In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided (review)

The eminent American jurist Learned Hand once said, "The spirit of liberty is the spirit which is not too sure that it is right."¹ Walter Echo-Hawk's foray into the "ten worst Indian law cases ever decided" offers a stunning testimony in support of that observation. Unlike other fields of American jurisprudence, such as property law, torts, or criminal law, federal Indian law derives not from British common law, but from the political interactions of separate sovereigns, the Native nations of these lands and the British Crown, and its successor, the United States of America. Although these sovereign interactions once assumed the currency of international relations, through negotiated treaties, the United States took an unprecedented level of control over what became "domestic dependent nations," and engaged in a subsequent attack on the political sovereignty of Native nations. This has culminated in a set of current conditions that significantly depart from the standards of justice articulated in the U.S. Constitution, such as liberty and equality, or in international conventions detailing the political right of self-determination that belongs to all "peoples."

Despite these realities, most citizens of the United States continue to believe that Native Americans now enjoy "equal citizenship" within U.S. democratic society, and they often wonder why Native peoples get "special rights," such as the ability to engage in casino gaming on the reservation. As Echo-Hawk points out, part of this belief can be attributed to the fact that there is a "serious information gap about Native Americans in the United States," because most Americans "have never met or talked to an Indian, have never been on an Indian reservation, and know very little about Native Americans in general" (13). Native history and culture are not part of the standard curriculum taught within public schools, and even within American universities a student would have to make a special effort to secure this knowledge through American Indian studies classes, where these are available, or through other courses where the faculty possess the knowledge to teach the subject effectively.

Echo-Hawk's book makes a notable contribution to the literature on federal Indian law, as well as American Indian history and policy. Walter Echo-Hawk, a member of the Pawnee Nation, is renowned within the field of Indian law as one of the foremost litigators for Native American rights in the country. He served as a staff attorney at the Native American Rights Fund for over thirty-five years, charting legal recognition for tribal rights to land, water, and cultural resources, as well as protecting the rights of individual Native Americans to access and protect their religious and cultural liberties. Echo-Hawk's steadfast advocacy resulted in many victories for Native nations and for Native American prisoners and cultural practitioners, but he also experienced a pervasive frustration with the inability of courts to probe the seamy underbelly of American law and engage the "nefarious legal doctrines" developed by past courts to justify the dispossession and subordination of Native nations. This book results from Echo-Hawk's long-standing experience as a litigator and advocate of Native rights, and it serves two pivotal purposes. First, it provides an accessible and fascinating account of several Supreme Court cases that defined the "rights" of Native peoples and were used as precedent by subsequent federal and state courts. And second, it provides a compelling account of how American law has only rarely served as a "shield to protect Native Americans from abuse and further their aspirations as indigenous peoples," and how its predominant use has been as a "sword to harm Native peoples by stripping away their human rights" (4). Through these inquiries, Echo-Hawk succeeds in developing a framework to evaluate the "justice" effectuated by federal Indian law. The book effectively presents the actual data on what the law is and where it came from, and proves the true impact of federal...