The Right to Resist - Advocacy and Change in Federal Indian Law

By Peter d’Errico

July 26, 2009

It’s a bad sign when a Supreme Court justice disrespects a young Indian woman, Nazune Menka, when asked about the Carcieri v. Salazar decision against the Narragansett Nation, and worse when the justice mocks the case itself, calling it “a laugher.” Aside from what CBS News calls Scalia’s “nasty” style, what allows him to show such mockery and disrespect?

There’s a clue in what Scalia apparently said to another Indian questioner. He claimed the U.S. has a right to rule over Indian nations by “conquest” and all federal Indian law is based on that. In other words, Scalia wants to pretend the same thing the U.S. has been pretending since John Marshall first pretended it in 1823 in Johnson v. McIntosh: the “pretension of converting the discovery of an inhabited country into conquest.”

Justice Antonin Scalia, a man who believes ‘conquered’ Indians have no rights.

The actual basis of federal Indian law, as Marshall’s quote shows, is not conquest, but “pretense of conquest,” based on “Christian Discovery” and “ultimate dominion.” This is what Scalia’s comment covers up. Marshall, at least, had the honesty to call it what it was.

Justice John Marshall, who put forth the “pretension of converting the discovery of an inhabited country into conquest.”

An Indian Country Today interviewer (May 6) asked John Echohawk, executive director of the Native American Rights Fund, “Is anyone challenging Congress’ claim to plenary power over the nations?” He replied: “Yes, but of course under the law of this country, the way all that’s been interpreted and the way it’s been litigated is the tribes are domestic dependent nations and that’s just the way things are and you go to court and that’s what they’ll tell you.”

The increasing awareness in Indian country that federal Indian law is not really for Indians is a wake-up call to Indian lawyers and ‘respected authorities’ to dispel the indoctrination of federal Indian law precedents.

NARF’s acceptance of the “pretense of conquest” as “that’s the way it is” is an ominous sign. It means the most widely recognized group of Indian lawyers is not arguing against the basic discrimination in federal Indian law. No wonder Justice Scalia thinks he can get away with his nastiness and pretense. MORE HERE