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The ANA Messenger: Native Languages Edition 2014

Published: February 19, 2014
Audience:
Native Languages
Topics:
Grantee Resources, Language Immersion
Types:
Newsletter

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Book Review of
In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided

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Walter R. EchoHawk, the author of In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided, introduces readers to several Federal Indian law cases.  The author provides both a historical and political framework for readers. Due to the complexity of Federal laws governing Indians, this book allows the reader to enter into the world of Indian law and engage in compelling discussions that involve cases within the United States judicial system. These complexities include an array of issues such as sovereignty, legal jurisdiction, land use, family affairs, crime and violence. 

The book offers readers a glimpse into the world of Indian Law by providing 10 Indian cases that have set the tone throughout the years effecting current Federal Indian Legislation passed by Congress.  The author’s viewpoint shows readers the “darker side” of Federal Indian law, and examines how certain laws have affected the survival of Native Americans and their culture. Mr. Echohawk points out that Federal Indian Legislation can be viewed as laws that are forced into Native American culture through historical colonial power, and viewed as injustice with prejudices.

Historically, all ethnic minorities within the United States – African Americans, Native Americans, Asians among others – have faced discrimination in one form or another.  The author raises the following question: Is justice the principal foundation of the courts? Mr. Echohawk states, “One explanation is that justice is not the principal foundation of the courts….” (p. 34) For example; the well-known Dred Scott case (1857), in which the Supreme Court held that a slave may not sue for his freedom in courts because blacks are not, and could never be, citizens entitled to use the federal courts [Dred Scott v. John F.A. Sanford, 60 US 393 (1856)]. In 1924, the Indian Citizenship Act was enacted. While Indians became citizens of the United States “[they] were not considered wards of the government until Congress decides that they should be let out of the dates of pupilage and admitted to the privileges and responsibilities of citizenship” [Elk V. Wilkins, 112 US 94, 106 (1884)].  Both cases are examples that highlight the injustices and prejudices against minorities in the American judicial system, and demonstrates why one would question if justice is the principal foundation of the court.

The Indian Child Welfare Act of 1978 (ICWA) was enacted to govern the out-of-home placement of Indian children in part because “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children.” Woven into the text of ICWA are means to maintain children’s culture and heritage when they are adopted out to a family outside their birth mother or father. ICWA mandates that significant efforts be made to ensure adopted Indian children remain within Native communities even if children cannot remain with their parents.  Prior to this Act, many Indian children were placed into non-Indian families. The author states that prior to the enactment of ICWA, the system basically robbed children of their cultural heritage and; 

seriously impaired the ability of Indian families and tribes...the staggering loss of kids and culture reached crisis proportions in many Indian communities, exposing a legal system so rigid in its refusal to incorporate Native American values into the law that it produced a system so abusive and destructive of Indian families and culture as to allow the twin specters of ethnocide and genocide to awaken and thread then cultural survival of Indian tribes (p. 219).

ICWA has been hailed as a triumph by many and seen as Congress’s best work regarding human rights and promotion of tribal sovereignty. Yet, the issue becomes more complex when the sole responsibility for enforcing ICWA lies with state courts even is ICWA appears to place decisions in the hands of the Indian tribe who have supposed to have exclusive authority over Indian children living within the community, and also when the tribe rightfully request state courts to transfer placement cases to the tribe. The author illustrates how current court cases relate to the 10 Indian Law cases identified in the book. The recent Supreme Court case Adoptive Couple v. Baby Girl (2013), more commonly known as the “Baby Veronica case”, provides a compelling example of the implementation of ICWA. The Baby Veronica case is a clear example of how one father who is Cherokee simply fought to maintain paternal rights of his Native American daughter, certain he was protected by ICWA, and the belief that his daughter’s cultural ties would be safe. Yet the case resulted in a non-Indian family successfully adopting the Indian child. A reader might question the purpose of ICWA.

In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided allows the reader to understand the political and historical roots of Indian law, and provides demonstrations on how current laws are impacted by laws that were previously enacted. The author shows that the early laws governing Native Americans were enacted with a “colonial” mind set. As we into a contemporary American judicial system, progress and justice in Indian Country continues to remain a question. The author claims that there is still unfinished business in the American judicial system. 

In a positive light, the recently passed bipartisan 2013 legislation to reauthorize the Violence Against Women Act (VAWA), is an example of progress being made within Indian Country. Prior to VAWA, non-Indian perpetrators of violence against women in Indian country were not allowed to be prosecuted in the Native court system, yet that is soon to change.  The 2013 VAWA amendments allow tribes to exercise their sovereign authority to investigate, prosecute, convict, and sentence both Natives and non-Natives who assault women in Indian country.  The cases are an introduction to Indian law and help readers to better understand the current issues in Indian Country. 

Tyanne Benallie (Diné)
Program Specialist, Tribal Tech, LLC
under contract to The Administration for Native Americans

In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided by Walter R. Echo-Hawk ©2010 Fulcrum Publishers, Yale, OK. ISBN 978-1-936218-01-1

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