The Concept of Equality in Indian Law

JurisdictionUnited States,Federal
CitationVol. 85 No. 1
Publication year2021

THE CONCEPT OF EQUALITY IN INDIAN LAW

Judge William C. Canby, Jr.(fn*)

In order to approach the subject of equality in Indian law, I reviewed Judge Betty Fletcher's numerous Indian law opinions. It has been a privilege to serve as a colleague of Judge Fletcher for nearly thirty years on the United States Court of Appeals for the Ninth Circuit during which time Judge Fletcher has served as the conscience of our court. In examining her opinions I looked for ringing phrases, calling Indian supporters to the figurative barricades, but found none. All of the opinions I read were careful, technically fine-tuned, and seemed to spring sensibly from the precedent they discussed. I have to say that Judge Fletcher is the least self-indulgent judge I have ever read. She seems to think that it is not her place to fill an opinion with her hopes and fears, delirium, or angst. What restraint! What I cannot figure out is how she can make the law come out with such consistently good results.

If you ask someone on the street what he or she thinks of the status of Indians, the answer (if it is a non-Indian) is likely to be: Why are Indians treated any differently from anyone else? The answer, of course, is history. In numerous treaties or other agreements, Indians yielded much of their territory to those of us who now occupy it, reserving small portions to themselves and their tribes-hence the term "reservations." These were government-to-government arrangements, and nothing is more important to the contemporary tribal Indian than recognition of this point, and an honoring of tribal government at least equally with, say, state government. That is the equality upon which the tribes insist. And when we recognize a government in our midst, we cannot treat its constituents exactly as we treat ourselves.

This brings me to Judge Fletcher's opinion in Nevada v. Hicks(fn1) This decision was reversed by the Supreme Court.(fn2) It happens to the best of us. In fact, it seems to happen to the best of us more than anyone else.

In Hicks, state officers suspected that a tribal member who lived on trust land on a Nevada reservation had violated game laws off-reservation by taking some mountain sheep. They went to state court for a search warrant. The warrant they received noted that the state court's writ did not run into Indian country, and that the officers would need to get the approval of the tribal court for a search. The officers did, and the tribal court narrowed the scope of the search somewhat. The state officers, accompanied by tribal officers, performed the search and confiscated one mounted sheep head. The sheep was soon determined not to have been a protected variety, and the trophy head was returned. The suspicions continued, however, and about a year later the officers obtained another search warrant, with the same caveat. They went to tribal court and got approval for a search, which, like the previous one, was conducted with tribal officers, and one or more additional trophy heads were removed. They, too, were found not to be illegal and were returned. Later, Hicks sued the officers in tribal court for exceeding the scope of the search and for damage to...

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