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Peter d'Errico: Excising conquest from the law
Friday, June 26, 2009
Filed Under: Opinion

"An Indian Country Today interviewer (May 6) asked John Echohawk, executive director of the Native American Rights Fund, “Is anyone challenging Congress’ claim to plenary power over the nations?” He replied: “Yes, but of course under the law of this country, the way all that’s been interpreted and the way it’s been litigated is the tribes are domestic dependent nations and that’s just the way things are and you go to court and that’s what they’ll tell you.”

NARF’s acceptance of the “pretense of conquest” as “that’s the way it is” is an ominous sign. It means the most widely recognized group of Indian lawyers is not arguing against the basic discrimination in federal Indian law. No wonder Justice Scalia thinks he can get away with his nastiness and pretense.

Indian country needs to strip away the “pretense of conquest” and reveal the underlying reality of federal Indian law: a system designed to suppress sovereignty of Indian nations in keeping with a tradition of Papal Bulls and Christian political theology. Indian country needs lawyers not afraid to argue for indigenous sovereignty and against the “pretense of conquest through discovery.”

Echohawk demonstrated that NARF is not one of the challengers of pretense when he continued, “the federal government has exclusive authority over all Indians, all tribes under the Constitution, basically, that takes care of everything – if you’re a tribe then you’re under federal jurisdiction, any tribe, anywhere, is under federal jurisdiction. Period.”

The culture of acceptance of the pretense of federal Indian law prevails not only at NARF, but also in law schools, even in Indian law programs. The standard approach seems to be to train young lawyers to accept the existing paradigm, rather than question it. The standard approach produces arguments acceptable to judges like Scalia, rather than challenge the discriminatory basis of federal Indian law."

Get the Story:
Peter d’Errico: Advocacy and change in federal Indian law (Indian Country Today 6/26)

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Peter d'Errico: The answer is indigenous sovereignty (5/29)

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