The dark side of Indian law

by Debra Utacia Krol

In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided
By Walter R. Echo-Hawk
560 pages, hardcover: $35.
Fulcrum Publishing, 2010.

In a new book, attorney and author Walter Echo-Hawk explores the contradictions embedded in U.S. Indian law. The nation's justice system was originally created by a colonial power intent on possessing -- and exploiting -- the rich lands of the Americas. During a lecture at Phoenix's Heard Museum in September, Echo-Hawk, a Pawnee and cousin of Larry Echo-Hawk (the head of the Bureau of Indian Affairs) and John Echo-Hawk (director of the Native American Rights Fund), talked about In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided. He also voiced his hopes for future jurisprudence in America's highest court.

Echo-Hawk noted that "there are underlying forces at work in the legal system, the ‘dark side' of law." Most Americans view the courtroom as a place where justice is dealt fairly to all. Historically, however, Indian law cases are much more likely to result in unfair outcomes than are mainstream cases.

The justice system has long relied on a series of legal fictions, Echo-Hawk explained, including the doctrine of discovery, which granted ownership of the entire continent to European settlers. The newcomers believed that Christians had the right to take the land because the aboriginal peoples were savage heathens. Natives couldn't govern themselves anyway, the Europeans said; they needed guardianship for their own good.

In Courts of the Conqueror, Echo-Hawk reveals the far-reaching and manifestly unjust outcomes of federal Indian law, including the forced removal of Natives from ancestral lands, the indoctrination -- and abuse -- of thousands of children in the boarding school system and the loss of thousands more to off-reservation adoptions. Indian burial grounds were often dug up and the remains shipped off to laboratories for study without tribal permission.

At the Heard Museum, Echo-Hawk noted that many unfair court decisions begin with a vague apology or acknowledgement of previous atrocities. Whenever certain phrases appear, he said wryly, "Something unjust is about to happen." In the 1988 case Lyng v. Northwest Indian Cemetery Association, Justice Sandra Day O'Connor, a longtime supporter of Native rights, wrote that while "the Government's proposed actions will have severe adverse effects on the practice of (Native) religion ... the Constitution simply does not provide a principle" to protect Native rights to preserve sacred places.

Echo-Hawk writes that this "strained parsing harkens us back to a bare level of religious tolerance that was accorded to heretics during the Middle Ages -- when nascent nations first agreed not to punish or coerce religious dissidents, and nothing more."

This and the other nine cases Echo-Hawk examines in the book, which ranges from the original Marshall Trilogy in the 1820s to the present day, clearly show that federal Indian law needs a serious housecleaning. Echo-Hawk argues for the overturn of Lyng and other Supreme Court cases, such as Johnson v. M'Intosh, the original case establishing the federal-tribal relationship, which cites the doctrines of discovery and conquest as the source for all Indian tribal law. Echo-Hawk writes, "The proceeding was as crooked as a barrel of snakes ... infested by intolerable conflicts of interest among the attorneys."

During his lecture, he noted that since the 1980s, the Supreme Court has been "rowing against the tide -- Congress and the executive branch have been bolstering tribal sovereignty for three decades, while the Supremes want to ‘whittle it down.' " In the book, he urges that safeguards be built into the political system "to address the structural problem" of the federal government's plenary power. But he also sees positive signs: Social and cultural changes across the globe have resulted in the repudiation of colonialism, and modern-day Americans have a growing appreciation for the rich cultures and traditions of Indian tribes.

Organizations like the Native American Rights Fund, the National Congress of American Indians, the Indian Law Resource Center and the International Indian Treaty Rights Council -- as well as the tribes themselves -- are leaders in the fight to reform Indian law, Echo-Hawk says. It will require the work of a generation, he says, but he is optimistic that positive change can occur. And Echo-Hawk's new book is a beacon pointing the way.

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