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.
Robert A. Williams, Jr.Today what we see is tribes moving into the 21st century and facing real 21st century problems of globalization, of multi-national, national resource development, of jobs, tribes have elected leaderships. They're elected to do a lot of things.
Robert A. Williams, Jr.The case of Johnson v. M'Intosh is exactly why Congress can pass legislation as it did with the Rio Tinto land mine deal because Congress took the land from the tribes, ignores their sacred connections to it, their cultural connections and does whatever it wants with it. Congress terminated tribal status for more than 100 tribes. Basically said, you're not a tribe anymore and we're not going to pay attention to the treaties. The Supreme Court has held that when Congress breaches a treaty with an Indian tribe it's not judicially reviewable. It's called a political question.
Robert A. Williams, Jr.What this ideology, what this myth about savagery did was really excuse America for the disappearance of the Indian. It wasn't our fault. They were just an inferior race. And so John Marshall adopts that. And the tragedy and the present-day circumstances of that decision are that those racial attitudes are so deeply embedded in these foundational principles of American Indian law.
Robert A. Williams, Jr.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.
Robert A. Williams, Jr.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.
Robert A. Williams, Jr.