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Excerpted From: Adam Crepelle, Lies, Damn Lies, and Federal Indian Law: The Ethics of Citing Racist Precedent in Contemporary Federal Indian Law, 44 New York University Review of Law and Social Change 529 (2021) (392 Footnotes) (Full Document)


AdamCrepelle copy copyIn Dred Scott v. Sandford, Chief Justice Taney infamously wrote,

They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.

Although the case was effectively superseded by the passage of the Thirteenth and Fourteenth Amendments, aspects of the decision remain binding law and have continuing influence. However, most lawyers and judges would never dream of citing Dred Scott. When Kansas Solicitor General Stephen McAllister cited Dred Scott in support of the proposition that the Declaration of Independence is a values statement rather than law, public criticism forced the state Attorney General to quickly withdraw the brief and apologize for the citation. The case's racist rancor runs roughshod over any precedential value it may carry. Dred Scott serves as a reminder of how far the country has come. Indeed, a war was fought, and the Constitution amended, to cure its ill effects.

Unfortunately, change has been far slower to come in the realm of federal Indian law. As but one example, Lone Wolf v. Hitchcock, the American Indian Dred Scott, not only remains binding law but is cited without generating controversy today; in fact, it was cited during the Supreme Court's most recent term. Jurisprudence loaded with grotesque 19 racist stereotypes and factual errors about American Indians remains valid precedent. Even a case wherein the Supreme Court explicitly declares a law regulating Indian Affairs unconstitutional but upholds the law because Indians are a dependent, weak, and helpless people continues to be cited in contemporary decisions.

Attorneys in the present day United States routinely use cases based on white supremacy to argue against American Indian rights, and judges unblinkingly cite these opinions in federal Indian law cases. Furthermore, many of the restrictions placed upon tribes by Congress are rooted in antiquated jurisprudence. Federal Indian law jurisprudence is often nothing more than racism cloaked as law. This begs the question: Is federal Indian law, as it is currently practiced, ethical? Can lawyers comply with their ethical obligations while simultaneously citing overtly racist, factually erroneous cases in the field of federal Indian law? This Article will demonstrate that much of the current practice of federal Indian law is in fact incompatible with modern standards of legal ethics.

In Part II, this Article first delves into the development of legal ethics and then explores the contemporary ethical obligations of lawyers and judges relating to truth, equality, and justice. As this Article demonstrates, these obligations are highly salient to federal Indian law jurisprudence.

Part III discusses six canonical Indian law cases. Based both in impermissible racial stereotypes and a doctrine of white supremacy, this case law is overtly racist. However, it remains binding law.

Part IV discusses two Indian law cases that the United States Solicitor General has admitted are based upon lies and racist stereotypes; nevertheless, the cases remain binding precedent.

Part V examines the Supreme Court's scurrilous Oliphant v. Suquamish Tribe opinion and unpacks both the deficiencies in its reasoning and the devastating consequences of the decision.

Part VI poses the question: Is it ethical to cite cases that are factually wrong and racist? Applying the ethical standards which govern the legal profession to the racist and erroneous opinions still relied upon in federal Indian law, this Article firmly concludes that this practice is unethical.

Part VII offers three solutions to help remove the racism from Indian law. The primary recommendations of this Article are to improve education on Indian law and history, to impose consequences for those who violate legal ethical guidelines with their continued reliance on this precedent, and to take congressional action.

[. . .]

Federal Indian law is anomalous in the United States legal system. Rather than moving away from the racism that permeated the Court's early federal Indian law jurisprudence, the contemporary Court clasps racist federal Indian law precedent as tightly as ever. The lawyers and judges who perpetuate racism by citing federal Indian law cases without acknowledging the cases' white supremacist ideology are in violation of legal ethical tenets. They should be sanctioned. To help hasten awareness of the abysmal state of Indian law jurisprudence, adding basic facts about Indians to the American education system would be a major step forward. Congress would also be wise to help root out the racism in federal Indian law by denouncing Oliphant. Until the racism is purged from federal Indian law, Indians will remain at the bottom of the United States socioeconomic ladder.

Sentencing a group of people to poverty, high crime, and hopelessness due to white supremacist beliefs from over two centuries ago is the pinnacle of unethical behavior. Yet this is exactly what contemporary federal Indian law does. The continued embrace of antiquated, racist precedent means the United States continues on the path of Indian conquest--one federal Indian law case at a time. This colonial mindset is based upon lies, repudiated ideologies, and it is antithetical to the administration of justice. As the Supreme Court recently stated, “Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.” This is true with racist jurisprudence--repeating it long enough and with sufficient vigor is never enough to make it right. Therefore, federal Indian law will remain a violation of the ABA's MRPC until federal Indian law is cleansed of its rancid foundations.

Adam Crepelle, Associate Professor, Southern University Law Center; Managing Fellow, Native American Law and Policy Institute; Associate Justice, Court of Appeals for the Pascua Yaqui Tribe.

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