Vol. 16 No. 6 (June, 2006) pp.438-441

LIKE A LOADED WEAPON: THE REHNQUIST COURT, INDIAN RIGHTS, AND THE LEGAL HISTORY OF RACISM IN AMERICA, by Robert A. Williams Jr. Minneapolis: University of Minnesota Press, 2005. 312 pp. Paper. $18.95. ISBN: 0-8166-4710-0

Reviewed by Ronald L. Steiner, Department of Political Science, Chapman University.  Email: Steiner [at] chapman.edu

What would American law be like today if BROWN v. BOARD (1954) and other cases had never rejected the overt racism of DRED SCOTT v. SANFORD (1857) and PLESSY v. FERGUSON (1896)? In the area of federal Indian law, this is not an idle thought experiment. As Robert A. Williams Jr. passionately argues, the present stain on American law and politics regarding Native Americans reflects the express racism of its basic precedents, and will continue until that overt racism is honestly confronted and finally rejected.

This important book by a leading scholar and practitioner of Indian law might best be seen as the third volume (and contains a promise of a fourth) in a series exploring the intellectual foundations and present realities of the American legal and political treatment of Native Americans. Williams’ works have outlined how those foundations shaped the history that followed, and he concludes this volume by showing how our own historical moment gives the indigenous peoples and the settler society in America the opportunity to forge a new future. Williams insists this new future cannot escape and should not ignore what went before.  However, with a good faith effort to disavow the worst of the past, it can offer non-indigenous America the chance to re-start legal and political relations with Indians in a way more true to the best in its past and the better angels of its current imagination.

To simplify crudely Williams’ argument, the foundations of federal Indian are found in a blending of international law and racism, and over time American law has rejected the internationalism but kept the racism. He continues here a conversation with S. James Anaya (2004), Philip Frickey (2005), and others about how the international law orientation of federal Indian law might be recovered, shorn of the racist trappings.

Williams, a professor of law and American Indian studies at the University of Arizona, is singularly well-suited to make this case. An enrolled member of the Lumbee Indian Tribe, he received his J.D. from Harvard Law School, and has served there multiple terms as a visiting professor. He also has been an active legal practitioner, having represented tribal groups before the Inter-American Court of Human Rights, the Inter-American Commission on Human Rights, and the United Nations Working Group on Indigenous Peoples, and served as co-counsel in the U.S. Supreme Court case, NEVADA v. HICKS (2001).  He also has served as a judge or justice in several tribal court systems. In addition to his seminal monographs, he literally wrote the book [*439] on Indian law—the several editions of his co-authored CASES AND MATERIALS IN FEDERAL INDIAN LAW (2004) has long been the standard textbook on the subject in law schools across the country.

Williams’ first major work, THE AMERICAN INDIAN IN WESTERN LEGAL THOUGHT: THE DISCOURSES OF CONQUEST (1990), surveyed Europeans and early American legal beliefs and practices regarding radically different cultures, focusing on the supposed authority of Christian sovereigns to ignore the law of non-Christian societies, and, not incidentally, seize their lands.  Later, he emphasized the indigenous side of some of that intellectual history in LINKING ARMS TOGETHER: AMERICAN INDIAN TREATY VISIONS OF LAW AND PEACE, 1600-1800 (1997). Williams stressed that Indians considered treaties to be a sacred bond between peoples, creating “a complex web of connective, reciprocating relationships” that was intended to endure and shape the future (p.62). Williams also related the many ways in which Indians were not simply victims in a sad and sordid tale of white perfidy, but primary actors and “active, sophisticated facilitators on a multicultural frontier” (p.29).

An ongoing theme in Williams’ work has been to emphasize that treaties matter and often reflect a solid foundation for present and future relations.  He begins this new book with a discussion of the apocryphal swindle of the simple-minded Manhattan Indians by the devious Dutch. Such apologist tales of innocent Indians being ripped off by wily Europeans partakes too much of the myth of the ignorant savage for Williams’ taste. Instead, Williams reminds us, tribes strategically interacted with European powers and settler societies, often playing one side off the other to great advantage, with all sides knowing that there was much to be gained from peaceful trade and intercourse, and that the outcome in armed conflict could never be certain. And the economic relations between peoples very often was a truly mutually beneficial exchange, Williams insists.

Non-indigenous Americans are embarrassed at the extent to which colonial and early American law ignored this reality and was founded upon the express presumption that Indian peoples were morally and culturally backward and inferior. Notwithstanding that embarrassment, that past has never been really remedied. After all, as Williams, Anaya, and others have long argued, intergenerational responsibility is tricky stuff, and it is not clear that the injustices of the past are superseded by the mere passage of time.

Moreover, as Williams makes painfully explicit here, the express racism of an earlier era was not an unfortunate gloss on an otherwise legal-rational regime. Instead, it was a central premise in the American enterprise of settlement and expansion. And, through extensive discussions of recent cases from OLIPHANT v. SUQUAMISH INDIAN TRIBE (1978) to NEVADA v. HICKS (2001) and U.S. v. LARA (2004), Williams details the ways in which the racist assumptions of Indian legal inferiority still are firmly rooted in [*440] American law. In HICKS, for example, a unanimous Court held that tribal jurisdiction means so little that “an Indian tribal member, living on his own reservation, could not use his tribe’s courts, laws, customs, and traditions to protect himself from acts of trespass, abuse of process, and violations of his constitutional rights allegedly committed by law enforcement officers . . . who had entered upon his home, on tribal land, on two separate occasions to execute a search warrant for a crime he did not commit” (p.141) Though any state or foreign court would have had jurisdiction under analogous circumstances, the Supreme Court relies on sanitized references to nakedly racist precedents to divest tribal governments of authority, citing the “special” nature of tribal courts (is “special” a place-holder for something more politically incorrect?) as compared to “American courts” (and these Native American courts are located in, what, Japan?).

Given his extensive personal involvement as an advocate in HICKS, Williams is understandably zealous in explicating the wrongness and injustice of that case. A more detached observer might have explained the case in more neutral terms, but would that really have been a better and truer account? Williams’ book is of a rare breed for academic writing: thoroughly researched, meticulously sourced, intelligently argued, and passionate to the point of anger. But, if he really believes his own account, why wouldn’t he be angry?

Williams does give us some respite in the end.  He concludes by noting that the once express racist assumptions of the past are now more hidden by virtue of the eliding effects of precedent, but will continue to have force and do damage unless and until the precedents in which they are embedded are formally and finally repudiated. Ironically, the path forward is to return to first principles, and to admit again, as Chief Justice John Marshall once did, that Indian law is a species of international law. As such, Williams argues, domestic federal Indian law can only be true to itself if it begins to pay attention to developments in the international law of indigenous rights. Though to some it sounds like wishful thinking, in Professor Williams’ able hands, it takes on the quality of moral inevitability.

REFERENCES:

Anaya, S. James. 2004.  INDIGENOUS PEOPLES IN INTERNATIONAL LAW(2d ed). New York, Oxford: Oxford University Press.

Frickey, Philip P. 2005. “(Native) American Exceptionalism in Federal Public Law.” 119 HARVARD LAW REVIEW 431-490.

Getches, David H., Charles F. Wilkinson, and Robert A. Williams. 2004. CASES AND MATERIALS ON FEDERAL INDIAN LAW. St. Paul, MN: West Publishing.

Williams, Robert A. Jr. 1990. THE AMERICAN INDIAN IN WESTERN LEGAL THOUGHT: THE DISCOURSES OF CONQUEST. New York: Oxford University Press. [*441]

Williams, Robert A. Jr. 1997. LINKING ARMS TOGETHER: AMERICAN INDIAN TREATY VISIONS OF LAW AND PEACE, 1600-1800. New York: Oxford University Press.

CASE REFERENCES:

BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954).

DRED SCOTT v. SANFORD, 60 U.S. (19 How.) 393 (1857).

NEVADA v. HICKS, 533 U.S. 353 (2001).

OLIPHANT v. SUQUAMISH INDIAN TRIBE, 435 US 191 (1978).

PLESSY v. FERGUSON, 163 US 537 (1896).

U.S. v. LARA, 541 U.S. 193 (2004).

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© Copyright 2006 by the author, Ronald L. Steiner.