Supreme Court Justice Ruth Bader Ginsburg once shared her greatest regret from her esteemed career serving on the nation’s highest court, telling colleagues and clerks that it was a 2005 court decision regarding the rights of Native Americans.
Justice Ginsburg wrote the 8-1 majority opinion on the case Sherrill v Oneida Indian Nation, which refused to allow the tribe to restore those lands and revive its sovereignty. Many Native Americans view the decision as racist and argue that justice was denied.
The Oneida sold off much of the land that had been set aside as a reservation in the early nineteenth century, later claiming that it was defrauded of its territory.
In the 1990s the Oneida began slowly buying back parcels of what were its lands in Sherrill County in the Mohawk River Valley in Upstate New York. Arguing that as tribal lands it was exempt from tax.
Local authorities disputed this, claiming it had lost its reservation status upon being sold.
When the case reached the Supreme Court, the decision went in favour of the city of Sherill, with the court pointing to the “longstanding, distinctly non-Indian character of central New York and its inhabitants” and the fact that regulatory authority over the land had been exercised by state and local government for 200 years.
The ruling stated that by giving up the land in the early 19th century, the Oneida Nation had “relinquished governmental reins and could not regain them through open-market purchases from current titleholders”.
It was decided that the federal government would hold the lands in trust for the Oneida people. This required them to seek permission from the Secretary of the Interior for even minor decisions.
The decision tarnished Justice Ginsburg’s reputation with Native Americans, and she regretted it more than any other decision she made in the court, The Buffalo Chronicle reported earlier this year.
Justice Ginsburg ruled in favour of Native Americans on other occasions — in 2001 over ownership of Lake Coeur d’Alene in Idaho, and in 2019 over the tax-exempt status of a fuel distributor in Washington state.
These cases often rely on negotiated treaties between the tribal nations and the United States signed one or two hundred years ago, which Native Americans insist must be honoured in the contemporary legal environment.
The Oneida case stayed with Justice Ginsburg for years after. She even told colleagues that she would like to see president Donald Trump nominate a Native American jurist to the court in order to have an Indigenous perspective on decisions.
With the president set to reveal his nominee on Saturday, the possibility of a centrist pick seems highly unlikely.
Justice Ginsburg and other court watchers have previously suggested District Court Judge Diane Humetewa of Arizona as a highly qualified choice to represent Native American interests, in addition to her decades of experience as counsel, prosecutor, and jurist.
On the overall legacy of Justice Ginsburg for Indigenous communities, Margo Hill, Spokane tribal member and professor of law at Eastern Washington University, told The Spokesman-Review: “It is very complicated.”
“But she was fair. She fought for equity,” she added.
“We appreciate her fight,” Professor Hill continued, reflecting on the progress Justice Ginsburg made for equity, especially for women. “Even if it didn’t always go our way, we appreciate her fight.”