Native America in the Courts of the Conqueror

by A. Jay Adler on January 28, 2011
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A common sense of the matter among those little knowledgeable or arrogantly unreflective about the Native conquest in what became the United States is that it took the form, simply, of ages old civilizational conflicts, in which one expanding and militarily superior culture historically and amorally superseded another. Like the Persian Empire replacing the Babylonian, it was a matter, it is claimed, of unarguable cultural Darwinism. But by the nineteenth century, national and ethical development had altered the nature of such conflicts and how conquerors sought to portray their conduct to themselves: little known is that the Native conquest was religiously, morally, and – to the point now – legally rationalized by those who pursued it. Walter Eco-Hawk, a Kitkahaki Band Pawnee Indian and lawyer of over 35 years service to the Native American Rights Fund (NARF) has written In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided, first among which, about which I have written before, was Johnson v.M’Intosh, the 1823 Supreme Court decision, still standing, that first justified the conquest of the America’s by the Papal-endorsed European Doctrine of Discovery.

As the press release from Fulcrum Books states, “While most people think that the goal of our legal system is to achieve a universal measure of truth and justice, such has not been the case with respect to Native Americans.” For Native Americans, beginning with Johnson, the end of judicial decision making has been to rationalize and legally justify the actions taken to expropriate land and destroy cultures.   As Eco-Hawk writes,

Eco-Hawk then proceeds to review those significant decisions by which the courts justified or upheld 1. the conquest, 2. the legality of the Indian Wars, 3. the shutting of the courts to Indian redress, 4. the breaking of treaties, 5. the rule of Indians by guardianship, 6. the mass kidnapping of Indian children, 7. the “taking” of the dead, 8. the “taking” of religion, 9. the “taking” of holy places, and 10. the “taking” of Indigenous habitat. In his penultimate chapter, he poses the question, surely brought on by the judicial history – “Was Genocide Legal?”

The answer, cumulatively, according to U.S. courts, is “Yes.”

AJA

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