This is a story that connects some dots we might well imagine have no connection: a 19th century murder, a 21st century adoption, Native tribal sovereignty, Supreme Court Justices past and present, and a law firm where we work. Constitutional history can sound academically remote until dots connect at a personal level relevant to our lives today. With my Gen X college students, the lights go on when they can connect cases from the past and present with their own lives. So, on with the story.
Kan-gi-Shun-ca, or Crow Dog in English, shot and killed another Native American in August of 1881 on the Great Sioux Reservation in present-day South Dakota. Two different forms of due process followed: one tribal and one not. The Sioux tribal government convicted Crow Dog, ordering him to pay restitution to the victim’s family. A separate, non-tribal, Dakota Territory trial also convicted Crow Dog but with less mercy, sentencing him to death. So Native tribal justice and mainstream non-tribal justice became the difference between life and death, a difference that pitted Native tribal culture against the dominant government, calling into question the central principle of Native tribal sovereignty.
What would be the American constitutional balance between state and federal power and the lawful, sovereign powers of America’s Native people? It would be up to the U.S. Supreme Court and a Justice named Stanley Matthews to decide. In a 9-0 decision, Justice Matthews authored a landmark opinion (Ex Parte Crow Dog, 1883) that Congress had not granted federal courts the jurisdictional power over the murder of one Native American over another.
Justice Matthews believed that American constitutional justice should respect the principle of tribal sovereignty.
Justice Matthews, three years later, would author one of the most important cases in the history of the U.S. Supreme Court, Yick Wo v. Hopkins, the first case to rule that a law that is race-neutral on its face but applied with an “evil hand” of prejudice violated the Equal Protection Clause of the Fourteenth Amendment. Justice Matthews denounced race discrimination against Chinese laundry owners in San Francisco.
Justice Matthews was a founder of a law firm in Cincinnati that became the Graydon law firm, today known as Bricker Graydon.
The principle and story of tribal sovereignty is not something in the past. It lives in the present in a case decided on June 15, 2023 ( a day ago as I write this). Haaland v. Brackeen is a complex tribal adoption case, but its principle of sovereignty is well-summarized by Justice Gorsuch:
“Our Constitution reserves for the Tribes a place–an enduring place–in the structure of American life… Congress exercised that lawful authority to secure the right of Indian parents to raise their families as they please; the right of Indian children to grow in thier culture; and the right of Indian communities to resist fading into the twilight of history. ”
A note to close. Connecting the dots of collective stories, our American experiences, may offer a ray of encouragement to those citizens still open to discover that there is more that unites than divides We the People of the United States.