Chapter Three
Justice, Injustice, and the
Dark Side of Federal Indian Law
PEOPLE OFTEN EQUATE THE AMERICAN LEGAL SYSTEM with justice, but courts of law are not always concerned with dispensing justice. As I will show, they often fall short of the mark in important cases. At its best, the law does indeed embody that high ideal. This is readily seen in the landmark cases that stamp out injustice. Brown v. Board of Education (1954) is a famous example.1 In that decision, the Supreme Court threw out as unconstitutional the deeply ingrained “separate but equal” doctrine, which had long furnished segregationists with a legal basis to separate the races in all aspects of American life. The court held that separate schools for black children are “inherently unequal” because segregation generates feelings of inferiority “that may affect their hearts and minds in a way unlikely ever to be undone.”2 In Wisconsin v. Yoder (1972), the Supreme Court extended First Amendment protection for the religious way of life of the Amish.3 It struck down a state compulsory school-attendance law requiring all children to attend public schools until age sixteen on the grounds that it conflicted sharply with the way of life mandated by the Amish religion. This small, harmless minority objected to compulsory school attendance beyond the eighth grade because public schools exposed their children to mainstream values destructive to their way of life. As a bulwark against conformity, the decision safeguards the continued survival of this culturally distinct community in our largely secular nation as a matter of the free exercise of religion.
At its worst, however, the law can become a perversion of justice. The German judiciary during the Nazi era exemplifies this extreme. The widespread complicity of German judges, prosecutors, law professors, and attorneys in the destruction of many thousands of lives was established at the criminal trial of German judges in Nuremberg in United States of America v. Alstoetter et al. (1948).4 Most German judges were sympathetic to Nazi goals and, with only a few courageous exceptions, became willing instruments in the Nazification of Germany.5 An evil pattern of judicial and prosecutorial support for Nazi crimes against humanity was demonstrated in Alstoetter.6 The independence of the judiciary had been thoroughly compromised by the Third Reich, and many judges identified with the regime, embraced its goals and brutal laws, including the notorious Nuremberg Laws (1935), and allowed the judicial system to become an instrument of terror.7 Their complicity demonstrates that justice as an ideal disappears from the safeguards of civilized society when judges succumb to popular movements and prevailing prejudices that are injurious to minorities, or when judges place political loyalty above their role as a bulwark against government abuse.
American courts, on the other hand, comprise an independent branch of government that is designed to protect the integrity of judges and minimize the risk of prejudice. Because society has built numerous safeguards into the American legal system, we fully expect judges to be impartial decision makers, free from bias and prejudice, and able to apply the law and decide cases in keeping with basic considerations of truth and justice. The US Constitution guarantees life tenure to federal judges to insulate them from political influence and enable them to make courageous and correct decisions without fear of removal. When judges have conflicts of interests or cannot otherwise be impartial, judicial ethics require that they disqualify themselves to protect the integrity of the system. Modern courts are designed to provide a fair trial. The procedural rules, together with rules of evidence, are designed to seek truth through the adversarial process and at the same time minimize the risk of prejudice or unfairness. The doctrine of stare decisis (the need to rely upon and apply court decisions as legal precedent so that there will be predictability in our legal relations) bolsters these safeguards by requiring courts to follow established legal precedent. That requirement makes legal relations predictable and allows society to rely upon the rule of law. Where a court fails to follow the procedural or substantive rules, appellate review is usually available. In short, we reasonably expect fairness and justice from the judicial branch of government. The canons that govern judicial ethics in the United States list “justice in our society” as the paramount goal of the judiciary.8
Despite these safeguards, the courts sometimes produce what can only be described as manifestly unjust results. How, then, do we explain such outcomes?
The easiest explanation is to simply deny that injustice exists. This, at least, minimizes discomfort. Denial allows us to completely discount the possibility of injustice. That seems to be the approach favored by the late Chief Justice William Rehnquist in United States v. Sioux Nation of Indians (1980).9 In that case, he simply could not countenance patent wrongdoing committed by the government against the Sioux Nation because this contradicted his views of history and Manifest Destiny.10 In Sioux Nation, the Supreme Court examined at length the uncomfortable history surrounding the government’s acquisition of the Black Hills from the Sioux after their military defeat and confinement to a reservation following the Great Sioux War of 1876–77. The evidence established that the Sioux, who were then living under starvation conditions, had been coerced by the government into “selling” the Black Hills in exchange for government food rations. The Court held that in such circumstances, rations alone (even very good rations) could not constitute adequate payment for the Black Hills and that the government was liable to provide fair compensation.
In so holding, the Court’s majority could not ignore the obvious and central aspect of the case: the government had committed wrongs. After all, the lower court had declared that “[a] more ripe and rank case of dishonorable dealings will never, in all probability, be found in our history”; and the historical record in the case suggested that “[f]ew conquered people in the history of mankind have paid so dearly for the defense of their way of life.” In his dissent, Rehnquist refused to see the elephant in the room. To admit wrongdoing would impugn his cowboy-and-Indian views of American history and Manifest Density and create an unwanted “stereotyped and one-sided impression both of the settlement regarding the Black Hills portion of the Great Sioux Reservation and of the gradual expansion of the National Government from the Proclamation Line of King George III to the Pacific Ocean.”11 Under his version of history, Indians were to blame for the problem (they “did not lack their share of villainy”) and settlers were absolved (“Judge not, that ye not be judged.”).12 Rehnquist denied the hard evidence in the case and refused to discard popular myths—decrying instead the unfairness of judging facts “by the light of ‘revisionist’ historians or the mores of another era.”13 To be sure, historians must be sensitive to such concerns; however, some situations are manifestly unjust under any set of standards—whether they are contemporaneous, contemporary, contextual, or whether they embody universal truths or otherwise—and those situations cannot be so easily brushed aside.
A more concrete explanation for rank injustice in the American legal system can be seen in the closure of courthouse doors. No legal system is accountable or responsive to groups who lack access to the courts. Nor can excluded groups reasonably expect justice from a closed judicial system. In the Third Reich, for example, the law removed Jews and non-Aryans from the bench, lawyers were not allowed to represent Jews in the courts, and the judges were under heavy government pressure, including surveillance, to implement the racist policies of the state in cases involving Jews. Access to such courts by Jews was nonexistent for any practical purposes. The Final Solution could not be enjoined by the German courts of law. Jews could not reasonably expect even lesser forms of justice from courts that were effectively closed to them. Nor could slaves in the pre–Civil War United States reasonably expect justice in American courts because the courthouse door was closed to them. In the Dred Scott case (1856), the Supreme Court held that a slave may not sue for his freedom in federal courts because blacks are not, and could never be, citizens entitled to use the courts.14 Thus, from behind courthouse doors closed to the slaves, American courts decided questions pertaining to slavery. That unjust body of law developed with no representation or other participation by the slaves at all. The Dred Scott decision had door-closing ramifications for American Indians, as well. Indians were not citizens until the Indian Citizenship Act of 1924. As Justice Horace Gray explained in Elk v. Wilkins (1884), Indians were not citizens with a right to vote under the Constitution; instead, they were considered wards of the government until Congress decides “that they should be let out of the state of pupilage and admitted to the privileges and responsibilities of citizenship.”15
Indeed, the first time an Indian nation went to the Supreme Court to seek protection from state laws enacted to abolish, harass, and remove the Cherokee, the case was dismissed for lack of jurisdiction. The case was Cherokee Nation v. Georgia (1831), and the court closed the courthouse doors to the Cherokee Nation because it was not a “foreign nation” entitled to bring suit in the Supreme Court.16 Native access to the courts began to emerge several decades later, through decisions like Standing Bear (1876), which allowed a Ponca chief to challenge his confinement by the army in federal court.17 Not surprisingly, during the critical time in American Indian history when the tribes were confronted with removal, dispossession, and violence at the hands of the government, the courthouse doors were largely shut.
But how can we explain manifestly unjust decisions rendered by American courts after the courthouse was opened to blacks, Indians, and other minorities? One explanation is that justice is not the principal function of the courts. As Supreme Court Justice Oliver Wendell Holmes Jr. put it, “This is a court of law, young man, not a court of justice.” It is troubling that courts often eschew any interest in, or duty to inquire into, questions of morality or justice; instead, the avowed task is simply to apply existing law, regardless of any harsh or unjust outcomes. Indeed, many of the cases discussed in this book begin their legal analysis with exactly that apology. We cannot accept this explanation as the principal cause of unjust decisions, at least in modern times, without undermining public confidence in a judicial system that operates under a set of judicial ethics that are specifically designed to achieve justice in our society.
The fundamental explanation, in my view, is that judges are simply not up to the task of articulating and applying enduring notions of truth or justice. Supreme Court justices are often frail creatures of their time, captive to prevailing prejudices and unable to rise above the politics of the day. We can hardly expect more since justices are not appointed to the bench because they are the most learned, wise, brave, or even just jurists, but mainly because they hold the same ideologies as the president who appoints them. That frailty is evident in the authoritative Supreme Court decisions eloquently written by learned justices in the most persuasive terms that uphold and rationalize manifest injustice. Some prominent examples follow.
Manifest Injustice in American Law
Chief Justice John Marshall is considered the greatest chief justice of all time. Like Elvis, he is widely considered the king. Nevertheless, he bowed on numerous occasions to the prejudices of his day. Marshall upheld human slavery in Boyce v. Anderson (1829) and The Antelope (1825), even though he knew the institution was morally wrong.18
The Antelope involved a dispute between Spain and Portugal over the ownership of 280 Africans. Marshall found that the slave trade was contrary to the law of nature and prohibited by the laws of most civilized nations. But so long as it was not prohibited by the law of the two nations who claimed ownership of the slaves, he upheld it.19 In upholding the morally repugnant law of those nations, Marshall apologized, stating “this Court must not yield to feelings which might seduce it from the path of duty [to] obey the mandate of the law.”20 Morality and abstract notions of justice could play no role in the resolution of the property dispute:
Whatever might be the answer of a moralist to this question, a jurist must search for its legal solution, in those principles of action which are sanctioned by the usages, the national acts, and the general assent, of that portion of the world of which he considers himself a part, and to whose law the appeal is made. If we resort to this standard as the test of international law, the question, as has already been observed, is decided in favour of the legality of the [slave] trade. Both Europe and America embarked in it; and for nearly two centuries, it was carried on without opposition, and without censure. A jurist could not say, that a practice thus supported was illegal, and that those engaged in it might be punished, either personally, or by deprivation of property.21
The institution of slavery was thus confirmed, irrespective of the harsh outcome for the Africans. That reprehensible institution was never struck down by the Supreme Court, although it had several opportunities to do so. Tragically, slavery remained in effect until the close of the Civil War, when it was finally banned, not by the courts, but by the Thirteenth Amendment to the US Constitution.
The Dred Scott case (1856) furnishes another infamous example where the Supreme Court eschewed a just outcome.22 In that case, Dred Scott, a slave, placed the legality of slavery squarely before the Court when he sued his master for his freedom and that of his family. Such a claim was unheard of in 1856, when the law permitted slavery in most states, but Scott nonetheless asked the courts to protect this most basic human right. However, the Supreme Court dismissed the case, disclaiming jurisdiction to hear the controversial action. The problem confounding the court was whether a slave has access to bring lawsuits in American courts:
The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.23
Writing for the Court, Chief Justice Roger Taney held that neither slaves nor their descendants could sue in the federal courts because they are not, and could never become, citizens, even after emancipation, as that term is used in the Constitution. They were not intended to be citizens because the framers of the Constitution considered them “a subordinate and inferior class of beings, who had been subjugated by the dominant race.”24 Like Marshall, Taney disavowed any interest in ethics or justice. He focused only upon divining the intent of the long-dead framers:
It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those who formed the sovereignty and framed the Constitution. The duty of the court is, to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.25
Since Dred Scott was not entitled to use the courts, Taney dutifully dismissed the case. This outcome safely ducked the controversial issue and comported with popular opinion about the inferior status of blacks in the American political system. Taney asserted that his unjust disposition rested not upon prevailing prejudice, but upon supposedly immutable legal principles:
No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction [than intended by the framers]. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created for such purposes. Higher and graver trusts have been confided to it, and it must not falter in the path of duty.26
Despite this sanctimonious attempt to clothe an unjust ruling with a legal principle, Taney’s decision was repudiated by the Thirteenth Amendment to the US Constitution, adopted in the wake of the bloody Civil War. The infamous case is no longer cited by the Supreme Court as legal precedent.
The slave cases produced unjust outcomes that even Rehnquist cannot explain away, not only because the courts were closed to slaves, but also because leading jurists were captive to prevailing prejudice and unable to rise above the politics of the day. Even after the courts were opened to blacks by the Thirteenth and Fourteenth amendments, the judicial system continued to produce uniformly unjust outcomes in cases involving blacks until 1954, when Brown was decided. Most of the judges in those cases willingly reflected and implemented prevailing prejudices against blacks and other groups—and their decisions belie the widely held notion that the legal system equates with justice. Discussion of a few of the postslavery cases illustrates the frailty of the bench.
Plessy v. Ferguson (1896) announced the infamous separate-but-equal doctrine for segregating the races in all aspects of American life.27 That case upheld a Louisiana law requiring separation of races. When Plessy, a black, attempted to sit in a train car designated for white people, the conductor removed him and placed him in a car set aside for blacks. The unfortunate traveler was later prosecuted for violating a law that prohibited persons of one race from riding in the same car with members of another race. In upholding the law, it was self-evident to Justice Henry Brown, who wrote the opinion, that similar laws segregating schools, theaters, and juries have “no tendency to destroy the legal equality of the two races” and do not “imply the inferiority of either race.”28 Based upon these legal fictions, which are assumptions of fact used by the courts to decide questions of law, the Court held that enforced separation “neither abridges the privileges or immunities of the colored man, deprives him of his property without due process of law, nor denies him the equal protection of the laws.”29 Bowing to prevailing prejudices, the Court allowed Louisiana “to act with reference to the established usages, customs and traditions of the people.”30 If Plessy felt enforced separation of the races “stamps the colored races with a badge of inferiority…it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction on it.”31 After all, “[i]f one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.”32 Not all of the justices agreed with Brown’s sophistry. Justice John Marshall Harlan’s blistering dissent pointed out the apparent injustice of the law and the practical absurdities of segregating America. He rejected the “cunningly devised” doctrine to separate the races “under the pretense of recognizing equality of rights” and predicted that the decision would “in time, prove to be as pernicious as the decision made by this tribunal in the Dred Scott case.”33
Justice Brown’s long-lived separate-but-equal doctrine left an enduring brown stain on the country. It was applied to Chinese Americans in Gong Lum v. Rice (1927).34 It legalized white supremacy until repudiated by Brown in 1954.
Like blacks, Asian Americans have been subjected to miscarriages of justice by the courts when prejudice against these minorities was prevalent. In Korematsu v. United States (1945), the Supreme Court upheld a sweeping military order issued during World War II that removed the entire Japanese population from the West Coast for alleged security reasons and placed them in concentration camps, based solely on their ancestry.35 Their removal was summarily executed without evidence, hearing, or any other inquiry into their loyalty or security threat. Justice Hugo Black acknowledged that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect,” but nonetheless concluded that the removal program was legal. The sweeping program was upheld based upon the government’s fear that some Japanese might engage in espionage, though no evidence of either allegation was ever presented. It must be remembered that racial animosity against “Japs” and undifferentiated fear of the “Yellow Peril” were intense following the attack on Pearl Harbor. Justice Felix Frankfurter readily concurred, stating that the removal program must be judged in the wartime context and not be “stigmatized as lawless, because like action in times of peace would be lawless.”36
Three justices dissented. One bluntly noted that the “assembly center” was simply “a euphemism for prison” and the “relocation centers” were “a euphemism for concentration camps” and described the program as a “plan for forcible detention.” Another justice felt the program “goes over the very brink of constitutional power and falls into the ugly abyss of racism.”37 He decried governmental decisions based upon the discriminatory attitudes toward Japanese Americans pervading the country and warned that judicial sanction of such decisions would encourage “discriminatory actions against other minority groups in the passions of tomorrow.”38 He dissented “from this legalization of racism.” The third justice noted that court approval constitutes a greater threat to liberty than the removal program itself because the legal principles used to validate racial discrimination will become “like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”39 He pointed to a recent example of that concern, the approval of a race-based curfew placed upon Japanese Americans in Hirabayashi v. United States (1943),40 stating:
[I]n spite of our limiting words we did validate a discrimination on the basis of ancestry for mild and temporary deprivation of liberty. Now the principle of racial discrimination is pushed from support of mild measures to very harsh ones, and from temporary deprivations to indeterminate ones. And the precedent which it is said to require us to do this is Hirabayashi.41
This dissenter also argued that when a court approves an unconstitutional military order, it ceases to be a court of law and becomes an instrument of military policy. Despite these well-reasoned dissents, the popular prejudices prevailed.
Rather than provide a bulwark against racial animosity, the Supreme Court bowed to prevailing racial hostility. We cannot turn a blind eye to the miscarriages of justice in Korematsu and Hirabayashi. Those decisions destroyed the liberty of over 100,000 people. Recognizing this grave injustice, Congress later enacted a law in 1988 to apologize to the interred Japanese Americans, and it provided reparations of $20,000 to each victim.42
Does Korematsu provide legal precedent for removing and imprisoning Americans of Middle Eastern descent during the war on terrorism, as feared by the dissenters in that case? Absolutely. The legal system cannot always be relied upon to dispense justice nor can it always be equated with that ideal.
There are many reasons why the system sometimes fails to live up to our expectations and ideals in important cases affecting the most basic human rights of American minorities, despite safeguards built into the system. The primary responsibility lies with those jurists who cannot rise above prevailing prejudice and politics hostile to minority groups. In cases involving oppressed minorities, our safeguards and ideals do insist upon a heightened judicial responsibility to protect their human rights. That defining task of the courts requires judicial independence and the courage to row against the tide of popular opinion. The troubling reluctance of judges to act as a bulwark against injustice places them—and other officers of the court who accept or support a system that is oppressive of human rights—in the moral predicament aptly described by Martin Luther King Jr.: “To accept passively an unjust system is to cooperate with that system,” or, even worse, to become a willing instrument of that unjust system.43 Despite judicial disclaimers found in unjust court opinions, the American system has invested courts with the power to strike down unjust laws and acts of government. Alexis de Tocqueville correctly observed in 1835 that American judges enjoy the remarkable power “to found their decisions on the Constitution rather than on the laws” because the Constitution “left them at liberty not to apply such laws as may appear to them to be unconstitutional.”44
There Is a Need to Root Out Vestiges of Racism in Federal Indian Law
Many cases affecting Native Americans have produced stark injustices like the ones described previously. Those cases usually describe Indians as “inferior,” “ignorant,” “savages,” “heathens,” or “uncivilized.” In Lone Wolf v. Hitchcock (1903), for example, the Supreme Court upheld congressional authority to abrogate Indian treaties partly because Indians are “an ignorant and dependent race.”45 In Montoya v. United States (1901), “uncivilized Indians” did not possess ordinary nationhood, “[o]wing to the natural infirmities of the Indian character, their fiery tempers, impatience of restraint, their mutual jealousies and animosities, their nomadic habits, and lack of mental training.”46 Johnson v. M’Intosh (1823) approved the appropriation of title to all tribal land in the United States, because Indians are “heathens” and “fierce savages.”47 In Johnson, the Supreme Court referred to Indians as racially inferior people. Based upon the language employed by the Court for the next one hundred years, that perception never changed. Thus, in the important cases defining Native American rights, the decisions branded Indians as savages—that is, brutish people who lack attributes normal to civilized human beings—and treated them accordingly. This judicial attitude ushers us into the realm of racism, a dark place where prejudice and hatred preside. That realm will be investigated closely as we examine the ten worst cases.
Racism is defined in Webster’s dictionary as the assumption of inherent racial superiority of certain races and the consequent discrimination against other races, and it includes any doctrine or program of discrimination based on such an assumption.48 The pejorative racial descriptions and stereotypes of American Indians found in court opinions are hallmarks of prejudice that fall squarely within the definition of racism. They comport with widespread white animosity toward American Indians that prevailed during the expansion of the frontier and settlement of the West.49 Racism has pervaded Indian-white relations since colonial times, and based upon the language found in court opinions, it is strongly evident in federal Indian law. The unique themes of racism against American Indians (i.e., savagery versus civilization, heathens versus Christians, and inferiors versus superiors) are the by-products of Manifest Destiny, which are familiar, according to Justice Stanley Reed in 1955, to “every American schoolboy.”50 Racial prejudice against Indians could provide comfort to settlers and others who dispossessed them; and open contempt for their culture affords justification for replacing it with a superior Christian society. In studying the dark side of federal Indian law, we shall examine racism in all its forms—from the old-fashioned, foot-stomping racism of the South, to more sophisticated institutional, scientific, and legal racism, as well as its nasty little brother, ethnocentrism; and we shall also confront religious discrimination and intolerance engrained in the dark side of the law.
This unfortunate line of thought was thoroughly embedded in the American psyche. Its origins date from medieval times, when European religious and legal thinkers developed legal doctrines for relating to non-Christian infidels of other lands and the newly discovered inhabitants of the New World. Those doctrines were transplanted to the Western Hemisphere after 1492 as the cornerstone for relations with Native peoples, ultimately finding their way into the American judicial system in cases like those illustrated earlier. By incorporating this cultural baggage, the courts have created a remarkable body of law, one that is derived from a racially discriminatory ideology. Through repeated use in Indian cases, racial prejudice has been turned into legal principles by the Supreme Court. While the Supreme Court no longer openly describes Native Americans in pejorative terms in modern opinions, it commonly relies upon and gives effect to older cases that turn on such descriptions.
Unlike the African, Japanese, and Chinese American cases, the tainted legal principles of federal Indian law have not been overturned or repudiated. No paradigm shift in legal thinking similar to that which motivated the Supreme Court to overturn principles of segregation in Brown has prompted the Court to abandon these oppressive legal principles. The nation has not seriously addressed the by-products of Manifest Destiny in the same way that it came to terms with the institution of slavery. Historian Patricia Nelson Limerick aptly observes:
To most twentieth-century Americans, the legacy of slavery was serious business, the legacy of conquest was not…The subject of slavery was the domain of serious scholars and the occasion of sober national reflection; the subject of conquest was the domain of mass entertainment and the occasion of light-hearted national escapism. An element of regret for “what we did to the Indians” had entered the picture, but the dominant feature of conquest remained “adventure.” Children happily played “cowboys and Indians” but stopped short of “masters and slaves.”51
The reasons for this disparate treatment are all around us. The depopulation of Native Americans has reduced the demands of this small minority group to a whisper; the popular cultural myth of the vanishing red man, along with America’s preoccupation with maintaining a positive self-image, contribute to the inattention. Also, Americans often employ a sort of mental statute of limitations that provides, “if injustice occurred it must have been long ago in a dimly lit past, so it is no longer relevant.”52 Or, like Rehnquist, we can simply deny that injustice ever occurred. “Selective amnesia [has] its uses,” Limerick points out, “even in a nation devoted to the memory of its frontier origins.”53
However, until Native Americans are freed from unjust legal principles shaped by racism, they will not fare well in the courts of the conqueror and justice will remain elusive. What will it take to motivate the Supreme Court to rethink, reverse, and replace these tainted legal principles, and how long? Native Americans find it difficult to wait, for the same reasons expressed in Reverend King’s “Letter from Birmingham Jail”:
For years now I have heard the word “Wait!” It rings in the ear of every Negro with a piercing familiarity. This “Wait” has almost always meant “Never.” We must come to see with the distinguished jurist of yesterday that “justice too long delayed is justice denied.”54
Judges and legal practitioners should not passively accept an inherited foundation of unjust legal principles. Courts can discard them as self-evident vestiges of racial discrimination in appropriate cases without waiting for congressional mandates or social upheaval. That is a task for the entire legal profession as we stride toward a just culture in the twenty-first century.
There Is a Need to Eradicate Unjust Legal Fictions in Federal Indian Law
The need for legal reform becomes painfully clear when we examine the unjust legal fictions found in federal Indian law. Many settler states foster unjust legal fictions in their domestic law pertaining to Native peoples. In settler states, it is amusing to see the lengths jurists go in fashioning legal fictions, theories, and doctrines to support the taking of Native land and the governance of Native peoples as colonized subjects. A legal fiction is an assumption of fact made by a court as a basis for deciding a legal question.55 Apparently, the assumptions of fact need have little or no bearing to reality.
Some far-fetched legal fictions used to decide legal questions in the United States and other settler states are:
1. Aboriginal land is vacant land.56 Of course, nothing could be further from the truth. Unless we also assume that Natives are invisible, this legal fiction cannot be taken seriously. Nevertheless, this assumption that Native land is vacant and thus owned by no one operates to transfer indigenous property to colonists in some cases and statutes, such as the South Australia Act of 1834. This fiction was enlarged into a larger fantasy in some colonies to equate settlement of inhabited land with settlement of uninhabited land.57 This allowed Europeans to simply walk in and occupy inhabited land.58
2. The Pope of the Catholic Church can give the Western Hemisphere to Spain. The pope has no such legal power, even under the most tortured view of property law. Yet, Spain appropriated Central and South America under this legal fiction, destroying every civilization in its path and killing millions of innocent people during the conquest and colonization of those lands.59 A similar view is found in British statutes, like the South Australia Act of 1834, that sell Native land in distant places to British subjects.
3. Royal charters empower colonists to settle Native territory as if they were the first human beings in the area.60 This curious legal fiction ignores the presence of indigenous people and tortures the purposes of royal charters establishing British penal colonies in places like Georgia and Australia. Georgia’s charter simply resettled English inmates in an American penal colony. That hardly grants prisoners “the soil, and [power over all Native American] inhabitants from sea to sea,” as later espoused by Georgians.61 Besides, how can royal charters have binding legal effect on foreign landowners? It is hard to imagine the jurisdictional basis for giving legal effect to British law in America. That idea contravenes fundamental jurisdictional principles since the domestic laws of any nation do not normally have effect in lands beyond national boundaries.
4. The discovery of North America by European explorers transfers legal title to Indian land to the United States.62 This legal fiction is a fixture in America law, even though the Supreme Court describes it as “an extravagant and absurd idea.”63 I agree. If Europeans really possess such extraordinary legal power, every country would ban their presence to protect their soil and prohibit entry, even as visitors, lest the land be appropriated by itinerates with such immense extraterritorial powers of appropriation. Besides, this legal fiction is arbitrary. Why should only Europeans possess such immense legal powers that extend far beyond the borders of their own lands?
5. The discovery of North America by Europeans can be equated with the conquest of that continent.64 This is another illogical and absurd assumption. American soil “was occupied by numerous and warlike nations, equally willing and able to defend their possessions.”65 The legal fiction espoused in Johnson v. M’Intosh (1823) grew into a judicial myth that all “the savage tribes of this continent were deprived of their ancestral ranges by force,” when, as a matter of fact, most Native American lands were not acquired by force of arms.66 While the ideology of conquest is no longer shared by the American public, it is still harbored by the courts.67 Europeans may be powerful folks, but the mere sight of foreign lands by their sailors scarcely brings the inhabitants to their knees under any stretch of the imagination.
6. The normal rules of international law requiring conquerors to respect property rights in the lands they occupy do not apply in America because Indian tribes are too savage and warlike.68 Under international law, the United States does not own Iraq or Afghanistan simply because it invaded those countries, even though the tribes and warlords of those lands might be described as warlike. Furthermore, this novel exception to international law created by Chief Justice John Marshall in Johnson would completely nullify international law if applied uniformly to most nations of the world, especially the warlike United States.69
7. Native land is wasteland or a savage wilderness that no one owns, uses, or wants and is available for the taking by colonists—therefore any aboriginal interests in the land are extinguished as soon as British subjects settle the area.70 This fiction ignores the inherent value of land and the uses made by Native peoples in their aboriginal habitats. It is nothing more that a pretext for taking land belonging to others; and it is the central premise of the South Australia Act, which declared all the land as “waste and unoccupied.” If Native land was worthless, why did the colonists invest so much time, money, and bloodshed to wrest it away from the Native peoples? Why not give worthless wasteland back to the people who valued it? Furthermore, the same can be said for vast wastelands and savage places like the ghettos of New York City or the seamy side of Hollywood, California, but that does not mean foreigners can simply take those lands. Otherwise, Spaniards and British colonists would be streaming into many American cities, claiming them for pointy-headed potentates in Europe.
8. Native peoples have no concept of property, do not claim any property rights, or are incapable of owning land.71 This fiction is bolstered by the false beliefs that indigenous peoples have no notion of property, that Natives are nomads who do not stay in one place long enough to own property, or that they are too low on the social scale to own land, and so forth. In Australia, the English immediately pronounced that Aboriginals were “landless” and “propertyless”—a fiction that continued until 1992, when the High Court belatedly admitted that Natives “are very tenacious of their ownership of the land” and capable of owning land.72 Those fanciful ideas evaporated much sooner in American colonies, when settlers were confronted by powerful Indian tribes intent on defending their land and found preexisting property-rights systems everywhere they went.73
9. Christians have a right to take land from non-Christians because heathens lack property rights. Since colonization brings Christianity to heathens, so the argument goes, surely this benefit is payment enough for taking their land.74 The supposed right to simply take non-Christian land (a notion found in royal charters) turned on the Eurocentric legal fiction that heathens lack property rights. At bottom, however, the religious justification for confiscating land was largely a pretext. British colonization had little to do with Christianity, and as time went along the pretext was largely abandoned.75 Furthermore, if heathens (i.e., non-Christians) really do lack property rights, precious few landowners can be found in most places.
10. Native lands are surplus lands. Under this “there is room enough for everyone” argument, colonists can occupy “surplus” land since any unused portions of Native territory should simply be available for the taking. (Gee, do the Indians really need all the land?) This theory sees entire continents as largely empty places—vacant wildernesses—abounding with idle land unused for farming or other pursuits, waiting for Europeans. Does this doctrine apply to the vast ranches and other landholdings of rich Americans, Canadians, and Australians—do they really need it all? Put in that light, the doctrine immediately becomes a far-fetched basis to simply take someone else’s land.
11. Native peoples cannot govern themselves—they need guardianship or tutelage for their own good.76 This assumption of fact, which is relied upon as the legal basis for imposing European hegemony over Native peoples, stems from Franciscus de Victoria’s law of nations.77 It is based upon the false idea that indigenous peoples had no forms of government and are inherently incapable of self-government. The legal fiction also contributed to popular ideas of the white man’s burden and Manifest Destiny that elevated bare imperialism as a noble undertaking in the public mind. The justifications for guardianship over Native peoples rest on notions of racial supremacy and extreme cultural ethnocentricity in which indigenous peoples are viewed as inferior, backward, and uncivilized heathens, without the capacity of self-government. However, the barbaric conduct of the Spanish in the Western Hemisphere demonstrated they were not qualified to be the guardians of anyone.78 Nonetheless, the rule of Native peoples by guardianship is a venerable instrument of colonialism. At its core, this institution simply means, “I own your property and can control your person any way I see fit.” Premised on the presumed racial, religious, and cultural superiority of Europeans, guardianship has been used extensively by colonizing nations to manage Native peoples and control their property in colonies around the world while they shoplifted their resources and wealth.79 The guardianship principle is also the source of the plenary power doctrine of Lone Wolf v. Hitchcock (1903), which unleashed absolute legislative power over Native peoples in the United States.80 While the protectorate nature of the guardianship principle is critical to the well-being of Native peoples in settler states, the principle sometimes leads to abuse. The dark side of guardianship arises when the principle is relied upon to unilaterally increase federal hegemony over Indian tribes, supplant tribal authority over internal affairs, and even to peer into bedrooms on Indian reservations to ensure that the dress, religion, and marital customs of Native Americans comport with “civilized” standards imposed by the government. The enforced acculturation, including the taking of children and stamping out of Native languages, religions, and ways of life that occurred in the United States amounted to ethnocide—it was justified by courts under the guardianship principle.81
12. Native peoples are racially inferior. American court opinions describe Native Americans as “inferior,” “savages,” “heathens,” and “uncivilized.”82 The use of pejorative racial invectives and stereotypes amounts to racism, as commonly defined in dictionary books.83 The continued reliance by the US Supreme Court on decisions that turn upon the legal fiction that Indians are racially inferior has led to a call among legal scholars to root out vestiges of racism from federal Indian law.84 Most of those cases have never been reversed. One would expect courts to be the last places to harbor racial prejudice, which should have no place in any courtroom. With such attitudes, it is hardly surprising that “the coming of the whites was an unmitigated disaster for everyone with black skin” in Australia.85 Early colonial reports in Australia noted that colonists felt Aborigines were “not members of the human family, but…inferior animals created for their own use.”86 If a group of people are racially inferior and backward, colonists can simply occupy their lands without bothering to conquer them under the law of the colonizers, since the benefits of Christianity and civilization will uplift the inferior races and provide justification for colonizing their land.87
13. Europeans can engage in just war against Native people if they do not submit to colonization.88 Was the use of military and civilian force to colonize Native territories legal? In America and Australia, the indigenous peoples were hunted, shot, poisoned, and attacked by settlers and soldiers as part of the colonization process, and a one-hundred-year period of constant warfare took place between Indian nations, bands, and confederacies and the United States. Some of the violence may have been lawful acts of war and others pure murder. No comprehensive factual and legal analysis of the legality of that violence has been performed.
It is time to identify and retire the many foolish, unjust, and injurious legal fictions in the law pertaining to indigenous peoples. They simply have no place in any legal system and should be rejected, not perpetuated, by modern courts. There comes a time when every society rethinks its values and readjusts the law to root out unjust principles from bygone eras. Just like the legal fictions applied in Plessy v. Ferguson (1896)—that blacks are racially inferior and segregation is not harmful or denigrating—were finally rejected in Brown v. Board of Education (1954), similar legal fictions regarding indigenous peoples must go.
In Brown, the Supreme Court overturned the invidious separate-but-equal doctrine of Plessy—a foundational legal principle in American society that had been used by segregationists for over half a century to segregate the races in all walks of American life. It was a skeletal principle since the American economy and most social and educational institutions were built on it. However, the court rejected the legal fictions of that doctrine and found that segregation is harmful to black schoolchildren as a matter of fact:
Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected. We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal.89
Similarly, in the watershed, but belated case of Mabo and Others v. Queensland (No. 2) (1992), the High Court of Australia recognized that unjust legal fictions invite critical examination:
Although this Court is free to depart from English precedent which was earlier followed as stating the common law of this country (59), it cannot do so where the departure would fracture what I have called the skeleton of principle…The peace and order of Australian society is built on the legal system. It can be modified to bring it into conformity with contemporary notions of justice and human rights, but it cannot be destroyed. It is not possible, a priori, to distinguish between cases that express a skeletal principle and those which do not, but no case can command unquestioning adherence if the rule it expresses seriously offends the values of justice and human rights (especially equality before the law) which are aspirations of the contemporary Australian legal system. If a postulated rule of the common law expressed in earlier cases seriously offends those contemporary values, the question arises whether the rule should be maintained and applied. Whenever such a question arises, it is necessary to assess whether the particular rule is an essential doctrine of our legal system and whether, if the rule were to be overturned, the disturbance to be apprehended would be disproportionate to the benefit flowing from the overturning.90
The Mabo Court declared that when legal doctrines and fictions “depended on a discriminatory denigration of indigenous inhabitants, their social organization and customs,” which are “false in fact and unacceptable in our society,” the courts can overrule them.91 Similar to Brown, the Australian High Court overruled cases that fail to recognize Native land title:
To maintain the authority of those cases would destroy the equality of all Australian citizens before the law. The common law of this country would perpetuate injustice if it were to continue to embrace the enlarged notion of terra nullius and to persist in characterizing the indigenous inhabitants of the Australian colonies as people too low in the social scale of social organization to be acknowledged as possessing rights and interests in land.92
In sum, twenty-first-century scholars, jurists, and lawmakers should identify the unjust legal fictions pertaining to indigenous peoples and root them out to cleanse the law. I respectfully disagree with the suggestions in Mabo that the “law is a prisoner of its history” or “skeletal principles” are sacrosanct.93 No unjust skeletal principle can command slavish adherence where it defeats the values of justice and human rights ideals sought in contemporary legal systems. The function of the law is to serve a changing society and uphold its values, not to hold it prisoner to an unjust past. The unjust notion that indigenous peoples are “so low in the scale of social organization” that they have no rights was rejected by the Mabo court as no longer untenable in contemporary society. The court explained:
If it were permissible in past centuries to keep the common law in step with international law, it is imperative in today’s world that the common law should neither be seen to be frozen in an age of racial discrimination…The fiction by which the rights and interests of indigenous inhabitants in land were treated as non-existence was justified by a policy which has no place in the contemporary law of this country…Whatever the justification advanced in earlier days for refusing to recognize the rights and interests in land of the indigenous inhabitants of settled colonies, an unjust and discriminatory doctrine of that kind can no longer be accepted. The expectations of the international community accord in this respect with the contemporary values of the Australian people.94
The presence of manifest injustice in American law need not be tolerated. We can address the dark side of federal Indian law and make it more just. There is no longer any need for settler-state legal systems to treat Native people as racially inferior, colonized subjects. The peace and order of no civilized society depends on oppressing minorities. To the contrary, the United Nations Declaration on the Rights of Indigenous Peoples (2007) calls on each nation to uplift the legal rights of its Native peoples so that their survival, dignity, and well-being are assured. Mabo correctly states that contemporary international law “is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights.”95 Therefore, just as early international law was relied upon by settler states to strip indigenous peoples of their legal rights, the declaration calls upon the legal systems of those nations to restore those rights. If the declaration is implemented with the same fervor that earlier international law doctrines were followed in the colonial era, a sea change in the way that the law views indigenous peoples will occur.