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Justice Scalia and the Racist Nature of Federal Indian Law

A couple of years ago, US Supreme Court Justice Antonin Scalia was at a function that Congressman Tom Cole (R-OK) was also attending. Upon hearing that Congressman Cole is from the Chickasaw Nation, Scalia said: “Don't forget you belong to a conquered race.”

Justice Scalia’s use of the word “race” places his comment in an obvious racial frame of reference. The idea of American Indians being “conquered” evokes the theme of inferiority (those deemed “conquered”), and superiority (the racial group said to have conquered “the race” treated as “inferior”). In other words, Justice Scalia’s comment was predicated on the idea of racial domination: “We are the victorious race and you are the inferior, ‘conquered race.’” In short, Justice Scalia’s comment was an open expression of racism and is accurately re-expressed in this manner: “Don't forget you belong to a dominated race.”

The Ethnic Studies Department at the University of Oregon characterizes and studies racism as a system of domination. Racism is structured in terms of a top/down pattern of superiority and inferiority, of dominance and subordinance. One example of racism is automatically judging dark skinned people with “non-white” facial features as inferior to “white” people with a lighter skin hue and European features.

For a racist, darker skin and “non-white” racial features serve as “proof” of the inferiority of “black” people. A racist judgment of inferiority can also be based on some other categorization, such as some “group” identification. Simply being “other than white society,” and, therefore, “lower than” the supposedly superior “norm” of “white people” is enough to be judged by racists as “lesser than.”

Donald Sterling, owner of the Los Angeles Clippers basketball team has been embroiled in a firestorm of controversy over what has been characterized as his racist comments about “black people” to his “mixed-race” girlfriend. His comments were anonymously leaked to the media through the gossip monger program TMZ, and this has resulted in a condemnation of racism in the media. The universal attitude seems to be: “How dare Sterling talk in such a racist manner about African American National Basketball Association (NBA) basketball players.”

The consequences were swift: Sterling is probably going to be compelled to sell his Clippers franchise (which he will no doubt profit from). He has been banned for life from the NBA. He has been fined some $2.5 million dollars. This is likely to hurt Sterling a great deal since it will take such a huge chunk of his estimated net worth of some $1,900,000,000. After the fine, that leaves him with a mere $1,897,500,000 net worth. That kind of punishment will surely teach him a valuable lesson.

One white male pundit on CNN said he believes the outrage over, and universal repudiation of, Sterling’s comments, sends a clear signal that racism has pretty much ended in the United States. And it makes sense that in many ways African Americans in the United States have obviously come far since the days of separate bathrooms, drinking fountains, and back-row bus seats during the separate but equal days of the Jim Crow laws. However, for the most poverty stricken sectors of African American society, the daily problems they continue to face from institutional racism abound.

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While privately expressed racism toward wealthy African Americans who play pro-basketball will not be tolerated, especially if it so happens that the privately expressed racist views are widely publicized, it is an entirely different matter when it comes to the expression of racism towards the poorest sectors of African American society, and toward other so-called “ethnic groups.” A case in point is the comment by Justice Scalia to Chickasaw Nation citizen Tom Cole. The fact that Cole is a duly elected and seated U.S. Congressman did not temper Scalia's acidic and racist tongue.

While I refuse to think or write of our Original Nations and Peoples as a “race” or “ethnic groups,” it is clearly a problem for a sitting Justice of the U.S. Supreme Court to avow that he regards us as a “race” that is inferior as a result of that claim that we have been “conquered,” or, in other words, “dominated.”

Certainly there is a vast difference between Donald Sterling and Antonin Scalia. After all, Donald Sterling was never going to referee any NBA games. It was not as though he has been forced out of the NBA to prevent him from being able to use his racist frame of reference to judge African American NBA players on the court, or use his racist views to influence the outcome of specific basketball games.

As for Justice Scalia, he has been on the U.S. Supreme Court for almost twenty-eight years, and during that time he has been using in his racist mental frame of our Original Nations (“Indians”) as a conquered (dominated) race in his decision-making in cases involving Indian issues. Why has his openly racist comment to Congressman Cole resulted in no public expression of outrage from the leadership in Indian Country? Why hasn't there been any persuasive campaign to have Scalia remove himself from any case involving American Indian nations and peoples?

The white male pundit on CNN who said that racism has pretty much ended in the United States has obviously never read Robert A. Williams' book Like A Loaded Weapon: The Rehnquist Court, Indian Rights, and the Legal History of Racism in America (2005). Professor Williams makes it abundantly clear that U.S. federal Indian law is an entire sector of U.S. law that is a product of racist thinking that has been institutionalized in the United States. Where's the outrage over that in the U.S. media?

While I prefer to frame the discussion more in terms of “religious racism” based on what I term the Doctrine of Christian Discovery and Domination, Williams clearly demonstrates that U.S. federal Indian law is a system of ideas structured in terms of white superiority and non-white inferiority, which continues to be used by the U.S. Supreme Court in an anti-Indian manner to this very day. Anyone who would claim that racism has pretty much ended in the United States has no clue that the U.S. Supreme Court continues to make federal Indian law decisions based on racist precedents against our Original Nations and Peoples.

With regard to Justice Scalia's statement, Congressman Cole's office told me that he will not comment “on a private conversation.” His office did not say that the incident never happened, or that Scalia did not make that statement to representative Cole. His office simple characterized it as “private,” even though the congressman evidently later recounted Scalia's comment at a conference of lawyers in Oklahoma.

Steven Newcomb (Shawnee, Lenape) is co-founder and co-director of the Indigenous Law Institute and author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Fulcrum, 2008). He has been studying federal Indian law and international law since the early 1980s, and has published several law review articles.