Ruth Bader Ginsburg’s death has led to a reconsideration of her judicial career. Her work as a lawyer and jurist who championed equal protection, particularly as it pertained to women’s rights, has been centered in these discussions. Yet, her record on American Indian law has not been foregrounded in most national conversations about her legacy. Here, Ginsburg’s status as a “progressive” justice can be called into question. Attention to how her opinions on federal Indian policy changed over time also allows us to see the “pendulum swings” in American Indian law in one jurist’s decisions.[i] Her death also bears with it the question of what the future of the American Indian Law may look like, and it seems likely that the Court will take a harsher stance against tribal sovereignty and self-determination.

Until the latter half of 2005, Ginsburg’s decisions in cases regarding Indian law were defined by either ignorance of this body of law or a disregard for tribal sovereignty and self-determination. [ii] While still working for the American Civil Liberties Union, Ginsburg directly challenged tribal sovereignty in an effort to prevent gender discrimination in Santa Clara Pueblo v. Martinez (1978). Because Ginsburg had never seriously encountered a case with tribal sovereignty at its center, legal scholar Carole Goldberg argues that this case was marked by Ginsburg’s ignorance.[iii] A similar claim could not be made in Ginsburg’s decision in the City of Sherrill v. Oneida Indian Nation (2005).[iv]

Though twenty-seven years had passed since Ginsburg’s initial foray into federal Indian policy and Ginsburg was now a seasoned veteran of the Supreme Court, there was little substantive change in her respect for tribal sovereignty. In the late 1990s, Oneidas’ worked to repurchase land that was part of their initial reservation as a means to reclaim land that had been stolen.[v] Upon repurchasing the land, Oneidas argued they did not need to pay taxes to the city of Sherrill because the land was rightfully their sovereign territory. Lower courts determined in favor of Oneidas, but the Supreme Court decided against the nation in an 8-1 decision. Ginsburg’s opinion is worth quoting at length:

Given the longstanding, distinctly non-Indian character of the area and its inhabitants, the regulatory authority constantly exercised by New York State and its counties and towns, and the Oneidas’ long delay in seeking judicial relief against parties other than the United States, we hold that the Tribe cannot unilaterally revive its ancient sovereignty. . . The Oneidas long ago relinquished the reins of government and cannot regain them through open-market purchases from current titleholders.[vi]

Ginsburg’s opinion not only fundamentally misunderstood that Oneidas’ land was seized, not “relinquished,” but it also suggested that there was a statute of limitations on land rights cases, setting a dangerous precedent for other cases in this vein.

If the Sherrill decision typified Ginsburg’s decisions from 1978 through the beginning of 2005, the months and years following Sherill were more promising. (There is also some anecdotal and legal evidence that Ginsburg came to regret the Sherrill decision.)[vii] In Wagnon v. Prairie Band Potawatomi Nation (2005), Ginsburg called into question her opinion in Sherrill from six months prior in a dissent (joined by Justice Kennedy) that affirmed the Prairie Band Potawatomi Nation’s right to levy taxes at a gas station on their land. In a more careful consideration of federal Indian Policy than in previous cases, Ginsburg affirmed the “sovereign status of Indian Tribes” and argued that “a State may not ‘unlawfully infringe on the right of reservation Indians to make their own laws and be ruled by them.’”[viii] While Ginsburg did not always side in favor of Native American nations after Wagnon, she did seem to give greater attention to the importance of tribal sovereignty than in earlier cases.

The final major American Indian Law case that Ginsburg decided on—McGirt v. Oklahoma (2020)—provides not only a lens into Ginsburg’s legal pendulum swing but also a lens into thinking about the future state of American Indian Law in the Supreme Court.  In McGirt the Court decided in favor of the Muscogee Nation’s right to tribal sovereignty over much of eastern Oklahoma.[ix] Ginsburg joined the majority in the 5-4 case. This decision was particularly striking given that the defendant and member of the Muscogee Nation, Jimmy McGirt, was being tried for sex crimes against a child. McGirt argued that the state of Oklahoma had no jurisdiction in this case, which the Court affirmed. This decision seemingly went against Ginsburg’s fairly consistent efforts to protect the constitutional rights of children and demonstrates some changeability in her beliefs on tribal sovereignty, even if her legacy as a jurist remains marked by the Sherrill decision and the precedent it set.[x] With Ginsburg’s passing, the future of American Indian law is once again up in the air. Here, McGirt is again instructive

Breaking with the conservative bloc on the Court, Justice Gorsuch sided with the majority and wrote the opinion in McGirt. His decision evinced a careful reading of Muscogee treaty rights, arguing that the nation “received assurances that their new lands in the West would be secure forever . . . Because Congress has not said otherwise, we hold the government to its word.”[xi] This decision fits within Gorsuch’s longer history of “recognizing tribal sovereignty and self-determination.”[xii] Justice Kavanaugh joined Roberts, Thomas, and Alito in the dissenting opinion in McGirt.

Trump’s other appointee, Amy Coney Barrett, will probably continue in her mentor Antonin Scalia’s footsteps and his consistent rejection of tribal sovereignty and self-determination.[xiii] This is a horrifying reality as the Indian Child Welfare Act (ICWA) is currently being challenged in Brackeen v. Bernhardt. This act prevents the separation of Native American children from their respective nations. Should it be struck down by the 5th Circuit Court, it will likely arrive before the Court. Barrett’s conservatism and her own controversial adoption of children from Haiti has led some to conclude that she will decide against ICWA should it reach the Court.[xiv] The future of American Indian Law after Ginsburg, therefore, is bleak because Gorsuch’s brief ability to swing the pendulum towards tribal sovereignty and self-determination likely died along with Ginsburg.

[i] Pendulum swings are spoken of often in literature on American Indian Law, especially as it pertains to sovereignty. See, for instance, Walter R. Echo Hawk, In the Light of Justice: The Rise of Human rights in Native America and the UN Declaration on the Rights of Indigenous Peoples, (Golden: Fulcrum, 2013), 180. Echo-Hawk’s list of the ten worst and best Indian Law cases also speaks to the significant pendulum swings in federal policy, see, In the Light of Justice, 155-177. For another example of this language see, “American Indian Sovereignty, Federal Assimilation Policy, and Indian Self-Determination – A time-line of oscillations,” uiIdaho online, February 10, 2005, https://www.webpages.uidaho.edu/~rfrey/pdf/shared/sovereingty.pdf

[ii] Carole Goldberg, “Finding the Way to Indian Country: Justice Ruth Bader Ginsburg’s Decisions in Indian Law Cases,” Ohio State Law Journal Vol. 70:4 (2009): 1003.

[iii] Goldberg, “Finding the Way to Indian Country,” 1005-1007. It should be noted that Thurgood Marshall wrote the Court’s opinion in favor of the Santa Clara Pueblo.

[iv] This case is consistently listed as one of Ginsburg’s worst decisions.

[v] For a brief synopsis of this case, see, Michael L. Oberg, “RBG’s Notorious Opinion in the Native American Sovereignty Case Is Also Part of Her Legacy,” last modified September 22, 2020, https://thewire.in/world/ruth-bader-ginsburg-sherrill-v-oneida

[vi] For the full decision see, City of Sherrill v. Oneida Indian Nation of N.Y., 544 U.S. 197, 202 (2005), https://www.oyez.org/cases/2004/03-855

[vii] See, “Ruth Bader Ginsburg wants Trump to Appoint a Native American Woman to the Supreme Court,” The Buffalo Chronicle, May 5, 2020, https://buffalochronicle.com/2020/05/05/ruth-bader-ginsburg-wants-trump-to-appoint-a-native-american-woman-to-the-supreme-court/ and Oliver O’Connell, “Ruth Bader Ginsburg’s Greatest Regret Revealed,” Independent, September 22, 2020, https://www.independent.co.uk/news/world/americas/ruth-bader-ginsburg-supreme-court-regret-oneida-nation-sherill-native-americans-b534565.html. Matthew Fletcher, a law professor at Michigan State has also contended that Ginsburg attempted to limit the harm that case caused after the fact, but this was a case of too little too late. See, Keri Blakinger et. al “RBG’s Mixed Record on Race and Criminal Justice,” The Marshall Project, n.d., https://www.themarshallproject.org/2020/09/23/rbg-s-mixed-record-on-race-and-criminal-justice

[viii] See, Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95, 116–31 (2005) (Ginsburg, J., dissenting), https://supreme.justia.com/cases/federal/us/546/95/#tab-opinion-1961985 and Goldberg “Finding the Way to Indian Country,” 1034.

[ix] For an overview of this case and its importance, see, Jack Healy and Adam Liptak, “Landmark Supreme Court Ruling Affirms Native American Rights in Oklahoma,” The New York Times, July 11, 2020, https://www.nytimes.com/2020/07/09/us/supreme-court-oklahoma-mcgirt-creek-nation.html

[x] For Ginsburg’s record on supporting children’s constitutional rights, at least in criminal proceedings, see Heather Renwick’s consideration of Ginsburg’s legacy in Keri Blakinger et. al “RBG’s Mixed Record on Race and Criminal Justice”

[xi] See, McGirt v. Oklahoma, 591 U.S. (2020), https://supreme.justia.com/cases/federal/us/591/18-9526/#tab-opinion-4271575

[xii] Anna V. Smith, “What Trump’s Supreme Court Pick Holds for Indian Country,” High Country News, December 11, 2020, https://www.hcn.org/issues/49.22/tribal-affairs-what-trumps-supreme-court-pick-could-mean-for-indian-country#:~:text=(According%20to%20an%20analysis%20by,86%20percent%20of%20the%20time.)&text=In%20early%20December%2C%20the%20Supreme,Welfare%20Act%20and%20sovereign%20immunity.

[xiii] For a brief summary of Scalia’s record on this point, see, Matthew Fletcher, “Justice Scalia’s Indian Law Record,” Turtle Talk, February 17, 2016, https://turtletalk.blog/2016/02/17/justice-scalias-indian-law-record/

[xiv] For an overview of the very real fears that the Indian Child Welfare Act will be overturned should it arrive at a court with Barrett on it, see, Mary Annette Pember, “Amy Coney Barrett and the Fate of Native Adoption Law,” Indian Country Today, October 12, 2020, https://indiancountrytoday.com/news/amy-coney-barrett-and-the-fate-of-native-adoption-law-4oKdAmOCKUq-HDbZ2fj5sQ?fbclid=IwAR0Xd5RObOQfEtt7gOzzTgWM3hxJawxKehiLZOmNGnOPTjcEtilI17B0Hgw