Foreword

When it comes to dealing with misfortune and injustice, the most effective tool to use if we want to make sure that troubles will persist without relief is a simple sentence: That’s water under the bridge. No use crying over spilled milk. The past is over and done with. The goose is cooked. What’s done is done. We have marshaled a phalanx of platitudes to hold our hope in captivity.

Whenever people have their attention called to injuries that occurred in the past, it is almost certain that someone will pipe up with a demand that everyone cut short the desire to improve the world and, instead, defer to the water-under-the-bridge school of history.

There is a simple corrective to this widespread pattern of defeatism. The corrective is as simple as pointing out that the river of time has not stopped flowing. The river continues to flow toward the bridge and under it, and every moment presents a fresh opportunity to find a fresh, and better, way of living in that flow of time. When anyone responds to historical misfortune by saying, “That’s water under the bridge,” a resounding chorus should respond, “Maybe not.”

The book you are holding is an effective challenge to the fatalistic school of history. Its author does not flinch from a full and honest confrontation with the troubles of the past, but he is equally intense and forthright in his proposals for how we can break from that pattern of sorrow.

A decade ago, a colleague and I had a prolonged opportunity to observe the water-under-the-bridge strategy for forcing history to validate defeatism. We held workshops to ask citizens around the American West to suggest answers to the question, “What should every westerner know?” In nearly every forum we held, from Bend, Oregon, to Sedona, Arizona, a non-Indian participant would say, “We must remember that the Indians were here first.” Each time we heard it, this remark would push us to the edge of our chairs, wondering if this time any suggestion of action or change in conduct was going to follow. But, without exception, that was that. With an apparent conviction that any injury done to Indian people was an episode of sorrow long past any opportunity for corrective action, our participants moved quickly on to other subjects.

But what if someone in those groups had asked me, “Now that we have acknowledged that Indians were here first, and that our ancestors and predecessors displaced them, is there anything we can do?”

The publication of the wonderfully titled In the Courts of the Conqueror supplies the answer. Americans who read this book will find options far better than fatalism, resignation, and empty regret. This enhancement in understanding will arrive in their hands as a gift from a person endowed with extraordinary goodwill. Like the best of teachers, Walter Echo-Hawk does not waste time in lamenting or condemning the public’s ignorance. On the contrary, he works hard to give that ignorance its chance to make a quick and beneficial departure.

When I started reading this book, I thought I already knew quite a bit about the major court decisions in Indian law. Very soon, it turned out that this flattering estimation of my knowledge needed a more modest recalculation. And so, from personal experience, I can offer this confident prediction to readers: 460 of pages from now, you will be noticeably, measurably smarter. The knowledge you are about to gain will not only carry intrinsic interest, it will allow you to become a more responsible, more valuable citizen of your nation. Your knowledge is about to become blessedly robust on some very important topics.

When you finish this book, you will know a great deal more about the real-life impacts on distinctive and recognizable human beings of unfortunate federal policies, and you will also know about the spirited efforts undertaken by many of those people to turn to the courts for remedy. And yet, when it turns out that the legal arena was often closed to these efforts, you will also gain a deeper understanding of the dynamic by which injustice piles on injustice when a group is systematically denied access to the courts.

You will be better informed (the technical term here is probably “sadder but wiser”) about the pattern by which the decisions of the United States Supreme Court reflected the prevailing mind-set and assumptions, prejudices and blind spots of its times. And, as you confront the heritage of the cultural attitudes built into decisions of great consequence, you will sharpen your ability to distinguish between legal precedents that deserve respect, and legal precedents that deserve a definitive retirement. You will become much better acquainted with the contrast between the rejection of racism in jurisprudence involving African Americans and the lagging pace of this change in jurisprudence involving Indians. And, on every page of the book, your thinking will be expanded by an intense encounter with an author who has worked for decades, with extraordinary persistence and dedication, to make the case for the rights of Indian people.

The settlement of North America by Euro-Americans is a historical process that has often been portrayed in public discourse in terms of a triumphant national pride. Thus, some passages in this book may unsettle non-Indian readers. Reading the author’s forceful critique of the justifications that tried to give legitimacy to a settler state’s practices of invasion and conquest, or learning of his reasons for interpreting Indian history in terms of genocide, some readers may find themselves slipping into defensiveness, an emotion that may, actually, be a welcome sign of taking the book seriously. In a similar way, Echo-Hawk’s commitment to placing the conduct of the United States in the planetary framework of the 2007 United Nations Declaration on the Rights of Indigenous People will provide strenuous intellectual and ethical exercise for readers who may or may not make full peace with this international framework.

And yet Echo-Hawk’s thoroughness and clarity in showing how the ten worst Indian cases enshrined and preserved attitudes that have long lived past their time will wear down the resistance of even very prickly readers. When he quotes from the decision United States v. Sandoval (1913), in which the Court described Pueblo Indians as a people “governed chiefly according to crude customs inherited from their ancestors,” every alert reader will note that this phrasing seems uncomfortably effective as a characterization of the Supreme Court’s own deference to “inherited” and “crude customs,” customs that Echo-Hawk now asks jurists—and Americans in general—to reconsider.

This book, unavoidably, contains stories about the “crude customs” of American Indian policy that are painful to read. To use one example, it is hard to read chapter nine, “In re Adoption of John Doe v. Heim: Taking the Kids,” without wanting to evade, ignore, or step away from the lasting sorrow of the forcible separation of thousands of Indian children and parents. But when Echo-Hawk asks us to contemplate these ten worst Indian law cases ever decided, the goal is not to paralyze readers with sadness and regret. On the contrary, the goal, as he says at the very beginning of the book, is to “explore the need to rethink the doctrines” that created these unhappy judicial outcomes and to encourage the Supreme Court to “find some theory other than conquest, colonization, or racial superiority to justify its decisions” to seek an alternative theory that would lead to a “just resolution.” The scale of Echo-Hawk’s good nature and goodwill is breathtaking: “Americans are fundamentally fair,” he says. “They can be relied upon to confront injustice and do the right thing, once educated about pressing indigenous needs.”

People who become judges, as much as any other professional or occupational group, are people capable of self-examination and of change. In contrast to a well-established image of the Supreme Court as a remote and distant array of gray eminences, quarantined and separated from the emotions, drives, and passions of their times, this book recognizes their full humanity. The stories, arguments, and recommendations brought together in In the Courts of the Conqueror offer an enormously effective way to correct the image of judges as detached and sequestered from their social and cultural setting, and to recognize, instead, their actual power to moderate or even to defy the prejudices of the society in which they live.

In a well-designed joke, a father takes his young son to see the Supreme Court hear arguments in an important case. As the attorneys make their arguments and the justices deliberate, the boy watches them closely. A fly enters the room, buzzes around, and then lands on one head, causing the justice so selected to reach up to brush the fly away.

“Look!” whispers the little boy in amazement, tugging on his father’s sleeve. “One of them is alive!”

The early twenty-first century, Echo-Hawk believes, offers a prime opportunity to put judicial vitality to work in facing up to the mistakes of the past and in widening the reach of justice. “We,” he writes, “have already made a good start in [the] stride toward a more just culture” (the italics are mine). That quiet, inclusive pronoun we—embracing both Native people and the descendants of the settlers—offers a great gift of inclusiveness. “The function of the law,” Echo-Hawk tells us, “is to serve a changing society and uphold its values, not to hold it prisoner to an unjust past.” “By peering into the dark side of the law in these pages,” he declares, “I hope to point directions where the law should go.”

Treat this book, then, as the guidebook in which Walter Echo-Hawk conducts us through the troubles of the past and then gives us our directions to a better future, encouraging us to travel there together.

—Patricia Nelson Limerick
Center of the American West
University of Colorado at Boulder