Introduction

To say that the Supreme Court utilizes “history” when deciding on cases concerning

Indian Rights gives the court much more credit and legitimacy than is deserving. One must note

that history is a funny word that, given Supreme Court decisions concerning Indian rights, has

little to do with reality. This paper will introduce two categories of cases based on the manner in

which the Supreme Court arrived at its conclusion: normative and deterministic. Both

approaches have the potential to yield well meaning decisions that attempt to encourage an

improvement in the given Indian condition. Both approaches share a reliance on an unrealistic

history in which inconvenient incidences are ignored, replaced with stereotypes, or both.

Normative case decisions rely on four basic assumptions. It is believed that if these assumptions

are relied upon, that the result will facilitate an eventual improvement in the Indian condition.

These categories of decision making will be best highlighted by examples from the Marshal

trilogy and the Rehnquist court. Specifically, Johnson v. McIntosh is an example of a normative

case while Oliphant is a deterministic case, (1823; 1978). The distinctions between normative

and deterministic cases will be outlined at length highlighting how both types ultimately rely on

the four assumptions.

This paper will first discuss the definition of a normative case. Next, a brief history of

Indian policy will introduce four normative assumptions that underlie all normative cases. Then,

McIntosh is discussed for its normative qualities meant to promote the interest of the Indian so

long as it does not interfere with the interest of the United States. The gap in time between

McIntosh and Oliphant allowed political correctness to push to the underground at least the first

and second normative assumptions. As such, by the time Oliphant occurs in 1978, determinism is

the strategy used in curtailing Indian rights. Next, a research design is introduced which

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examines 45 cases which occurred while Rehnquist sat on the bench. Since it is argued that

Rehnquist relies on normative assumptions in order to deterministically tailor case outcomes, his

routine behaviors are categorized into a typology of conditions. These conditions are then tested

for their relationship to a typology of Indian Law case outcomes. While the results cannot be

interpreted as proving or disproving Rehnquist’s reliance on the normative assumptions

introduced here, it is reasonable to assume a couple of things. First, Rehnquist did not rely on

logic when determining Indian Law cases. Evidence will show that his behavior on the bench is

related to the diminishment of tribal sovereignty. Second, in the absence of logic, Rehnquist

must have had an agenda which is why he decided Indian Law case deterministically. The four

normative assumptions are offered as a plausible method of filling the gap, in Rehnquist’s mind,

between interest and outcome.

The Normative Approach

All of the Supreme Court cases concerning Indian rights can be classified into two

categories, normative and deterministic. Intuitively, the term normative most often refers to the

way things ought to be. Applying normative as a term to an idea basically attempts to make an

impact on some aspect of social life. Many times, the normative undercurrent of the idea offered

are so heavily embedded and assumed as natural that there is little cognitive attention to its

existence let alone its meaning or implications for social life. While space does not permit the

exercise of deconstructing all of the court cases, such a method of inquiry would be necessary to

explicate every underlying assumption and value buried within Supreme Court language. The

history of US and Indian diplomatic relations can, however, be superficially revisited in order to

construct a basic framework which will serve our purposes well.

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Four Normative Assumptions in Federal Indian Law Cases         1. The European Christian Government Must Remain the More Powerful Actor  2. Discovery Grants Right to Extinquish Indian Title    3. Indians Enjoy Right of Occupancy at the Pleasure of the European Sovereign

 4. Europeans Must Help the Indian be like the European Individual  

                 

The Normative Assumptions of Federal Indian Law

The following discussion will illuminate four normative assumptions that have guided

Federal Indian law. First, the European Christian government must always remain the more

powerful actor. Second, discovery grants the US the right to acquire exclusively from Indians

territory. Third, Indians may occupy the exclusive domain discovered by the British at the

pleasure of the US. Fourth, it is best for the Indian to be assisted by Europeans to look and act

like a US citizen. Given these assumptions, the mostly unstated guidance for Federal Indian law

is more clearly visible in what the current author calls normative cases. Where did these

assumptions come from?

Recall the cultural European tradition of law and international interaction. The notion of

discovery brought with it the basis for normative assumptions to be relied on by the Supreme

Court 500 years later. A critical normative undercurrent for Federal Indian Law comes from

Lord Chief Justice Edward Coke in which the rights to a King’s conquest are set forth. Coke sets

out the normative assumption concerning a Christian King and his conquest of an infidel

kingdom. Given this scenario, it is assumed that conquest abrogates the infidel kingdom’s laws

because such laws are not only against the Christian kingdom but also against the natural law of

god, (Getches, Wilkinson and Williams 1998). This premise of Christian right to conquest feeds

into the doctrine of discovery. Competing Christian sovereigns need only respect one another

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when exploring the Americas. As such, a second assumption is that discovery gives title over the

Kingdom of the infidels, including Indigenous communities, (Getches, Wilkinson and Williams

1998). Colonial competition for exclusive acquisition of Indigenous territory forced a pre-

colonial treaty making period to explicate which colonial power had a right to acquire what

Indigenous territory in order to minimize colonial state clashes, (Deloria and DeMallie 1999). It

was now necessary to subdue the Indigenous powers by force or fraud by virtue of the

Christian/infidel self righteously construed relationship.

The US foreign policy with Indigenous nations was one of isolation because, based on

the normative assumption from the doctrine of discovery, Indians had a right of occupancy based

on the whim of the US, (Getches, Wilkinson and Williams 1998). The legend of European

conquest is actually myth because the reality of US/Indian relations is more accurately explained

as a series of coercive agreements that were eventually abrogated by the US. In essence, US

conquest was a series of fraudulent acts. It was the unwillingness or inability of US governance

that failed to keep European immigrants out of Indian country, (Getches, Wilkinson and

Williams 1998). Recall, again, the doctrine of discovery and the Indian right to occupy as

inferior to the US right to terminate such Indian occupancy, (Getches, Wilkinson and Williams

1998). The greed of policy makers lured by the mechanistic1 value of territory was the impetus

for a policy change beginning allotment and assimilation, (Getches, Wilkinson and Williams

1998). The premise of greed and non action to prevent encroachment culminates in removal.

After removal, a shift in conditions and outcomes occurs. The pre-allotment condition is

discovery and acquisition while the outcome is encroachment. Allotment sees the conditions as

1 Holm, Tom, J. Diane Pearson, and Ben Chavis. 2003. "Peoplehood: A Model for American Indian Sovereignty in Education." Wicazo Sa Review 18:7-24. – Mechanistic land value is based on the presence of extractable, tangible resources such as water, minerals, agricultural products, etc. To be contrasted with organic connection which is a living relationship with territory most often exhibited by Indigenous people and articulated as “sacred land”.

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improving the Indian situation and civilizing the Indian. Not surprisingly, the outcome does not

change.

Allotment and assimilation policy period (1871-1928) was aimed at destroying tribalism

and remaking the Indian in the image of the European, in essence, civilizing the Indian into a

traditional family of farmers, (Getches, Wilkinson and Williams 1998). This goal was “in the

best interest” of the Indian. As such, Lonewolf allows treaty abrogation, much in line with infidel

legal abrogation. The underlying normative assumptions here are still based in the doctrine of

discovery. Recall that, “. . . the laws of the infidel are abrogated, for that they be not only against

Christianity, but against the law of God and of nature . . ,” (Getches, Wilkinson and Williams

1998). Infidel legal abrogation is consistent with Crow Dog in which the US takes jurisdiction

over crime on reservations. During allotment, the main interest for the US is to under count

Indian populations, allot individual land plots to the under counted Indian families, and dispose

of excess land in fee simple to settlers, (Getches, Wilkinson and Williams 1998). The US as

guardian and Indian as ward relationship is established during this time to protect Indians from

state action. Regardless, the aim of the allotment period was to destroy tribalism, (Getches,

Wilkinson and Williams 1998). All of these actions are “good” because they are all meant to

improve the Indian condition consistent with the assumption that tribalism is bad, inferior, while

civilization negates these problems.

By 1934, the Indian Reorganization Act ended allotment practices and introduced what

appears to be a shift from aiming federal policy at destroying Indian civilization one Indian at a

time to aiming at entire communities. While the manner in operationalizing the “best interest” of

the Indian changes, the goal apparently remains consistent with improving the Indian condition.

The overarching goal appears to have been to formalize Indian governance by writing everything

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down so that the governance apparatus appeared more like a European construction. Indian

adoption of European styles of government would make Federal/Indian interaction run more

smoothly, (Getches, Wilkinson and Williams 1998), which should also improve the Indian

condition. With IRA came the wish to cut the tie as ward to Indians. As such, termination (1945-

1961) followed in which Indian communities were encouraged to become self reliant while not

appearing too strong as a form of governance, (Getches, Wilkinson and Williams 1998). In other

words, the US wanted the IRA governments to stop using Federal money. Termination would

force self reliance and improve the Indian condition consistent with helping infidels. Indigenous

political mobilization along with the lesson of the termination era led to a pan-Indian movement

toward the self determination era. Self-determination is the most drastic shift away from the four

normative assumptions for Federal Indian policy. Let’s reexamine how these assumptions have

come up in Federal Indian law.

The Application of Norms in Federal Indian Law

The four normative assumptions for Federal Indian law, 1. US domination, 2. exclusive

acquisition, 3. Indian occupancy, and 4. Indian civilization, are largely unrealistic myths that

serve more to legitimize US governance than anything else. As such, it is necessary for

normative cases to be premised on a set of stereotypes which serve as or supplement the reality

of US/Indian relations at the time the case is being decided. Sometimes a normative case is one

in which the court aims to legitimize its colonial past, its hypocritical application of some rule,

and/or its current economic and political domination over Indians more generally. Other times,

the normative case attempts to improve the Indian condition. Sometimes, the good intention

approach is merely a cloak meant to obscure a more sinister motive or interest. Other times, it

appears the good intentions were genuine. Interestingly enough, every single normative case has

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carried with it unintended negative consequences which ultimately harm the Indian condition

regardless of the intent of the Supreme Court. Such harm is painfully evident if we understand

the driving force the four normative assumptions contain when Federal Indian law is constructed.

McIntosh, Normative Assumptions, and What History?

The McIntosh case (1823; Getches, Wilkinson and Williams 1998) serves as an excellent

example of the manner in which a normative case functions. In a logical argument, a set of

premises are offered. These premises should accurately represent the problem one is faced with.

The interpretation of these premises and their implications are weighed in a conclusion and, after

careful consideration, an outcome is offered as a solution to the problem first encountered. Yet

we have been examining a set of underlying assumptions that have substituted for the role that

logic should play in making decisions. Let us first examine the issue, rule, analysis, and

conclusion of McIntosh. Next, we will highlight the impact that history has on the outcome.

Third, we will explore the manner in which the four normative assumptions of Federal Indian

law have impacted the uses of history in this case. In conclusion, we revisit the question of the

conditions under which the case is being considered, and the outcome that is in the best interest

of the US at that time. These considerations will be tied back to the actual outcome of the

McIntosh case.

McIntosh deals with the issue of giving and receiving title to land as well as the

obligation courts have to recognize such title conveyances. Specifically, can an Indian convey a

title to a private party and can the private party receive title? If the answer is yes, than the matter

of court obligation to recognize such title transfers become the issue. The rule is that discovery

of Indian land by European colonizers gave them an exclusive right to acquire the title. Such a

right excludes the private party from receiving the title. The analysis finds that the private party

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and Indian land title transfer occurred prior to US independence. The title of discovery, however,

can be traced back to the British sovereign.

Upon losing the revolutionary war, the British title was transferred to the US. The

discovery of territory grants the discovering sovereign the exclusive right to bargain for the

acquisition of land. The exclusive right to bargain for acquisition is settled by looking at the

history of colonial interaction. The competition to bargain over the territory went on between

France and the US. The question of exclusive right to bargain was settled in the 1763 treaty of

Paris. As such, if France were to attempt to acquire land during the post 1763 treaty agreement,

such an act would violate US sovereignty. As such, only the US has the right to bargain for

acquisition of the territory that the private party now claims title to via purchase from Indians.

The analysis must also consider the right of the Indian to give title. Based on the doctrine of

discovery, the US sovereign has a clear title to all Indian land. While the Indian right of

occupancy exists, the right may be terminated at the leisure of the sovereign. As such, the Indian

title may be extinguished by purchase or conquest. In short, Indian right of occupancy does not

include the right to convey land to private individuals. Rather, Indian right of occupancy only

allows for Indian conveyance of land to the sovereign within the boundaries set forth in the treaty

of Paris. Alternatively, and as the case is for the particular land in dispute, the land can be taken

by force. Since conquest was the manner in which the US extinguished Indian title, only those

rights that are not in conflict with the sovereign remain in place. The right of Indian conveyance

is in conflict with US interests and, therefore cannot be honored. Along with conquest comes the

requirement to honor conquest title in the court of the conqueror.

The conclusion is that a private party may not obtain land from an Indian if the land is

discovered by the sovereign first. Second, an Indian can only convey title to land not taken by

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conquest. Third, when an Indian has not lost title due to conquest, the Indian can only convey

title to the sovereign. (Logically, although not stated, it should follow that an Indian may only

transfer title to a non-sovereign only after the sovereign surrenders the exclusive right to bargain

and acquire territory.) Finally, the court must recognize the exclusive sovereign’s right to acquire

by conquest or purchase. What role does history play in the McIntosh outcome?

Given the outcome, there are a few places where history has either been superficially

revisited or ignored all together. A controversial assessment of compensation for the discovery of

the Americas appears on page 63 (Getches, Wilkinson and Williams 1998), in which Christianity

and civilization are offered as payment in return for the Americas. To avoid conflict among the

“superior” Christian people, it was decided that the sovereigns must settle among themselves

how the Americas should be divided. The bargaining completed, the justices assume that with no

other civilized group, the exclusive right to acquire belonged to the US alone. Implicit in this

argument is the fact that only those actors that had a relevant purpose in bargaining were present

to strike the deal. Indigenous groups had no part to play in dividing the Americas. By virtue of

the discovery and the exclusive right to acquire as obtained by agreement among the other

discoverers, it is also imputed that the Indigenous groups were irrelevant actors as their

discovery automatically made them less than sovereign overseers of the territory. The source of

the less than equal relations between Indians and Brits had to do with the earlier citation from

Coke in which the King had the right to conquer infidels. Though not explicitly invoked, the

McIntosh case cites Coke which means all of the baggage of his concerns with laws against god

and nature govern here. Unfortunately, Indians proved to be “rebellious”, “fierce”, and

preoccupied with “making war” as well as deriving their livelihood “from the forest” meaning

that European laws were inconsistent, and threatened by Indian society. Based on such a history,

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it was unthinkable to allow the country to remain a “wild forest”, (Getches, Wilkinson and

Williams 1998).

The four normative assumptions have differing impacts on the issue, rule, analysis, and

conclusion so we will look at each separately. Recall that the issue involves the ability of an

Indian to convey a title to a private party, the ability of a private party to receive title conveyance

from an Indian, and the court obligation to recognize such title transfers. The distinction drawn

between an Indian and a private party hints at the first normative assumption of US domination.

More importantly, it is clear from the way the issue is framed that the second assumption,

exclusive acquisition, is at the heart of the case. Falling to the background are notions of Indian

occupancy and civilizing the Indian largely because these assumptions cannot take precedent

over the first two. Note here that we can see a priority ranking is also at work concerning the four

normative assumptions. The rule, however, almost exclusively focuses on the doctrine of

discovery and the underlying assumption of exclusive acquisition rights.

In many ways, the second normative assumption is the rule relied upon to arrive at the

analysis and conclusion. By virtue of its discovery, Indian land can be exclusively acquired by

the US to the exclusion of private parties. At least one other assumption still plays a role. The US

is still allowed to dominate both the Indian title and the private party transfer, yet occupancy and

civilization are hardly at issue for this particular case. The rule is also used to drive the analysis

into a restating of the rule as the conclusion, making the argument for US domination and

exclusive acquisition rights a complex, but nonetheless circular argument. Each step of tracing

the title relies on the doctrine of discovery, meaning that US domination and exclusive

acquisition rights drive the entire opinion. Discovery, negotiation among civilized nations,

exclusive acquisition, and right of occupancy all push the agenda of US domination and

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exclusive acquisition rights. It is unnecessary to re-articulate the same reasoning that appears in

the conclusion because it will read much the same as it has for the analysis. The conditions and

outcome will produce another circular argument.

The condition under which the Supreme Court is visiting the question raised in McIntosh

involves the need for the US to legitimize its sovereignty. As such, it is clear to see that the best

interest of expanding and solidifying US sovereignty is to find that Indians cannot transfer title to

private parties, private parties cannot receive title from Indians, and that the US courts have an

obligation to recognize only title that has traveled through the doctrine of discovery channels. Of

course, the outcome most beneficial to the US is the outcome that was arrived at. Removing the

normative assumptions would result in a different outcome. Interestingly, the first two

assumptions need to be negated for the outcome to change in the McIntosh case. Yet, even if

only those two are negated, it is still likely that Indian occupancy and the need to civilize the

Indian would still result in the invalidation of the Indian/private party title transfer. As time went

on, many of these normative assumptions were criticized as racist forcing the Supreme Court to

utilize another strategy to retain self interested outcomes.

What is a Deterministic Method?

Deterministic cases also rely on stereotypes in lieu of and/or in supplement of history or

omit history entirely because the outcome is predetermined. With deterministic cases, the history

must be carefully revised and stereotypes meticulously invoked in order to arrive at the pre-

determined conclusion. The term “deterministic” is borrowed from social sciences. Within a

social science discipline, the deterministic model is one in which the results of some quantitative

test are manipulated to achieve the intended outcome. For example, an ordinary least squares

regression can be manipulated by careful selection of cases based on some distinguishing

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characteristics being observed in order to obtain statistically significant results, (King, Keohane

and Verba 1994). For the Supreme Court, they are essentially carefully selecting which

history/stereotype (observations) they wish to include in their analysis to match the outcome

(result) they already have in mind. The deterministic approach requires that one ignore history

that conflicts with the predetermined outcome. In the absence of the “correct” history, some

justices rely on stereotypes and pass it off as historically accurate. The majority of the cases that

employ the deterministic approach tend to be direct assaults on Indian Rights. Although it is

possible to use deterministic methods to improve the Indian condition, such methods can just as

well cause tremendous harm as exemplified by the Oliphant case.

Oliphant, Determinism, and the Struggle for a Premise

Probably one of the most remarkable features of the Rehnquist court involves the turn

away from the Marshal Model. Such a development was necessary because, given the four

normative assumptions within the Marshal Model, at least two had the potential to aid Indians

from the perspective of Europeans. Time and political correctness probably did away with US

domination and exclusive acquisition assumptions. Yet, occupancy and civilizing the Indian

could potentially benefit Indians in the eyes of Europeans especially if the first two assumptions

are no longer openly acceptable to the public. A couple of factors allow the deterministic method

to work in the Supreme Court regarding Federal Indian law. The first factor is that no one on the

court seems to care one way or the other how Federal Indian law impacts the Indian condition

with the exception of Rehnquist. Rehnquist’s attention is the second factor; given his track

record, it is safe to assume Rehnquist was not a fan of giving anything to improve the Indian

condition. These two factors created a situation in which the premise for Federal Indian law

could be supplemented with stereotypes and inaccuracies and the conclusions could largely be

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predetermined by Rehnquist without any butting in from the other justices. A closer look at

Oliphant will support the above argument.

The Oliphant case (1978; Getches, Wilkinson and Williams 1998) will spell out the

manner in which accurate history is replaced by stereotypes and selective source citation in order

to arrive at the outcome pre-determined by Rehnquist. While technically not a Rehnquist court

case, the opinion was written by Rehnquist in 1978, eight years before he became chief justice,

and the case has had impact on future Rehnquist court cases especially Nevada v. Hicks,

(2001b). Concerning Federal Indian Law, Oliphant is the source of the Rehnquist court

deterministic legacy. The analysis that follows will briefly look at the issue, rule, analysis, and

conclusion. The use of stereotypes, inaccurate history, and omissions will be pointed out in the

course of detailing the issue, rule, analysis, and conclusion. Finally, the interest of Rehnquist will

be compared with the actual outcome of the case, and, suspiciously, the fit is very nice. As such,

it is unnecessary to revisit the counterfactual analysis of the case given accurate history and

stereotype omission because the premise used has no impact on the case in the first place.

The Oliphant issue is whether tribal courts have criminal jurisdiction over non Indians.

The rule is rather unclear. Perhaps, as the citation of congressional hearings state, Indians have

no rules, (Getches, Wilkinson and Williams 1998). Regardless, it appears no rule is cited and the

case moves on to analysis. Selective treaty citations signed by the Choctaw during the forced

removal era indicate that the Choctaw “wish” to have criminal jurisdiction of non Indians

granted by congress, thereby, indicating that the argument offered by the respondent is

inaccurate. In other words, one treaty signed during forced removal indicates that criminal

jurisdiction does not emanate from retained tribal sovereignty. The analysis further cites Ex parte

Kenyon holding that Indians do not have criminal jurisdiction over non-Indians, (1878). The case

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was since overturned but no mention of this surfaces in the opinion. Without clear rules, the

analysis instead relies on the opinion of the Executive branch of 1834 (President Jackson) and

the federal courts of the time (namely Judge Parker) as history indicating a lack of tribal criminal

jurisdiction over non-Indians. The analysis then cites termination era congressional hearings

indicating the same as Jackson and Parker in the 1830’s. Interestingly, the analysis moves on to

the four normative assumptions.

Note the invocation of “common assumptions of those who drafted” treaties and

legislation, (Getches, Wilkinson and Williams 2005). Given the reliance on the era of removal

(1830’s), the general assumptions of the era are US domination, exclusive right to acquire,

Indian right to occupy, and Indian improvement via civilizing. Yet, it is difficult for Rehnquist in

this time period to openly refer to the four assumptions and must, instead, rely on silence by the

tribe as an acquiescence of tribal criminal jurisdiction over non Indians. The back drop of the

silence is the reliance on the four normative assumptions to implicitly guide the opinion. Some

citations, however, rely on the US domination norms but are cited in a fashion that obscure the

normative assumptions. For example, the analysis relies on United States v. Rogers (1846;

Getches, Wilkinson and Williams 2005), to explicitly state the US domination normative

assumption that Indian laws may remain so long as they do not diminish the power of the United

States.

A final quote at length is necessary to understand the massive reliance on selective

histories. Rehnquist finds comfort in the ability to rely on the “nature and circumstances” of a

case apparently meaning that a justice should utilize the “common assumptions” of the era. What

follows is the rationale for the extension of US law. The regular text indicates the original

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citation as included in Oliphant. The red bold text will highlight the text omitted in Oliphant and

replaced with ellipses.

It is a case where, against an express exception in the law itself, that law, by argument and inference only, is sought to be extended over aliens and strangers; over the members of a community separated by race [and], by tradition, by the instincts of a free though savage life, from the authority and power which seeks to impose upon them the restraints of an external and unknown code, and to subject them to the responsibilities of civil conduct, according to rules and penalties of which they could have no previous warning; which judges them by a standard made by others and not for them, which takes no account of the conditions which should except them from its exactions, and makes no allowance for their inability to understand it. It tries them, not by their peers, nor by the customs of their people, nor the law of their land, but by superiors of a different race, according to the law of a social state of which they have an imperfect conception, and which is opposed to the traditions of their history, to the habits of their lives, to the strongest prejudices of their savage nature; one which measures the red man's revenge by the maxims of the white man's morality. (Getches, Wilkinson and Williams 2005).

Here the analysis has nicely weaved into the four normative assumptions. To be clear, it seems

that Rehnquist believes that the US should dominate, the US has a right to acquire, Indians can

stay on the land at the pleasure of the US, and that civilizing Indians with criminal law will

possibly improve the Indian condition. The conclusion of the case is that Indians do not have

criminal jurisdiction over non-Indians. How does this conclusion coincide with the interest

Rehnquist may have?

It is risky to delve too far into the mind of Rehnquist only because it would be far too

easy to lose a sense of objectivity, a concern Rehnquist himself apparently had no trouble

abandoning. As such, all that can be said about the self interest of Rehnquist are best exemplified

by the sources he cites as history that impacts the conclusion. His reliance on forced removal era

presidential and court wisdom coupled with his yearning to utilize the “assumptions” of the day

speak volumes of the Rehnquist mind. The history section of this paper has clearly laid out the

four normative assumptions of the Supreme Court. Although Rehnquist is willing to not call

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Indians savages and inferior, he still is able to conjure up the rationale that rests on the

assumption of Indian savagery and inferiority. As such, there is a direct match between the

interests of Rehnquist and the conclusion of the Oliphant case. Indians should not be able to

incarcerate whites. As stated at the outset, because logic is non existent in the reasoning of this

case, it is useless to consider how the case should have turned out had the outcome not been pre-

determined. But many will (and must) question if Oliphant is an isolated deviation from the

Rehnquist norm.

A Quantitative Test of the Rehnquist Court

As has been demonstrated by a brief case study of Oliphant, there is a problem in the

logical chain linking premises and conclusions. Some critics might argue that basing our

conclusions on the improper use of logic by Rehnquist and company on one case is problematic.

At the same time, advocates of Federal Indian Law require hard evidence that a problem did

exist in the Rehnquist court and those facts should not be discounted based on the

methodological approach that derived such facts. As such, this section aims to provide

descriptive statistics on the Rehnquist Court and its dealings with Federal Indian Law. By taking

a quantitative approach to data collection and treating data as objectively as possible, one might

prove that a deterministic model is at work in the Rehnquist court. Simultaneously, one must be

careful not to equate the presence of a deterministic model of logic in the Rehnquist court with

the assumption that the normative model offered here is “the” model at work. While many may

suspect that the normative model detailed here is at work, we must be careful not to allow the

quantitative section of this paper to assume too much weight. This section will only demonstrate

that the Rehnquist court deviated from the basic rules of logic. In other words, we cannot assume

that the Rehnquist court premises concerning Federal Indian Law are correct. Therefore, we have

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serious reasons to question the accuracy of many of the Federal Indian Law outcomes decided

while Rehnquist sat on the bench.

From a quantitative point of view, deterministic models of research design are not

remarkably different from the way the Rehnquist court decided its cases. One should observe

that some design issues do evolve when data is in the form of numbers and not primary or

secondary historical documents. A deterministic world view may be defined as follows:

Random variation is only that portion of the world for which we have no explanation. The division between systematic and stochastic variation is imposed by the analyst and depends on what explanatory variables are available and included in the analysis. Given the right explanatory variables, the world is entirely predictable, (King, Keohane and Verba 1994).

Focus on the “division” noted between a systematic treatment of research and a stochastic one.

Herein lies the problem of a great deal of research in social science. On a greater scale, one has

identified a logical fallacy in which a gap is smoothed over with normative assumptions about

the topic being analyzed. To be clear, it is assumed that in any systematic treatment of a topic, an

element of order exists. There are logical premises which contribute to many historical

outcomes. On the other hand, there are some historical facts which seem to be void of logical

premises or even premises of any other variety (non-logical). At the same time, the order is

always prone to unknowable occurrences which we will call chance or, in statistical terms, a

probability function. In a perfect world, an analyst can take the ordered approach to a problem

and identify key premises. Theses premises can then be combined with the probability of certain

outcomes. With these probabilities treated, the conclusion should reflect a logical extension of

what is best for all the factors considered. Just as the quote states, given this perfect information

scenario, the world is predictable. But what to do about stochastic variation?

A slippery slope of sort is often at work when an analyst has a vested interest in the

outcome of the research she is conducting. In a methodological slight of hand, it is easy to slip

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some of the order into the category of chance, thereby changing the outcome to ones desire. As

such, one cannot really argue that foul play is at work if the argument is not of a sophisticated

enough caliber to call the research design into question. The gap between order and chance, then,

is filled with whatever the analyst feels like filling it with. Such a charge is often lobbed at the

Rehnquist Court for reasons covered by the Oliphant case study. And even when the Oliphant

case is objectively presented, analysts cry fowl because Oliphant is a shifting of order and chance

in favor of concluding that Rehnquist is, shall we say, not fair. As such, consider the following

research design meant to take the entire set of Federal Indian Law court cases deemed important

by many Indian Law scholars and pose the same question in a quantitative approach.

Research Design

It is important to keep in mind the various quantitative models available for use in the

present research. Deterministic models have been discussed at length but need to be

distinguished from the model presently offered. Many seasoned social scientists versed in

quantitative methods may take the position that the research herein is, in fact, deterministic.

From a statistical method point of view, the research presented does not contain an error term. In

the absence of an error term, many researchers assume that error does exist and that such error

has been artificially classified as part of the premises being included in order to reach a

predetermined outcome. It must, therefore, be delineated how the current research is not

deterministic. Rather, the current research falls under the category of veristic.

Veristic models of quantitative research deal only with a limited number of cases. Given

that Federal Indian Law is really a subset of Federal Law, the population of cases has been

severely limited meaning that statistical analysis is inappropriate. A versitic model will allow for

analysis of less cases, and affords the researcher an opportunity to map every case in the data set.

18

There is ample room to become well versed in cases under study allowing for a more qualitative

approach to quantitative research. Some might call such an approach deterministic because the

deep knowledge of the cases is often misconstrued as shifting the cases in a direction more in

line with a predetermined outcome. Yet, with clear definitions of categories, publicly available

data, and the utilization of standard mathematical calculations, the research is largely replicable

by anyone who desires to do so. Scholars are invited to visit http://www.u.arizona.edu/~lerma for

information on research replication. The data complied for this research design is available at the

above website, (Lerma 2008).

This research will take a systematic (versitic) count of court cases that were argued

during the Rehnquist era. The cases will be clearly categorized into “outcomes” involving the

sovereignty of tribes. Descriptive statistics will be offered for further scrutiny. Subset

relationships among the cases will be clearly diagramed using a set theory approach, (Ragin

1987; Ragin 2000). Conditions which are well known to legal scholars will be posed in terms of

their potential for having impact on the outcomes delineated. Four examples of ideal type

outcomes are offered but the details of such cases are omitted. It is assumed that a reader is

willing to verify independently that the cases match up with the definitions offered for the basis

of categorization. The distribution of cases, based on the typology, will be presented. As such,

clear patterns of behavior exhibited by the court become more apparent. Using Qualitative

Comparative Analysis, a crisp set operation is utilized to demonstrate that three outcomes are

unmistakably apparent, (Ragin 2006b): First, Justice Rehnquist was not willing to diminish tribal

sovereignty as an associate justice. Second, upon becoming Chief Justice, Rehnquist changed his

tune and diminished sovereignty often. Third, the act of joining a majority opinion signified an

19

almost certain diminishment of tribal sovereignty. One conclusion remains tenuous: Rehnquist

joining an opinion signifies a neutral position on tribal sovereignty.

The Rehnquist Era 1972-2005

It seems that there is little interest, up to this point, in descriptive statistics on the

Rehnquist era. Rehnquist was an associate justice from 1972 to 1986. At that time he was

appointed Chief Justice until his death in 2005. Using (Getches, Wilkinson and Williams 2005)

as a guide to what cases are pertinent in Federal Indian Law, one may include in a data set of

Federal Indian Law cases 45 cases of interest, (Lerma 2008). Rehnquist authored 10 cases

involving Federal Indian Law, joined in 32 opinions (excluding delivery), dissented on 4

majority opinions, and joined in part and dissented in part on two cases. The joined in part and

dissented in part cases are categorized as “mixed” and excluded from the overall analysis. It

would have been too difficult to treat these cases so generally and it was qualitatively determined

that these two cases, Washington v. Confederated Tribes and Idaho v. Coeur d'Alene Tribe of

Idaho, were of a nature so mundane that they appear unable to have a real impact on tribal

sovereignty although many legal scholars will surely disagree, (1980; 1997). Regardless, these

cases represent 4.4% of all Federal Indian Law cases meaning that their arbitrary categorization

into any of the four outcomes will have an almost unnoticeable effect on the quantitative

outcomes. Since these cases are not included in the analysis, they have no effect on the

interpretations and conclusions offered.

Subset Relationships of Federal Indian Law Cases

Although it may not seem useful at this time, future research can benefit from taking

small steps in organizing how the cases included in this research design relate to one another and

relate to the population of court cases in terms of region, state, or local jurisdictions. For now, let

20

us look at the subset relationship among the 45 cases being analyzed. Table 1 highlights the

general layout of court cases and their relationship to one another in terms of the way Rehnquist

behaved concerning their outcome.

21

Table 1: All Cases Heard w/ Rehnquist on the Bench 1972-2005

45 Total Cases

22

41 Joined or Delivered Majority

452 Mixed

41

10 Delivered Majority or Dissent

23

Of most interest is the super population of 45 cases which envelopes 41 cases in which

Rehnquist was in favor of the outcome as designated by his willingness to author or join in the

majority opinion. More activity is apparent in the small box which is exploded in Table 2.

24

Table 2: Exploded View of Table 1 - details of joining and delivering

41 41 Joined or Delivered Majority  

41 Joined or Delivered Majority

2 *2 mixed opinions

25

109 - Delivered Majority

10 10 Delivered Majority or Dissent  

1 1 Delivered Dissent

5 5 Joined or Delivered Dissent  

45 45 total cases

45 total = 10 delivered + 31 joined + 4 dissented41 delivered or joined majority = 9 delivered majority + 32 joined only10 delivered = 9 delivered and joined + 1 delivered and dissented5 dissented = 1 delivered dissent + 4 joined dissent* 2 mixed = messiest to figure out - joined in part and dissented in part on both - excluded from total count

26

Table two is a close up view of the details contained in Rehnquist cases. Herein lies the real

action of the Rehnquist court. Note the 2 mixed cases which are not included in the overall

analysis. One case is in the majority and one case is in the dissent population while Rehnquist

writes some of the opinions expressed and in others he only joins. Note the 10 cases in which

Rehnquist authored an opinion. In nine of the 10 opinions he wrote, he is writing for the majority

opinion of the court. In the single case in which Rehnquist writes a dissent, the court is

expanding the sovereignty of a tribal nation. There will be greater discussion of this anomalous

case later. Also note how there are five cases in which Rehnquist is a party to or authors a

dissenting opinion. These relationships can also be expressed as simple mathematical proofs.

There are many ways to make sense of the relationships inherent in the court cases heard

and decided upon by Rehnquist. Consider the following:

45 total cases = 10 delivered + 31 joined + 4 dissented

The above is a straight forward equation meant to detail the make up of the case outcomes and

provides some much needed descriptive statistical data on the Rehnquist court era. The other

equations can be referred to in table 2. The character of case outcomes is only half of the way the

analysis can treat these conclusions. A coding typology is offered to better organize the raw data

presented above.

While there are a number of ways in which descriptive text can be translated into a raw

data count, with varying degrees of subjective success, it seemed most appropriate to take a

qualitative look at the court case outcomes and classify the outcomes based on a typology of

outcomes. Outcomes are based on the basic question concerning the impact case outcomes have

on the sovereignty of Indigenous tribes in the U.S. (Since precedent is a basic tenet of Federal

law, the impact of one case has a domino effect on all recognized U.S. tribes). Four possible

27

outcomes are articulated in this research design. Sovereignty is expanded when there is an

increase in the relative level of sovereignty enjoyed by tribes after the case rather than before.

Sovereignty is considered to be left neutral when there is no change in the level of sovereignty

enjoyed by tribes when prior Federal Indian law is compared to the post case outcome law.

Tribal sovereignty is diminished when the level of sovereignty is decreased when the pre case

outcome law is compared to the post case law. And, finally, in some instances it is unclear to the

current researcher whether a qualitative change in the level of tribal sovereignty has been

manifested. The outcomes are probably the most well known aspect of the court cases contained

in the data. Regardless, it may be useful to consider examples of each of the four outcomes in

order to clear up any lingering confusion.

Ideal Type Cases

Consider Minnesota, et al., petitioners v. Mille Lacs Band of Chippewa Indians et al. as

an example of a Federal Indian Law court case which expanded the sovereignty of tribes, (1999).

The majority holding covered five points: First, usufructuary rights to land ceded to the U.S. in

the 1837 treaty remains with the Mille Lacs Tribe. Second, the 1837 treaty failed to address

usufructuary rights leaving them open to interpretation. Third, the court held that usufructuary

rights were not terminated in the 1850 executive order. Fourth, the 1855 treaty failed to address

usufructuary rights and only dealt with the purchase of land by the Federal government from the

Mille Lacs Band. Finally, the 1858 admission of Minnesota to the U.S. as a state did not address

usufructuary rights. As a result, the Mille Lacs band retained the right to enjoy land they sold the

Federal government even though they did not own the land anymore. While this case is a rare

exception, it does make the point and demonstrate what a typical court case which expands tribal

sovereignty might look like. Consider Rehnquist’s dissenting opinion in contrast to the majority

28

ruling: First, Rehnquist was satisfied that the 1850 executive order was a valid revocation of

usufructuray rights. Secondly, he argued that the 1855 treaty was broad enough to terminate said

rights. Finally, the 1858 admission of Minnesota as a state eliminated such rights. Clearly, had

those in the dissent been able to have their way, a diminishment of sovereignty would have been

at hand.

A second case to consider is Ramah Navajo School Board v. Bureau of Revenue, (1982).

There are two major points to consider: First, the Navajo School Board and a construction

company were not required to pay taxes to the State of New Mexico for gross receipts involving

construction of a school for Navajo children. Secondly, Federal law pre-empted state law thereby

exempting the Navajo nation from paying state taxes. Rehnquist authored one of his four dissents

on this case stating, “[the] . . . court accorded a dependent Indian tribal organization greater tax

immunity than the court accorded the sovereignty of the United States . . .” Federal Indian Law

at the time of the court ruling (1982) held that Federal Law does trump state law and that allows

for tribes to be exempt from state taxation. Once again, had Rehnquist and company had there

way, the tribal sovereignty of the era would have been diminished. As it stands, the case outcome

persevered the sovereignty of tribes which already existed prior to the case decision. Given the

above rational, the Ramah case was designated as a neutral outcome in relation to tribal

sovereignty.

It goes without saying that Oliphant v. Suquamish Indian Tribe is a diminishment of

tribal sovereignty, (1978). Authored by Rehnquist, recall that the Suquamish do not have

criminal jurisdiction over non-Indian residents of the Suquamish reservation. As such, in the

Treaty of Point Elliot, the tribe acknowledged its dependence on the US, and, according to

Rehnquist, in all probability the tribe recognized that the U.S. would arrest and try non-Indian

29

intruders. Criminal jurisdiction over non-Indians must be a power delegated by Congress to the

tribe. Finally, treaty provisions are not enough to protect tribal sovereignty. Prior to the case, it

seemed fair to assume that 1. tribal sovereignty and self determination allowed for the exercise of

tribal criminal jurisdiction, 2. tribes were not assumed to have given up such rights, and 3. the

rights of criminal jurisdiction, an element of sovereignty, would need to be delegated to the tribe

by the U.S. Congress. Here, the tribal sovereignty of the Suquamish tribe was diminished along

with all tribes thereafter. As such, Oliphant is coded as a diminishment of tribal sovereignty.

Finally, the unclear example comes from the Department of the Interior v. Klamath

Water Users Association, (2001a). This case was largely coded as unclear because of the twist

and turns it takes. First, Klamath sued to gain access to information about water allocation. The

BIA did not want to disclose water allocation data supplied to them by various tribes. The

holding was that the BIA must disclose documents because the transmission of data from tribe to

agency was not intra nor inter agency transmission. Is this a clear diminishment of sovereignty or

a preservation of that which already existed? The answer depends on ones perspective: Based on

the assumption that economic interest trumps other interests, one might assume that the case left

tribal sovereignty neutral. On the other hand, evidence suggests, at the very least, that tribes do

not always conform with the rules of rational economic man. As such, what if the documents

outlined sacred knowledge or secret places? Given that these concerns are not satisfactorily

addressed by the case outcome, the safest bet was to code the case as unclear. Given the nature of

the coding scheme described above, all the 45 cases were subsequently coded according to their

outcome. Let us now consider the causal conditions which are less apparent to the typical

treatment research analysts grant them.

30

Causal Conditions in Plain View

One of the main purposes of this paper is to take readily available data on the Rehnquist

court and determine if such data have any bearing on the outcome of court cases which impact

tribal sovereignty. The reasoning for such analysis is that Rehnquist and company need not hide

their disdain for the concept of Indigenous sovereignty. In fact, their ill taste for such ideals are

in plain view. Consider the impact that basic conditions of the Rehnquist court, which go

untested, have on Federal Indian Law outcomes: There are two categories of conditions to

consider: First, some conditions are mutually exclusive meaning that the impact these conditions

have are independent of one another. There are four mutually exclusive conditions that need very

little explanation: First, did Rehnquist deliver the opinion of the court. Second, did Rehnquist

join the opinion of the court (excluding majority delivery). Third, did Rehnquist dissent on the

majority opinion. Finally, was Rehnquist an associate Justice or Chief Justice at the time the

court case outcome was decided. If a research analyst can demonstrate that any of these

conditions had a consistent pattern of presence in relation to the four outcomes outlined

previously, one can make a strong argument that the mere position of Rehnquist is a major factor

in the disposition of Federal Indian Law court cases. To be thorough, one must consider how a

combination of the four mutually exclusive conditions may have affected tribal sovereignty.

These conditions combine into what amounts to a double count of cases in some instances

because they are not mutually exclusive. Considered here are whether the delivery or joining,

delivery and dissent, delivered majority only, or delivered dissent only of an opinion have a

bearing on tribal sovereignty. With these conditions and outcomes clearly outlined, let us

consider the analysis and results.

31

In the interest of transparency, various tables are offered to ensure that quantitative

operations are carried out correctly. Table 3 is an internal check on the data collection process.

Note that the total column and row equal the same amount verifying that the cases are arranged

in a logical manner. This table also gives us the clearest view of the cases in matrix form.

                     Table 3: Matrix of Cases by Condition and Outcome       Outcome  

    expand nuetral diminish unclear totals    delivered 1 3 4 1 9    joined 0 10 19 3 32    dissented 0 4 0 0 4    Conditions de or j 1 13 23 4 41    de or di 1 4 0 0 5    de maj 0 3 5 1 9    de di 1 0 0 0 1    chief 1 6 14 3 24    associate 0 11 9 1 21    5 54 74 13 146                     

Table 4 is a basic table of causal conditions cross tabulated by the outcomes they contribute to.

Note that the distribution of court cases centers on the categories of diminishment and neutral.

The percent of neutral cases is 37.78% while the percentage of diminished cases is at 51.11%.

These two statistics combine into a whopping 88.89%. As a result, we can conclude that during

the Rehnquist era, the potential for expanding tribal sovereignty was very low. In fact, only one

case (Mille Lacs) represents such an outcome representing only 2.22% of the 45 cases heard by

the Rehnquist court, (1999).

32

                     Table 4: Matrix of Cases by Mutually Exclusive Conditions and Outcomes    Outcome      expand nuetral diminish unclear totals    Conditions delivered 1 3 4 1 9    joined 0 10 19 3 32    dissented 0 4 0 0 4    total 1 17 23 4 45    percent 2.22% 37.78% 51.11% 8.89% 100.00%                     

Table 5 further explicates the hard data on the Rehnquist court. Consider table 5 as an

inversion of table 4 in that the main logic here is seen in the behavior on Rehnquist concerning

his failure to dissent. Note that Rehnquist never dissented when tribal sovereignty was being

diminished by the court outcome. Also note the few dissenting opinions that hover in the neutral

category (8.89%). Although table 5 represents a total of 4 cases, one can see a pattern of

diminishment rather than any other possible outcome.

                     Table 5: Distribution of Cases Dissented Only       Outcome      expand nuetral diminish unclear total    Conditions dissented 0 4 0 0 4    not dissented 1 13 23 4 41    percent 0.00% 8.89% 0.00% 0.00% 8.89%                     

Table 6 is the first time causal conditions are combined and their impact on outcomes

investigated. Here the condition of Rehnquist delivering an opinion (majority or dissenting) is

combined with the condition of Rehnquist joining a majority opinion. Notice, again, how the

cases center around the neutral and diminish outcome. Regardless, the majority of cases,

accounting for 51.11%, have an outcome of diminishing tribal sovereignty.

33

                     Table 6: Distribution of Cases Delivered or Joined (de + j)       Outcome      expand nuetral diminish unclear total    Conditions de or j 1 13 23 4 41    not de or j 0 4 0 0 4    percent 2.22% 28.89% 51.11% 8.89% 45                     

Table 7 is a concentration of expanded and neutral cases in which Rehnquist delivered or

joined a dissenting opinion. One can infer that when Rehnquist dissented, he disagreed with the

outcome of the case. This action can be interpreted as follows: when Rehnquist dissented to an

expansion of Indigenous sovereignty, this only means that Rehnquist was in favor of either

leaving tribal sovereignty neutral, diminishing tribal sovereignty, or (logically although not

likely) being unclear as to the impact the outcome has on tribal sovereignty. Once again, this

same logic applies to Rehnquist’s behavior regarding dissenting to the outcome of leaving tribal

sovereignty neutral. We can only infer that Rehnquist either wanted to expand, diminish, or leave

the question of tribal sovereignty unclearly resolved. Once again, note the behavioral trait of

Rehnquist’s non-action in terms of not dissenting. The majority of cases involve diminished

sovereignty followed by leaving sovereignty neutral.

                     Table 7: Distribution of Cases Delivered Dissent or Joined Dissent (de + di)       Outcome      expand nuetral diminish unclear total    Conditions de or di 1 4 0 0 5    not de or di 0 13 23 4 40    percent 2.22% 8.89% 0.00% 0.00% 45                     

34

Table 8 looks at the nature of cases in which Rehnquist delivered the majority opinion.

The number of these cases is low (9) making statistical research all the more tenuous. More than

half of the cases delivered by Rehnquist involved a diminishment of tribal sovereignty followed

by leaving the level of sovereignty neutral.

                     Table 8: Distribution of Cases Delivered Majority       Outcome      expand nuetral diminish unclear total    Conditions de maj 0 3 5 1 9    not de maj 1 14 18 3 36    percent 0.00% 6.67% 11.11% 2.22% 45                     

Table 9 looks at the single case in which Rehnquist delivered the dissenting opinion. The

conclusions based on table 8 are the most difficult to support in isolation of the other statistical

outcomes. On one occasion, Rehnquist dissented to the expansion of tribal sovereignty.

                     Table 9: Distribution of Cases Delivered Dissent Only       Outcome      expand nuetral diminish unclear total    Conditions de di 1 0 0 0 1    not de di 0 17 23 4 44    percent 2.22% 0.00% 0.00% 0.00% 45                     

Table 10 deals with the impact Rehnquist’s rank (associate or Chief) had on Federal Indian law

case outcomes. Herein lies the first evidence that Rehnquist was more likely to diminish

sovereignty as a Chief justice than as an associate justice. The interpretation of table 10 invited

further scrutiny of the statistical outcomes.

35

                     Table 10: Distribution of Cases based on Associate or Chief Status       Outcome      expand nuetral diminish unclear total    Conditions chief 1 6 14 3 24    not chief 0 11 9 1 21    total 1 17 23 4 45    percent 4.17% 25.00% 58.33% 12.50%                     

The Rehnquist Court and QCA

Perhaps the most intriguing results to report involve the use of QCA (qualitative

comparative analysis), (Ragin 2006b). QCA was designed to handle a small number of cases and

relies heavily on the veristic model of research. Recall that a veristic model holds tantamount the

need to map every case in a data set. Such an approach is only possible because the number of

cases in the population under study are small enough that a research analyst can be expected to

have deep qualitative knowledge of each of the cases. As such, anomalies conditions and

outcomes are clearly delineated and the deep knowledge of individual cases allows for

categorization of many causal factors. Finally, causal conditions can be quantitatively tested

using a level of significance test which, when a minimum threshold is met, a research analyst can

confidently draw a conclusion in which a causal condition is contributing to a given outcome

beyond a level of chance which would otherwise be observable given a random set of data. Many

of the components used previously in this paper are again relied upon.

A QCA approach will once again rely on the causal factors outlined. The typology of

outcomes is also revisited. Table 11 is a breakdown of how the causal conditions (delivered,

joined, dissented, chief, and associate) are related to the outcomes (expand, neutral, diminish,

and unclear). There are two calculations involved with a QCA operation. Consistency is a

percentage related to the frequency with which a given causal condition is carried forward with a

36

given outcome. The consistency score is based on a dichotomous breakdown of case

categorization. If a case is coded as expanded, it is given the numerical value of 1. When a value

is assigned to a case, there cannot be any other value assigned within the other categories of case

coding. As such, the case coded as expanded cannot simultaneously be coded in any of the other

three categories. This scheme basically means that case coding is mutually exclusive. For this

reason, it is impossible to use the present methodological design to test consistency and coverage

of combined causal conditions. Double coding of cases would make for results which are

unreliable.

37

                         Table 11: Analysis of Mutually Exclusive Necessary Conditions    expand   neutral   diminish   unclear      consistency coverage consistency coverage consistency coverage consistency coverage    delivered 1 0.111111 0.411765 0.777778 0.318841 0.814815 0.666667 0.296296    joined 0.666667 0.020833 0.843137 0.447917 0.942029 0.677083 0.916667 0.114583    Condition dissented 0.3333333 0.08333333 0.235294 1 0.115942 0.666667 0.416667 0.416667    chief 1 0.041667 0.568627 0.402778 0.733913 0.708333 0.833333 0.138889    associate 0.3333333 0.015873 0.764709 0.619048 0.565217 0.619048 0.5 0.095238    total cases 1 17 23 4       Assumptions:    expand = (delivered) or (joined) or (dissented) or (chief) or (associate)    neutral = (delivered) or (joined) or (dissented) or (chief) or (associate)    diminish = (delivered) or (joined) or (dissented) or (chief) or (associate)    unclear = (delivered) or (joined) or (dissented) or (chief) or (associate)                         

38

Generally, a case can be considered significant if it meets a given threshold of coverage.

A coverage score is a calculation of the number of cases in the data set which meet the

requirements delineated by the table. For example, the condition of delivery and the outcome of

expansion only covers .11% of the 45 cases in the data set. This case is Mille Lac, a single case

in the entire data set. Research design dictates that any conclusions based on a coverage score so

low be rejected because the calculation simply does not have enough information for the results

to be interpretable in a reliable manner. If a coverage score meets at least a 50% level, the

corresponding consistency score is considered a reliable calculation. Coverage scores meeting

the 50% level can be relied upon as interpretable, (Ragin 2006a). The main conclusions to be

drawn, given the criteria outlined above, involve three relationships. One might cautiously

interpret the relationship between Rehnquist joining an opinion and the outcome being neutral.

The coverage level is 44.7%, falling slightly below a level of significance. Note, however, that

the consistency rate is at 84.3%. One might carefully conclude that there is something to the

relationship beyond a coincidence but such a finding is tenuous at best.

Other results are more interesting. Note that the relationship between Rehnquist’s rank as

associate justice is related to his willingness to leave tribal sovereignty as he found it. This

relationship covered 61.9% of the cases in the data set. The rate of consistency of this

relationship is 76.5% meaning that when the associate justice condition was applicable, tribal

sovereignty was left as found more than three-fourths of the time. One can interpret these results

as the cautionary steps taken by Rehnquist early on in his career as associate justice. Further

research can also discuss the make up of the court (be it conservative or liberal) and relate this

condition to the era of 1972-1986. A third finding is the relationship between Rehnquist joining a

court opinion and the likelihood that the outcome of the case would diminish tribal sovereignty.

39

The joined/diminished relationship covers 67.7% of the cases in the data set. The consistency

with which the relationship is observable covers a very substantial 94.2% of the court case

outcomes. Such is one of the clearest examples that Rehnquist was not operating based on logic.

Rather, a mere gut reaction to joining a court opinion seems to arbitrarily diminish the

sovereignty of Indian tribes. In other words, the evidence indicates that Rehnquist was

comfortable looking at Indian law cases without having a shred of objectivity concerning the

outcome.

The fourth significant finding involves the relationship between Rehnquist’s position as

chief justice and the outcome of diminished tribal sovereignty. As Chief justice, Rehnquist

decided to diminish tribal sovereignty in 70.1% of the cases he heard. This relationship

represents the largest percentage of court cases in the current data set. The relationship is

observable in 73.3% of the cases in the current data set. This result is interpretable in conjunction

with the results previously visited regarding the condition of associate justice status. We

previously visited the associate justice/neutral outcome relationship as significant and concluded

that such behavior likely represents the careful steps of a new justice in an environment of a

liberal court. The context for the Chief/diminish relationship, then, must involve Rehnquist’s

ability to take control of the court and hand down outcomes in a conservative court environment.

Once again, the nature of the court’s position along a continuum of political ideology is beyond

the scope of this current paper. As such, further investigation of these relationships should be

conducted at a later time.

Conclusion

Let us consider the similarities between normative and deterministic cases. It should be

clear by now that the four normative assumptions underlying normative cases are largely at work

40

in deterministic cases. So why divide the cases along such a line? The purpose for this research

design is to highlight how, although the outcome may be the same in both types of cases, it is

still interesting to understand the manner in which enemies of the Indian condition still exist in a

supposedly modern and enlightened world.2 To the credit of the Marshal era court, as

exemplified by McIntosh, it was rather clear that the four normative assumptions were at work

driving the opinion. At least the presence of the assumptions were more clear than in future

Supreme Court decisions. Separating the two highlights the connection that deterministic cases

have with modern conservative courts. While more open minded people may have long

abandoned the need to dominate Indian people and to steal their land, there are still those in the

world that hearken back to a time when Indians were savage, inferior beasts, infidels that should

thank Europeans for the privilege of holocaust, Christianity, democracy, slavery, capitalism,

pollution, racism, assimilation, and all the other values underlying the American ethic. The most

troubling notion is that those who hold the four normative assumptions close to heart are the

most powerful people in control of Indian policy. We can take comfort in our ability as scholars

to point out their racist views as unacceptable then, now, and forever more.

2 Never mind the problems of modernity in devaluing the primitive and the metanarrative nature of enlightenment reasoning which serves to legitimize its own elites, i.e. white males.

41

Notes

1823. "JOHNSON and GRAHAM'S Lessee v. WILLIAM M'INTOSH." in Marshall, Chief Justice: SUPREME COURT OF THE UNITED STATES.

1846. "THE UNITED STATES, PLAINTIFFS, v. WILLIAM S. ROGERS." in Taney, Cheif Justice: SUPREME COURT OF THE UNITED STATES.

1878. "Ex parte KENYON." in Parker, J.: Circuit Court, W.D. Arkansas.1978. "OLIPHANT v. SUQUAMISH INDIAN TRIBE ET AL." in Rehnquist, William: Supreme

Court of the United States.1980. "Washington v. Confederated Tribes." Supreme Court of the United States.1982. "Ramah Navajo School Board v. Bureau of Revenue." Supreme Court of the United States.1997. "Idaho v. Coeur d'Alene Tribe of Idaho." Supreme Court of the United States.1999. "Minnesota v. Mille Lacs Band of Chippewa Indians." Supreme Court of the United

States.2001a. "Department of the Interior v. Klamath Water Users Association." Supreme Court of the

United States.2001b. "NEVADA, ET AL. v. FLOYD HICKS, ET AL." in Scalia, Antonin: SUPREME

COURT OF THE UNITED STATES.Deloria, Vine, and Raymond J. DeMallie. 1999. Documents of American Indian diplomacy :

treaties, agreements, and conventions, 1775-1979. Norman: University of Oklahoma Press.

Getches, David H., Charles F. Wilkinson, and Robert A. Williams. 1998. Cases and materials on Federal Indian law. St. Paul, Minn.: West Group.

—. 2005. Cases and materials on federal Indian law. St. Paul, MN: Thomson/West.Holm, Tom, J. Diane Pearson, and Ben Chavis. 2003. "Peoplehood: A Model for American

Indian Sovereignty in Education." Wicazo Sa Review 18:7-24.King, Gary, Robert O. Keohane, and Sidney Verba. 1994. Designing social inquiry : scientific

inference in qualitative research. Princeton, N.J.: Princeton University Press.Lerma, Michael. 2008. "Rehnquist Court Data." University of Arizona.Ragin, Charles C. 1987. The comparative method : moving beyond qualitiative and quantitative

strategies. Berkeley: University of California Press.—. 2000. Fuzzy-set social science. Chicago: University of Chicago Press.—. 2006a. "Set Relations in Social Research: Evaluating Their Consistency and Coverage."

Political Analysis 14:291-310.Ragin, Charles C., Kriss A. Drass and Sean Davey. . 2006b. "Fuzzy-Set/Qualitative

Comparative Analysis 2.0." Tucson, Arizona: Department of Sociology, University of Arizona.

42