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The Vanishing Indian Returns: The Supreme Court's Use of History in American Indian Law Cases

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Abstract:

The Supreme Court drafts history with every opinion it issues. The Court’s use of history has been written about indignantly and defensively. On one hand, the Court is not a body of historians, obligated to write history with all of its nuances. On the other, however, the Court’s opinions and retelling of facts legitimize those facts and history. Perhaps it is not the Court’s fault its writings are mistaken for history, but once the Court releases an opinion, the history from it achieves a level of authority rarely seen outside of history books.

History is much more important in federal Indian law. The body of law itself, based on the history of relationships between sovereign tribes and colonial powers, requires an understanding and constant recitation of history. This history, however, has not been written by historians, but rather by lawyers, which means the stories have been appropriated to argue cases. The history in Supreme Court opinions, however, is often presented and taken as objective, factual truth rather than the lawyer’s history it is. The Supreme Court, as Charles Miller wrote, has a special place in society, that it speaks with “special public authority,” especially when relaying the nation’s history in its opinions. In federal Indian law cases, that special authority has been abused.

For example, the trope of the “vanishing Indian” in early Supreme Court cases has been acknowledged, but rarely examined closely outside of Johnson v. M’Intosh. The theme, analyzed extensively in literature and other areas, puts the blame for the genocide of indigenous peoples on indigenous peoples. The inevitability of their decline and disappearance could not be the fault of the colonizers if it was, in fact, inevitable. The work of Brian Dippie and others demonstrates this pervasive understanding through society in the early 1800’s. The Supreme Court’s use of the vanishing Indian, and its understanding of the inevitability of the vanishing Indian was contradicted by each case it faced brought by a tribe or tribal citizen. However, the Supreme Court continued to use the vanishing Indian in its cases in the face of the evidence to the contrary, and in doing so, entombed it in federal law.

While the vanishing Indian trope itself has been relegated to history, the modern Supreme Court cannot seem to let a version of it go. Rather, recent opinions attempt to minimize tribes, treating tribal nations as social groups or as one minority group among many, as opposed to sovereign nations. The Court’s use of precedence from the time of the vanishing Indian reinforces this flawed and racist assumption while still using it to construct a history of tribes. The Court’s work is attempting to legally eliminate tribes as unique, sovereign nations by writing history rife with vanishing Indian assumptions.
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Name: The Law and Society Association
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http://www.lawandsociety.org


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URL: http://citation.allacademic.com/meta/p407210_index.html
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MLA Citation:

Fort, Kathryn. "The Vanishing Indian Returns: The Supreme Court's Use of History in American Indian Law Cases" Paper presented at the annual meeting of the The Law and Society Association, Renaissance Chicago Hotel, Chicago, IL, May 27, 2010 <Not Available>. 2014-11-27 <http://citation.allacademic.com/meta/p407210_index.html>

APA Citation:

Fort, K. , 2010-05-27 "The Vanishing Indian Returns: The Supreme Court's Use of History in American Indian Law Cases" Paper presented at the annual meeting of the The Law and Society Association, Renaissance Chicago Hotel, Chicago, IL <Not Available>. 2014-11-27 from http://citation.allacademic.com/meta/p407210_index.html

Publication Type: Conference Paper/Unpublished Manuscript
Review Method: Peer Reviewed
Abstract: The Supreme Court drafts history with every opinion it issues. The Court’s use of history has been written about indignantly and defensively. On one hand, the Court is not a body of historians, obligated to write history with all of its nuances. On the other, however, the Court’s opinions and retelling of facts legitimize those facts and history. Perhaps it is not the Court’s fault its writings are mistaken for history, but once the Court releases an opinion, the history from it achieves a level of authority rarely seen outside of history books.

History is much more important in federal Indian law. The body of law itself, based on the history of relationships between sovereign tribes and colonial powers, requires an understanding and constant recitation of history. This history, however, has not been written by historians, but rather by lawyers, which means the stories have been appropriated to argue cases. The history in Supreme Court opinions, however, is often presented and taken as objective, factual truth rather than the lawyer’s history it is. The Supreme Court, as Charles Miller wrote, has a special place in society, that it speaks with “special public authority,” especially when relaying the nation’s history in its opinions. In federal Indian law cases, that special authority has been abused.

For example, the trope of the “vanishing Indian” in early Supreme Court cases has been acknowledged, but rarely examined closely outside of Johnson v. M’Intosh. The theme, analyzed extensively in literature and other areas, puts the blame for the genocide of indigenous peoples on indigenous peoples. The inevitability of their decline and disappearance could not be the fault of the colonizers if it was, in fact, inevitable. The work of Brian Dippie and others demonstrates this pervasive understanding through society in the early 1800’s. The Supreme Court’s use of the vanishing Indian, and its understanding of the inevitability of the vanishing Indian was contradicted by each case it faced brought by a tribe or tribal citizen. However, the Supreme Court continued to use the vanishing Indian in its cases in the face of the evidence to the contrary, and in doing so, entombed it in federal law.

While the vanishing Indian trope itself has been relegated to history, the modern Supreme Court cannot seem to let a version of it go. Rather, recent opinions attempt to minimize tribes, treating tribal nations as social groups or as one minority group among many, as opposed to sovereign nations. The Court’s use of precedence from the time of the vanishing Indian reinforces this flawed and racist assumption while still using it to construct a history of tribes. The Court’s work is attempting to legally eliminate tribes as unique, sovereign nations by writing history rife with vanishing Indian assumptions.


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