Like a Loaded Weapon: The Rehnquist Court, Indian Rights, and the Legal History of Racism in America (Indigenous Americas)

308 Pages·2005·2.24 MB·English

by  Robert Williams Jr.

LIKE A LOADED WEAPON
I A
NDIGENOUS MERICAS
Robert Warrior and Jace Weaver, Series Editors
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Robert A. Williams, Jr., Like a Loaded Weapon:
The Rehnquist Court, Indian Rights, and the Legal
History of Racism in America
LIKE A LOADED WEAPON
The Rehnquist Court, Indian Rights,
and the Legal History of Racism in America
Robert A. Williams, Jr.
INDIGENOUS AMERICAS
University of Minnesota Press ß Minneapolis ß London
Copyright 2005 by the Regents of the University of Minnesota
All rights reserved. No part of this publication may be reproduced,
stored in a retrieval system, or transmitted, in any form or by any
means, electronic, mechanical, photocopying, recording, or otherwise,
without the prior written permission of the publisher.
Published by the University of Minnesota Press
111 Third Avenue South, Suite 290
Minneapolis, MN 55401-2520
http://www.upress.umn.edu
Library of Congress Cataloging-in-Publication Data
Williams, Robert A., 1955–
Like a loaded weapon : the Rehnquist court, Indian rights, and the
legal history of racism in America / Robert A. Williams, Jr.
p. cm. — (Indigenous Americas)
Includes bibliographical references and index.
ISBN 0-8166-4709-7 (hc : alk. paper) — ISBN 0-8166-4710-0 (pb :
alk. paper)
1. Indians of North America—Civil rights—History. 2. Race
discrimination—Law and legislation—United States—History.
3. Racism—United States—History. 4. United States—Supreme
Court. 5. Rehnquist, William H., 1924– I. Title. II. Series.
KF8210.C5W55 2005
342.7308'72—dc22
2005018328
Printed in the United States of America on acid-free paper
The University of Minnesota is an equal-opportunity educator and
employer.
12 11 10 09 08 07 06 05 10 9 8 7 6 5 4 3 2 1
For Vine
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A
military order, however unconstitutional, is not apt
to last longer than the military emergency. Even dur-
ing that period a succeeding commander may revoke
it all. But once a judicial opinion rationalizes such an order
to show that it conforms to the Constitution, or rather ra-
tionalizes the Constitution to show that the Constitution
sanctions such an order, the Court for all time has validated
the principle of racial discrimination. . . . The principle then
lies about like a loaded weapon ready for the hand of any
authority that can bring forward a plausible claim of an
urgent need. Every repetition imbeds that principle more
deeply in our law and thinking and expands it to new pur-
poses. All who observe the work of courts are familiar with
what Judge Cardozo described as “the tendency of a prin-
ciple to expand itself to the limit of its logic.”
—Justice Robert Jackson, dissenting, in
Korematsu v. United States
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Contents
xi Acknowledgments
xiii Introduction
Part I. Discovering a Language of Racism in America
3 1. “Look, Mom, a Baby Maid!” The Languages of Racism
17 2. The Supreme Court and the Legal History of Racism
in America
Part II. “Signs Taken for Wonders”: The Nineteenth-
Century Supreme Court and Indian Rights
33 3. “The Savage as the Wolf”: The Founders’ Language
of Indian Savagery
47 4. Indian Rights and the Marshall Court
71 5. The Rise of the Plenary Power Doctrine
Part III. The Twentieth-Century Post-Brown
Supreme Court and Indian Rights
89 6. What “Every American Schoolboy Knows”: The Language
of Indian Savagery in Tee-Hit-Ton
97 7. Rehnquist’s Language of Racism in Oliphant
115 8. The Most Indianophobic Supreme Court Indian Law
Opinion Ever