supremecourt
Flowers, signs and other tributes for the late Justice Ruth Bader Ginsburg are seen outside of the U.S. Supreme Court on September 19, 2020. Photo by Indianz.Com (CC BY-NC-SA 4.0)
Ruth Bader Ginsburg and the Iroquois
A Tragic Legacy

Perhaps it is not that the late U.S. Supreme Court Justice Ruth Bader Ginsburg was hostile to Indigenous people but that in her legal career they had no presence, no bearing. They were, as she is cited in writing, advocates for a distinct status which was “rekindling the embers of sovereignty that long ago went cold.”

Justice Ginsburg was a rightfully praised defender of human rights and specifically those of women. She wanted them to enjoy full equality under American law and to brush aside those elements of discrimination which qualified their constitutional rights. She had difficulty in accepting the historical fact of aboriginal separation and the claim that a group of “Americans” would not only assert their independence but seek redress for the theft of their lands based upon the enforcement of treaty law.

Ginsburg would have a difficult time with the Haudenosaunee (Six Nations Iroquois) Confederacy since it specifically rejected U.S. citizenship, refused to endorse the suffragette cause in that it sought the right to vote, waged an ongoing struggle to compel individual states and the federal government to abide by their treaties and to have all levels of American government refrain from exercising any jurisdiction on its territories.

Towards the end of her career as a Justice she did become more sensitive to Native issues and supported the recent McGrit v. Oklahoma ruling which affirmed that indigenous people living on their treaty lands in eastern Oklahoma were exempt from state laws.

Indianz.Com: City of Sherrill v. Oneida Indian Nation | U.S. Supreme Court

The Haudenosaunee saw this as a possibility that the harmful ramifications of the City of Sherrill v. Oneida Indian Nation, 544 US 197 (2005), would be temporized.

In that decision she indicated that despite Article Six of the U.S. Constitution which reads:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Ginsburg ignored the intent and meaning of this section which binds the nation to adhere to its treaties and is the supreme law of the land without any time or legal qualification. As she tried to dismiss the claimants in the Sherrill case using a “laches” defense (when too much time has passed to warrant a legal claim) she ignored the fact that the Haudenosaunee can, and have, shown ongoing efforts to have their stolen lands returned to them and that at no instance in the past 216 years (and in some instances before) since the signing of the Canandiagua Treaty in 1794 has the Confederacy abandoned its press for justice.

But complicating the Sherrill case is that the plaintiff Oneida Indian Nation was not, and is not now, a member of the Confederacy. It can be shown that the Oneida Indian Nation has no basis as a government under either Haudenosaunee or U.S. laws and can only date its existence to 1992 when it was formed as a requisite for a gambling compact with New York State.

In effect, the Oneida Indian Nation was the weakest possible entity to press for the collective treaty rights of the Haudenosaunee. It did not exist in 1794 nor cannot prove it has governed the Oneida people since time immemorial.

The OIN was encouraged to pursue a disastrous legal tactic in which it threatened to name thousands of homeowners in the claim area as defendants. This led to the inevitable decision by the Supreme Court since it has never given such power to any Native nation nor has it acknowledged the self determination status of truly sovereign Native nations-a reasonable inference given Article 6.

Ginsburg also added another layer to all ready bad “Indian” law in that she affirmed the source of all U.S. claims to control over indigenous people is rooted in the racist series of edicts passed by the Catholic Church called the Doctrines of Discovery.

The papacy was throughly corrupt in the 15th century and the arrival of European ships into regions which were not Christian gave them access to wealth by trade which much of that consisting of slavery. Like the Romans before them the Church needed a thin veneer of legality to steal lands and enslave humans so the popes beginning with Nicholas V in 1452 and leading to the notorious Alexander VI (the Borgia pope) in 1493 held that any non-Christian entity could be forcibly subdued and their resources taken by a Christian power based upon “discovery.”

Perhaps Justice Ginsburg did not know her own ancestors were compelled to pay for Cristobal Colon’s journeys (aka Columbus) since their property was being taken by Queen Isabella and King Ferdinand as the Jews were forcibly expelled from a newly united Spain. It is said that ship loads of refugee Jews were departing for Africa at the port of Palos at the same time as Colon set sail westwards.

supremecourt
The casket of the late Justice Ruth Bader Ginsburg is seen on the steps of the U.S. Supreme Court on September 23, 2020. Photo by Indianz.Com (CC BY-NC-SA 4.0)

It is stunning that Alexander VI papal bull would be the basis for Ginsburg to rule against the U.S. Constitution and, subsequently, every Native nation seeking its enforcement. The Doctrines have led to the death of millions of people and the loss of a hemisphere to those very Christian powers which tried repeatedly to eradicate the Jews. It is the source for the ambiguous claims by the individual states and the national government to rule over indigenous nations.

This is why the Haudenosaunee find it impossible to join in the national celebration of Justice Ginsburg’s career. Great harm was imposed upon our people which may well take generations to remedy.

Ideally, she should have held that the Oneida Indian Nation had no standing to bring suit and remanded the case to the Grand Council of the Haudenosaunee Confederacy for final resolution while extinguishing the Doctrines of Discovery so it may no longer be the foundation of U.S. “Indian” law.

Now that would have been her great abiding legacy.


Doug George-Kanentiio, Akwesasne Mohawk, is the vice-president of the Hiawatha Institute for Indigenous Knowledge. He has served as a Trustee for the National Museum of the American Indian, is a former land claims negotiator for the Mohawk Nation and is the author of numerous books and articles about the Mohawk people. He may be reached via e-mail at: Kanentiio@aol.com or by calling 315-415-7288.

Note: Content copyright © Doug George-Kanentiio