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Advocacy and change in federal Indian law

It’s a bad sign when a Supreme Court justice disrespects a young Indian woman, Nazune Menka, when asked about the Carcieri v. Salazar decision against the Narragansett Nation, and worse when the justice mocks the case itself, calling it “a laugher.” Aside from what CBS News calls Scalia’s “nasty” style, what allows him to show such mockery and disrespect?

There’s a clue in what Scalia apparently said to another Indian questioner. He claimed the U.S. has a right to rule over Indian nations by “conquest” and all federal Indian law is based on that. In other words, Scalia wants to pretend the same thing the U.S. has been pretending since John Marshall first pretended it in 1823 in Johnson v. McIntosh: the “pretension of converting the discovery of an inhabited country into conquest.”

The increasing awareness in Indian country that federal Indian law is not really for Indians is a wake-up call to Indian lawyers and ‘respected authorities’ to dispel the indoctrination of federal Indian law precedents.

The actual basis of federal Indian law, as Marshall’s quote shows, is not conquest, but “pretense of conquest,” based on “Christian Discovery” and “ultimate dominion.” This is what Scalia’s comment covers up. Marshall, at least, had the honesty to call it what it was.

An Indian Country Today interviewer (May 6) asked John Echohawk, executive director of the Native American Rights Fund, “Is anyone challenging Congress’ claim to plenary power over the nations?” He replied: “Yes, but of course under the law of this country, the way all that’s been interpreted and the way it’s been litigated is the tribes are domestic dependent nations and that’s just the way things are and you go to court and that’s what they’ll tell you.”

NARF’s acceptance of the “pretense of conquest” as “that’s the way it is” is an ominous sign. It means the most widely recognized group of Indian lawyers is not arguing against the basic discrimination in federal Indian law. No wonder Justice Scalia thinks he can get away with his nastiness and pretense.

Indian country needs to strip away the “pretense of conquest” and reveal the underlying reality of federal Indian law: a system designed to suppress sovereignty of Indian nations in keeping with a tradition of Papal Bulls and Christian political theology. Indian country needs lawyers not afraid to argue for indigenous sovereignty and against the “pretense of conquest through discovery.”

Echohawk demonstrated that NARF is not one of the challengers of pretense when he continued, “the federal government has exclusive authority over all Indians, all tribes under the Constitution, basically, that takes care of everything – if you’re a tribe then you’re under federal jurisdiction, any tribe, anywhere, is under federal jurisdiction. Period.”

The culture of acceptance of the pretense of federal Indian law prevails not only at NARF, but also in law schools, even in Indian law programs. The standard approach seems to be to train young lawyers to accept the existing paradigm, rather than question it. The standard approach produces arguments acceptable to judges like Scalia, rather than challenge the discriminatory basis of federal Indian law.

NARF’s acceptance of the ‘pretense of conquest’ as ‘that’s the way it is’ is an ominous sign.

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The motivation to fit in has not hampered advocates in other fields. Civil rights lawyers challenged racist precedents dating from slavery and won historic legal change in the middle of the 20th century. It’s been more than 50 years since the historic decision, Brown v. Board of Education, overturned the doctrine of “separate but equal.” Meanwhile, federal Indian law is still bound by racist theological precedents.

The federal government’s “trustee” status is being keenly studied across Indian country since the Carcieri and Navajo decisions. What are Indian lawyers waiting for? Have they given up and are merely trying to play by racist rules that give Congress “plenary power” over Indian Nations? They should be crafting every possible argument to overturn that racist doctrine.

Let’s take a look at what the Supreme Court says about when it’s time to overrule a precedent. In Vasquez v. Hillery (1986), the court said it will overturn a precedent that is “outdated, ill-founded, unworkable, or otherwise legitimately vulnerable to serious reconsideration.” That set of terms exactly describes the doctrine of “pretense of conquest by discovery.”

“Pretense of conquest by Christian Discovery” is “outdated”: a decision from 1823. It is “ill-founded”: based on racist and religious discrimination. It is “unworkable” as a basis for Native sovereignty. As Steve Newcomb’s book, “Pagans in the Promised Land,” shows it is “legitimately vulnerable to serious reconsideration.”

In Leegin v. PSKS, Inc. (2007), the Supreme Court overturned an anti-trust precedent, saying the old rule had been “called into serious question” and that “respected authorities” suggested the rule “is inappropriate.” If corporate lawyers and “respected authorities” had gone along with the old rule instead of arguing against it, the court would not have overturned it.

In an ICT column last September, Charles Trimble wrote, “history must be taught with accuracy and dispassion, as history and not as indoctrination.” The same applies to law.

Law is based on argument. The common law system depends on argument. An advocate has the chance to challenge the status quo. The increasing awareness in Indian country that federal Indian law is not really for Indians is a wake-up call to Indian lawyers and “respected authorities” to dispel the indoctrination of federal Indian law precedents.

No more should anyone say that “plenary power” is just “the way it is.” No more should anyone be afraid to tell a court that the “pretense of conquest by discovery” is “outdated, ill-founded, unworkable, or otherwise legitimately vulnerable to serious reconsideration.”

As the court said in the Leegin case, “the common law adapts to modern understanding and greater experience.” The point we must remember – and teach our law students – is that the common law only adapts when it is pushed by understanding and experience – pushed by advocates for change.

Peter d’Errico graduated from Yale Law School in 1968. Staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services, 1968 – 1970. Taught Legal Studies at University of Massachusetts, Amherst, 1970 – 2002. Consulting attorney on indigenous issues.