HUMAN RIGHTS AND WRONGS: The Dark Canon of the United States Supreme Court in Environmental Law.

• Author: Houck, Oliver A.

TABLE OF CONTENTS I. NORTHWEST INDIAN CEMETERY PROTECTIVE ASSOCIATION A. Prologue B. The Supreme Court and Native Americans C. Northwest Indian Cemetery Protective Association D. Reflections on NWIC E. Epilogue II. SANDOVAL A. Prologue 1. The Federal Civil Rights Act of 1964 B. The Supreme Court and Race C. Lau and Guardians D. Sandoval E. Epilogue III. KIOBEL V. ROYAL DUTCH PETROLEUM A. Prologue B. The Corporations: Who are Today's Pirates? 1. UNOCAL (1973) 2. Rio Tinto (1969) 3. Freeport-McMoRan (1969) 4. Royal Dutch Shell (1958) 5. Filartiga and Sosa: The Courts Step In 6. Kiobel and Jesner: Things Fall Apart 7. Reflections: Justice is Blind I. NORTHWEST INDIAN CEMETERY PROTECTIVE ASSOCIATION

1. Prologue

   What was wrapped in the GO road was probably the final phase of cultural and spiritual homicide--and it was being perpetrated by the federal government.

   Chris Peters, Plaintiff in Northwest Indian Cemetery and President and CEO of the Seventh Generation Fund for Indigenous Peoples (2)

   In the early 1970s, the U.S. Forest Service began construction of a 49-mile road through the Six Rivers National Forest in Northern California. Its stated purpose was to connect two small California towns that would be difficult to find on a map. A more compelling one soon followed. The Service was also preparing a timber plan, served by the road, to harvest 733 million board feet of Douglas Fir trees over the next 80 years.

   Road building proceeded to both sides of the Forest's Blue Creek unit without interruption. Only a six-mile segment called Chimney Rock remained. For the Yurok, Karok, and Tomsola tribes, the values of this area were extraordinary and almost incomprehensible to the Western mind. Their religion was practiced at a particular place, in a particular way, in complete silence, which served the tribes that used it. It would save the world. The inability of the United States Supreme Court to grasp this concept and accommodate it led to one of the most racially insensitive opinions that it has ever rendered: Lyng v. Northwest Indian Cemetery Protective Association. (3)

2. The Supreme Court and Native Americans

   "There is nothing in the whole compass of our law so anomalous, so hard to bring within any precise definition, or any logical and scientific arrangement of principles, as the relation in which the Indians stand toward this government and those of the States"

   Hugh Swinton Legare, U.S. Attorney General under President John Tyler (1842). (4)

   Going back centuries, the United States Supreme Court has never had an easy time relating to, and accommodating, Native Americans. These difficulties and their accompanying misunderstandings would hang over the High Court's opinion in Northwest Indian Cemetery Protective Association like a fog.

   It began at an early age, close to the foundation of the Court itself. In Johnson v. MIntosh (1823), (5) the courts were faced with two title-holders to the same property--one issued by the state of Georgia and the other by the Cherokee Nation. Chief Justice Marshall, perhaps the greatest Justice of them all, was faced with a Hobson's choice. The nation had developed on the basis of state property deeds, and it was too late to un-ring that bell. On the other hand, Marshall found it a nasty business and made these sentiments plain. Listen to him speak:

   On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim ascendency. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence. (6) As if this were not enough, he continued:

   However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear [it was now too late to go back to the beginning]. However this restriction may be opposed to a natural right, and to the usages of civilized nations, yet, if be indispensable to that system under which the country has been settled, and be adapted to the actual condition of the two people, it may, perhaps, be supported by reason and certainly cannot be rejected by Courts of justice. (7) The language drips with sarcasm. The Chief Justice evidently hated what he was doing, and soon found a way to ameliorate it. From 1817 to 1827, the Cherokee successfully resisted in ceding their home place in Georgia, creating a constitution, a two-house legislature, their own written language, published their own newspaper, and adopted Christianity. (8) There was only one problem, and it would prove to be fatal. They were not white. The 1890 Indian Removal Bill, backed by President Andrew Jackson, was the first step for taking the Cherokee land. (9) In response, they went to court, and in Worcester v. Georgia (1832), (10) Chief Justice Marshall asserted their right to possession of their homeland against which the laws of Georgia had no force or effect. (11) Outraged by this decision, President Andrew Jackson famously declared, "Justice John Marshall has made his opinion; now let him enforce it." (12) Marshall could not, which led ultimately to expulsion of the Cherokee on a "trail of tears" to a landscape like the moon: Oklahoma. (13)

   Beyond the raw possession of land, the psychological divide that overcast Northwest Indian Cemetery was best described by Chief Seattle of the Duwamish Nation on the northern Pacific Coast. The arrival of American gunboats and marines made something of a farce of the subsequent negotiations, at the end of which Chief Seattle rose to deliver one of the most oft-quoted orations in American history. He began:

   Our great father in Washington ... sends word by his son, who no doubt is a great chief among his people, that if we do as he desires, he will protect us. There is little in common between us. The ashes of our ancestors are sacred and their final resting place is hallowed ground, while you wander away from the tombs of your fathers seemingly without regret. Your dead cease to love you and the homes of their nativity as soon as they pass the portals of the tomb. They wander off among the stars, are soon forgotten and never return. Every hillside, every valley, every plain and grove has been hallowed by some fond memory or some sad experience of my tribe. Even the rocks that seem to lie dumb as they swelter in the sun along the silent seashores in solemn grandeur thrill with memories of past events connected with the fate of my people, and the very dust under your feet responds more lovingly to our footsteps than yours, because it is the ashes of our ancestors, and our bare feet are conscious to the sympathetic touch, for the soil is rich with the life of our kindred. (14) Whatever one thinks of this speech, it is hard not to be moved. It is worth asking whether his perspective was that of a barbarian or whether he was expressing a rather elemental truth to which other religions claim to aspire. As beautiful as the Chiefs words were, however, the Duwamish had to accede to the Americans' demands and retreat to a small reservation, as had all tribes, eventually, with astonishingly bad outcomes.

   The abuse and naked invasion of tribal reservations is, in itself, a dark but well-known part of history. Books such as Bury My Heart at Wounded Knee, (15) Comanche Moon, (16) and Chief Joseph and the Flight of the Nez Perce (17) capture only a part of the agony these tribes endured. They would face a yet more systematic agony from a government initiative to destroy their reservation in order to prepare the tribes for white civilization. The Dawes Act of 1877 was a disaster for Native Americans. (18) It permitted tribal members on reservations to, in effect, privatize what had been community property and sell an allotted parcel for profit. Inevitably, and as intended by the legislature, the ready money overrode the sense of community and the results were staggering. (19) Within a few years, two-thirds of reservation lands owned by the tribes had been sold into white hands. (20) The preparation for white civilization, however, failed utterly and results could be seen on reservations across the country.

   The Dawes Act and its outcome turned out to be a tar-baby for both Congress and the courts. After floundering for decades, Congress passed legislation to consolidate fractured reservations in 1983, (21) but in Hodel v. Irving (1987), the Supreme Court found its failure to compensate small interests to be a taking. (22) In Cobell v. Salazar (1996), members of the Blackfeet Nation sued the Interior department for its failure to account for income the government had received from tribal lands. (23) The case ultimately settled in 2009 for over three billion dollars, nearly two billion of which went to the repurchase of lands sold under the Dawes Act and returned to tribal ownership. (24) At the end of the day, these tribal property claims were protected, although a century late.

   The assault on Native American religious practices, though less well-known, was yet more forthright: they were criminalized. As a Native American history organization reports: "For the past five centuries American Indians have had their religions suppressed (sometimes brutally and violently) and denied. (25) The Bill of Rights protecting religious freedoms did not apply to them "based on the notion that they were not citizens." (26) A series of increasingly severe laws in the 1800's led to the Religious Crimes Code of 1883, which banned all Native ceremonies, including the Sun Dance, Ghost dance, potlaches and the practices of medicine persons. (27) Federal agents...