June 26, 2009

Scalia and the "pretense of conquest"

Advocacy and change in federal Indian law

By Peter d’ErricoIt’s a bad sign when a Supreme Court justice disrespects a young Indian woman, Nazune Menka, when asked about the Carcieri v. Salazar decision against the Narragansett Nation, and worse when the justice mocks the case itself, calling it “a laugher.” Aside from what CBS News calls Scalia’s “nasty” style, what allows him to show such mockery and disrespect?

There’s a clue in what Scalia apparently said to another Indian questioner. He claimed the U.S. has a right to rule over Indian nations by “conquest” and all federal Indian law is based on that. In other words, Scalia wants to pretend the same thing the U.S. has been pretending since John Marshall first pretended it in 1823 in Johnson v. McIntosh: the “pretension of converting the discovery of an inhabited country into conquest.”

The actual basis of federal Indian law, as Marshall’s quote shows, is not conquest, but “pretense of conquest,” based on “Christian Discovery” and “ultimate dominion.” This is what Scalia’s comment covers up. Marshall, at least, had the honesty to call it what it was.
Comment:  For more on the subject, see How Europeans Claimed the World and How Europeans "Discovered" the World.

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