“Special” Rights and the Accomplices to Discrimination That Are Those Who Call Them So

In a recent Indian Country Today essay, Peter d’Errico, the eminent Native American rights advocate, argued that “we need to be careful with the phrase ‘special rights.’ Perhaps we shouldn’t even use it.” In this instance, I think d’Errico is too moderate in his judgment.

d’Errico was writing about the term specifically in its application to American Indians. Referencing “a 2001 study of Native American rights by the Michigan Supreme Court Historical Society,” d’Errico tells us,

 The Michigan study says ‘tribal sovereignty’ is rooted in the original sovereignty violated by the colonists, and that ‘special rights’ is a name given by the violators to the sovereign powers that were not violated.

However, we know that conservatives use “special rights” in reference to any legislation that seeks to designate a protected class from persistent institutional discrimination. These days they most commonly apply the term to attempts to protect gays, lesbians, and other alternatively gendered or sexually oriented people. Of course, most ludicrous and offensive about this designation is that the laws endeavor to deliver not “special” rights, but the very same rights that those who need no protection can generally reply upon. Conservatives opportunistically distort the reality that a current state of discrimination – denial of otherwise common rights – has required particular or “special” legislation to guarantee the subjects of the legislation not special rights, but the same rights as everyone else.

One needs to be blind to – or purposely blind oneself to – existing discriminatory conditions in order to take so preposterous a position. Such blindness is not rare. In fact, it is the underlying enabling foundation of institutional discrimination, which as a pervasive and, in many respects, a dehumanized condition, is not consciously discriminatory. Mental blindness is not a conscious act, thought it may be willful.

One need only peruse histories of colonial America written before, let’s say, 1960 to find evidence of this blindness to Indians. Perry Miller, for instance, in the preface to his 1956 Errand into the Wilderness, wrote of “the movement of European Culture into the vacant wilderness of America.” Vacant. For Miller – writing not contemporaneously, but with the knowledge of several centuries of history –  the indigenous people of the continent were nonetheless still not even there.

One will find this blindness in conservative American Jews, who, ever attuned to the off-pitch of anti-Semitism, will insist that American Blacks are forever crying racism as a crutch, an excuse, and a fraud. One will find it among some American progressives, critical of Israel, who while crediting the claims of bias from any other minority or marginalized group, habitually dismiss those of anti-Semitism. It is easier to perceive the biases against oneself and one’s interests, harder to credit the reality of what challenges one’s view of it.

In all of these cases, though, legislative or other action is directed not at gaining special rights, but at instituting special measures to gain for those who have been denied them their basic, common rights. Blind oneself to the existing conditions of bias, and one will tell oneself that the special action is a special right. As d’Errico writes,

 But from the Indian perspective, not explored in the study, these powers are not special rights at all; they are remnants of original free and independent existence….

….Why, then, did [the study] not say that the state of Michigan has ‘special rights’? Why did it not say that the sovereignty of the state of Michigan was limited by the sovereignty of the Indigenous peoples already living there? It seems that the study sees ‘special rights’ not as a foundation for government, but as a weakness, indicating something less than government. The very same treaties that are designated as the basis for the creation of the state of Michigan are turned around and designated as the basis for less than sovereignty for the Indian nations.

As a lawyer, d’Errico is concerned with the implication of institutionalized use of the term “special rights” given the current U.S. Supreme Court’s hostility to the protections often designated by the term. From a broader perspective, however, “special rights” – applied as it always is to efforts to gain and protect basic rights and, in the case of American Indians, to overcome the injustices of conquest – is a nomenclature consistently and tendentiously used by the ideologically blinded to dismiss the conditions they refuse to see. This serves only to perpetuate them. Consciously, willfully, or not, those who insist on applying these grossly inapplicable words to measures aimed only at equity –  or, in the case of American Indians, at the reconstitution of an independence what was unjustly taken from them – help to foster the very discriminatory conditions they are committed to denying exist.


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