In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided - Hardcover

Echo-Hawk, Walter

Hardcover

ISBN 10: 1936218011 ISBN 13: 9781936218011

Verlag: Speakers Corner Books, 2010

Inhaltsangabe

The fate of Native Americans has been dependent in large part upon the recognition and enforcement of their legal, political, property, and cultural rights as indigenous peoples by American courts. Most people think that the goal of the judiciary, and especially the US Supreme Court, is to achieve universal notions of truth and justice. In this in-depth examination, however, Walter Echo-Hawk reveals the troubling fact that American law has rendered legal the destruction of Native Americans and their culture.

Echo-Hawk analyzes ten cases that embody or expose the roots of injustice and highlight the use of nefarious legal doctrines. He delves into the dark side of the courts, calling for a paradigm shift in American legal thinking. Each case study includes historical, contemporary, and political context from a Native American perspective, and the case’s legacy on Native America. In the Courts of the Conqueror is a comprehensive history of Indian Country from a new and unique viewpoint. It is a vital contribution to American history.

Walter Echo-Hawk (Pawnee) is of counsel to the Crowe & Dunlevy law firm of Oklahoma. As a staff attorney for the Native American Rights Fund for thirty-five years, he represented tribes and Native Americans on significant legal issues during the modern era of federal Indian law. In addition to litigation, he worked on major legislation, such as the Native American Graves Protection and Repatriation Act (NAGPRA), and federal religious freedom legislation. He is a prolific writer whose books include the award-winning Battlefields and Burial Grounds.

Über diesen Titel

Über die Autorin bzw. den Autor

Walter Echo-Hawk has worked as a lawyer for the Native American Rights Fund for more than 35 years. He was instrumental in securing passage of two federal laws that respect Indian and religious freedoms and also the repatriation of Native American remains to Indian tribes. A prolific writer, his publications include an award-winning book BATTLEFIELDS AND BURIAL GROUNDS (1994).

Auszug. © Genehmigter Nachdruck. Alle Rechte vorbehalten.

In the Courts of the Conqueror

The 10 Worst Indian Law Cases Ever Decided

By Walter R. Echo-Hawk

Fulcrum Publishing

Copyright © 2010 Walter R. Echo-Hawk
All rights reserved.

ISBN: 978-1-936218-01-1

CHAPTER 1

The Courts of the Conqueror

IN THE VERY FIRST CASE to come before the United States Supreme Court involving a significant Native American issue, Chief Justice John Marshall ominously described the American judicial system as "the Courts of the conqueror." Thus clothed, the Supreme Court handed down a sweeping opinion that appropriated legal title to the United States, even though most of the continent was still owned and occupied at the time by Indian tribes. Since that fateful decision in Johnson v. M'Intosh (1823), American law has often worked against Native Americans, legitimizing the appropriation of their property and the decline of their political, human, and cultural rights as indigenous peoples at the hands of the government. By 1950, American Indians had hit the lowest point and were living life in abject poverty at the bottom of a segregated society bent upon stamping out their culture, reneging on remaining government commitments, and assimilating them out of existence. This book examines the troubling fact that American law rendered this destruction perfectly legal, and it explores the need to rethink the doctrines that underpin this national embarrassment.

During the 1960s, the civil rights movement arrived in Indian Country. After years of heavy paternalistic rule by the Bureau of Indian Affairs, Indian tribes began to awaken to the possibility of emancipation from the dark side of federal guardianship and to the need to reclaim Native pride, culture, land, and sovereignty. I came of age in rural Oklahoma, and among Native youth then, our hero during the birth of the Red Power movement was the Ponca Indian activist Clyde Warrior. He rejected the stamp of inferiority impressed upon American Indians by the mass media and mainstream society by proclaiming, "the sewage of Europe does not run through these veins." Though his life was cut short, the awakening in Indian Country was carried forward by his organization, the National Indian Youth Council, and a generation of tribal leaders, activists, and lawyers who recast the civil rights movement into a Native American tribal sovereignty movement that more closely reflects the aspirations of America's indigenous peoples. That movement led to the rise of modern Indian nations.

At the inception of this sovereignty movement, only a handful of American Indians were lawyers, perhaps a dozen, even though the condition of Native Americans has always been highly dependent upon the courts. My folks urged me to go to law school in the late 1960s to help correct problems in our Pawnee tribal community. Heeding their advice, I followed the moccasin tracks to law school made by visionaries such as F. Browning Pipestem (Otoe-Missouri/Osage), Urban Bear Don't Walk (Crow), John Echohawk (Pawnee), and others. Our goal was to learn the law and then use the white man's own rules to achieve justice in his courts. That strategy worked well in the courts of the conqueror. Significant legal battles were won by modern-day warriors during the early years of the sovereignty movement since even under the conqueror's own laws much of the oppression of Indian people was illegal. The successful use of law to solidify the presence of Native America is a great testament to the vitality of the American judiciary. However, those victories are not the subject of this book because they have been well documented by legal scholars and historians.

This book explores the dark side of the law experienced by Native Americans and their efforts to overcome the hardships imposed upon them by American courts. For purposes of this discussion, I have selected the ten worst Indian law cases ever decided from among a very long list of worthy candidates clamoring for selection. Some were chosen because of their far-reaching legal impact and others because they illustrate larger problems in the law. By "worst," I refer to those cases that embody or expose the roots of injustice and highlight the use of nefarious legal doctrines.

Only rarely in US history has the law served as a shield to protect Native Americans from abuse and to further their aspirations as indigenous peoples. The law has more often been employed as a sword to harm Native peoples by stripping away their human rights, appropriating their property, stamping out their cultures, and, finally, to provide legal justification for federal policies that have, at times, resorted to genocide and ethnocide. These concerns about the role of law are not raised out of passing interest in a dimly lit past. For the most part, the cases discussed in this book remain the law today and have never been reversed. The Supreme Court continues to rely upon them as legal precedent for deciding Native American cases. Indeed, these cases form in significant part the foundation of federal Indian law, which is the body of law pertaining to American Indians and Alaska Natives that defines their bundle of political and legal rights as indigenous peoples.

The ten worst cases I have selected have little to do with "justice." Each decision is based upon (1) unabridged racially derogatory stereotypes and (2) antiquated legal doctrines developed during the colonial era (circa 1492 — 1960), including ill-defined notions of conquest, for appropriating indigenous land and subjugating Native peoples. These concepts are turned into bedrock American legal principles by the cases discussed in this book.

Even though colonialism was rejected as repugnant by the international community shortly after World War II, the legal underpinnings of colonialism remain implanted in the domestic law of the United States. In addition, the Supreme Court continues to rely upon legal doctrines infected with bare race-based notions as it decides contemporary Indian cases, long after the ideology of race has been discarded by virtually every other governmental institution in the country. Thus, the legal system ironically remains one of the last to perpetuate a form of racism. These fundamental problems in federal Indian law have prompted a call for reform among a growing number of prominent legal scholars who present a powerful case for decolonizing federal Indian law and confronting the Supreme Court about its continued use of legal precedent tainted with racism. As professor Robert Williams asks in Like a Loaded Weapon, how can legal advocates expect to win lawsuits by citing cases that call Native Americans "savages" and by relying upon legal principles founded on the racial inferiority of their clients?

Today, the greatest challenge facing advocates and others concerned about the well-being of Native peoples is to root out these vestiges of racism and colonialism in the law and replace them with legal principles more in keeping with the postcolonial world. However, this task is not without its risks. Many scholars argue that the Supreme Court has already begun this departure, with disturbing results, and insist that fidelity to the foundational principles of federal Indian law, espoused during the 1800s, is a better alternative to current Supreme Court trends. There is no question that since the 1980s the Court has begun to stray from the bedrock Indian law principles toward trimming Native American rights even further, and the Court's guiding legal principles currently appear rudderless. The ad hoc approach used by the Supreme Court since 1986 to batter the protective shield and...

Details zur Ausgabe

• Verlag: Speakers Corner Books
• Erscheinungsdatum: 2010
• Sprache: Englisch
• ISBN 10: 1936218011
• ISBN 13: 9781936218011
• Einband: Gebundene Ausgabe
• Anzahl der Seiten: 360
• Kontakt zum Hersteller: Nicht verfügbar
• Verantwortliche Person: JUST FOR GAMES; emartin@maximument.com; ; 9 AVENUE MICHELET; SAINT-OUEN-SUR-SEINE; 93400; Frankreich