'Mental correction' at the court

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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.