The latest bad news about Indian reservations is getting worse; but there is a silver lining.
U.S. Attorney Ken Gonzales says violence on Indian reservations is “a kind of brutality that I don’t think a lot of people understand completely.” Homicides, child sexual assaults, and domestic violence against women are commonplace.
Columnist Nicholas Kristoff discusses poverty and “suffocating hopelessness” as characteristics of reservation life. He suggests changes in Tribal land laws and more traditional cultural education as responses.
The New York Times reports “epidemic levels” of child abuse on the Spirit Lake reservation. U.S. Attorney Timothy Purdon asked the Bureau of Indian Affairs, “What are you doing to make sure we’re responding to this appropriately?”
The question of what is appropriate is key. It needs to be answered by prosecutors, educators, and B.I.A. personnel, and, especially, by people working with federal Indian law. Federal Indian law is the reason reservations are failing and people are being suffocated by hopelessness. Here are some analytical steps to demonstrate this:
• federal Indian law is the infrastructure of American Indian reservations
• federal Indian law is founded on the Doctrine of Christian Discovery
• the Doctrine of Christian Discovery is racist religious domination under the appearance of law
• racist religious domination produces generational psychological and sociological dysfunctions
• generational psychological and social dysfunctions produce crime and interpersonal abuse
• the appropriate fundamental response to crime and abuse is to heal the causative dysfunctions
• the way to heal the dysfunctions is to remove the root domination
• the way to remove the root domination is to repeal the Doctrine of Christian Discovery
• repealing the Doctrine of Christian Discovery will purge the core of federal Indian law
• a purged federal Indian law will consist of respectful government-to-government relations
• respectful government-to-government relations is the opposite of domination
The first practical step to implement this analysis is to overturn Tee-Hit-Ton v. United States. That goal deserves to be on the to-do list of every lawyer working to improve the conditions of American Indian life. It’s that simple, which is not to say that it is easy.
We can learn something about the ingredients of a successful challenge to Tee-Hit-Ton by studying the successful challenge to its twin case, Brown v. Board of Education. The U.S. Supreme Court decided the two cases within a 13-month period in the middle of the 20th century. One case repealed the racist apartheid doctrine of “separate but equal” to liberate black people; the other affirmed the racist religious doctrine of Christian Discovery to continue dominating indigenous peoples.
A key element in the Brown case was that the challenge to apartheid treatment of blacks went beyond legal issues. It included reams of data on the psychological and social damage to blacks from the application of racist law. Social scientists from various disciplines provided testimony. At first, some of the lawyers resisted this approach, but the lead lawyer, Thurgood Marshall, was convinced of the significance of this information and brought it into the argument.
Juan Williams, author of Thurgood Marshall: American Revolutionary (1998), put it this way: “Marshall saw the crippling insecurity among …black children as a legal issue. The government, by its endorsement of segregation, was promoting self-hate in black children.” In his oral argument, Marshall said that inferior schools and resources were not the issue; the issue was segregation itself. Segregation hurt the “development of the personalities of children” and “destroy[ed] their self-respect.”
The attack on segregation as causing actual damage to people was a crucial part of the strategy that succeeded in overturning the racist doctrine of “separate but equal.” The Supreme Court based its unanimous decision on the historical, anthropological, psychological, and sociological evidence of damage by racism as much as it did on the strictly legal arguments about equal protection and due process.
When the same Court affirmed the doctrine of Christian Discovery a few months later, it did not consider any social science data; but it relied on and approved the racist social stereotypes embedded in the doctrine of religious domination. The Brief for the United States in Tee-Hit-Ton said U.S. domination of Indians was based on “grants from the Popes, who claimed the power to grant to Christian monarchs the right to acquire territory… inhabited by Indians who were heathens and uncivilized.” The Brief continued, “The recognition of this principle by the Federal Government may be seen, at this day, in those small reservations which are made to individual Indians, or to the tribe itself, upon the relinquishment of the body of their lands.”
The silver lining in the cloud of bad news about reservation crime is the opportunity to mount a frontal attack on the Doctrine of Christian Discovery as causing actual harm to human beings, as well as being legally loathsome. Let’s get to work.
Peter d’Errico graduated from Yale Law School in 1968. Staff attorney in Dinébe’iiná Náhii?na be Aga’diit’ahii Navajo Legal Services, 1968-1970. Taught Legal Studies at University of Massachusetts, Amherst, 1970-2002. Consulting attorney on indigenous issues.