Bruce Duthu's NYT OpEd on Oliphant
Professor N. Bruce Duthu's NYT OpEd is entitled "Broken Justice in Indian Country". It is interesting that the NYT published a piece on the Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978) line of cases, without mentioning them by name -- Duro v. Reina, 495 U.S. 676 (1990) and United States v. Lara, 541 U.S. 193 (2004). I look forward to seeing a similar piece on Cobell v Kempthorne, but sooner then 30 years from now. This week would be good. Timely. Newsworthy. Etc.
It must be difficult writing for the NYT. To write for the journal of record, the daily work of the gente de razón, publisher of the writings of Judy Miller and a host of others, and read by their unsurprised readers.
Professor Duthu focus is on rape, and that's fine, assuming the problem is simply, as he frames it, a policy and funding want that any sensible person can see and prescribe sensible solutions for.
But Rehnquist discarded functioning courts and prior law, the specifics, to write a general, and cut out the Indians aren't Christian bits of Ex parte KAN-GI-SHUN-CA (Crow Dog), while promoting that finding from 1883 to 1978. There is a lot more to just Rehnquist's Oliphant than promoting rape tourism. And why stop there? Marshall's trilogy, where "domestic dependent nation" comes from, discarded three centuries of land title history to smooth the way for Federal Period expansion. These both pass for mainstream legal doctrine in US legal culture.
Professor Duthu doesn't ask a question that should keep Americans up at night. How is it in the interests of the United States for the Attorney General to argue against the maturation of the civil and criminal justice systems of any jurisdiction? Why did the states of South Dakota, Montana, Nebraska, New Mexico, North Dakota, Oregon, and Wyoming file briefs of amici curiae for reversal of the 9th Cirucit ruling, and inevitably for rape tourism?
Howard Dean had an answer. No jurisdictions in Vermont but Vermont. Unlike some states, there is little Federal military presence in Vermont. No Fort Sumter to bombard into submission. No Abenaki jurisdiction ment no standing to challenge Vermont's historic and not so historic indefensible acts. Even in Howard's time as state executive, Abenakis were statistically distinct from all other socially, culturally, and politically identified individuals in Vermont, having significantly greater representation in state criminal custody. No Abenaki jurisdiction also ment no Indian Gaming to co-exist with the state lottery.
