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CHAPTER 1

The Courts of the Conqueror

IN THE VERY FIRST CASE to come before the United States Supreme Court involving a significant Native American issue, Chief Justice John Marshall ominously described the American judicial system as "the Courts of the conqueror." Thus clothed, the Supreme Court handed down a sweeping opinion that appropriated legal title to the United States, even though most of the continent was still owned and occupied at the time by Indian tribes. Since that fateful decision in Johnson v. M'Intosh (1823), American law has often worked against Native Americans, legitimizing the appropriation of their property and the decline of their political, human, and cultural rights as indigenous peoples at the hands of the government. By 1950, American Indians had hit the lowest point and were living life in abject poverty at the bottom of a segregated society bent upon stamping out their culture, reneging on remaining government commitments, and assimilating them out of existence. This book examines the troubling fact that American law rendered this destruction perfectly legal, and it explores the need to rethink the doctrines that underpin this national embarrassment.

During the 1960s, the civil rights movement arrived in Indian Country. After years of heavy paternalistic rule by the Bureau of Indian Affairs, Indian tribes began to awaken to the possibility of emancipation from the dark side of federal guardianship and to the need to reclaim Native pride, culture, land, and sovereignty. I came of age in rural Oklahoma, and among Native youth then, our hero during the birth of the Red Power movement was the Ponca Indian activist Clyde Warrior. He rejected the stamp of inferiority impressed upon American Indians by the mass media and mainstream society by proclaiming, "the sewage of Europe does not run through these veins." Though his life was cut short, the awakening in Indian Country was carried forward by his organization, the National Indian Youth Council, and a generation of tribal leaders, activists, and lawyers who recast the civil rights movement into a Native American tribal sovereignty movement that more closely reflects the aspirations of America's indigenous peoples. That movement led to the rise of modern Indian nations.

At the inception of this sovereignty movement, only a handful of American Indians were lawyers, perhaps a dozen, even though the condition of Native Americans has always been highly dependent upon the courts. My folks urged me to go to law school in the late 1960s to help correct problems in our Pawnee tribal community. Heeding their advice, I followed the moccasin tracks to law school made by visionaries such as F. Browning Pipestem (Otoe-Missouri/Osage), Urban Bear Don't Walk (Crow), John Echohawk (Pawnee), and others. Our goal was to learn the law and then use the white man's own rules to achieve justice in his courts. That strategy worked well in the courts of the conqueror. Significant legal battles were won by modern-day warriors during the early years of the sovereignty movement since even under the conqueror's own laws much of the oppression of Indian people was illegal. The successful use of law to solidify the presence of Native America is a great testament to the vitality of the American judiciary. However, those victories are not the subject of this book because they have been well documented by legal scholars and historians.

This book explores the dark side of the law experienced by Native Americans and their efforts to overcome the hardships imposed upon them by American courts. For purposes of this discussion, I have selected the ten worst Indian law cases ever decided from among a very long list of worthy candidates clamoring for selection. Some were chosen because of their far-reaching legal impact and others because they illustrate larger problems in the law. By "worst," I refer to those cases that embody or expose the roots of injustice and highlight the use of nefarious legal doctrines.

Only rarely in US history has the law served as a shield to protect Native Americans from abuse and to further their aspirations as indigenous peoples. The law has more often been employed as a sword to harm Native peoples by stripping away their human rights, appropriating their property, stamping out their cultures, and, finally, to provide legal justification for federal policies that have, at times, resorted to genocide and ethnocide. These concerns about the role of law are not raised out of passing interest in a dimly lit past. For the most part, the cases discussed in this book remain the law today and have never been reversed. The Supreme Court continues to rely upon them as legal precedent for deciding Native American cases. Indeed, these cases form in significant part the foundation of federal Indian law, which is the body of law pertaining to American Indians and Alaska Natives that defines their bundle of political and legal rights as indigenous peoples.

The ten worst cases I have selected have little to do with "justice." Each decision is based upon (1) unabridged racially derogatory stereotypes and (2) antiquated legal doctrines developed during the colonial era (circa 1492 — 1960), including ill-defined notions of conquest, for appropriating indigenous land and subjugating Native peoples. These concepts are turned into bedrock American legal principles by the cases discussed in this book.

Even though colonialism was rejected as repugnant by the international community shortly after World War II, the legal underpinnings of colonialism remain implanted in the domestic law of the United States. In addition, the Supreme Court continues to rely upon legal doctrines infected with bare race-based notions as it decides contemporary Indian cases, long after the ideology of race has been discarded by virtually every other governmental institution in the country. Thus, the legal system ironically remains one of the last to perpetuate a form of racism. These fundamental problems in federal Indian law have prompted a call for reform among a growing number of prominent legal scholars who present a powerful case for decolonizing federal Indian law and confronting the Supreme Court about its continued use of legal precedent tainted with racism. As professor Robert Williams asks in Like a Loaded Weapon, how can legal advocates expect to win lawsuits by citing cases that call Native Americans "savages" and by relying upon legal principles founded on the racial inferiority of their clients?

Today, the greatest challenge facing advocates and others concerned about the well-being of Native peoples is to root out these vestiges of racism and colonialism in the law and replace them with legal principles more in keeping with the postcolonial world. However, this task is not without its risks. Many scholars argue that the Supreme Court has already begun this departure, with disturbing results, and insist that fidelity to the foundational principles of federal Indian law, espoused during the 1800s, is a better alternative to current Supreme Court trends. There is no question that since the 1980s the Court has begun to stray from the bedrock Indian law principles toward trimming Native American rights even further, and the Court's guiding legal principles currently appear rudderless. The ad hoc approach used by the Supreme Court since 1986 to batter the protective shield and foundational principles of federal Indian law smacks of common law during the age of colonialism. The pivotal question becomes, toward what set of guiding principles should advocates attempt to steer the Court? Regardless of the outcome of this debate, most observers agree that in embracing and applying antiquated legal doctrines and notions of racism, the Supreme Court is confronted with the embarrassing situation described by law professor David Williams:

[T]he ideology of conquest — with its attendant racism and cultural imperialism — is no longer widely shared. While a few Americans may believe that Indians are still emerging from savagery, that the conquest was just because it substituted a superior for an inferior civilization, and that the best course is the wholesale assimilation of the tribes, such views today have few public defenders.

It is painfully apparent that the Court needs to find some theory other than conquest, colonization, or racial superiority to justify its decisions. That change would entail a paradigm shift in American legal thinking similar to that which prompted the Court to overturn the legal bases for segregating America. Such a sea change for Indians has not yet emerged. Until change is demanded by society at large, the Court will continue to apply outmoded rules to Indians that "the Courts of the conqueror cannot deny."

I hope that a discussion of the ten worst cases will contribute to a just resolution of this dilemma. This is important because American courts have always played a powerful role in determining the fate of Native Americans, sometimes as a shield to protect their rights and aspirations as indigenous peoples, but most often as a sword to constrict and confine their rights and appropriate their property. David H. Getches, the dean of the University of Colorado Law School, observes that American Indians are impacted by the law and Supreme Court decisions more pervasively and gravely than most other Americans.

Though American courts are concerned primarily with interpreting and enforcing the law, society has also charged the courts with the task of providing a bulwark against injustice. This latter function is critical for marginalized Native Americans. Indian tribes comprise a small minority group with vastly different cultures. Their interests go largely unnoticed, unprotected, or subordinated by society because there are no American Indians in Congress, the White House, or on the federal bench. In this vulnerable situation, tribal people are too often completely at the mercy of the federal or state judges. Such judges confront several problems. First, they must cross a cultural divide to consider Native American issues. This cross-cultural task is difficult, according to Williams, because most judges "are almost totally ignorant of the conditions of reservation life" and "[p]erhaps most find even the basic analytical categories of Indian law strange and anomalous." The chore of applying the law under those circumstances can be difficult for even the most sensitive jurist. The bulwark function is further hampered when the legal principles to be applied are infected with notions of racism and doctrines of colonialism, as previously discussed. Finally, to avoid miscarriages of justice, there remain the fundamental problems of judicial courage and the ever-present need for the judges in our independent judiciary to rise above the prevailing politics and prejudices of the day when oppressed minorities are concerned. Given this set of problems, it is hardly a wonder that there exists a dark side to the law in the courts of the conqueror. Reform is needed until American courts no longer consider themselves to be "the Courts of the conqueror."

I hope that by the reform of federal Indian law, a more just culture can be achieved in the United States as our society matures some five hundred years after the arrival of Columbus into the New World. By a just culture, I mean a society with ingrained values and a legal system that fairly takes into account, addresses, and reflects the fundamental values, needs, and concerns of all segments of society, including those of the indigenous peoples. A just culture is not a melting pot where aboriginal cultures have become extinct through enforced assimilation, but a rainbow where different peoples and cultures coexist and enrich each other. Such a society in the postcolonial world means one that has taken significant steps to shed the harsh edges of settlerism that drove the conquest and colonization of the continent during the era of Manifest Destiny and has begun to adapt more closely to the land where we live in ways similar to that which the Native peoples have done — that is, to become more indigenous to place. The legal system, whose function it is to serve the society, should evolve along the way and support this quest for a just culture.

As a Native rights attorney since 1973, I am aware of the challenges that Native Americans face and have faced to protect their political, human, cultural, and property rights as indigenous peoples. While it is natural for American culture to evolve, hopefully toward the just culture, our legal system does reflect the culture that it is intended to serve, for better or worse, and it is limited by that cultural context. It is also limited by the judges who serve on the bench, who are products of their day and age, the manner in which they are appointed, and the doctrine of stare decisis (that is, the need to rely upon and apply court decisions as legal precedent so that there will be predictability in our legal relations), which, like the common law, ensures that cultural bias from earlier times is built into the system. Nonetheless, the law should not hold us hostage to an unjust past. Social change often comes slowly, but it is possible for me to look to the future based upon my perceptions of the past. By peering into the dark side of the law in these pages, I hope to point directions where the law should go, as we stride toward a just culture, one more protective of Native America, with a legal framework more accountable to its needs.

Like an anchor, history plays an important role in examining the dark side of federal Indian law and pointing the direction toward a more just culture. We must confront the forces of colonialism and conquest and understand how they have become imprinted upon the legal system. The history of conquest is the history of mankind; and the treatment of the conquered or the colonized tells the world much about the nature of the occupying victors. We are familiar with the removal of the Hebrew peoples from their fertile territories in the sixth century bc, and the Roman expansion is another example. They "went to stay," sending, then retiring, their army in place — so vestiges of Roman culture can be found throughout the territory of the Roman Empire today. The American experience is quite personal for me as a Pawnee Indian born in rural Oklahoma on the Pawnee Indian Reservation. The way our government addressed the Native American peoples affects me and my family directly, as I will describe, where appropriate, later in this book. The government attempted to exterminate the Native Americans in war, herd them upon reservations then thought to be worthless, and assimilate them through enforced acculturation. A protectorate was established, most often through treaties, that sets the stage for today's situation and makes this book a relevant means for all of us to learn more about who and what we, as a civilization, are and can be, as indigenous and nonindigenous peoples living in the same land.

The first written records of mankind address the manner in which one people lived with others as migration and exploration allowed civilizations to relocate and take their peoples into new lands and better circumstances. Archaeological and historical examination around the globe, including the New World, tells us how difficult the questions of expansion were for the new settlers. Should the laws of the preexisting indigenous peoples govern? What came along with these settlers by way of cultural experience? Did the settlers, conquerors, and colonists desire anything more than the resources of the new territory? These questions have perplexed scholars for centuries and are the basis for much I address in this volume. All history must be considered contextually. Today's values were not yesterday's, and realizing that should not distort the lessons of history.

So what is the record of our American experience? I seek answers to this question by studying the actions of the American judiciary. How did our courts address conflict with the Native peoples? But the thesis of this book is bigger than that. My thesis here is how should the American courts address issues relating to the indigenous peoples? I hope to explain through an examination of legal history how future legal history must be written. And that is what I hope you learn from the study of the ten worst federal Indian law cases ever decided.

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Excerpted from "In the Courts of the Conqueror"
by .
Copyright © 2010 Walter R. Echo-Hawk.
Excerpted by permission of Fulcrum Publishing.
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