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Like a Loaded Weapon: The Rehnquist Court, Indian Rights, and the Legal History of Racism in America

Robert A. Williams
Copyright Date: 2005
Edition: NED - New edition
https://doi.org/10.5749/j.cttttd8v
Pages: 312
https://www.jstor.org/stable/10.5749/j.cttttd8v
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  • Book Info
    Like a Loaded Weapon
    Book Description:

    Robert A. Williams, Jr., boldly exposes the ongoing legal force of the racist language directed at Indians in American society. Building on the insights of Malcolm X, Thurgood Marshall, and Frantz Fanon, Williams argues that racist language has been employed by the courts to legalize a uniquely American form of racial dictatorship over Indian tribes by the U.S. government._x000B_

    eISBN: 978-0-8166-9798-4
    Subjects: History

Table of Contents

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  1. Introduction
    (pp. xiii-xxxvi)

    There is a very tellingFar Sidecartoon by Gary Larson that I like to share with people whenever I’m asked to talk about the history of Indian rights in America. The cartoon depicts an Indian in buckskins and full feathered-headdress regalia standing next to a teepee, addressing members of his tribe. The dozen or so Indians he’s speaking to are also dressed in buckskins. They’re all sporting either feathers or braids in their long, black hair. The Indian standing in front of the group, obviously the leader of this tribe, is shown holding up a necklace made of a...

  2. Part I. Discovering a Language of Racism in America

    • 1 “Look, Mom, a Baby Maid!” The Languages of Racism
      (pp. 3-16)

      The language of racism directed against blacks in America, as perceived by Malcolm X at the airport, exposes us to a wide variety of associated epithets, slurs, stereotypes, and other forms of racist imagery that haunt our society. All these words and terms are basically about the same thing and perform the same function in American life: They all perpetuate and reinscribe the basic racist mythology of “Negro” racial inferiority signified by the “n” word. And from Malcolm X’s perspective, everyone in America, even the most recently arrived immigrant child, soon learns how to speak the language of racism organized...

    • 2 The Supreme Court and the Legal History of Racism in America
      (pp. 17-30)

      Given the pervasiveness and force of certain long-established languages of racism in our history, no one should be too surprised to discover their use in many of the Supreme Court’s most important decisions on minority rights.¹ The problem comes when the Court as an institution perpetuates and sanctions a language of racism and its precepts of racial inferiority against a particular group as a constitutive part of the Court’s authoritative precedent.² By issuing a landmark decision using this type of language, the Court gives racism an authoritative, binding legal meaning in our legal system. The perceived inferiority of that group...

  3. Part II. “Signs Taken for Wonders”:: The Nineteenth-Century Supreme Court and Indian Rights

    • [Part II. Introduction]
      (pp. 31-32)

      As Michael Omi and Howard Winant have written, “For most of its existence both as a European colony and as an independent nation, the U.S. was aracial dictatorship.” Omi and Winant define this racial dictatorship as a coercive form of racial rule by whites who sought to legally eliminate all nonwhites from the sphere of political and civil society in the United States. The presumed racial inferiority and incompatibility of these nonwhite “others” disqualified them from full and equal participation in the superior form of civilization established for the enjoyment of the white race by the Constitution and laws...

    • 3 “The Savage as the Wolf”: The Founders’ Language of Indian Savagery
      (pp. 33-46)

      A long-established language of racism that speaks of the American Indian as an uncivilized, lawless, and warlike savage¹ can be found at work throughout the leading Indian law decisions of the nineteenth-century U.S. Supreme Court. This judicial language of Indian savagery traces its origins and descent in the Western colonial imagination to ancient Greek and Roman myths of warlike, barbarian tribes and biblical accounts of wild men cursed by God. Renaissance-era travel narratives built upon this language of primitive human savagery to describe the newly “discovered” lands and “strange,” alien peoples of the New World, called “Indians” by Europeans. Enlightenment-era...

    • 4 Indian Rights and the Marshall Court
      (pp. 47-70)

      The Founders’ organizing vision of a white racial dictatorship imposed over Indian tribes by the United States, so evocatively signified by George Washington’s Indian policy paradigm of “the Savage as the Wolf,” reflected the continuing force of a long-established language of racism in America. The stereotypes of the Indian tribes on the frontiers of white settlement as uncivilized, war-loving, and irreconcilably savage enemies had been used by colonizing Europeans since their first encounters with the native peoples of the New World.

      The Indian policy metaphor of “the Savage as the Wolf” was therefore no sudden inspiration of the Founders’ racial...

    • 5 The Rise of the Plenary Power Doctrine
      (pp. 71-84)

      As a potent signifier of colonial desire and discipline, the model of Indian rights inaugurated by Chief Justice Marshall’s trilogy of Indian law opinions has come to serve a number of important organizing functions in the Supreme Court’s Indian law. The model’s validation of the discovery doctrine provided the Court and the U.S. government with a devastatingly effective form of rights-denying, jurispathic power. The doctrine of discovery, according to the Marshall model, functions to deny all competing claims to Indian rights that are opposed to the colonial interests of the United States and to the Court’s interpretation of its underlying...

  4. Part III. The Twentieth-Century Post-Brown Supreme Court and Indian Rights

    • [Part III. Introduction]
      (pp. 85-88)

      The racist precedents and accompanying language of Indian savagery perpetuated by the Supreme Court’s interpretation of the Marshall Model of Indian Rights were powerful, organizing forces in justifying the conquest and colonization of Indian tribes throughout the nineteenth century. The rights-destroying jurispathic force of this virulent judicial language succeeded, in roughly half a century’s time, in putting Indian tribes completely under the plenary power of Congress as their “guardian.” In applying the model’s legalized language of Indian savagery, the Supreme Court subjected the most basic human rights of Indian tribal peoples to the whims and abuses of a political process...

    • 6 What “Every American Schoolboy Knows”: The Language of Indian Savagery in Tee-Hit-Ton
      (pp. 89-96)

      It would be hard to argue against the proposition that the Supreme Court’s 1955 decision inTee-Hit-Ton v. United States¹ was one of the most important Supreme Court Indian rights decisions of the twentieth century, or any century for that matter. The case of the Tee-Hit-Ton Indians specifically involved an unextinguished “aboriginal title” claim² to a relatively small amount of territory (350,000 acres of land) in Alaska’s Tongass National Forest. But besides that claim, at least according to the government lawyers who argued the case before the justices,Tee-Hit-Toninvolved potentially as much as$9 billionin aggregated just compensation...

    • 7 Rehnquist’s Language of Racism in Oliphant
      (pp. 97-114)

      As the decision inTee-Hit-Tonclearly illustrates, the twentieth-century Supreme Court’s Indian law, even after the landmark civil rights decision inBrown, continued to unquestioningly rely on the jurispathic force of the nineteenth-century precedents and hostile judicial language of Indian savagery generated by the Marshall model (see chapter 6).Tee-Hit-Tonis not the Court’s only post-Browncase of major import for Indian rights to display this persistent judicial reliance on racist nineteenth-century precedents and stereotypes. The continuing jurispathic force of the Marshall model’s legal mythology of the Indian as an inferior form of savage humanity is evidenced throughout the Supreme...

    • 8 The Most Indianophobic Supreme Court Indian Law Opinion Ever
      (pp. 115-122)

      Given the rights-denying, jurispathic application of the Marshall model by Justice Rehnquist inOliphant v. Suquamish Indian Tribe, it’s not too difficult to understand why Indian law advocates and scholars get so upset whenever they discuss the opinion.Oliphanthas to be regarded as one of the most racist Indian law opinions written by a justice of the Supreme Court in the post-Brownera, every bit as bad, it can be argued, as Justice Reed’s “every American schoolboy knows . . .” majority opinion inTee-Hit-Ton, issued in 1955, the year afterBrown v. Board of Educationwas decided by...

    • 9 The Dangers of the Twentieth-Century Supreme Court’s Indian Rights Decisions
      (pp. 123-134)

      Opinions like those of Justice Reed inTee-Hit-Tonand of Justice Rehnquist inOliphantandSioux Nationteach us the important lesson that a language of racism can continue to possess dangerous, rights-destroying jurispathic power, even in post-BrownAmerica. In these opinions, racial stereotypes from the nineteenth century were endorsed and accepted as true by twentieth-century justices. These justices perpetuated a racist and antiquated legal discourse without any signs of discomfort, embarrassment, or express qualification. In this sense, such Indianophobic opinions can be read as being much more than just absurdities or aberrations issued in an era of supposedly benevolent...

  5. Part IV. The Rehnquist Court’s Perpetuation of Racism against Indians

    • [Part IV. Introduction]
      (pp. 135-136)

      So far, this book has used the Supreme Court’s own language and holdings in its Indian rights decisions of the nineteenth and twentieth centuries to examine some of the lessons that can be drawn from a study of the legal history of racism in America and the role of the justices in perpetuating it. One important observation was inspired by the racial imagination of Malcolm X and confirmed by research on racial attitudes during the post-Browncivil rights era: Certain well-known languages of racism have flourished throughout American history as part of our national heritage.

      One of those still vital...

    • 10 Expanding Oliphant’s Principle of Racial Discrimination: Nevada v. Hicks
      (pp. 137-148)

      Anyone familiar with the workings of our judicial process knows the lesson taught by Judge Benjamin Cardozo’s trenchant observation on the “tendency of a principle to expand itself to the limits of its logic” in a legal system such as ours (see chapter 2, “‘Like a Loaded Weapon’”). Justice Jackson referred to this basic lesson in his dissent to the Court’s 1944 decision inKorematsu, where he quoted Cardozo’s observation to warn his fellow justices of the dangers of a principle of racial discrimination once approved by the Court as the doctrine of the Constitution: Because of stare decisis, “it...

    • 11 The Court’s Schizophrenic Approach to Indian Rights: United States v. Lara
      (pp. 149-160)

      I set out an axiom at the beginning of this book: “A winning courtroom strategy” for protecting Indian rights cannot be organized around nineteenth-century racist legal precedents and an accompanying form of legal discourse that stereotypes tribal Indians as lawless, uncivilized savages (see the introduction, the section “A Winning Courtroom Strategy”). Some Indian law scholars and advocates, of course, reject this axiom, knowing that there are famous Indian law cases decided by the Supreme Court that Indians, in fact, have “won.”¹ I concede that the cases that support their legal faith in the Marshall Model of Indian Rights are some...

  6. Conclusion: The Fifth Element
    (pp. 161-196)

    I began this book with a lesson taught by aFar Sidecartoon: A person’s response to a long-established language of racism will depend on the particular stereotypes he or she holds about certain types of people. In the conclusion to this book, I want to return to this fundamental lesson. But in returning to this basic point about the power of stereotypes to shape our responses to certain types of people, I want to apply it in a much different context and to a much different group of people. I want to explore how this lesson applies to the...