Nazune Menka is a graduate student in environmental science who this past spring semester was participating in the Native American Political Leadership Program at George Washington University. Through the program, she had the opportunity, with other students, to meet with Supreme Court Justice Antonin Scalia. The students were given the opportunity to ask questions of Scalia, and Menka began a question about a recent decision, Carcieri v. Salazar, that had not been favorable to Native interests. Menka’s impressively sincere and ingenuous account of the meeting in Indian Country Today relates the rudeness she felt in Scalia’s cutting her off mid question and embarrassing her before the other students. “The case is a laugher,” she reports he told her.

Of much greater significance is Menka’s account of a question posed by another student. “He had earlier stated to another Indian student brave enough to stand and ask a question that the U.S. right to rule was by conquest and all Indian law was based off that.”

What Scalia here referred to was the 1823 Supreme Court decision Johnson v. M’Intosh, in which the court held that only the U.S. government, and not private citizens, could purchase land from Native Americans. European nations, and their American inheritors, had assumed free title to the lands they had “discovered” – by right of discovery: “Discovery is the foundation of title, in European nations, and this overlooks all proprietary rights in the natives,” whom the court in its decision further acknowledged were being treated “as an inferior race of people, without the privileges of citizens, and under the perpetual protection and pupilage of the government.” Johnson v. M’Intosh formed the foundation for what has since been known as the “Discovery Doctrine,” the basis in law for all further U.S. government relations with Native Tribes.

Of course, few Americans are aware of the court case or familiar with the doctrine as a doctrine of American law rather than a historic and philosophical belief behind the de facto conquest of Native America. They don’t know that American law, and U.S. treatment of and relations to Native Americans are legally founded in and rationalized by such a doctrine. They don’t know that at least one sitting Supreme Court Justice still defends the doctrine.

When I cover the history of the European-Indian contact with my students, who are predominantly African-American – with emphasis, culturally, on the American – I like to complicate their moral considerations. Once the nature of the material has stoked sufficient upset and outrage, I ask them, a little puckishly, “So, you want to give it all back?” Interesting conversation always ensues. Clear-headedness on the issues requires stepping out of self-defining historical parameters. It is easy to judge others from the superior (we think) vantage point of a later, more evolved moral development. But who would we have been within the defining constraints of the time? There seems evidence that Scalia – and how many of his brethren? – would have found as Chief Justice Marshal and his fellow justices found in 1823.

Referring to the Menka incident, long-time legal advocate of Native interests Peter d’Errico writes also in ICT of general acquiescence, even among Native advocacy organizations – the preeminent Native American Rights Fund, for instance – to the legal universe established by Johnson v. M’Intosh.

The culture of acceptance of the pretense of federal Indian law prevails not only at NARF, but also in law schools, even in Indian law programs. The standard approach seems to be to train young lawyers to accept the existing paradigm, rather than question it. The standard approach produces arguments acceptable to judges like Scalia, rather than challenge the discriminatory basis of federal Indian law.

No doubt the belief of all those d’Errico describes is that it is better to work progressively at achieving what can be achieved according to the rules that prevail and cannot be overturned than to tilt at windmills. Shall we pretend the conquest can be rolled back? It was just this kind of division over methods, and in the visions of what was possible, that led to the political eruptions in Native America in the 1970s, coincident with similar eruptions elsewhere in the American polity.

However, it needn’t be a choice between acceptance and fruitless, even self-destructive conflict. Argues d’Errico,

The motivation to fit in has not hampered advocates in other fields. Civil rights lawyers challenged racist precedents dating from slavery and won historic legal change in the middle of the 20th century. It’s been more than 50 years since the historic decision, Brown v. Board of Education, overturned the doctrine of “separate but equal.” Meanwhile, federal Indian law is still bound by racist theological precedents.

As with African-American civil rights, those precedents need to be overturned.

Let’s take a look at what the Supreme Court says about when it’s time to overrule a precedent. In Vasquez v. Hillery (1986), the court said it will overturn a precedent that is “outdated, ill-founded, unworkable, or otherwise legitimately vulnerable to serious reconsideration.” That set of terms exactly describes the doctrine of “pretense of conquest by discovery.”

“Pretense of conquest by Christian Discovery” is “outdated”: a decision from 1823. It is “ill-founded”: based on racist and religious discrimination. It is “unworkable” as a basis for Native sovereignty. As Steve Newcomb’s book, “Pagans in the Promised Land,” shows it is “legitimately vulnerable to serious reconsideration.”

There is no doubt that overturning Johnson v. M’Intosh would be a revolution in American political history. The implications in law, territorial rights, land ownership claims, sovereignty, and matters of reparation, would seem monumentally unmanageable, a threat to the very sense of the nation’s legitimacy. This is why, far more even than the Dred Scott decision, the effort to overturn Johnson will be resisted by forces and institutions that represent the mostly deeply embedded pillars of traditional American nationhood. And as wise preparation, extensive policy development and legal preparation – to conceive a way forward – would be required in advance of such an historic act. But even as Cobell V Salazar, the thirteen-year-old Individual Indian Money Trust Fund suit appears likely limping toward just one more unjust and exploitative decision, the time has come to begin the work of removing the legal foundation for all the exploitation and injustice.

Hat tip to The Local Crank and Rob at Newspaper Rock

AJA