White Man’s burden, A Review of:

In the Courts of the Conqueror The 10 Worst Indian Law Cases Ever Decided

By Robert A. Yingst
Special to News From Indian Country June 2011

It is difficult to read Walter R. Echo-Hawk’s new book - In the Courts of the Conqueror The 10 Worst Indian Law Cases Ever Decided, without being conflicted, especially if you are white.  Nevertheless, whether you are Indian, black or white you will be  challenged if you read this book. I promise.

Having been a white civil rights lawyer in the Courts of the Conqueror for over 35 years, as I read this book, I found myself looking at Indian Country in a way which was both enlightening and promising, in spite of being constantly reminded of what the  author calls the “darker side of Indian Law.”

Echo-Hawk gives all, lawyers especially, a challenging path as he asks the question - What if it is really true that the bundle of rights we have fought for through the 5th and 14th amendments to the U.S. Constitution were never intended  by the “founders” to be applied in Indian Country?  What course should we take to right a most grievous set of wrongs enshrined in these 10 Worst cases?

Echo-Hawk is methodical and elegant in the way he leads us through the history and case law which has brought us to this point.  It will not matter if you are Native American, white or black as long as you want to enter Indian Country with an open mind, a sense of wonder and a desire to address past wrongs in a responsible and thoughtful way.

Of the ten worst cases, Echo-Hawk cites one case in particular, which cries out for repudiation and rejection from future influence.  The infamous Johnson v. M’Intosh  case which continues to infect the law with the noxious and absurd notions that the Indians lost their land by conquest and perpetuating racist views such as those expressed in 1955 by Supreme Court Justice Reed in Tee-Hit-Ton v. United States:

“Every American schoolboy knows that the savage tribes of this continent were deprived of their ancestral ranges by force and that, even when the Indians ceded millions of acres by treaty in return for blankets, food and trinkets, it was not a sale but the conqueror’s will that deprived them of their land.”  

The vestiges of Johnson v. M’Intosh will live on to cause repeated wrongs in Indian Country unless the case is overturned and prevented from carrying future influence in the Courts of the Conqueror. It must be overruled and condemned to the dust bin of history in the same way that Plessy v. Ferguson met its demise in  Brown v. Board of Education, when segregation was rejected by the Supreme Court, argues Echo-Hawk.

The author’s careful and thoughtful approach to describe how we got to this point is artful and interesting to read.  It may be that some will chafe as he takes us through some awful times and places to show us that phrases like, “water under the bridge”  are not enough to put this past behind us in any responsible way.

Try as you might to resist, you will be brought to the conclusion that Echo-Hawk is right when he directs us to a future that will not accept the notion that those whose milk has been spilt have no recourse.  What is done is done for sure.  But future generations will celebrate the efforts made to reverse the cases used to justify the denial of civil and human rights to those in Indian Country - at least if Echo-Hawk has anything to say about it.

The white man’s burden was a phrase once used to to justify the conquest of the lands of Native Americans.  But now it should be seen as a challenge to all who read the author with an open heart and mind. The white man’s burden in this time must be to set right the wrongs created by that misguided notion.  “Judicial courage to row against the tide of prejudice, racism, dispossession, and oppression of vulnerable minorities..” is the “heightened duty” of the federal courts he urges. The dark side of the Lone Wolf Doctrine, which produced an ominous form of colonialism which has no place in a post colonial world. “It called for totalitarian rule by Congress over a racially inferior, weak, and utterly dependent peoples.”

The author’s journey through time and legal fictions created to justify the Nation’s conduct toward Indian Peoples leads us to his eight specific ways to reform and redirect our energies. Yes it is part of white man’s burden to repudiate and correct the wrongs still being perpetuated by the doctrines of conquest and manifest destiny. But he offers challenges to us all.

I for one hope to see the protection of Native American religious liberty in the future. The Rehnquist Court was, as he correctly asserts, “not up to this task.”  “Overturn Lyng and strengthen cultural sovereignty” is number seven of his specific goals to work toward. Lyng v Northwest Indian Cemetery Association failed to protect Indian holy places and produced a “cruelly surreal result” when it pronounced in the words of dissenting Justice Brennan:  “Government action that will virtually destroy a religion is nevertheless deemed not to ‘burden’ that religion.”     

To help us understand this  case, Echo-Hawk takes us on a journey to the center of the spiritual world in Native American North America - “a beautiful, primordial place called the High Country.”  For centuries tribal mystics went to this place in the “..wilderness peaks and high meadows of the Siskiyou Mountains...in the heart of the aboriginal homeland of several Indian tribes of Northwest California - rare communities that still practice an ongoing indigenous religious system.”  in this place where the author takes us to “catch a song, or learn esoteric knowledge” it is possible to acquire knowledge, fly through the hole in the sky  to study how the laws of men and laws of the Great Spirit intersect.

But In Lyng, the high court found no protection in the First Amendment for Indian holy places on public land.  It seems as though 733 million board feet of lumber to be harvested on this public land had more value.

Lying is still the law of the land. But reforming the dark side of Federal Indian Law is coming to the Courts of the Conqueror, from a new generation of “legal warriors.”  The hopes and aspirations of their forebears are now in their hands.

Robert A. Yingst is a retired civil rights lawyer from Abrams, Wisconsin