|Symbol: Native American Church|
If we follow the history of the judicial majority and minority rulings and opinions stated the the passing life of the reprehensible justice Anton Scalia,we find nowhere in those tomes what the constitution might hope to be blind justice. In fact, looking at his record there is a very precise matching up of his works with the political right in particular. There is no question about this. His obvious zeal for the right was and remains reprehensible. One needs only look at the hysterical panic of the GOP leadership when the news of his death arrived. In mere minutes the highest voices of the GOP establishment yelled out “hell no”.
Most reasonable people I believe are somewhat, and perhaps even greatly relieved that Scalia is gone from the court. Very hopefully we might conclude it is unlikely that such a zealous and biased justice could ever be confirmed at this point. Whomever is put forward will be assailed with historic vigour.
65% of Republicans in office right now were elected in opposition to and during the Obama presidency. The moronic, obstructionist, self-destructive and irrational comportment of republicans has produced a generation of possible the most stupid politicians in American history…by the actual voters. Even today, given the horrible candidates putting themselves forward, Republicans are still being voted into office. One could ask the question, in every corner, how is this possible? I have yet to hear a satisfying answer. That some voter could so despise another politician as to vote passionately against his or her own interests? It is just incredible.
8 sided character. One of the most fantastic elements of the spiritual teachings that were the backbone of Ojibwe culture was the ethical and moral guidance of the mide-wian sacred society. Inside this dedicated body of teachers, scholars, healers and philosophers were anointed/appointed Keepers and caretakers of the most advanced and important ceremonies and their associated objects. This includes drum keepers, pipe keepers, and other objects and offices of the tribal sacred. It was required by strident mide-wian tradition that any person appointed to high office should have what we Ojibwe call “an 8-sided character”. The largest Ojibwe tribal groups all have appointed judges that serve in tribal courts. This 8 side character rules applies to every one on them. Did Scalia have an 8-sided character?
Scalia. An effective bastard? Yes. Quite influential. Honourable Justice? Not by the most artful press of any truth could Scalia be considered an honourable public servant.
The funeral: Senator Mike Lee. Ted Cruz. Both prominent. Both with all the character of empty cardboard boxes, giving faux dignity to faux ceremony, officiated by 100 priests and a son of the late Justice. Crux was taking selfies, revealing in profile the body of an ancient curmudgeon, even though he is still a young man. A tortured and worn-out visage in an ill-fitting cheap black suit. A candidate for President of the United States.
From David Wilkens (Lumbee Nation) writing in Indian Country Today:
“… Justice Antonia Scalia was one of the most rabidly anti-American Indian
justices—closely aligned with former Chief Justice William Rehnquist—ever to serve on the High Court.
Petra Shattuck and Jill Norgren wrote a wonderful book in 1991 titled, Partial
Justice: Federal Indian Law in a Liberal Constitutional System. The central
question they posed was this: “Whether the law ought to be praised or cursed what it has done to Indians.”
While acknowledging that the Supreme Court occasionally hands down decisions on a lower level that
interpret treaty language in favor of Natives and even some that have guaranteed compensation for the
unjust taking of recognized Indian lands, by far their research showed that on a higher level federal courts
have long given the political branches virtual carte blanche authority–plenary power defined as virtually
absolute–to do whatever federal officials think is in the tribal interest.
Over time, the trust doctrine has consistently been defined by the courts and the
political branches in a way that normally benefits the federal government rather than
the beneficiaries of the alleged trust, Native peoples.
This two-tiered system of justice leaves Native nations extremely vulnerable and in an
inferior legal and political position because the occasional judicial victories on the lower level of treaty i
interpretation have never been used to breach the higher-level plenary and trust power of the federal
Justice Scalia’s Indian Law opinions between 1986-2016 both reaffirmed federal
superiority over Native peoples and also dramatically elevated state power vis-a-vis
tribal governments in most of the opinions he wrote or joined. Lawrence R. Baca, a
Pawnee lawyer, published a useful article last year that covered the last 40 years of
Supreme Court cases dealing with Native issues. Important for our purpose is that
Baca also did a statistical analysis of how individual justices voted in each case and
whether the case “favored” or was “adverse” to Native interests.
Of the more than 115 Indian law cases delivered between 1975 and April 2015
five justices “have perfect records of their opinions always being against Indian
interests:” Clarence Thomas (six opinions), Antonia Scalia (five opinions), Samuel
Alito (three opinions), and Chief Justice Roberts (one opinion.) Let us look quickly at
the five Scalia anti-Native cases that he authored and see if we can tease out his
underlying ideology regarding Native peoples.
Employment Division v. Smith (1990)
This was a devastating blow to the First Amendment religious freedom rights of Native American Church
(NAC) members. Two men had been fired from their counselling
jobs in Oregon and denied unemployment compensation because of their use of peyote, deemed a
“prohibited drug” by state law.
In denying NAC members the right to freely practice their religion, Scalia, a devout
Roman Catholic, wrote this remarkable sentence: “It would doubtless be
unconstitutional, for example, to ban the casting of ‘statues that are to be used for
worship purposes,’ or to prohibit bowing down before a golden calf.” Vine Deloria,
analyzing Scalia’s opinion, observed that worshiping golden calves had been
reprehensible to Moses. He went on to say “That it would now be the primary form of
religious activity protected by the U.S. Constitution seems ludicrous.”
Blatchford v. Native Village of Noatak (1991)
In this case the Noatak Village sued a state official in federal court seeking payment of funds of money that
the village believed was due under a state revenue sharing plan. The state claimed that it was immune from
suit by the Village under the Constitution’s 11th amendment. Scalia, for a 7-2 majority, sided with the state.
County of Yakima v. Confederated Tribes and Bands of Yakama Nation (1992)
Here, Scalia wrote that the General Allotment Act of 1887 permitted Yakima County to impose an ad
valorem tax on reservation land that had been patented in fee and owned by individual Yakama’s or the
Yakama Nation itself.
Nevada v. Hicks (2001)
Scalia, for the court, wrote that tribal courts lacked jurisdiction to regulate state game
wardens who were executing a search warrant on the reservation for an incident that
had happened off the reservation. This case contains the devastating line: “State
sovereignty does not end at a reservation’s border.”
U.S. v. Navajo Nation (2009)
Writing for a unanimous court, Scalia said that the Navajo Nation’s complaints against
the Secretary of Interior for allegedly violating its trust responsibility by having colluded
with a coal company did not rise to a claim under the Indian Mineral Leasing Act and
that the Nation was not entitled to compensation.
Each of these opinions caused great consternation in Indian country, especially the
Smith ruling on peyote and the Hicks case on state jurisdiction on tribal lands. In a few
cases where individual Native interests conflicted with those of their nation, Scalia,
usually ruled for individuals against Native national interests. For example, in two
cases involving land consolidation, Hodel v. Irving (1987) and Babbitt v. Youpee
(1997), Scalia sided with individual Indian property holders who challenged a
congressional law that would have had their small interests in land revert to the tribal
government upon their death without compensation.
And in two important Indian child welfare cases, Mississippi Band of Choctaw v.
Holyfield (1989) and Adoptive Couple v. Baby Girl (2013), he showed support for the
Indian Child Welfare Act (ICWA). He joined, in Holyfield, with the majority which held
that Native parents could not avoid ICWA’s provisions by simply giving birth to a child
off the reservation. And in Baby Girl he filed a dissenting opinion that stressed that
biological parents had legal rights and even if they had no custody of a child in the past
they might secure it in the future.
These three cases were solid victories for both individual Indian property rights and for
the right of tribal governments to be directly involved in the adoption of Native children.
Although the Baby Girl case was a terrible loss for the biological parent and a blow to
ICWA, the decision clearly outlined Scalia’s support for the rights of Native parents.
Given his history of scornfully brushing aside most questions of Native rights, this
position is most puzzling. I would speculate that his views might have been based
more on strong feelings in support of private property and parental rights—especially a
father’s rights—rather than those of Indigenous Peoples.
On balance, however, the vast majority of Scalia’s jurisprudence was dismissive
or denigrated indigenous religious rights, reduced tribal powers vis-à-vis state
governments–i.e. jurisdictional, voting rights, taxation, criminal matters, and hunting
and fishing rights–and accorded the federal government even greater leeway to define
the trust relationship in a way that benefitted the federal government rather than Native
peoples. His opinions, in short, reaffirmed the two-tiered level of justice that Shattuck
and Norgren wrote about.
The next Supreme Court appointee will be immediately besieged by a bevy of
constituencies hoping that the jurist will look favourably on their requests. But given the
High Court’s historic track record on Native issues we should be wary about what to
expect. That said, let us hope that Obama is successful in having his judicial candidate
confirmed by the Senate. His two previous nominees, Sonia Sotomayor and Elena
Kagan, already have established a much more favourable stance on Native issues t
than Scalia ever did.”
All of this news unfolds for the informed reader as the New York Times proclaims in large type, at his funeral, Scalia’s Funeral Reflects the Justice’s Life of Faith !! Is that ironic or just condescending?
One can be rightfully suspicious of men in authority, white men in authority, who affirm with passion their own faith while denying that privilege to all others. What part of blind justice is that? What part of the real and actual truth is that? This is the essential problem with the so-called legacy of Scalia. A true legacy for the ages upholds all people, uplifts all of society. If we examine the opinions of Scalia, over and over we see how the anointed, the corporate, and the political right are upheld at the actual expense of everyone else. Reprehensible is the word that resonates inside my spirit every time I think of Scalia.
When he died, he was sleeping in a free bed, in a free resort, after having imbibed free wine and free gourmet food. Top dollar. Golden plates of free food in a polished tower of a hand-.made bed. He died in a rich man’s Texas resort, provided the repast and accommodations of a Prince, by people whom had had business before his court.
Every person who ascends the golden arch of fame, in the end must be measured and weighed by it. There is no measure in the obstinate and condescending life of this little Sicilian of honour or of history. All that remains is the meanness of his person and the graceless, corrupt manner of his passing. The only good signal to come out of this, is that this may be the beginning of the end for the dominance of the extremist and obstructionist stranglehold the GOP exerts in national politics.
Animal life. As a parting note, I confess I love all the animals. Scalia was a sport shooter. The shooting of animals for sport by fat, rich white men is just gross. It is a filthy and pointless pastime, indulged in by the absolute vermin of politics, such as Dick Cheney. Scalia was in Texas to eat free food, drink free wine and kill innocent animals with free guns firing free bullets. And then he died: perhaps in fact from Gluttony.