Racist or Fair? You Decide on 6 Important Indian Court Cases
Of the “Eight Fascinating Court Decisions Affecting Indians and Tribes,” presented in New London, Connecticut on May 22, some of the resulting laws seem surprisingly fair while others reek of racism.
Stephen L. Pevar, American Civil Liberties attorney since 1976, presented cases that reflect the origins of laws that affect Natives today.
Pevar said the Supreme Court accepts fewer than 70 cases out of 6,000 a year. So far, the Supreme Court has taken 200 cases regarding Indians. “What I have done is select eight cases. Indians have won some and lost others,” Pevar said.
Here are six of the eight, some of which seem surprisingly fair and others that reek of racism.
Johnson v. McIntosh (1823)
Facts: Johnson bought land from the Illinois tribe in 1773, before the United States became an independent nation. Decades later and after the U.S. had become independent, another man, McIntosh, bought the exact same land from the U.S. government.
Who owned the land? McIntosh according to the Supreme Court, which based its decision on the principal of International Law, “to the victor belongs the spoils.”
Pevar explained that the Europeans had established the doctrine of discovery, which gave title to those who “discovered” it. The only concession the court made for the tribes was to be certain they had been adequately compensated. (Hold your breath, folks, here it comes.)
The Supreme Court then said that the rulers of the old world “made ample compensation to the inhabitant of the new, by bestowing upon them civilization and Christianity.”
Pevar called the decision heartbreaking, racist, immoral, and “One of the most reviled decisions in all of Indian Law.” Pevar cited that the ruling was included in the book, In the Courts of the Conqueror, the Ten Worst Indian Law Cases by Walter Echo Hawk.
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