For two decades, Robert Williams has been developing a powerful critique of federal Indian law, calling for his readers to recognize its irredeemably racist roots. In Williams's view, if we try to build Native American policy from the racist materials of the past, we will inevitably build racism into Indian law of the future. Ultimately, we must therefore recognize that racism lies at the foundation of the American legal system. To many, this message is a bitter pill. But in his view, only after we swallow it will we be able to construct a better foundation for federal Indian policy. And precisely because many hope to avoid this medicine, his call is enormously important. Much as we might like to, he will not let us look away.
In his latest book, Williams continues this prophetic exhortation. Through careful reading of landmark Native American law cases, stretching from the nineteenth century to the recent past, he argues that the Supreme Court routinely invokes racist images of Indians, and it often bases its holdings on these racist premises. Early on, this racism was overt, and it remains so in some more recent opinions. But these days, the racism is usually covert: The judges merely cite racist precedent, purged of racist language, to reach a conclusion that subordinates Indians.
In particular, Williams argues that Indian law rests on the doctrine of discovery: the idea that because Europeans were “superior,” they could rightfully claim sovereignty over native tribes and lands. He believes that John Marshall put this doctrine at the center of Indian law in his foundational trilogy of Indian law cases. When later justices rely upon the Marshall cases—as they always do—they perpetuate the sins of the past, though they may clean up the language.
Many experts believe that the Supreme Court is currently so unsympathetic to Indians that tribes should refrain from bringing cases before it, because each case merely gives the justices opportunity to do harm. In an ironic twist, Williams argues that this attitude stereotypes the justices as unable to change. He argues instead for a confrontational approach. He relies on cognitive science to argue that racism is often a matter of unconscious generalization, which we absorb when growing up in a racist society to help organize our cognitive world, but of which we are often unaware. It is, in short, a bad habit. When we become aware of this habit, we can overcome it by an act of will. The author believes that the justices are capable of this transformation, with the assistance of confrontational lawyers. Once they become self-aware, they can be persuaded to jettison the racist roots of Indian law. They should, however, retain one element: Originally, Indian law, even the doctrine of discovery, was part of international law. Today, much international law demands protection for the rights of indigenous peoples, and he proposes a new Indian law built on this foundation.
Because of Williams's radicalism, his optimism about the justices is striking, but it may not be universally shared. Supreme Court justices have life tenure and are unreviewable. Though criticized in print, in person they generally receive tremendous deference. Even if lawyers confront them with their own racism, they need pay no attention unless they want to. And it appears that the justices do not wish to be so confronted. As Williams explains, the justices seem far more ready to use racist images of Indians than of other racial groups. In recent years, they have apparently worked harder to correct their habitual racism with respect to others than with respect to Indians.
This discrepancy calls for explanation. It seems that the justices' reliance on racist images of Indians is not merely a bad cognitive habit, a way to organize the world into intelligible packages. Instead, the images serve some psychic need, and so the judges will not easily give them up. Judges can always avert their eyes from their own racism if they want to, and in this case they apparently want to.
In my view, judges can more readily surrender racist views of other groups because those other groups do not threaten the judges' sense of the legitimacy of the American legal system to any extent. African Americans generally want to be included in the American system, to be treated the same as others, to participate in the same hopes and dreams. Even affirmative action is a device of integration, to bring about a future when race does not count. Other than Indians, racial minorities ask the legal system to reform itself, to live up to its own current ideals.
By contrast, Native Americans typically want to govern themselves in their own separate polities, which predate the United States and raise questions about the legitimacy of U.S. sovereignty. In this scheme, race really does count, and in a way that might induce trauma in one who stands at the pinnacle of the judicial system. Sovereignty somehow passed from tribal polities to the United States; even in Williams's international law approach, the United States still acquired some sovereignty over this continent. And the Supreme Court's own legitimacy derives from this process of acquisition. Moreover, the continuing existence of tribal polities means that this transfer of sovereignty cannot be regarded as a closed book, with no present-day implications. If the transfer was unjust, perhaps the tribes are still the rightful sovereigns here. Perhaps the American legal system has roots so poisonous that the tree should die.
Supreme Court justices will avert their eyes from this possibility. Psychologically, judges need to believe that they are people not only of power but also of reason. For them, it is not enough to assert that the United States has gained power over this continent; they need also to believe that the acquisition of sovereignty was just. The doctrine of discovery has served them well in this regard. In the beginning, judges could assert that the United States took sovereignty for the (in their view) good reason that Europeans were civilized. Today, judges do not make such bald assertions; instead, they merely cite precedent rooted in the doctrine of discovery. As good judges should, they are merely following the law, not making it up. They thus are able to assert the legitimacy of the U.S. legal system without ever acknowledging its racist roots—as Williams himself recognizes. But unlike the author (no relation), I do not think they will give up this delusion merely because they are confronted with its racist underpinnings. They need it too much. It allows them to sleep at night. It allows them to do their job.
I do not mean to suggest that the justices should be allowed to live uncontested under cover of this self-deception. But as a practical matter, if they can wean themselves of racism toward Native Americans only by conceding the illegitimacy of the U.S. legal system, they will never do so. What is needed, therefore, is a strategy that will allow them a sense of their own legitimacy but that will also encourage them to recognize their own harmful stereotyping of Indians. Such a strategy may be less radical than Williams's; it may require the justices to change and grow less, and it may in a sense end up compromising with racism. These are severe moral dangers, and at the end of the day, Williams may be right to urge us to avoid them. In any event, we are very lucky that he will never let us forget the dangers.
