Cover

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Title Page, Copyright

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Contents

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pp. ix-x

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Acknowledgments

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pp. xi-xii

Many friends, colleagues, and students generously helped me in writing this book. My wife, Joy Fischer Williams, deserves special thanks. I thank my close friend and colleague, Jim Anaya, for his patience and insight in helping me to shape and refine many of the ideas here. I also acknowledge my debt to Adam Carvell, Vince George, Megan McClurg, Sudha Peri, and...

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Introduction

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pp. xiii-xxxvi

There is a very telling Far Side cartoon by Gary Larson that I like to share with people whenever I’m asked to talk about the history of Indian rights in America. The cartoon depicts an Indian in buckskins and full feathered- headdress regalia standing next to a teepee, addressing members of his tribe. The dozen or so Indians he’s speaking to are also dressed in...

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Part I. Discovering a Language of Racism in America

Malcolm X’s inspired flight of racial imagination, as reported by his amanuensis, Alex Haley, that the “n” word would be the first bit of English a new immigrant child would learn upon arriving in this country remains, even today, a trenchant and disturbing insight into the workings of a language of racism in America.1 Malcolm X knew that at that particular...

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1. "Look, Mom, a Baby Maid!" The Languages of Racism

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pp. 3-16

The language of racism directed against blacks in America, as perceived by Malcolm X at the airport, exposes us to a wide variety of associated epithets, slurs, stereotypes, and other forms of racist imagery that haunt our society. All these words and terms are basically about the same thing and perform the same function in American life: They all perpetuate and...

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2. The Supreme Court and the Legal History of Racism in America

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pp. 17-30

Given the pervasiveness and force of certain long- established languages of racism in our history, no one should be too surprised to discover their use in many of the Supreme Court’s most important decisions on minority rights.1 The problem comes when the Court as an institution perpetuates and sanctions a language of racism and its precepts of racial inferiority...

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Part II. "Signs Taken for Wonders": The Nineteenth-Century Supreme Court and Indian Rights

Anund pointed to the name of Jesus, and asked, ?Who is that?? ?That is God! He gave us this book.?? ?Where did you obtain it?? ?An Angel from heaven gave it to us, at Hurdwar fair.?? ?An Angel?? ?Yes, to us As Michael Omi and Howard Winant have w ritten, ?For most of its existence both as a European colony and as an independent nation, ...

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3. "The Savage as the Wolf": The Founders' Language of Indian Savagery

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pp. 33-46

Along- established language of racism that speaks of the American In dian as an uncivilized, lawless, and warlike savage1>can be found at work throughout the leading Indian law decisions of the nineteenth-century U.S. Supreme Court. This judicial language of Indian savagery traces its origins and descent in the Western colonial imagination to ancient Greek and Roman myths of warlike, barbarian tribes and biblical accounts of wild men cursed by God. Renaissance- era travel narra-...

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4. Indian Rights and the Marshall Court

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pp. 47-70

The Founders’ organizing vision of a white racial dictatorship imposed over Indian tribes by the United States, so evocatively signified by George Washington’s Indian policy paradigm of “the Savage as the Wolf,” reflected the continuing force of a long- established language of racism in America. The stereotypes of the Indian tribes on the frontiers of white settlement as uncivilized...

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5. The Rise of the Plenary Power Doctrine

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pp. 71-86

As a potent signifier of colonial desire and discipline, the model of Indian rights inaugurated by Chief Justice Marshall’s trilogy of Indian law opinions has come to serve a number of important organizing functions in the Supreme Court’s Indian law. The model’s validation of the discovery doctrine provided the Court and the U.S. government with a devastatingly effective...

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Part III. The Twentieth-Century Post-Brown Supreme Court and Indian Rights

The racist precedents and accompanying language of Indian savagery perpetuated by the Supreme Court’s interpretation of the Marshall Model of Indian Rights were powerful, organizing forces in justifying the conquest and colonization of Indian tribes throughout the nineteenth century. The rights- destroying jurispathic force of this virulent judicial language...

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6. What " Every American Schoolboy Knows": The Language of Indian Savagery in Tee-Hit-Ton

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pp. 89-96

It would be hard to argue against the proposition that the Supreme Court’s 1955 decision in Tee- Hit- Ton v. United States1 was one of the most important Supreme Court Indian rights decisions of the twentieth century, or any century for that matter. The case of the Tee- Hit- Ton Indians specifically involved an unextinguished “aboriginal title” claim 2 to a relatively....

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7. Rehnquist's Language of Racism in Oliphant

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pp. 97-114

As the decision in Tee- Hit- Ton clearly illustrates, the twentieth- century Supreme Court’s Indian law, even after the landmark civil rights decision in Brown, continued to unquestioningly rely on the jurispathic force of the nineteenth- century precedents and hostile judicial language of Indian savagery generated by the Marshall model (see chapter 6). Tee- Hit- Ton is not the Court’s...

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8. The Most Indianophobic Supreme Court Indian Law Opinion Ever

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pp. 115-122

Given the rights- denying, jurispathic application of the Marshall model by Justice Rehnquist in Oliphant v. Suquamish Indian Tribe, it’s not too difficult to understand why Indian law advocates and scholars get so upset whenever they discuss the opinion. Oliphant has to be regarded as one of the most...

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9. The Dangers of the Twentieth-Century Supreme Court's Indian Rights Decisions

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pp. 123-134

Opinions like those of Justice Reed in Tee- Hit- Ton and of Justice Rehnquist in Oliphant and Sioux Nation teach us the important lesson that a language of racism can continue to possess dangerous, rights- destroying jurispathic power, even in post- Brown America. In these opinions, racial stereotypes from the nineteenth century were endorsed and accepted as true...

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Part IV. The Rehnquist Court's Perpetuation of Racism against Indians

So far, this book has used the Supreme Court’s own language and holdings in its Indian rights decisions of the nineteenth and twentieth centuries to examine some of the lessons that can be drawn from a study of the legal history of racism in America and the role of the justices in perpetuating it. One important....

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10. Expanding Oliphant' s Principle of Racial Discrimination: Nevada V. Hicks

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pp. 137-148

Anyone familiar with the workings of our judicial process knows the lesson taught by Judge Benjamin Cardozo’s trenchant observation on the “tendency of a principle to expand itself to the limits of its logic” in a legal system such as ours (see chapter 2, “‘Like a Loaded Weapon’”). Justice Jackson referred to this basic lesson in his dissent to the Court’s 1944 decision...

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11. The Court's Schizophrenic Approach to Indian Rights: United States V. Lara

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pp. 149-160

I began this book with a lesson taught by a Far Side cartoon: A person’s response to a long- established language of racism will depend on the particular stereotypes he or she holds about certain types of people. In the conclusion to this book, I want to return to this fundamental lesson. But in returning to this basic point about the power of stereotypes to shape our responses...

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Conclusion: The Fifth Element

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pp. 161-196

Ibegan this book with a lesson taught by a Far Side cartoon: A person?sresponse to a long- established language of racism will depend on the particular stereotypes he or she holds about certain types of people. In the conclusion to this book, I want to return to this fundamental lesson. But in returning to this basic point about the power of stereo-types to shape our responses to certain types of people, I want to apply it in a much different context and to a much different group of people. ...

Notes

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pp. 197-264

Index

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pp. 265-271