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Old 03-07-2006, 01:59 PM   #1
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'Mental Correction' At The Court

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'Mental Correction' At The Court

(javascript:PrintWindow();) Posted: March 03, 2006 by: _Editors Report_
( / Indian Country Today

Now that the late Chief Justice William Rehnquist has passed into
history, scholars are dissecting his influence on Indian law. It's not a pretty
picture. Rehnquist revived and expanded a racist tradition in the court of
stereotyping Indians as nomadic savages needing federal tutelage, charges a new
book by Robert A. Williams, a professor at the James F. Rogers College of Law at
the University of Arizona. The book, ''Like a Loaded Weapon'' (University of
Minnesota Press), might grate on some with its angry tone, but its
conclusions strike us as all too persuasive.

Williams, Lumbee, forces the reader and - one hopes, eventually - the court,
to confront an unwelcome reality behind the American self-image of rule by
law. Federal jurisprudence toward the Indian has relied less on abstract
justice and coherent principle than on racial prejudice that has been
condescending at best and at worst viciously dishonest. Williams takes his critique from
black scholars like Derek Bell, calling the American tradition a ''white
racial dictatorship.'' His examples are unsparing and hard to refute.

This tradition is still riding high on the Supreme Court, even among its
supposedly most liberal members. (The recent confirmation debate over the
allegedly hard-right Justice Samuel Alito was almost meaningless for Indian
country. The most damaging decisions of the past year came from justices who were
favorites of the left.) The racist influence is so pervasive that the justices
probably don't even recognize it as such. Williams' book is thus an extremely
valuable attempt to bring this bias to the surface. It deserves close
attention as the court comes under the nervously watched new leadership of Chief
Justice John Roberts.

Williams starts with a harsh look at the ''Marshall Trilogy,'' the three
decisions by Chief Justice John Marshall from 1823 to 1832 that set the
parameters for tribal participation in the U.S. federal system. In the 1823 case
Johnson v. McIntosh, Marshall tried to explain by what right Europeans could
claim title in the ''New World.'' Williams calls it ''one of the most thoroughly
racist, nonegalitarian, undemocratic, and stereotype-infused decisions ever
issued by the Supreme Court.''

The ''doctrine of discovery'' invoked by Marshall reduced, as he himself
admitted, to the presumption of a vast difference in character between the
''savage'' hunting-gathering Indians and the ''civilized'' agricultural-industrial
Europeans. (The superior merit of European civilization had not yet been
called into question by the history of the 20th century.) Marshall fell back on
this incompatibility of ''character and habits'' with a bit of bad
conscience; he called it ''some excuse, if not justification'' for a principle that
elsewhere in the opinion he called ''extravagant'' and ''pompous.''

One might say in Marshall's defense that this was the period of the Indian
removals, an exercise in ethnic cleansing that equaled the worst crimes of
Joseph Stalin and Slobodan Milosevic, and that Marshall was one of the strongest
voices in opposition. As Marshall knew well, the victims of removal were
not savage nomads at all, but residents of settled, self-governing communities:
and even mainly Christian. But, argues Williams, these stereotypes have
become embedded in Supreme Court precedents even though they were invalid when
Marshall invoked them.

The court might have made a clean break with its racism as far as blacks
were concerned, in its 1954 decision in Brown v. Board of Education, Williams
argues, but it maintained unbroken continuity with its 19th century
Indian-phobic precedents. In fact, Williams maintains, Rehnquist refurbished this
tradition. Rehnquist's 1978 opinion in Oliphant v. Suquamish Indian Tribe has
become a constant source of mischief. The 6 - 2 decision said that Suquamish
tribal police could not criminally prosecute non-Indians. It set a constant theme
for the Rehnquist years: that Indians are not fit to arrest, try or tax

Williams is not the first to subject Oliphant to withering criticism. He
cites an ''immense'' scholarly literature describing Rehnquist's reasoning as
''absurd'' and ''aberrant.'' But, befitting the focus of his book, he
emphasizes the source of Rehnquist's precedents. Most, he says, come from the 19th
century heyday of Indian-fighting and prejudice against people of color.
Rehnquist even cites an 1834 congressional report on the implementation of the
Indian Removal Act. Rehnquist refers to the ''common notions'' of a virulently
racist era to justify his evisceration of tribal institutions in the late 20th

This stain spread through subsequent decisions. In the infamous 1990 Duro v.
Reina case, the court held that tribes didn't have jurisdiction even over
Indians on the reservation who were not tribal members. This supremely foolish
ruling ushered in a period of great difficulty for tribal law enforcement,
even though Congress quickly responded with the so-called Duro-fix legislation.
A series of tax cases sought to gut reservation economic integrity by ruling
that non-Indian customers were subject to state, not tribal, tax
sovereignty. These cases have become the main, if not the sole, cause of violent
confrontations between Indians and state governments over the past decade.

Even the most liberal current justices have been infected. Ruth Bader
Ginsburg began her majority opinion in City of Sherrill v. Oneida Indian Nation of
New York by citing Marshall's doctrine of discovery and the Indian removals
of Andrew Jackson. One of the main citations in her thinly argued opinion came
from 1891.

There could be some hope that critiques like Williams' book are beginning to
have some impact on the court. The 2004 decision in United States v. Lara
allowed that Congress had authority to undo the damage of the Duro decision. It
showed the influence of briefs coordinated by the Supreme Court Project of
the Native American Rights Fund and the National Congress of American Indians.
Williams sees the case as limited victory, since it stayed within the
confines of the Marshall model.

He closes with a call for a ''mental correction'' of the Supreme Court
outlook. But once the court abandons the savage stereotype inherent in the
doctrine of discovery, a new principle must be found to replace the discredited
foundation. ''Filling that void,'' writes Williams, ''is perhaps the greatest
challenge confronting Indian rights lawyers, scholars, advocates and the Court
itself today.''

Williams has some intriguing ideas, based on his own work in international
law forums. Roberts might turn out to have a few. His writings as a private
lawyer criticized past Indian law and deplored some of the stereotyping
language of Supreme Court decisions, just as Williams does. The shift in court
leadership offers the occasion for a fundamental dialogue on Indian law; and
Native voices are prepared, as never before, to make their case.
Don't worry that it's not good enough for anyone else to hear... just sing, sing a song.
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