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Book Review
| Robert A. Williams, Jr., Like a Loaded Weapon: The Rehnquist Court, Indian Rights, and the Legal Theory of Racism in America, Minneapolis: University of Minnesota Press, 2005. Pp. 312. $18.95 (ISBN 0-8166-4710-0).
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| Like the iconic country singer known as Williams, Jr., the legal scholar Robert A. possesses a unique talent for creative communication. "Everything got better in America," he posits in reference to people's views on race, "after Elvis and Brown" (xxi). His latest book, Like a Loaded Weapon, effectively prosecutes the United States Supreme Court for unquestionably reifying and relaying racist legal language from the nineteenth century in current judicial opinions. Williams examines and deconstructs 175 years of high court jurisprudence to confront the destructive and perpetual spectre of stare decisis on American Indian law. Generations of students, lawyers, and jurists have absorbed a legal canon of Indian law that clings to seminal cases authored by then Chief Justice John Marshall: Johnson v. Macintosh, Worcester v. Georgia, and Cherokee Nation v. Georgia (the "Marshall Trilogy"). These cases, Williams contends, find root in the language of savagery that depicts Natives as uncivilized, wild, and wanton children in dire need of European influences and direction. Yet, as he demonstrates, they form a holy trinity of precedents that reign as the hallmarks of Indian Law. |
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Williams insists that not only these cases, but most foundational cases of Native American Law blatantly and blindly resuscitate a colonial-era discourse that curtails Native rights, enervates tribes, and ignores treaties. His outrage at this continued usage cannot be overstated. These old cases, along with the newer ones, such as Tee-Hit-Ton (1954), Oliphant (1978), and Sioux Nation (1980) do not include readily objectionable language in their use of precedent, for such easily detectible expressions offend contemporary racial sensibilities. Danger lurks, however, in these opinions that find legal support in the Marshall model: stereotypes of barbarism and inferiority stand as the legal foundation for current policy. The Western racial imagination, viewing Natives as sideshow squaws and bucks, finds root in a legal history that underscores such beliefs. According to Williams, these cases are Indian country's own Dred Scott and Korematsu. |
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Like a Loaded Weapon draws its title from Justice Robert Jackson's dissent in Korematsu. Judicial validation of racial discrimination, he pleads, "lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need." The precedent established by such shameful cases exists as a juridical nursery that breeds and invites repetition that further imbeds discriminatory principles into law and social practice. In the context of Indian law, principles such as the "doctrine of discovery," as held in Johnson, and "domestic dependent nations," as presented in Cherokee Nation, perpetuate a discourse of Indian savagery in current Supreme Court opinions. |
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Williams does not shy away from potential controversy—in fact, he invites it. By calling to question the Court's continued use of the Marshall trilogy as "sacred texts" rooted in racist thought, he demands for current justices to reexamine their application of the law. He minces no words in asserting that the late Chief Justice Rehnquist was "one of the most racist, Indianaphobic justices ever to sit on the Supreme Court." In his sharp criticism of his dissent in United States v. Sioux Nation of Indians (1980), Williams confronts Rehnquist's historical interpretation of the Sioux's adequate compensation for the government's taking of the Black Hills. In attacking the Justice's preferred vision of American Indian history, he notes a citation of a 1963 publication by the National Park Service, "which was probably available at fine ranger stations everywhere." Use of this publication, amongst others, reveals Rehnquist's counterversion of the history of Indian-white relations, which he depicts as more of a confrontation than a conquest. In this serious charge to the Justice's racial sensibilities, Williams offers a brief chapter punctuated by block quotations that could be further supported by more substantial arguments to support his claim. |
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No book with such polemics could stand without a posited solution, and Williams delivers. As he demonstrates on a case-by-case basis, continued reliance on Supreme Court precedents only entrench Indian law in a jurispathic discourse that hinders racial justice and tribal sovereignty. Instead, he implores the Court to turn to international law, such as the Inter-American Commission on Human Rights, which is an underutilized possibility actually engendered in the Marshall model. Under this use of precedent, a fair-minded Justice could better respect the human rights of indigenous peoples in a commitment to egalitarian principles and racial justice. |
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Like a Loaded Weapon presents a radical thesis and offers a not-so-radical solution. Current Indian law doctrine is rooted in a language of savagery, and Justices cannot seem to break free from it. Williams gives critical commentary to each of these seminal cases, which reads like an invaluable primer for "mental correction" for those who have learned Indian law under the old regime. His solution of turning to international law re-invokes Marshall's opinion in Worcester v. Georgia that draws connections between the laws of other countries and that of Indian affairs. By invoking transnational human rights as a "radical" alternative to existing consitutional precedents, Williams insightfully recasts the concept of "framers'intent." The radical alternative of international human rights law resurfaces as an interpretive framework unburdened by the jurisprudence of savagery to recognize the rights and humanity of indigenous peoples. |
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| Kevin Maillard
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| Syracuse University |
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