Walker Echo-Hawk’s In the Courts of the Conqueror is an informative and critical look at the ways in which American courts have applied the law on Indian matters over the last few centuries. The author is an expert in Indian law and an American Indian himself. As such, he comes at the topic with a fair amount of bias. He is quite obviously well-versed in some of the tricks the courts have used in the past to manipulate the law in order to bludgeon Indian rights into the dirt.
He makes this relatively clear in not only what he writes, but also the way he writes. He gives the Supreme Court very little benefit of the doubt, interpreting their holdings on Indian law with nothing but the most possible scrutiny. While his bias may be clear, it is not wrong. It is justified, and perhaps Echo-Hawk is providing a realer picture of the truth of history by choosing not sugarcoat historical wrongs. With this in mind, chapters five and eleven are two of the most interesting chapters in the book, and they provide solid insights into what the courts have done in regard to Indians and also the relationship between Indian law and other forms of civil rights law.
Chapter five describes how the Supreme Court case Cherokee Nation v. Georgia effectively set the tone for Indian rights in the Supreme Court while also sending an important message about the relationship between the US and the Indian tribes (Echo-Hawk). While other cases are about what happened when the Court decided to finally hear the case, Cherokee Nation is a case that describes what happens when the Supreme Court decides that the Indian lacked standing to take advantage of the federal court in the first place. Echo-Hawk describes this case as the federal government slamming a door in the face of the Cherokee people, making sure they knew that they were not a part of America, and in fact, that America was hostile to their interests. Seeing this case in terms of America’s desire to extinguish the Cherokee people, Echo-Hawk writes honestly about its intentions.
This occurred during the early part of the 19th century, when Georgia got tired of dealing with Cherokee people and began to agitate to get them removed. The federal government in 1802 had made promises to do so, but Georgia feared the feds would not follow through. It thus began to change its laws to strip Cherokee people of their rights in hopes that this might make them move. When the Cherokee Nation tried to assert its rights by suing the state in federal court, the Supreme Court refused to hear the case on its merits to determine whether the actions of Georgia had deprived the Indians of their civil rights. Rather, it held that because the Cherokee Nation was an independent nation, it had no standing to even use the courts to address grievances. This can be compared most similarly to the Dred Scott decision, which is seen by most as the worst in the history of America. In that decision, Scott, an escaped slave, was held to not having standing to sue in court because slaves could not be citizens of the United States (Gunderson). In Cherokee Nation, the Court even said that the relationship between the US and the Indian people was like that of the “ward and the state,” with the Cherokees constituting their own nation but also being under the control and dominion of the US.
It was the worst of both worlds according to Echo-Hawk; the Court used the autonomy of the Cherokees only to demean them and strip their rights further. This treatment has continued today, as the federal government has used the law only when necessary to bring itself benefits while not offering Indians much of a legitimate opportunity to use the law in their defense.
Employment Division v. Smith, a case that took place in 1990, was described by Echo-Hawk as the federal government’s means of stealing religion from the Indian people. As the author shows, this case revolved around a state’s ability to discriminate against Indian people for their use of drugs that are required in religious rituals. Ultimately Smith was fired from a job because of the use of peyote, which was critical to his religion. He was then denied unemployment benefits. The Supreme Court held that though states can accommodate otherwise illegal acts that are done in the name of religion, they do not have to accommodate those acts.
This, the author notes, is that Supreme Court’s way of suggesting that the protection of the religion of American Indians is not as important as the protection of the religious rights of others, including white Christians. He believes that the First Amendment rights for Indians are just a mirage. This mirrors the experience of many black “Rastafarians,” who use marijuana for religious purposes, but have been denied over time the ability to engage in this ritual on similar grounds. It is a sign of the way the federal courts have at times used unfavorable rulings against Indian people to then justify the harsh treatment of other minorities.
Ultimately this book, and these two chapters specifically, show the long-standing way that the federal courts have been used to shape the Indian experience within America. The courts are still not the friends of Indian people, who are denied their true use and function. Likewise, Indian customs have been often ruled outside of the norms of American society, invalidating them and seeking to reduce Indian religion other elements in ways that are altogether problematic.
