Law | Opinion

Steven Newcomb: Language of domination persists in Indian law

Steven Newcomb. Photo from Finding the Missing Link

Even friendly U.S. Supreme Court briefs reinforce anti-Indian interpretations of Native nations, Steven Newcomb of the Indigenous Law Institute argues:
A dispute between the store chain Dollar General and the Mississippi Band of Choctaw has reached the U.S. Supreme Court. The issue before the Court in Dollar General Corp. v. Mississippi Band of Choctaw Indians, is whether the court system of the Mississippi Band of Choctaw has civil jurisdiction in a tort case (damage case), involving allegations of a sexual assault by a Dollar General non-Native store manager against a Choctaw teen-ager. The assault is alleged to have taken place on the Choctaw reservation. Dollar General claims the Mississippi Band of Choctaw does not have such jurisdiction.

While reading a “friend of the court” brief filed by historians and legal scholars in the case, I was struck by the way in which the language system of domination constrains the manner in which they have written their filing. Unfortunately, in their effort to persuade a less than friendly Supreme Court, the legal brief concedes to a number of assumptions that deserve to be contested. Such concessions do not set the record straight for the Court. They merely further reinforce anti-Indian interpretations of the historical record that the Supreme Court itself has acknowledged are premised on “an extravagant pretension.” This involves pretending that something is true while knowing full well it isn’t.

One concession the historians and legal scholars make throughout their brief is to the use of the words “tribe” and “tribal,” while avoiding the words “nation” and “national.” This choice of vocabulary is admittedly customary in federal Indian law cases. Nonetheless, it immediately moves the discussion away from the most powerful language for Indian nations found in the Worcester v. Georgia ruling of 1832. Preferring the word “tribes,” the historians and legal scholars avoid the word “nation” so powerfully used by Chief Justice John Marshall in Worcester.

Get the Story:
Steven Newcomb: A Call for Accurate Native Nation Advocacy in the Supreme Court (Indian Country Today 12/1)

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