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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 non-Indians.
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
century.
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.
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