither the New York Times nor the Washington Post saw a reason to report the decision of the Court. I believe the case was wrongly decided, and I want to explain why. More fundamentally, I want to explain why it matters—in other words, why the case was important. Hicks concerned not a technical legal issue of concern to a few, but principles that go to the core of our constitutional structure and the American way of life. Over the last twenty years, the Supreme Court has led a massive assault on tribal sovereignty. Although it has acted to affirm expansive tribal powers over tribal members, it has substantially curtailed tribal power over nonmembers, including both non-Indians and Indians who are not tribal members. At