Excerpted From: M. Alexander Pearl, The Consequences of Mythology: Supreme Court Decisionmaking in Indian Country, 71 UCLA Law Review 6 (January, 2024) (279 Footnotes) (Full Document)


MAlexanderPearlHistory is a significant component of federal Indian law. This moment in our Nation's legal history demands close attention to how the U.S. Supreme Court addresses its federal Indian law jurisprudence and the role history plays in dictating its trajectory. Since the nation's inception, there has been a history to the United States. This monolithic vision of history was fashioned from the memorialized stories of presidents and partisans, drawn from their prophecies and speeches. On the lips of President Andrew Jackson, tribal nations were a people to be expelled or suffer absolute extinction. The pages of Supreme Court opinions spoke unequivocally of our incapacity but also our ferocity, and echoed the Jacksonian dreamscape foretelling of our inevitable demise. The law mirrored and amplified those fantasies and dreams of the founders. In all these outsiders' words, Native people are marionettes; characters designed to perform a history codified within the white spaces and black letters of the official chronicle of the nation--the Supreme Court. But, the present-day Court has an opportunity to consider the possibility of a history cast from different stories and different people--a more comprehensive account of the was and the before.

The 2021-22 and 2022-23 Supreme Court terms will go down as among the most significant in the history of federal Indian law. Three cases of magnitude were argued in the Spring of 2022 with another watershed argument happening in the Fall. Argued on November 9, 2022, Haaland v. Brackeen, has the potential to forever affect the future of the federal-tribal relationship while re-shaping longstanding principles governing the relationship's legal structure. At issue throughout many of these cases is the longstanding concept that tribal nations and their citizens occupy a unique political status within the American legal system. Uneasiness lurks beneath this legal concept, however, and it stems from the Court's tendency--which has transformed into a near obsession--to view Native people from (1) the traditional position of the mythologized story of American history, (2) predominant American constitutional theory, and (3) the American lens of race. The problem, however, with these lenses is that they are ghosts--they are not real. Despite tomes of legal scholarship and Supreme Court precedent confirming that tribal nations are political entities, Indian tribes exist outside the U.S. Constitution, and tribal citizenship constitutes a political status, the ghosts continue to haunt the views of learned jurists. Animating these specters is the American Mythology, developed in presidential speeches, private letters, and codified in cases like Johnson v. M'Intosh, which celebrates its 200-year anniversary in 2023. In those sources and as conjured in the minds of early American thinkers, Native people perform parts in the play of American Mythology as willed by outsiders, rather than being represented as we were. In an 1830 congressional address, President Jackson stated as if true that “the tribes which occupied the countries now constituting the Eastern States were annihilated or have melted away” even though the very tribes referenced were in battle with those same states in the Supreme Court. When a statement spoken by such an authority is combined with an American population which lacks first-hand knowledge of the events between tribal nations and states, an imagined place can more readily emerge. This historical mythologizing of Native people gave rise to the distorted Indian defined by federal Indian law. The American Mythology of Native peoples has primed the Supreme Court to cultivate law from those artificial and one-sided imaginations. In particular, one consequence of the mythology-as-law paradigm is the persistent misconception that an individual's tribal citizenship status is a racial category.

The misunderstanding of tribal citizenship as a racial class has no name in the law. This Article names it the “1.2% Problem.” Originating from the first line of Justice Samuel Alito's notorious majority opinion in Adoptive Couple v. Baby Girl in 2013: “This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee.” The 1.2% Problem is a product of the mythology-as-law paradigm. This race-based understanding of tribal citizens has captured the minds of some, and the persistence of this view reflects a consistent misapprehension of the history, reality, and existence of tribal nations and their citizens. Further, it demonstrates the resilience of longstanding myth codified by law, despite the clear existence of facts and reason to the contrary. A major basis for the committed misconception of the relationship between race and citizenship is the painfully incomplete understanding of tribal nations by outsiders. Troubling enough by itself, the mythology-as-law paradigm, which progenerates the 1.2% Problem, wreaks further havoc when trying to harmonize the sovereignty of tribal nations within the existing structure of the Constitution. The 1.2% Problem has disastrous legal consequences for the future self-determining ability of tribal nations as well as the jurisprudential coherence of federal Indian law as a doctrine.

Given the stakes for Indian Country at this moment, this Article presents a comprehensive picture of the legal, social, and historical landscape--the American Mythology--and how it has created problems like the 1.2% Problem and how to fix them. Moreover, this Article re-examines longstanding principles of federal Indian law in light of this artificial history and offers a different, historically grounded account from within Indian Country as an alternative to the predominant mythological conception of Indian tribes as race-based. This more complete telling of history permits a more nuanced conception of tribal nations themselves and offers a new basis to reject that race-based mythology. Grounding history in the experiential perspective of tribal nations does more than solve the narrow problem of misunderstanding tribal status. A renewed historical examination provides a methodology to reassess how tribal nations fit within the context of the Constitution.

Scholars and jurists have, since before Justice John Marshall even wrote his Trilogy, struggled with squaring the existence of tribal nations with a constitutional framework that largely ignored the very notion of tribal sovereignty. A more comprehensive original account of history offers a solution. Resolving the confusion begins with acknowledging, and removing, the mythology so seamlessly embedded within the oft-accepted history of the United States. The solution proposed here accomplishes two important objectives. First, it creates long-desired coherence, requested by Justice Clarence Thomas and others, within federal Indian law itself. Second, the approach offered quiets the concern caused by the supposed collision of constitutional principles and the continued existence of tribal nations. This path succeeds by acknowledging the reality that tribal nations exist, and have always existed, despite colonial efforts, while burying the narrative that our constitutional structure must envelop tribal nations to harmonize founding principles of constitutional order. In sum, the 1.2% Problem is a prime example of the kind of error caused by the mythology-as-law paradigm. If there is a methodological solution to the 1.2% Problem, then there is a similar conceptual resolution to the larger fractures within federal Indian law that result in harmony with constitutional principles.

Parts I, II, and III examine the entirety of the 1.2% Problem and explain how it arose as a consequence of the American Mythology. Part I starts at the true beginning by focusing on the history of tribal belonging from the perspective of tribal communities. This Part suggests that the typical understanding of tribal citizenship is badly misunderstood by most Americans-- including jurists. The roots of these misconceptions are examined by taking an overview of precontact conceptions of belonging and walking through the phases of the United States's colonial influence on modern conceptions of citizenship and belonging. Part II carries forward exploration of the 1.2% Problem and demonstrates the legal errors that arise from the fundamental misapprehension of the relationship between tribal belonging, race, and family. By focusing on recent Supreme Court opinions and excerpts from oral arguments, the 1.2% Problem is defined as the product of the compounded, centuries-long misunderstandings of Native peoples weaponized through the power of the Supreme Court. Part III diagnoses the origin of the 1.2% Problem as arising from the American Mythology of the United States. This Part shows that early American founders made and acted on a series of predictions about the future of the United States in reliance on assumptions about tribal nations' lack of adaptability and capacity. These assumptions, political wishes, and rhetoric came to be identified as true reflections of the world, despite facts to the contrary. Part IV details the solution to the 1.2% Problem by focusing on grounding history within the perspective of tribal communities. In addition, this Part sets up a trajectory for reconsidering other major conceptual fractures arising from the collision of federal Indian law and constitutional principles. Finally, this Part shows how the process of excising American Mythology from our common law has already begun with very recent Supreme Court decisions in cases like Washington State Department of Licensing v. Cougar Den and McGirt v. United States, while simultaneously encountering setbacks in decisions like Oklahoma v. Castro-Huerta.

[. . .]

Professor Bethany Berger may have put it best: “If you understand Indian law, the reality seems obvious.” Understanding tribal nations is a part of understanding Indian law. There are tough questions to be answered in federal Indian law, but the good news is that the inquiries before the Court most recently, as well as whatever the future may bring, are very solvable. Chief Justice John Roberts lamented the failure of legal scholarship to aid the judiciary in thinking through legal problems, and there are volumes of legal scholarship that might be cited to validate his point. Chief Justice Roberts elaborated:

Now I hasten to add that I don't think there is anything wrong with that [type of scholarship]. If the academy wants to deal with the legal issues at a particularly abstract and philosophical level, that's great and that's their business, but they shouldn't expect that it would be of any particular help or even interest to members of the practicing bar or judges .... [B]ut I do think that if the academy is interested in having an influence on the practice of law and the development of law, that they would be wise to sort of stop and think, is this area of research going to be of help to anyone other than other academics.

However, Indian Country and the legal scholars that are familiar with it come from that place, work, and live there with the people from tribal communities, and have done the type of work that Chief Justice Roberts has suggested. The works upon which this Article stands are “... [influential] in the development of the law” within this complicated area of federal Indian law now in flux. Indeed, this Article and those it stands in conversation with seek to address the two major issues that have been most challenging and troublesome for the Court in the context of Indian law: race and plenary power. This significant body of scholarship on these longstanding tensions in federal Indian law has provided a map for rendering coherent those legal structures which appear in disarray. This work continues the effort to calm and correct troubled conversations among those imagining a contemporary United States originating from an American Mythology that was always false.

Enrolled citizen of the Chickasaw Nation and Professor of Law, University of Oklahoma.