Asa Kowals-Rose | Blog for RFILP

These chapters reflected on the rest of the book, piecing together each detrimental Supreme Court decision to establish a comprehensive narrative of the Court’s role in oppressing American Indians. Echo-Hawk uses this saga to argue that the genocides perpetrated in the Americas were legal under international law in the early colonial period, and remained legal in the United States thanks to legislative and judicial agendas that either implemented genocidal policies or condoned genocidal acts. Echo-Hawk suggests eight measures that would help rectify this history, and cleanse the legal system of racist, colonial attitudes toward American Indians.

This book left me questioning the merits of the American judicial system. As Echo-Hawk demonstrates over hundreds of pages, judges cannot be counted on to rise above the prevailing racist and colonial ideologies embraced by a large segment of American society; as a result, their decisions almost inevitably reflect prejudice, rather than a faithful and impartial interpretation of law. My question is this: can there ever be a legal system that truly protects the rights of racial and ethnic minorities, and does not succumb to the prejudices of the society it serves?

These chapters detailed relatively recent Supreme Court decisions that further denied American Indians land rights. In the 1955 Tee-Hit-Ton decision, the court ruled that Tlingit Indians in Alaska were not protected from loggers’ encroachment on their land. This ruling was issued with references to the doctrine of conquest, despite the fact that no real conquest had taken place in Alaska. In the 1988 Lyng decision, the court ruled that sacred Indian land in California was not protected under the First Amendment’s guarantee of religious freedom.

The Lyng case reminded me of the court’s stance on the Espionage and Sedition Acts in the 1910s. In each of these situations, the Supreme Court was willing to restrain fundamental rights as a means of protecting government power, and in doing so weakened the protections offered by the First Amendment. This further exposes a major flaw in the design of the Supreme Court. From the beginning, the justices of the Supreme Court have often been political allies of the executive branch, and have used their influence to bolster executive power. This was the case in the Lyng decision, which trampled on the rights of American Indians for the benefit of the U.S. Forest Service.

These chapters discussed centuries of attacks on Indians’ religious artifacts and practices. While some of these were—to put it lightly—inconsiderate consequences of unrelated pursuits, many more were cruel and deliberate efforts to eliminate native religion. Almost all of these were either done with complete governmental complicity, or were perpetrated directly by soldiers and BIA agents.

Reading this history, I found myself questioning the government’s supposed purpose for aggressive cultural destruction. While most of the rhetoric surrounding this saga is in line with the “white man’s burden” beliefs expressed for centuries, this would imply a genuine concern for the lives of American Indians, albeit borne out of an extremely racist worldview. If this were actually the case, it would be quite difficult to reconcile those beliefs with the government’s long history of violence towards American Indians. Even paternalistic concern for a group’s social development should, one would think, discourage acts of genocide.

When one examines other applications of “white man’s burden” thinking—the colonization of Africa, for example—there are clear ulterior motives. Colonies generated huge amounts of wealth for the countries that held them, and were important accessories to nations involved in the centuries-long competition for European hegemony. This pattern explains the assault on American Indian religious practices during the nineteenth century: the U.S. government’s quest to “civilize” was nothing more than a way to justify profitable westward expansion, as indicated by its willingness to resort to violence during the process. However, it does not explain the government’s drive to Christianize American Indians long after they had been forced from their land and were no longer an impediment to wealth extraction.

Perhaps the destruction of Indian culture over the past hundred years was a way to bolster nationalism in the United States in a manner similar to Otto von Bismarck’s kulturkampf in newly unified Germany. Strong national identity is often considered a necessary component to the strength and longevity of an empire: many schools of thought hold that the Western Roman Empire fell in part as a result of “Germanization”—the loss of Roman identity among peoples in its conquered territory—and could have survived if its subjects all spoke Latin and viewed the emperor as one of their countrymen. However, it is utterly ridiculous to think that the survival of Indian cultural identity posed any threat to the unity of the American Empire after 1890, given the extreme population difference between Indians and descendants of settlers. What’s more, Indian culture and American nationalism did not seem to be mutually exclusive. After all, tens of thousands of American Indians served in the United States military throughout the twentieth century.

If not for economic gain or national unity, why did the United States government endorse a policy of ethnocide well into the twentieth century? While racist notions of cultural inferiority were certainly used to justify the pursuit, there have almost always been additional motives behind governmental efforts to stamp out cultural identity. Was the history described in this week’s reading simply an exception to this pattern, or is there more to the issue?

These chapters discussed several disastrous court decisions from the nineteenth and twentieth centuries and how they contributed to the subjugation of Indian communities. Echo-Hawk first discusses the various Indian wars that took place throughout the 1800s, and points out that despite many decades of bloodshed, it was not military defeat that robbed American Indians of their land and culture; it was a combination of dishonest transactions and inconsistent legal reasoning.

What these chapters made clear to me was that the legislation, court decisions, and military force worked in tandem to fulfill manifest destiny at the expense of Indians. The Supreme Court’s ruling in Lone Wolf v. Hitchcock gave full control of Indian’s lives and land to Congress; Congress in turn relied on courts to uphold its legislation, and could count on American military power to enforce it. While the Supreme Court did legitimize the use of force by recognizing the law of conquest, the perpetrators of violence against Indians did not wait for judicial authorization to commit atrocities, as they felt secure in their ability to do so without legal consequence. At the end of the day, complicated questions of legality meant little to those who had the necessary hard power to ignore the law. This is certainly true in modern times as well; Echo-Hawk points out that the 2003 invasion of Iraq was illegal under international law, but that the United States’ military preeminence allowed its forces to proceed with impunity.

Nitpicking time: I noticed a minor inaccuracy in chapter eight. While discussing the Code of Indian Offenses, Echo-Hawk identifies Edward Teller as the Interior Secretary responsible for it. That secretary’s name was actually Henry M. Teller; Edward Teller was an Hungarian-born scientist who worked on the Manhattan Project, and eventually came to be known as “the father of the hydrogen bomb.” I had previously skimmed the latter Teller’s book, The Legacy of Hiroshima, and recognized his name when I came across it in this week’s text. I thought it an odd coincidence that he shared his name with an Interior Secretary, and upon researching the matter, discovered Echo-Hawk’s error.

Chapters four and five covered the incredibly destructive decisions delivered in Johnson v. M’intosh and Cherokee Nation v. Georgia. The former declared that the United States government had exclusive control over transactions involving Indian land, thereby putting Indian land rights at their mercy. In Cherokee Nation, Justice John Marshall ruled that Indian tribes were “domestic dependent nations,” and could not sue the state of Georgia for violating their sovereignty. This ruling would deny Indians access to the U.S. legal system for decades. Together, Johnson and Cherokee Nation laid the foundation for decades of unchecked aggression toward Indian tribes; the former robbed them of control over their land, and the latter left them with no legal recourse to fight this injustice.

These chapters revealed the extent of the American government’s hypocrisy in its treatment of Indigenous peoples. While Indians had previously been treated as responsible parties for the purposes of selling land and making treaties, the Supreme Court declared them racially and culturally inferior, and therefore unworthy of full legal rights. This decision was made in spite of incredible evidence otherwise. In many ways, the Cherokee Nation had acquiesced to European notions of civilization: they developed a written language, a constitutional government, and even began publishing a newspaper. If Westerners had truly wanted to “civilize” Indians, it seems they would have touted the Cherokees as a model for other tribes. The cases explored in chapters four and five show their true motive: the desire to “civilize” Indians was a way of justifying land seizure, not an genuine ideological concern.