ASU’s Indian Legal Program put on a stellar program Monday evening. It was a lecture by lawyer and activist Walter R. Echo-Hawk, and he spoke about his recent book In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided.
(Before I forget to mention it, the book’s illustrations were done by the author’s son, Walter “Bunky” Echo-Hawk III – they are terrific and enliven the 560-page volume.)
He was introduced by Professor Rebecca Tsosie of the law school, who laughed as she said it was a real “art form” for the writer to pare the list down to 10. Her comments, as well as the speaker questions afterward, telegraphed the deep respect they held for a man who has worked on most all of the significant Indian legal issues for the past four decades. A few of the topics his work has affected include Native American religious freedom, prisoner rights, water rights, treaty rights and reburial/repatriation rights.
Echo-Hawk opened by saying that most Americans equate our legal system with justice—and with good reason, because it achieves that on a pretty regular basis. In that regard, he cited Brown v. Board of Education, Wisconsin v. Yoder, and Worcester v. Georgia.
The repeated failures of our system to provide justice, he said, signify the need for a “good moral compass” among lawyers.
Then he got to his first Indian law case: Johnson v. M’Intosh, through which the Supreme Court used a legal fiction—the “act of discovery”—to deprive Native Americans of legal title to land they had occupied for generations.
Many of these cases may fall out of favor, said Echo-Hawk, but they are rarely overturned, remaining as a dark side of American jurisprudence. And at their worst moments—typically just before uttering the holding—many of these cases engage in explicitly racial descriptions, painting the tribes as savage and inferior.
It is incumbent on us all, he told the audience, to explain manifest injustice whenever we spot it. And in response to these cases, he said that some cases deny it exists, others simply close the courthouse doors, or redefine what has occurred as a legal quibble but certainly not an injustice.
“Or,” Echo-Hawk said, “sometimes judges are simply not up to the task of handing down universal and impartial justice. They may be frail humans unable to rise above the politics of the day.”
Echo-Hawk added that because there has never been a federal judge who is Native American, “crossing the cultural divide,” required of all judges, may be especially difficult. And the evolution of Indian issues in U.S. courts has led to the present day, when the Supreme Court “seems to be bent on the same tragic treatment of tribes.”
“Some people even ask if federal Indian law is dead.”
Echo-Hawk does not think so, but said a realignment of goals is needed. “Don’t scrap it,” he said, “but strengthen it with a scalpel. I think it can be done, but it will be the work of generations.”
Aiding in that endeavor, he said, is the fact that “The Supreme Court is rowing against the tide, … out of step with mainstream society.” The executive and legislative branches ever since President Richard Nixon, he said, have been in concert with the notion of self-determination of Native peoples.
Scholars and activists should “steer toward two stars,” he said.
- The U.N. Declaration on the Rights of Indigenous Peoples
- Justice Marshall’s 1833 vision in Worcester that saw the Indian tribes as entering the Union through treaties without intrusion. In that vein, they are not in a guardianship relationship with the United States, but a protectorate relationship.
Through his book and his lecture, Echo-Hawk attempts to understand the prevailing forces and policies that underlie discrimination. His book is available here.