American Indian Sovereignty and the U.S. Supreme Court
American Indian Sovereignty and the U.S. Supreme Court
The Masking of Justice
"Like the miner's canary, the Indian marks the shift from fresh air to poison gas in our political atmosphere; and our treatment of Indians, even more than our treatment of other minorities, reflects the rise and fall in our democratic faith," wrote Felix S. Cohen, an early expert in Indian legal affairs.
In this book, David Wilkins charts the "fall in our democratic faith" through fifteen landmark cases in which the Supreme Court significantly curtailed Indian rights. He offers compelling evidence that Supreme Court justices selectively used precedents and facts, both historical and contemporary, to arrive at decisions that have undermined tribal sovereignty, legitimated massive tribal land losses, sanctioned the diminishment of Indian religious rights, and curtailed other rights as well.
These case studies—and their implications for all minority groups—make important and troubling reading at a time when the Supreme Court is at the vortex of political and moral developments that are redefining the nature of American government, transforming the relationship between the legal and political branches, and altering the very meaning of federalism.
A detailed, thorough analysis of 15 US Supreme Court cases involving Native Americans. . . . The cases range from the well-known Johnson v. M’Intosh to the little-known Ward v. Racehorse, but all are instance in which the Court has mistakenly ‘limited or terminated the rights of indigenous peoples.’ In each case the author notes the errors the justices made and the ‘judicial masks’ that have often enabled them to ignore reality and morality. . . . Judicious and persuasive, he provides new information and insights in this important field. A must read for tribal officials, attorneys, judges, public officials, and others concerned with Native American affairs.
This book offers a framework in which Supreme Court decisions can be analyzed and criticized. It is, on account of this framework, a wholly new kind of writing and one that is badly needed.
- Preface
- Acknowledgments
- Chapter 1. Legal Masks, Legal Consciousness
- Chapter 2. The Era of Defining Tribes, Their Lands, and Their Sovereignty
- Chapter 3. The Era of Congressional Ascendancy over Tribes: 1886-1903
- Chapter 4. The Era of "Myths": Citizenship, Nomadism, and Moral Progress
- Chapter 5. The Era of Judicial Backlash and Land Claims
- Chapter 6. The Era of the Imperial Judiciary
- Chapter 7. Removing the Masks
- Appendix A. Cases Cited
- Appendix B. Supreme Court Justices Authoring the Fifteen Opinions Analyzed
- Notes
- Glossary
- References
- Index
