Advocacy and change in federal Indian law
By
Peter d’Errico, Today correspondent
|
| 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. |
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.
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Saturday, Sep 5 at 2:17 AM Fast Horse wrote ...
I won a case in DC and NV court on Jurisdiction of a 2241 case, based on the real relationship with Tribes & President
28761524Saturday, Sep 5 at 2:16 AM Anonymous wrote ...
I have prevailed in article 3 court with the allodial tile decree and O'Bama Fast Horse on a title 28 YSC 3002 of jurisdiction based on US v. Joseph
28761519Wednesday, Jul 15 at 9:54 AM TrackingWolfie wrote ...
If the Supreme Justice rules that congress can do what it wants with the Indian because we were a conquered people then why not with Japan, germany, Italy didn't they conquer those countries too. Its a long time political issue behind the scenes. When ruling time comes around common sense mercy compassion goes out the window. They rule like puppets on a string. Who is really behind their decisions, surely they do not make them on their own. A conquered people that is just out right lame.
26109819Tuesday, Jul 7 at 7:37 PM anonymous wrote ...
Great point Michael. And I would add the term deception. Lies and deception. The lawyers for the plaintiff land companies in the Johnson v. M'Intosh case hired and paid for the attorneys for the defendent (M'Intosh) How's that for fraud and collusion? More lies and deception. And yet the case and the decision, resting as it does on the lie of "discovery" by "Christian people" is still treated as the cornerstone of federal Indian law. Bizarre!!
25573389Tuesday, Jul 7 at 3:55 PM Michael Mack wrote ...
the situation is really quite simple - the U.S lied. Justice Marshall acknowledged this by using "pretense". If the foundation is a lie - how can what flows from it be truth? Layers of laws and policies and social development don't change the lie - they merely distract and coverup. Today we live in a state of distraction looking at FIL as if it were truth. It's time Indian country pointed out repeating over and over FIL is a lie. This is not rocket science but simple fact.
25561844Tuesday, Jul 7 at 1:16 PM Rodolfo Rivera Munoz wrote ...
I am firmly on Peter d’Errico’s side of the argument and, were it up to me, I’d make all lawyer adherents of the status quo regarding the rights of “Indians” line up rightfully besides the likes of Justice Scalia and Thomas, neither of which has ever claimed to be “Indian.” The notion that one can be a completely “professional” Advocate in the fight between those advocating “Indian” rights and the status quo is as absurd as were the argument in consideration that between devout Christians and
25550349Monday, Jul 6 at 11:10 PM yes wrote ...
hey kinew. or matt. typical. this is a new era. new ideas. new people. changed paradigms. i dont off hand dismiss good logic on the basis of race. natives need solid ideas and practical solutions. the real indians, theres a term of art, are going to have to come forward and take over the professions that make sovereignty a conferencing, marketing and plenary session hoopla (and partying as well)
25518107Thursday, Jul 2 at 11:23 PM KINEW wrote ...
All this is intellectual BS. At the end of the day power is power. Now go back to your heads and books ,pat your little heads and go to sleep. Good night.
25344512Thursday, Jul 2 at 7:54 PM Tay wrote ...
Quite true, SN. One way to look at america is as a cancer. It behaves much the same way, with unchecked growth and destruction to the very thing which it lives in/on.
25336209Thursday, Jul 2 at 6:14 PM Michael Mack wrote ...
to SN: what I'm talking about pre-dates FIL or the U.S. It is the entire notion of the right of conquest using biblical justification - all western law and FIL are outgrowths of that justification. On the American continent, it began with the Pilgrims, their rationalizations are the heart of how the colonies, the Revolutionary War, and finally he U.S. emerged. Like the Pilgrims, the U.S. placed covetousness, greed, etc. before the God they claimed. They lied to themselves, FIL is one result.
25331749Thursday, Jul 2 at 6:04 PM Changes wrote ...
I don't object to a non Indian writing this article. Sadly, a lot of native officials dismiss information and strategies unless they come from a non native. I also support d Errico because too many of our own people like to call non natives "outsiders" when they challenge the status quo. At the same time, those same natives have no problems with non native lawyers, lobbyists and consultants ordering native officials to concede to more power to fed and state authority. Not a peep is heard then.
25331394Thursday, Jul 2 at 1:19 PM SN wrote ...
Good point Tay. In my view, originally free Indian nations are not rightfully subject to the thoughts and ideas of Congress or the Supreme Court, but that is the underlying presumption of every piece of anti-Indian legislation, and every concept woven into non-Indian federal Indian law. It is up to us to vigorously challenge that presumption by pointing out its indefensible basis as found in JvM: a christian "discovery" of non-christian heathen lands and a claim of dominion, right of domination.
25315827Thursday, Jul 2 at 12:51 PM Tay wrote ...
To SN; So if I beat you up, then you are rightly subject to my thoughts and ideas? Wrong! No Indian is rightly subject to american bullying. If americans want to be cattle that is their concern, but that isn't freedom.
25314012Thursday, Jul 2 at 12:31 PM SN wrote ...
To Michael Mack: non-Indian federal Indian law and policy are made up of concepts and ideas. They are the result of specific arguments developed by specific human beings, such as John Marshall, etc. Behind non-Indian federal law and policy is the premise that originally free Indian nations are correctly subject to the thoughts and ideas (which they call laws and policies) of Europeans and Euro-Americans; I see this as the core premise of non-Indian federal Indian law.
25312859Thursday, Jul 2 at 12:03 PM Michael Mack wrote ...
Squabbling over symptoms accomplishes nothing. Confront the core premise of FIL from the beginning - the "discovery doctrine", "plenary power", etc. are just symptoms of U.S.'s claims of a "Christian righteousness" that has no biblical foundation. From the beginning starting with the Pilgrims claim was Godly righteousness (a lie) to justify colonization and later conquest, and the founding of the U.S.. This IS the "big white elephant" in the room that is glossed over - THAT is the core of FIL
25311004Wednesday, Jul 1 at 9:46 PM Pd wrote ...
To Kinew again - You said (didn't ask) I wasn't a litigator. I answered that. You asked about UMass & remains. I answered. I didn't answer your Q for details about Abenaki remains. The answer is the Abenaki negotiated that with people on campus. Fed 'non-recognition' not a problem. (BTW, I'm working on a column about remains.) And FYI, ICT editor doesn't bug me at all.
25281452Wednesday, Jul 1 at 5:35 PM Kinew wrote ...
To changes, Yes you are correct. Nothing wrong with more info either. Still no answers to my specific questions to the author but I guess I'm going to have to let it go. I'm sure his editor was peaved about his responding to this opinion page in the first place.
25271089Wednesday, Jul 1 at 3:24 PM Changes wrote ...
To Kinew- True, it should be up to native nations to decide their futures, but the options are limited by the legalities that Errico writes about. Under federal indian law, we are not sovereign but rather glorified municipalities who can't even prosecute non indians. By and large, native peoples are given a skewed perspective about their future options by most indian attorneys, who themselves have very little stake in the communities they are hired to advise. Nothing wrong with more info right?
25263602Wednesday, Jul 1 at 1:02 PM Tay wrote ...
It is unfortunate that Indian Nations must pursue justice in the american court system, where the americans make the rules. Isn't that what the UN is for? Do Peru, China or other nations have to seek justice in the american courts? Scalia, in my opinion, is just another Custer in his attitudes. And by supporting the earlier religiously-driven american attitudes, he is not upholding the seperation of church and state. That stance has never been true in this country anyway.
25253727Tuesday, Jun 30 at 4:36 PM Kinew wrote ...
Chitto, Look at my statements. Can you understand and comprehend them, obviously you can't. No I'm not Matt whoever that is. I've been very clear in my posts. Mr. d'Errico cannot answer my questions from the first post on. You are not a concern of mine.
25207274Tuesday, Jun 30 at 12:31 PM Eddie wrote ...
Realistic or not. I believe it's important for our tribes, organizations and allies to think outside of the current paradigm and really ask ourselves the question - "What If?" It's a healthy discussion and helps us examine our direction as a people and the possible consequences that lie ahead.
25191164Tuesday, Jun 30 at 12:21 PM Benji wrote ...
Chitto- Are you thinking Matt from ASU-the great defender of fed indian law?
25190499Tuesday, Jun 30 at 12:00 PM Chitto wrote ...
So, Kinew, (or is it Matt?)you think that d'Errico's arguments are shopworn? Really? When have they ever actually been argued, especially by sanctimonious FBA Indian lawyers. Not since William Wirt in the 1830s, I would think. Where would East Timor be today if it had accepted your logic -- still a Portugese or Indonesian colony. It was colonized for over 400 years, and is free today. How about S. Africa? It would still be under apartheid after 400 years. The worm turns, but not if u surrender.
25189132Tuesday, Jun 30 at 10:58 AM ed wrote ...
From the article,it appears that NARF has "settled" for the status quo. I teach my indian kids that our inherent sovereignty as indian people should always be remembered and fought for. Do not settle for the status quo. I also tell my kids real sovereignty is not cheap; that it requires self-sufficiency and active determination. The threat to the cherokees federal funding over the freedman issue can be seen as an example of the potential true cost of exercising sovereignty!
25184782Tuesday, Jun 30 at 9:14 AM Bad Malcontent wrote ...
What we need is a permanent Supreme Court Justice for Native Americans. There's never been a Native American S.Ct. clerk. That racist enough as a fact on it's own. We also need a number of Native American federal judges as we are back to 0. That would help...
25178394Tuesday, Jun 30 at 9:06 AM benji wrote ...
TheRealist- The reality is that the demographics of the U.S are changing. Did you notice that an African American man is now the president? A latina will be appointed to the Supreme Court and the young people are overwhelmingly rejecting the patriarchy of the conservative white male. More people are immigrating from the south and tipping elections across the country away from the right wing reactionaries. This country is changing. It is inevitable and that is reality.
25177952Tuesday, Jun 30 at 9:02 AM benji wrote ...
Williams, Anaya, Porter, Wilkins and the indian law resource center are among the few who have been consistently challenging the premise of federal indian law. Their biggest critics happen to be other Indians, albeit, ones who benefit from the federal indian law industry.
25177704Tuesday, Jun 30 at 7:45 AM Sherilyn wrote ...
Did my 2 responses for this article get sent to the junk mail bin?!
25173464Tuesday, Jun 30 at 5:50 AM TheRealist wrote ...
I am suggesting reality, not fairness. With a couple million Indians and 300 million non-Indians, it is not realistic to expect expanded sovereignty. Many Indian governments are notoriously undemocratic, corrupt even, and the greater society will not abide that. The whimsy with which Indian governments purge tribal rolls offends everyone except those who think a government should be able to do anything it wants (the Lindsay Lohan syndrome).
25169629Monday, Jun 29 at 4:49 PM Michael Mack wrote ...
Great article but just one aspect of the situation. The U.S. uses Christianity to aggrandize and justify itself - starting with the Pilgrims. We need advocates to examine U.S. history starting with the Pilgrims and their real motivations that later generations have white-washed and elevated to mythical "godly" status. These myths are the foundation for the "pretense of discovery" and all U.S. actions since 1776. Until the myths are exposed, facts laid bare, the pretense will continue.
25148702Monday, Jun 29 at 11:06 AM NDNLady wrote ...
Malcontent, Robert Williams has been a hero to me ever since I read "Like A Loaded Weapon." I heard James Anaya at the Permanent Forum this year. I'm no lawyer but it seems to me that if the Supreme Court crafted the plenary powers doctrine, they can repudiate it and establish a relationship based on the clear standards of the UNDRIP.
25128169Monday, Jun 29 at 8:32 AM Bad Malcontent wrote ...
As a law student of Rob Williams and James Anaya, we were not taught to accept the "pretense of conquest". As a Fed. Attorney I always begin my work by calling tribes "pre-colonial sovereigns". We know the S.Ct. is and has been wrong to refer to us as "savages" and to begin the analysis from a perspective of racial superiority. The Marshall Model is anathema to the equality of citizenship put forward in the US Constitution. The S.Ct. must change and recognize tribes as independent nations.
25120049Monday, Jun 29 at 8:00 AM NDNLady wrote ...
Realist, "I love the smell of napalm in the morning?" Yes sir, the sweet reek of American entitlement! We don't want to dictate to Americans; we are tired of the American government presuming to dictate to us in violation of all standards of human rights law. Which N Korea and Iran also do! Don't it make you proud? If it's "war winners take all", then why isn't the USA the proud owners of German and Japan? Indigenous peoples have rights too.
25118654Monday, Jun 29 at 6:05 AM TheRealist wrote ...
This article leaves me feeling like I do after N. Korea threatens to obliterate the Western world, or Islam claims it will dominate Christianity in the U.S. Get real. Stop the bloviating. 305,000,000 people in the U.S. are not going to be dictated to by a handful of aboriginal descendants. The New World was allocated by war and domination for 10-20 thousand years. The existence of a Supreme Court is one of the reasons d'Errico and others can assert any claim to power for American Indians.
25115597Sunday, Jun 28 at 12:14 PM Kinew wrote ...
ndnlady Yes but to be specific in what d"Errico is referring to exercising sovereignty by sovereign nations its a different matter. For instance when the Naragansetts exercised there rights to sell tobacco they were the ones that bore the brunt of the states response. Not advocates, not lawyers. Its one thing to intellectualize this argument which he did well, its another to actually do it and in Canada, the U.S. and South American natives are on the front line being assaulted and killed.
25093729Sunday, Jun 28 at 11:37 AM NDNLady wrote ...
Kinew, real change won't come for us until there is a politcal will for change. And that has to come from all Americans, not just Indians. As Mr d'Errico points out, too many of our own are stuck in the racist mindset and language that is federal NDN law. Anyone who challenges our own to do better and attempts to educate NDN people about their rights is an ally in my opinion. Truth is not determined by color, but by conscience. American NDN policy is a guilty conscience waiting to be put right
25092634Sunday, Jun 28 at 10:32 AM Kinew wrote ...
Basically I agree with d'Errico and ndn Lady my main point is let it be led by Native people. My position is that "advocates " can advise but should refrain from taking the lead on an issue in which they have no standing. If they have a tribal plaintiff who wants to retain them for this fine but let the Nations and tribe decide when they want their sovereignty exercised in this manner. They and they alone will have to live with the consequences not non Native lawyers.
25090709Sunday, Jun 28 at 8:27 AM NDNLady wrote ...
Wado, Mr. d'Errico. With the passage of the UNDRIP, international law has set minimum standards for member-states in upholding indigenous rights. Yet too many of our own advocates continue to cling to the federal dance, that being the law they know. And it's an inverted waltz, two steps backward for every step forward. Human rights monitoring bodies at the UN have long criticized the US for not repudiating the racist plenary powers doctrine. True Indian advocates should be demanding change
25087372Saturday, Jun 27 at 12:17 PM Kinew wrote ...
righton and pd, No never made a dime in that way nor am I apologizing for The feds. I thoughT my statements were rather clear and of course you rarely get a straight answer from a lawyer. PD did not answer my questions instead he had to reply wiTh a litany of things he's done for Native people. Very typical.
25062112Friday, Jun 26 at 11:27 PM Righton wrote ...
This is a great article. Much respect to you Mr. Errico. People like Kinew are the apologists for federal indian law and probably have made a lot of money off of that racket. I'll be glad when these type of native elites are no longer able to fool the grassroots natives.
25045974Friday, Jun 26 at 8:25 PM kinew wrote ...
Ps PD, How did you get Abenaki remains (how was that ascertained?) to a group that was not and is not federally recognized?
25040187Friday, Jun 26 at 8:14 PM Kinew wrote ...
PD All that you have done is well and good but it is up to the Native sovereign nations and their leaders on how they will work with this issue. A non native even though well intentioned should not try and dictate the direction they will take thats just foolish. The people will ultimately decide on how to work with this.
25039787Friday, Jun 26 at 7:45 PM jessie little doe wrote ...
Y8ut Y8ut!! (Here Here!) Peter. Wunee wusuhqahôk. numâseepee wôpanôm. Nutânumaw Peter âseekeesukahkeesh meechôn namâhsee weeyawuhs âsuh ahtukwee weeyawuhs kah mata nutakututy8 neewuchee nutômâm. Good article. i am a Mashpee Wampanoag woman and i think about Peter everyday that i eat fish or game and i didn't get beaten for fishing or hunting. Peter got the job done for my People (in MA State Supreme Court). jessie little doe
25038899Friday, Jun 26 at 6:42 PM Pd wrote ...
Kinew - I have litigated as well as taught. For example, I handled Mashpee Wampanoag fishing rights to successful conclusion 10 years before they were 'federally recognized.' See: http://www.umass.edu/legal/derrico/wampanoag/ As for UMass, I was aware of and encouraged returns of Abenaki remains to Chief Homer St. Francis while I was active there. I think the current use of NAGPRA to hold on to remains is wrong.
25036387Friday, Jun 26 at 5:46 PM Tribal Member wrote ...
Did you see the hearings for Justice nominees Roberts and Alito. The Democrats were most concerned about Stare Decisis and potential of the court to overturn Brown v. Board. As a matter of protecting Roe v. Wade and Doe v. Bolten, Democrats conveniently pushed aside Marshall or Ex Parte Crow Dog as a threat to Indian Country.
25034317Friday, Jun 26 at 5:31 PM Kinew wrote ...
Great argument but it comes from a teacher not a litigator for the change he talks about. Also having taught at UMass. Amherst all those years was Mr. d'Errico aware of the Native remains that were held there by the school and what if anything did he do about it. Action speak louder than words.
25033714Friday, Jun 26 at 2:56 PM jkf, jd wrote ...
Great article - full of things I've often pondered but never been able to articulate as well as Mr. d'Errico.
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