THE 10 WORST INDIAN CASES EVER
By James Botsford
Finally someone has written a book that shines a light into the dark corners of the Supreme Court’s thievery of the rights of Native America. Did you ever wonder by what quiet sleight-of-hand huge dimensions of the inherent rights and cultures of Native people disappeared or were radically reduced? Turns out some of the worst damage ever done to the original people came from the highest level of the judicial branch… the Justices of the U.S. Supreme Court who historically have enjoyed (and cultivated) the perception that they are objective, neutral and above the fray of politics and ideology. Oh, if only it were true.
The book is In the Courts of the Conqueror, The 10 Worst Indian Law Cases Ever Decided. And this book isn’t written by just any old someone. It was painstakingly researched and written by Walter Echo-Hawk (Pawnee) who Vine Deloria Jr. once referred to as “the best Indian law attorney in America.” Echo-Hawk earned his chops as a staff attorney at the Native American Rights Fund for 35 years where he was personally involved in many of the biggest Indian rights issues of our time.
Echo-Hawk sets the bar high when it comes to intellectual honesty, cultural values and the ethics of legal analysis. From that perspective he walks us through what he believes are the ten worst Indian law cases ever decided. Scholars and activists will quibble over a few of his top ten (or is it bottom ten?), but they’ll risk missing the bigger point, which is the devastation of these decisions as they change the course of history.
Echo-Hawk could’ve selected 20 such cases, but as it is this book weighs in at a hefty 470 pages, not counting notes. You’ll get your money’s worth out of this one. The book looks thoughtfully at the context and circumstances from which these cases emerge and then gives a careful assessment of how the high court turns phrases and facts in such a way as to devastate the cultural integrity of Indian Country… well beyond the implications of the specific question before them.
To be fair one has to concede that the Court could not in all instances anticipate the scope of damage it inflicted, but as Echo-Hawk points out with clear reasoned logic there was no law or legal necessity that compelled the damage done by their decisions. In other cases, the case is solidly made that the Court is fully aware of the consequences of its decisions and actually manipulates facts and law to inflict those negative consequences anyway in order to protect other interests.
But perhaps the highest value of this thought provoking book is its intriguing analysis of what we might do to restore dignity to the legal relationship between the United States and the indigenous cultures and governments that share this country.
Is the First Amendment of any use at all to Indian people, or is it a danger to their survival? Is there any realistic hope that the U.S. will self-correct in Indian rights in a dignified way? Does the United Nations’ Declaration on the Rights of Indigenous People offer any realistic hope? If so, how could that come to be?
These are the issues and discussions that make this book so uniquely valuable. There is a long conversation that must happen, and Echo-Hawk knows it from the inside. That’s why he has given us this truly important and urgent book, graciously written, as he winds down his career, to further us into that long conversation with a balanced historical assessment so that we, like he, can make this world better than the way we found it.
(The book is published by Fulcrum Publishing, 2010. James Botsford is an Indian rights attorney in Wisconsin who has co-counseled with Echo-Hawk numerous times in the past quarter century.)
Turtle Talk 
I can only address Mr. Echo-Hawk’s comments on the 1913 U.S. v. Sandoval case. Despite Mr. Echo-Hawk’s sterling reputation as a litigator, his legal opinions on Sandoval are not based on serious, in-depth, contemporary historical or legal research. From 1876 to 1913, the Pueblos of New Mexico were subject to New Mexico territorial and state laws. By 1913, the Pueblos of New Mexico and Arizona faced the twin threats of taxation by the States or allotment by the federal government. A delegation of Pueblo leaders from New Mexico, and the Pueblo Attorney for the United States, travelled to Congress in February 1913, requesting that their Pueblo lands be placed in federal trust to protect their lands from State taxation. During the same trip, the Supreme Court heard the case of U.S. v. Sandoval. The congressional initiative died in committee. However, Justice Van Devanter’s opinion in Sandoval reversed an earlier Supreme Court opinion that the Pueblos were not Indians for the purposes of federal protections. Justice Van Devanter held that the Pueblos were Indians for the purposes of federal protections. Moreover, Justice Van Devanter found that the Pueblo lands were held by the Pueblos themselves in communal title. That finding prevented the United States from pursuing their allotment policy in the Pueblos. The Department of Justice case records reveal that the Department of the Interior was appalled at the Sandoval decision. The fears were well-founded. In Lane v. Pueblo of Santa Rosa, 1919, Justice Van Devanter’s found that the attempt by the U.S. government to allot Pueblo lands, without payment for the communally owned lands, would be not “an exercise of guardianship, but an act of confiscation.” The 460,000 acres of Pueblo of Santa Rosa land were saved from allotment when the U.S. government decided they would not bear the expense of paying for land before it was allotted. Mr. Echo-Hawk’s opinions on Sandoval do a disservice to those attorneys and judges who preceded us on our difficult road to ensuring freedom and justice to the Pueblos. While there is much in Sandoval to be criticized, a contemporary study will prove that without Sandoval it is unlikely that the Pueblos would have survived the state and federal government threats. “The Ten Worst Indian Cases Ever” may be a good read, but a thorough lawyer would be well-advised to study the underpinnings of Mr. Echo-Hawk’s opinions.