Western civilization has been at war with tribalism for 3,000 years. And that war was brought to the New World by the English colonists. A very early point in American law Chief Justice John Marshall is asked to decide the status of Indian tribes. And what he does. He calls them savages who lack the same rights as the white people who came over here, the Europeans, and colonized their land under this, what many Americans might regard as an obscure legal doctrine called the Doctrine of Discovery. But it is still the most important doctrine in American constitutional law.

US law and international human rights law have radically diverged in the past years in terms of the recognition of indigenous people's rights. International human rights law now looks at not whether or not the tribes have formal ownership or legal title in a Western legal conception might have it, but rather they look at the tribe's historical connection to that land.

Savagery was a word that Westerners used to, again, to consciously differentiate them from non-Westerners, to assert that superiority, that cultural superiority. It goes back to the British Empire, and again, you know, what was the purpose of the British Empire? To bring civilization to the savage no matter where they were, whether it was India or Asia or Australia or whatever. It's that civilizing mission that characterizes so much of the history of Western colonialism.

Until we start attacking the root of the historical problems of discrimination against Indians, and those Indians begin in these stereotypes, that Indians are less civilized than us, they're less able to exercise self-governing functions. Until we get to the roots of those problems, we're not going to change legislation. We're not going to change the hearts and minds of the Supreme Court.

What John Marshall says is that right of occupancy can be taken away by purchase, conquest or any other means. So the reason that this case Johnson v. M'Intosh is so important is it really sets the foundation for this radical approach to understanding the basic human rights of Indian people to hold and control the lands that they occupy. It gives the US government the right to relocate, it stands at the bottom of the ethnic cleansing campaigns, for example, in the removal era.

One was a horrible case called Oliphant v. Suquamish Indian Tribe which denied tribes the right to criminally prosecute non-Indians who commit crimes on their reservations. That decision has had horrible consequences for law enforcement on Indian reservations. But in that opinion Justice William Rehnquist cites language from the 1830s to explain why whites didn't trust tribes to exercise criminal jurisdiction. They were savages.

In fact, Native American Rights Fund has a project called the Supreme Court Project. And quite frankly, it's focused on trying to keep cases out of the Supreme Court. This Supreme Court, Justice Roberts is actually, hard to believe, was probably worse than the Rehnquist Court. If you look at the few decisions that it's issued.