Opinion

J.D. Colbert: Walter Echo-Hawk truly a modern day Indian warrior

Monday, January 31, 2011

J.D. Colbert is a member of the Muscogee Nation of Oklahoma.

Walter R. Echo-Hawk eloquently addressed a large crowded gathered at the Gilcrease Museum in Tulsa, Oklahoma, on January 26 to talk about decisions by the U.S. Supreme Court.

“As Americans, we can reasonably expect justice,” stated Mr. Echo-Hawk.  “Most Americans equate our legal system of justice with a good moral compass. Justice occurs when the law reflects and protects the widely held needs and values of all segments of society.”

In striking contrast to this good moral compass, Mr. Echo-Hawk turned his attention to the 10 worst Indian law cases ever decided. Front and center was McIntosh v. Johnson (1823) wherein Chief Justice John Marshall, writing for the Court, laid down the legal principle that Indian tribes could only sell or transfer title to their land to the U.S. government.

Along the way, Chief Justice Marshall cements the notion of “the doctrine of discovery” -- a notion “peppered” with racist attitudes and a clear declaration of the racial superiority of “the discovers” over the “discovered” and having the effect of invalidating aboriginal title to the “discovered lands."

Echo-Hawk is eminently qualified to dispense insight into these major Supreme Court cases upon which much of the foundation of federal Indian law rests. He recently retired from the Native American Rights Fund in Boulder, Colorado, after 35 years of serving Indian tribes as a modern day warrior.

With NARF leading the way, Echo-Hawk pointed out that these legal warriors “were nearly invincible” during the 1970’s and early 1980’s under the “Warren Court”. He noted that the decisions shifted dramatically against tribal interests under the Rehnquist Court beginning in the mid-1980’s. He further distinguished two major schools of thought with respect to overall strategy in contemporary federal Indian law.

One approach is an all out assault upon the established canon of federal Indian law, to destroy these prior Supreme Court decisions, tear them down to their foundations and rebuild upon a foundation devoid of the racist dicta and colonialism that has infected so much of past decisions.

A second major approach is to retain these prior Court decisions on the basis that there are a great many established principles across this body of law that work to the benefit of Indian people and Indian tribal governments. The proponents of this approach emphasize reforming the dark side of federal Indian law.

"I tried to chart a middle ground," Echo-Hawk said.

“The law at its worst can become a perversion of justice," Echo-Hawk said. "As a man-made institution, the law is imperfect, and sometimes the law falters and falls short of the mark with a double-edged sword with two sides of the law."

  Mr. Echo-Hawk concluded his remarks on a positive note and outlook for Native peoples with regard to the future of federal Indian law. Citing such things as the notions of colonialism having fallen out of favor, he goes on to underscore that point with the United States having adopted the U.N. Declaration of the Rights of the Indigenous Peoples (albeit being the last nation to do so).

More optimistically, he takes note of a new generation of practitioners of federal Indian law who are well educated, enthusiastic and who are imbued with a passion for effecting positive change and justice for Native American peoples and Indian tribal governments.

Left unsaid by the modest speaker is that this new generation of modern day warriors who go into battle in the courtrooms of the U.S. justice system could do no worse than to emulate the life, times and career of Walter R. Echo-Hawk. He stands as an iconic figure and towering presence in the field of Federal-Indian law.

As evidenced by his book “In the Courts of the Conqueror” Echo-Hawk’s experience, achievement, success and perhaps most importantly, his wisdom, not only serve as a touchstone for legal practitioners but his work has left an indelible mark upon the lives of those who live and work in Indian Country and for every American who truly values the notion of justice.