Walter Echo-Hawk on Supreme Court Failures
Spokane, Wash.—He’s a lawyer, professor, activist, author and more; his latest book, In the Courts of the Conqueror; The 10 Worst Indian Law Cases Ever Decided, is nothing less than a search for answers, an understanding of the process behind decisions that affect American Indians in the Supreme Court. This drive may be why Walter Echo-Hawk is widely known and well respected in Indian country.
All the cases were outrageous, but the 1988 decision of Lyng v. Northwest Indian Cemetery Association stands out. The U.S. Forest Service had planned to clear-cut an area that was sacred to three northern California Indian tribes. The district court found that such action would destroy the sacred site and render their religious practices impossible. The Supreme Court held that the USFS did not have a compelling government interest and that clear-cutting was very minimal, a finding that was upheld by the Ninth Circuit Court of Appeals.
“That case held that there is no first amendment principle to protect tribal worship at holy places located on federal land,” Echo-Hawk explained.
“Regardless of those facts, the U.S. Supreme Court held that the First Amendment did not protect that form of worship, and it reached that surprising result by saying the government could destroy a religion without burdening anyone’s religious practice. Thus First Amendment protection is not triggered,” he said. “That’s legal fiction! How could you destroy a religion without burdening any religious practices? That’s the fancy footwork employed in that case, and it remains law today.”
Echo-Hawk should know. He serves as Justice of the Supreme Court of the Pawnee Nation, of counsel with Crowe & Dunlevy, Oklahoma’s oldest and largest law firm; is an adjunct professor at Tulsa University School of Law, and is admitted to practice law before the United States Supreme Court. He recently gave the keynote at the meeting of the Indian Law Section of the Spokane County Bar Association.
“I want to explore the underlying forces behind the amazing prevalence of injustice in federal Indian law,” Echo-Hawk explained while discussing his book. “We have many adverse decisions that affect Native people handed down by the Supreme Court that are seemingly based upon racism and some very nefarious legal principles arising out of a Colonialism setting that are still relied upon by the U.S. Supreme Court to decide current issues.”
Remarkably, these rulings are still law today, he said, “unlike many of the slavery or other cases that uphold racial discrimination which have been reversed by the U.S. Supreme Court. These cases are still in effect and relied upon by the Supreme Court to decide modern-day issues.”
He said that recent Supreme Courts, from the Renquist Court in 1985 to the present, have had very poor track records when it comes to Indian affairs.
“They have ruled against Indian Nations in over 80 percent of the cases that come before them. Prison inmates are treated better in the U.S. Supreme Court than are Indian Nations,” he said. “I wrote the book because I wanted to understand the forces at work which produce these kinds of decisions that affect Native people in the U.S.”
True to its subtitle, the book literally revolves around the 10 worst Indian law cases ever decided. Besides religious freedom, the cases cover land ownership and rights, treaties and other topics.
The first was Johnson v. M'Intosh, decided in 1823 but still on the books today.
“That decision appropriated title to the land owned and occupied by Indian nations to the United States under the Doctrine of Discovery,” Echo-Hawk said. “The court ruled that the act of discovery of North America by European explorers operated to transfer legal title of the land to the U.S. That is obviously a very unjust ruling that diminished tribal land ownership rights … and was justified by notions of European racial superiority.”
Another was Lone Wolf v. Hitchcock, decided in 1903. It concerned the breaking of a treaty by Congress in Oklahoma of the Kiowa, Comanche and Apache Indians and the taking of their reservation lands in violation of the treaty.
“The court upheld that action, stating that Congress could take their land and break their treaty against their will because it had absolute power over them, and the courts could not review that action,” Echo-Hawk explained. “That unjust decision sanctioned tyranny over a minority group in the midst of a democracy and placed Indians under the absolute power of Congress at a time when Indians could not even vote.”
Although the Lone Wolf Doctrine has been softened over the years by subsequent cases, Echo-Hawk said, “The Lone Wolf mentality is still very much with us.”
Asked what changes are needed to get more favorable Supreme Court decisions, he responded, “Over time the Obama Court will make new appointments, and the complexion of the court will change to the point that we can steer the court back in line with the other two branches of government. The Supreme Court is really rowing against the tide in that it wants to whittle tribal sovereignty, whereas the other two branches of government want to bolster and strengthen tribal sovereignty through Indian self-determination policies that have been the federal Indian policy since 1970.”
The United Nations’ 2007 approval of the historic Declaration on the Rights of Indigenous Peoples was a “landmark development in international law,” he said. “It’s the very first international declaration that addresses the minimum standards for the protection and well-being and survival of indigenous peoples” while not failing to note that the U.S. was one of four countries to vote against it in 2007, before finally approving it in December 2010.
“The Declaration is a remarkable document,” Echo-Hawk said. “It has set minimum standards for the treatment of indigenous people and would correct the bad decisions in all ten of the cases in my book. If these standards had been the binding law of the U.S. at the time those cases were decided, they would have had to come out with an opposite result. This is an absolutely historic and landmark human declaration.”
He noted that it’s not yet binding U.S. law and that implementation will require government action—probably a task for the next generation of leaders.
“We have tribal leaders all over the country who are just beginning to read the Declaration,” he said. “I think they will quickly see that if it is implemented strongly here in the U.S. it will strengthen federal Indian law and improve life for Native peoples here in the U.S. One can look forward with great optimism that the legal framework for Native rights in the U.S. can be improved in the next generation.”
Organizations and individuals interested in learning more about Echo-Hawk and his work can go to his new website which doubles as a speakers bureau. That address is www.walterechohawk.com.