Peter d'Errico

The Limits and Dangers of a ‘Race’ Critique of Federal Indian Law

‘Like a Loaded Weapon’ misses the critical target and exposes Indian rights when it comes to federal Indian law

Robert Williams’ book, Like a Loaded Weapon, lays out a critique of federal Indian law as racist, an argument he has developed in many books and articles. For all that, however, the argument misses the critical target and exposes Indian rights to a dangerous counter-argument.

Don’t get me wrong: federal Indian law decisions contain plenty of racist language; and I have no doubt that many of the judges who wrote those decisions harbor racist stereotypes about Indians. But the aim of a critique must go deeper than stereotypes in judges’ minds: it must go to the legal doctrines judges use to supposedly justify their decisions.

The critical elements in any field of law are its foundational doctrines—its basic premise. If you aim to change law you must focus on foundational doctrines. Williams argues that federal Indian law rests on racism, and he quotes from cases to make his point. Unfortunately, his quotations hit all around the basic premise and miss the bull’s eye.

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To put it precisely: federal Indian law—racist language and all—rests on a religious foundation: the doctrine of Christian Discovery. For some reason I cannot understand, Williams skates all around that foundational religious doctrine, even when it stares him in the face. He comes so close that you wonder how he could miss it.

For example, when Williams discusses the key case of Johnson v. M’Intosh (1823), he writes about “white supremacy,” “European discovery,” and “racial warfare.” Not once does he quote the actual rule of the decision—which Chief Justice Marshall made abundantly clear: the “right” of “Christian people” (Marshall emphasized those two words with italics) to “take possession” of countries, “notwithstanding the occupancy of the Natives, who were heathens, and, at the same time, admitting the prior title of any Christian people who may have made a previous discovery.”

Without question, federal Indian law rests on religious—not racial—discrimination. The language of racism to which Williams refers came second—after what Marshall called “the common principle adopted by all Europe.” When we refer to “European discovery,” we fail to clarify the “principle” of religious domination that Europeans adopted in their colonization program. A well-founded critique must focus on that “principle,” rather than the secondary racist language.

Williams has plenty of company among academics and lawyers who refuse to focus on the core religious doctrine of federal Indian law. Perhaps they are afraid of arousing the anger of Christians, or of calling attention to the story of religious colonialism embedded in the Bible—where Abraham’s God starts the whole program with a promise to give his “chosen people” another people’s lands—a promise that motivates all three branches of the Family of Abraham to fight each other to this day.

I have a hunch many academics and lawyers fail to see the fundamental religious doctrine in federal Indian law because they have never read the precedents carefully. Williams has read the cases; I don’t know what keeps him from hitting the bull’s eye.

How many federal Indian lawyers and academics have read the 1954 U.S. Justice Department brief in the infamous case of Tee-Hit-Ton v. United States (1955)? No one can read that brief—which led to the supreme court decision that the Tee-Hit-Ton did not hold title to their own ancestral homelands—and not see Christian Discovery as the fundamental rule in federal Indian law.

When the Tee-Hit-Ton sued the U.S. for taking Tlingit timber and selling it to a pulp mill, the U.S. argued that the Tlingit didn’t have a right to complain, and cited Johnson v. M’Intosh for the rule that “the Christian nations of Europe acquired jurisdiction over newly discovered lands by virtue of grants from the Popes, who claimed the power to grant to Christian monarchs the right to acquire territory in the possession of heathens and infidels.”

The U.S. brief in the Tee-Hit-Ton case was even more explicit, quoting directly from the papal bulls, the Christian royal charters… and the Bible! The brief emphasized those religious ideas and stated, “it was precisely on this basis that [Chief Justice Marshall] was to predicate his now universally accepted doctrine…[of] the absolute title of the Crown.”

Williams strongly criticizes the Tee-Hit-Ton decision, calling it “one of the most racist Indian rights decisions of all time”; but his analysis misses the mark: he says the case “embraced the same basic racist language of Indians as culturally and racially inferior wandering, ignorant savages that the justices of the nineteenth-century Supreme Court routinely used in their decisions on Indian rights.”

Williams fails to see the actual, clearly-stated legal doctrine of the case, which was not “cultural” or “racial,” and was not “wandering, ignorant savages,” but was based on the claimed “right” of Christian powers to dominate “heathens”—which the Oxford English Dictionary explains as referring to “non-Christian, pagan” peoples, specifically, “not of the Christian, Jewish, or Muslim faiths.”

Hard as it may be to comprehend that U.S. federal Indian law to this day consists of religious domination—especially when the U.S. claims to be against religious domination and “terrorism”—the unmistakable language of the cases states this principle, though the courts often mask it by citing a case like Johnson or Tee-Hit-Ton without quoting from the blatant language of religious domination in those cases.

I said earlier that the critique of federal Indian law as “racist” not only misses the mark, but also exposes Indian rights to danger. That danger comes from the fact that anti-Indian forces—like the so-called Citizens Equal Rights Alliance (CERA)—try to make the case that Indians will be better off if they have “equal” civil rights, instead of their “special” Indian rights. CERA, in other words, challenges federal Indian law on the same ground as Robert Williams (and others)—namely, that it constitutes “racism.” If we accept Williams’ pro-Indian racial critique, we open Indian rights to anti-Indian racial critiques!

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The 1974 U.S. supreme court case, Morton v. Mancari, provides an example of the danger of viewing federal Indian law through “race” critiques. In Morton, non-Indian employees of the Bureau of Indian Affairs (BIA) challenged the BIA’s “Indian hiring preference” as “racial discrimination.” The court rejected the challenge, holding that “the preference is not directed towards a ‘racial’ group consisting of ‘Indians’; instead, it applies only to members of ‘federally recognized’ tribes. … In this sense, the preference is political, rather than racial in nature.”

The Morton decision relied on the so-called “plenary power of Congress” to reach that decision, so we see that even the defense of Indian political powers was contaminated by a “Christian Discovery” perspective that the U.S. dominates Indian peoples. Nonetheless, Morton reminds us that a “racial” critique of federal Indian law goes against the distinction between “Indians” as individuals and “Indians” as peoples.

The federal Indian law doctrine of Christian Discovery attacks the existence of Indians as self-governing peoples. Every effort to criticize federal Indian law must aim at protecting Indian peoples as peoples. A critique focused on Indians as individuals amounts to a civil rights type critique, which not only misses the real basis of federal Indian law, but threatens those aspects of federal Indian law that acknowledge the existence of Indian peoples, in however limited a way.

Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinébe’iiná Náhiiłna be Agha’diit’ahii Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on Indigenous issues.

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The Limits and Dangers of a ‘Race’ Critique of Federal Indian Law

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