By James Botsford
Finally someone has written a book that shines a light into the dark corners of the [United States’] Supreme Court’s thievery of the rights of Native America. Did you ever wonder by what quiet sleight-of-hand huge dimensions of the inherent rights and cultures of Native people disappeared or were radically reduced? Turns out some of the worst damage ever done to the original people came from the highest level of the judicial branch… the Justices of the U.S. Supreme Court who historically have enjoyed (and cultivated) the perception that they are objective, neutral and above the fray of politics and ideology. Oh, if only it were true.
The book is In the Courts of the Conqueror, The 10 Worst Indian Law Cases Ever Decided. And this book isn’t written by just any old someone. It was painstakingly researched and written by Walter Echo-Hawk (Pawnee) who Vine Deloria Jr. once referred to as “the best Indian law attorney in America.” Echo-Hawk earned his chops as a staff attorney at the Native American Rights Fund for 35 years where he was personally involved in many of the biggest Indian rights issues of our time.
Echo-Hawk sets the bar high when it comes to intellectual honesty, cultural values and the ethics of legal analysis. From that perspective he walks us through what he believes are the ten worst Indian law cases ever decided. Scholars and activists will quibble over a few of his top ten (or is it bottom ten?), but they’ll risk missing the bigger point, which is the devastation of these decisions as they change the course of history.
Echo-Hawk could’ve selected 20 such cases, but as it is this book weighs in at a hefty 470 pages, not counting notes. You’ll get your money’s worth out of this one. The book looks thoughtfully at the context and circumstances from which these cases emerge and then gives a careful assessment of how the high court turns phrases and facts in such a way as to devastate the cultural integrity of Indian Country… well beyond the implications of the specific question before them.
To be fair one has to concede that the Court could not in all instances anticipate the scope of damage it inflicted, but as Echo-Hawk points out with clear reasoned logic there was no law or legal necessity that compelled the damage done by their decisions. In other cases, the case is solidly made that the Court is fully aware of the consequences of its decisions and actually manipulates facts and law to inflict those negative consequences anyway in order to protect other interests.
But perhaps the highest value of this thought provoking book is its intriguing analysis of what we might do to restore dignity to the legal relationship between the United States and the indigenous cultures and governments that share this country.
Is the First Amendment of any use at all to Indian people, or is it a danger to their survival? Is there any realistic hope that the U.S. will self-correct in Indian rights in a dignified way? Does the United Nations’ Declaration on the Rights of Indigenous People offer any realistic hope? If so, how could that come to be?
These are the issues and discussions that make this book so uniquely valuable. There is a long conversation that must happen, and Echo-Hawk knows it from the inside. That’s why he has given us this truly important and urgent book, graciously written, as he winds down his career, to further us into that long conversation with a balanced historical assessment so that we, like he, can make this world better than the way we found it.
(The book is published by Fulcrum Publishing, 2010. James Botsford is an Indian rights attorney in Wisconsin who has co-counseled with Echo-Hawk numerous times in the past quarter century.)