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Chapter 5 conquest masquerading as law Vine Deloria Jr. Jodi Byrd revealed how dominant “literacy” falsifies the truth about postcolonial realities and how it tends to ignore the great truths of authentic Indigenous perspectives. In this chapter, Vine Deloria Jr. explains how such delusion has corrupted the law of the land, which is supposed to be based on a foundation of truth, justice, and equality. In what I believe to be one of Dr. Deloria’s most insightful excursions into contemporary reality, he explains how American jurisprudence , especially as it relates to its treatment of Indian people, has largely been based on the idea that “the non-Christian peoples who would be discovered, and dispossessed, had a moral flaw that justice should take into account, in ways that would rationalize injustice.” He demonstrates that decisions in U.S. law concerning Indigenous People go beyond a mere violation of logic, revealing a consistent prejudice that is even today identifiable with a language of conquest. Finally, in another challenge to “the fourth wave,” he points out that “the so-called savage Indigenous ideas and practices for addressing wrong-doing, if seriously examined , would be understood as superior to U.S. law.”1 Vine Deloria Jr., a Hunkpapa Lakota enrolled as a member of the Standing Rock Sioux, is the author of more than twenty books, including Red Earth, White Lies, Custer Died for Your Sins, God Is Red, and Spirit and Reason. Recipient of a number of awards, including the 2002 Wallace Stegner Award and designation as the 2003 American Indian Festival of Words Author, Vine is a professor of history at the University of Colorado. As an Indian activist and attorney (the only Indian attorney in the early Wounded Knee trials, who has helped many tribes besides the Lakota), he has earned international acclaim as a leading voice for American Indians. *** An ancient apocryphal anecdote relates that Justice Oliver Wendell Holmes, responding to a lawyer who had just presented his argument before the Supreme Court, chastised the lawyer for asking the Court to do justice, commenting that it was the task of the Court to determine the law, not to ensure justice. Law is a formal institution designed to make conquest masquerading as law 9 5 the arbitrary and whimsical behavior of the governing elite seem to have an aura of rationality and balance. As everyone knows, wealth directs the outcome of any judicial decision and as Voltaire noted, at its worst law allows both beggars and rich men to sleep beneath the bridges of Paris. But, as the judge suggests in the Clint Eastwood movie Hang ’Em High, people feel much better when a person is executed by an order of a court rather than being victim of a lynching. A survey of the history of federal Indian law reveals that it is possible to be legally condemned and lynched at the same time. Although guaranteed justice in the federal courts, Indians have discovered that far too often legal doctrines purported to ensure their political and treaty rights are used to confiscate their property, deny their civil rights, and deprive them of the benefits that accrue with United States citizenship. So bizarre are the rulings of the federal courts when deciding an “Indian” case that the decisions appear to have come through the Looking Glass of Lewis Carroll. During the 1940s Felix S. Cohen, the solicitor of the Department of the Interior, organized a scholarly task force to survey the laws and cases dealing with Indian rights and to create a “handbook” of Federal Indian Law. The purpose of this document was to provide an authoritative source of legal doctrines so that U.S. attorneys could bring the full measure of federal resources to bear against Indian plaintiffs who sought justice in the Court of Claims. Since its publication courts and lawyers alike have elevated the handbook from a mere source of information to the status of a treatise—an elevation it has never deserved. The perspective of the handbook suggests the inevitable end of Indian political existence and the merging of Indian rights into domestic American law. Thus treaties, the primary document establishing a relationship between indigenous nations and the United States, have been submerged by strange interpretations of case law so that illogical but comfortable fictions comprise its primary substance. In traditional political intercourse between nations the treaty has been the primary formal expression of agreements that benefit contending parties in an international...

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