There is a message in the life of John Paul Stevens. Things change.
This is Trahant Reports.
John Paul Stevens joined the Supreme Court as a conservative member appointed by President Gerald Ford. It’s fair to say that many of his early opinions were not favorable to tribal interests.
Yet when Stevens retired as a justice he was known as a leader of the liberal bloc and as a justice who often supported the rights of tribes.
Stevens’ story is about the independence of the judiciary. He was the third-longest serving justice in U.S. Supreme Court history. He died last week.
Matthew L.M. Fletcher in the Turtle Talk legal blog wrote when Stevens retired in 2010 that he “ generally speaking favored tribal interests in treaty rights cases and statutory interpretation cases (less so), but was a serious opponent in tribal immunity and taxation cases.”
Perhaps most significant was Stevens involvement in the 1979 Boldt decision — or United States v. Washington.
The Supreme Court did not review the Boldt case because it denied the state of Washington’s appeal from the U.S. 9th Circuit.
But Washington would not give up and refused to enforce the court’s order. That brought the matter back to the Supreme Court where it mostly affirmed Judge George Boldt’s 1974 decision. The state supreme court had ruled that the fisheries department need now comply with federal law and that “the treaties did not give the Indians a right to a share of the fish runs.”
Stevens wrote for the majority that tribes “have a right, secured by treaty, to take a fair share of the available fish.”
Stevens called treaties “essentially a contract” between two sovereigns. And, “When Indians are involved … the treaty must therefore be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians.’”
Billy Frank, Nisqually, often said that this decision saved salmon in the Pacific Northwest because it made tribes co-managers of a scarce natural resource. And tribal governments spent the decades that followed putting resources into science, habitat, and sound management of the salmon.
However, Stevens ruled against tribes on the issue of taxation. In a 1989 case, Cotton Petroleum Corp v. New Mexico, the Court held that a state and a tribe may impose a tax for oil and gas production. Indian Country Today columnist Steve Russell called this one of the dumbest decisions ever in a 2015 essay.
Even on the Supreme Court … things change.
I am Mark Trahant.
