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 THE JURISPRUDENCE OF COLONIALISM
STEVE RUSSELL*

Resistance is futile. You will be assimilated!

The Borg are intergalactic villains who emerged in the Star Trek
stories after the Klingons/Federation went the way of the Soviet
Union/United States and peace dried up the story potential. The Borg
warning, reproduced above, is a science fiction echo of the Requiremiento
of 1513 (d'Errico 2000, 574-575), a declaration read in Spanish or Latin
to Native Americans often innocent of those languages to secure Papal
blessing for the massacre to follow. The goal of the Spanish on the Gulf
and Pacific Coasts like the English on the East Coast was the same as
that of the Borg- philosophical monoculture (Mohawk 2000), bringing
European religion to people who already had religion (Deloria 1994) and
European law to people who already had law (Strickland 1975; Fenton
1998; Johanson 1998). Whether resistance is futile remains to be seen,
but almost 500 years after the Requiremiento,American Indians are not
a monoculture in religion or in jurisprudence.
Jurisprudence is a fertile field for American Indian philosophy
because our status as objects of legal discourse makes the inquiry
urgent. This urgency, this immediate need to understand law, is a
defensive response to the crosscurrents of Indian policy-e.g., ethnic
cleansing, treaty- making, forced assimilation, termination and
relocation-that have swept across our land while the law, particularly
the Constitution, has failed to protect our property, our cultures, or even
our lives (Wunder 1994). We study this law that has failed us, ironically,
for utilitarian ends. It is fitting that we should do so since our typical
approach is, in the words of Choctaw philosopher Lee Hester (2000: 2),
"the difference between orthodoxy on the European side and orthopraxy
on the American Indian side."
In search of an Indian orthopraxy, we quickly discard received
Anglo-American legal wisdom from Blackstone to Rehnquist. We know
that property law has not protected our land, contract law has not
sanctified our treaties, tort law has not compensated us for European
depredations, and the workings of criminal law appear to depend on
whether the Indian is the victim (Greenfield and Smith 1999) or the
accused (Ross 1998). Indians enter the conversation about law in need
of a critical perspective.

* Associate Professor of Criminal Justice, Indiana University, Bloomington. This

article will appear in Anne Waters (ed.), American Indian Thought: A Philosophical
Reader (London: Blackwell, 2002) (forthcoming).
606 Legal Studies Forum Vol. 25

Postmodern legal thought offers a highly skeptical view of estab-

lished power relationships. An American Indian, legal scholar or not, can
hardly contemplate the "American" legal order from any position other
than that of a skeptic. Federal Indian law presents normative confusion
(Frickey 1997, Pommersheim 1999) and a stubborn resistance to formal
logic and doctrinal harmony. This logical chaos can be breathtaking to
a reader schooled in the tradition of law as social science (Pound 1942)
or as a positive framework within which justice might be sought if not
always located (Rawls 1971).
It is virtually always constitutional text allegedly at issue in Indian
cases. "Allegedly" because Indians are mentioned only twice within the
constitutional text: the Indian Commerce Clause (U.S. Const., Art. 1,
Sec. 8) and the exclusion of tribal Indians from population counts to
determine congressional apportionment (U.S. Const., Art. 1, Sec. 2).
Neither of these specific references to Indians has been particularly
controversial, except perhaps the reading of the Indian Commerce
Clause as support for the plenary power doctrine examined below.
But more is going on here than a simple lack of textual support
within the Constitution for the superstructure of federal Indian law,
which is erected upon Chief Justice John Marshall's Cherokee Trilogy
opinions rather than constitutional text (Norgren 1996). Marshall
fashioned ajurisprudence based on the doctrine of"Christian discovery,"
although he began in Johnson v. McIntosh (21 U.S. 543, 1823), to state
the premise of the discovery doctrine in terms of European superiority
rather than Christian superiority (d'Errico 2000: 574-575). Whether the
jurisprudence of Indian law is rooted in Christianity, whiteness, or
superior military forces, the operative result is that Indians are inferior
as a matter of law. When Marshall's work was complete, the land under
the Cherokees' feet suddenly became owned by the colonists.
Marshall's constitutional sleight of hand continued in Cherokee
Nation v. Georgia (30 U.S. 1, 1831) where he found a way to envision an
Indian nation where Indians did not in fact own the land under their
feet. But Indians needed some sort of governmental authority to lend
substance to the cessions of land necessary for colonial expansion.
Marshall decided that Indians constituted "domestic, dependent
nations." Domestic because part of the United States, nations so they
could cede land to the United States, and dependent so the United States
could manage their affairs at will. The only bright side of this dark
tragedy was the birth of a"guardian and ward" relationship between the
United States and Indian nations that carried at least a theoretical duty
for the United States to act in the best interests of the Indians. While
that duty has too often been honored in the breach, it is sobering to
2001 The Jurisprudenceof Colonialism

contemplate what kind of depredations the courts might have approved

in its absence.
The final case in John Marshall's foundational iteration of federal
Indian law is Worcester v. Georgia (31 U.S. 515, 1832), which the
Cherokee won in the courts but still lost on the ground. In Worcester,the
state of Georgia had passed a law requiring a license for any white
person to reside within the Cherokee Nation. Worcester, a missionary,
was convicted under that law and sentenced to four years in prison. The
Cherokee Nation came to Worcester's defense.
Ironically, this clearest victory for the Cherokee Nation-holding the
Georgia statute to be unconstitutional--was grounded in constitutional
text, the Indian Commerce Clause. The good news was that Georgia had
no authority to make laws for the Cherokee Nation. The bad news was
that Congress did. Since the law before the Court was made by Georgia,
it was struck down.
The historical backdrop of the Cherokee Trilogy was the effort to
move Indians west of the Mississippi River (Norgren 1996). The
Worcesteropinion tempered somewhat Marshall's expansive language in
Johnson v. McIntosh. It recognized the right of the Cherokee to occupy
their ancestral lands unless they ceded those lands by treaty. A
theoretical victory perhaps, but both the missionaries and the Cherokee
who depended upon enforcement of the Supreme Court's decision were
losers with the most devastating results for the Cherokee (Norgren 1996:
122).
The ultimate result was the uncompensated appropriation of the
property of individual Cherokees and The Trail Where We Cried, the
removal of the Cherokee to Indian Territory (now Oklahoma) by military
force. Unprepared for the weather, thousands died. The economy of the
Cherokee Nation was devastated for a generation. This colonial rapaci-
ousness stands in stark contrast to the words of the legal texts which set
the Cherokee upon this history.
The founding documents of the United States, from the Declaration
of Independence to the Bill of Rights, are expressions of anti-colonial
ideology in a specifically anti-colonial historical context. The colonists
had had enough of exploitation of one people by another, at least when
the colonists were the exploited. They had come to look upon North
America as home and upon themselves as the colonized rather than the
colonizers. The exploitation of indigenous people as a violation of the
very same fundamental rights of human beings the colonists claimed for
themselves was not within the revolutionary consciousness of their
revolution. They either held the truth to be self-evident that only some
people were created equal, or it escaped their notice that the original
inhabitants of North America were people.
 Legal Studies Forum Vol. 25

The Declaration of Independence, in sweeping flights of egalitarian

rhetoric, invited revolution; the Bill of Rights institutionalized the
revolution's resolve to enshrine in law what Lyotard would call the
"metanarrative" of the Rights of Man, grounded in the Kantian idea of
man as an end in himself, pursued by the Cartesian quest for ultimate
truth, and cemented in the social contract (Rousseau 1762).
Some obvious exclusions from the social contract (persons without
property, women, blacks) are limitations on the Rights of Man
metanarrative. African-Americans became five fifths of a person with the
passage of the Reconstruction Amendments 13 to 15 to the Constitution.
Women are now voters (U.S. Const. Amend. 19), and legal disadvantages
to women are subject to some degree of skepticism in the courts (United
States v. Virginia, 116 S.Ct. 2264, 1996). Indians were declared to be
citizens of the United States by Congress in 1924 (Indian Citizenship
Act, 43 Stat. 253), a status few Indians wanted, but one that should have
conferred rights set out in the founding documents.
How is it, Indians must ask, that the Rights of Man metanarrative,
reinforced since the revolution by an increasingly more inclusionary
politics, has produced so little for Indian people that we enter the 21st
century as less than 1% of the United States population divided into
fewer than 600 tribes recognized by the federal government? What kind
of legal system presides over the conversion of natural abundance into
wealth for the colonists and dependence for the natives (Russell 1999),
while using the tiny portions of land left in native hands for disposal of
toxic wastes (LaDuke 1999)? If this result sounds like colonial
exploitation within the legal paradigm created by the anti-colonial
founding documents, it is fair to ask whether the Rights of Man
metanarrative has been something of a fraud?
I will examine the contemporary treatment by the United States of
colonized peoples in three Supreme Court opinions, involving Indian
treaty rights to land, the right to a jury trial in Puerto Rico, and the
right to vote in Hawaii. Puerto Rico and Hawaii are included to suggest
that this jurisprudence is grounded in something beyond the mythology
of "race" (Montagu 1997) as applied to Indians. In each case, the
Supreme Court appears to extend colonial power while appealing to an
Enlightenment rhetoric of human rights that provided the philosophical
foundation for the American Revolution.

I. LONE WOLF V. HITCHCOCK(1903)

In Lone Wolf(187 U.S. 553), the Kiowa tried to interpose the Treaty
of Medicine Lodge (15 Stat. 581, 1867) to prevent the allotment of the
Kiowa Reservation. Allotment was a policy designed at once to destroy
2001 The Jurisprudenceof Colonialism

Indian culture and to transfer Native American land into Euro-American

hands. Reservations were parceled out to individual Indians so the
"surplus lands" could be opened for white settlement. After allotment,
even the so-called "civilized" Indians, including the family of this writer,
were quickly swindled out of their lands (Debo 1940). By the destruction
of the reservations, Indian Territory became Oklahoma.
Many Indian leaders, perceiving common landholding as a corner-
stone of their culture, fought the allotment policy. So it was that Lone
Wolf, Principal Chief of the Kiowa, did battle with Ethan A. Hitchcock,
Secretary of the Interior, for the treaty rights and the future of the
Kiowa Nation. Lone Wolf claimed that Kiowa lands were protected by
treaty and by the Fifth Amendment. The treaty guaranteed the Kiowa
possession of their lands and the Fifth Amendment guaranteed that
property could not be taken without due process of law. The Supreme
Court had a ready answer:
The contention in effect ignores the status of the contracting Indians
and the relation of dependency they bore and continue to bear towards
the government of the United States. To uphold the claim would...
limit and qualify the controlling authority of Congress in respect to the
care and protection of the Indians. (187 U.S. at 564).
The relationship between destruction of the Kiowa land base and their
"care and protection" is never clarified in the opinion. The Court simply
asserted that "Congress possessed a paramount power of the property of
the Indians, by reason of its exercise of guardianship over theirinterests,
and that such authority might be implied, even though opposed to the
strict letter of a treaty with the Indians." (187 U.S. at 565)(emphasis
added).
Lone Wolf should not fear this result according to the Court because
the US was to presumed "be governed by such consideration ofjustice as
would control a Christian people in their treatment of an ignorant and
dependent race" (187 U.S. at 565) and "a moral obligation rested upon
Congress to act in good faith.. . " (187 U.S. at 566). The Lone Wolf case
came to stand for the plenary power of Congress in Indian affairs, a
doctrine that threatens Indian nations to this day, and for the unbridled
right of Congress to unilaterally abrogate treaties. The political question
doctrine shielded Congress from judicial redress.
If treaty abrogation meant simply a return to the status quo ante,
Lone Wolf would have increased the Kiowa land base rather than
destroying it, since the Kiowa-Comanche Alliance had at one time
controlled much of the Southern Plains. However, the American form of
abrogation meant that the Kiowa lost their reservation as they had lost
their lands originally. Legal doctrines available to the Court could have
610 Legal Studies Forum Vol. 25

supported a different outcome (Supreme Court of the American Indian

Nations, 1999).Allotment, as Lone Wolf feared and the Court later
recognized, "quickly proved disastrous for the Indians." (Hodelv. Irving,
481 U.S. 704, 707, 1987). Indians did not become instant Jeffersonian
yeomen, and those who did not lose their land altogether (which is to
say, those whose power to alienate the land was restricted) soon became
absentee landlords, with their property leased for grazing by the Bureau
of Indian Affairs at a fraction of its market value.
Without wills or lawyers to clear up land titles through intestacy
proceedings in probate courts, Indians watched helplessly as ownership
was divided anew in every generation. The result was extreme fraction-
ation of allotment lands.' Obviously, most Indians were unfamiliar with
the Anglo-American legal methods of devise and descent and therefore
unlikely to write wills. Such knowledge would have been of limited
utility anyway, since Indians had little access to legal services.
By 1987, the Supreme Court had abandoned the political question
doctrine that blocked judicial redress in Lone Wolf (Sioux Nation v.
United States, 448 U.S. 371, 1980). The Court recognized the gravity of
the fractionation problem, giving an extreme example:
Tract 1305 is 40 acres and produces $1,080 in income annually. It is
valued at $8,000. It has 439 owners, one-third of whom receive less
than $.05 in annual rent and two-thirds of whom receive less than $1.
The largest interest holder receives $82.85 annually. The common
denominator used to compute factional interests in the property is
3,394,923,840,000. The smallest heir received $.01 every 177 years. If
the tract were sold (assuming the 439 owners could agree) for its
estimated $4,000 value, he would be entitled to $.000418. The
administrative costs of handling this tract are estimated by the Bureau
of Indian Affairs at $17,560 annually. (Hodel v. Irving, 481 U.S. 704,
713, 1987, footnotes omitted).
In Hodel, the Supreme Court, no longer hampered by the political
question doctrine, reached the Fifth Amendment question and declared
that congressional efforts to reconstitute the tribal land bases destroyed
with the Court's imprimatur in Lone Wolf was an unconstitutional
taking of the property of individual Indians. This has the appearance of
what Professor Peter d'Errico has aptly called a "shell game" (d'Errico
2000: 577) In one context the Cherokee are barred from suing a state in
the Supreme Court on the ground that they are not a foreign nation;

Congress tried to repair their problem in 1983 by providing that fractional interested
would escheat to the tribe when they became less than 2% of the total acreage and earned
less than $100 a year.
2001 The Jurisprudenceof Colonialism

later the Coeur d'Alene were barred from suing a state in district court
on the ground that the Coeur d' Alene were a foreign nation. The basic
rule of decision is that the tribes lose and colonial interests win.

II. BALZAC V. PEOPLEOFPORTO RICO (1922)

If the founding fathers lacked the insight to see the US as colonizer

of Native Americans, those racial blinders were suddenly stripped away
when the Spanish colonies of the Philippines, Guam, and Puerto Rico
became American colonies after the Spanish-American War of 1898.
Puerto Rico was governed by a presidential appointee with a customary
colonial disregard for civil liberties (Fernandez 1992).
Jesus Balzac published a newspaper in Arcibo, Puerto Rico, and
wrote articles highly critical of Governor Arthur Yager, a Princeton
classmate of President Woodrow Wilson. We are not informed by the
Supreme Court of the exact content of these editorials, but they resulted
in two counts of criminal libel. In a one paragraph dismissal of Balzac's
First Amendment defense, the Court reported that
A reading of the two articles removes the slightest doubt that they go
far beyond the "exuberant expressions of meridional speech". Indeed,
they are so excessive and outrageous in their character that they
suggest the query whether their superlative vilification has not
overleaped itself and become unconsciously humorous. But this is not
a defense. (258 U.S. 298, at 314).
Upon denial of a jury trial, Balzac was sentenced to a total of nine
months in jail. Balzac's jury demand in such a political context is an
eerie echo of the infamous libel prosecution of John Peter Zenger for
criticizing the colonial governor of New York (Alexander 1972). Zenger's
trial is, of course, the proverbial textbook case ofjury nullification. While
it may surprise nobody that Balzac was denied the opportunity to follow
Zenger's example, the rationale might raise eyebrows.
Congress has thought that a people like the Filipinos, or the Porto
Ricans, trained to a complete judicial system which knows no juries,
living in compact and ancient communities, with definitely formed
customs and political conceptions, should be permitted themselves to
determine how far they wish to adopt this institution of Anglo-Saxon
origin, and when. (258 U.S. at 310). Balzac thus lost his opportunity to
become the John Peter Zenger of Puerto Rico.
 Legal Studies Forum Vol. 25

III. RICE V. CAYETANo (2000)

The best interests of colonized people became an issue again in 2000

in a case involving the management of land set aside by Congress "to
rehabilitate the native Hawaiian population." (120 S.Ct. 1044, at 1051-
1052). Native Hawaiians were in need of rehabilitation after the United
States supported an armed coup d'etat in 1893 to overthrow the
Hawaiian monarchy, an act which resulted in productive land passing
from native to colonial ownership and a Congressional Joint Resolution
of apology to survivors of the Hawaiian people 100 years later (107 Stat.
1510, 1993).
In the losses they have sustained at the hands of the United States,
Hawaiians have much in common with American Indians (Benjamin
1996). The Supreme Court has repeatedly held that for purposes of
Equal Protection of the law under the 14th Amendment, "Indian"
defined as political affiliation with a federally recognized tribe is a
political classification rather than a racial one (Russell 1998). That is, an
Indian is a person politically affiliated with a tribe rather than merely
a person of Indian blood. This means that federal laws treating Indians
differently (whether the difference is an advantage like the hiring
preference in Morton v. Mancari(417 U.S. 535, 1974), or a disadvantage
like the federal prosecution in Ex ParteAntelope (430 U.S. 641, 1977),
need not be narrowly tailored to accomplish a compelling state interest.
Indian status, unlike race, is not a "suspect classification" under the
14th Amendment.
Harold F. Rice, born in Hawaii as a descendent of white colonists,
filed a lawsuit against Benjamin J. Cayetano, Governor of Hawaii,
claiming racial discrimination because he was not allowed to vote for the
board of trustees of the Office of Hawaiian Affairs, the state agency
charged with managing the assets set aside to rehabilitate the native
Hawaiian population. Native Hawaiians sought to compare their history
to that of Native Americans. Indeed, an argument could be made that
the Hawaiians have a strong case for treatment as a nation rather than
a race. Not only was the colonial theft of Hawaii more recent (1893,
while the end of the Indian wars is generally dated to the Wounded Knee
Massacre in 1890), but the Hawaiian people had a form of government
(monarchy) much more familiar to the European colonists than the
governmental institutions of most Indians.
The Supreme Court, disregarding a substantial body of 14th
Amendment law (as well as history and common sense), analyzed the
case under the 15th Amendment, originally enacted to extend the
franchise to freed slaves but virtually a dead letter to African-Americans
until Congress enforced it with the Voting Rights Act of 1965. For
2001 The Jurisprudenceof Colonialism

purposes ofthe 15th Amendment, the Court found that native Hawaiian
is a racial classification rather than a political one. If they had decided
the same thing under the 14th Amendment, they would arguably have
rendered the setting aside of assets for the benefit of Native Hawaiians
to be unconstitutional, rendering moot the question of whether the son
of white colonists should be allowed to vote on the management of those
assets.
The Court went on to lecture the State of Hawaii: "One of the
principal reasons race is treated as a forbidden classification is that it
demeans the dignity and worth of a person to be judged by ancestry
instead of by his or her own merit and essential qualities" (120 S.Ct. at
1057).
Of course, the only judgment implied by the State of Hawaii in
limiting this particular vote to Native Hawaiians is that the political
affiliation of the voters with the Hawaiian community created an
identity of interests. If the interests of the Native Hawaiians and the
white colonists had not been so disparate, there would have been no need
for an Office of Hawaiian Affairs in the first place. Once more, the rule
of decision appears to be that the colonists win even as the opinion
appeals to the Rights of Man metanarrative.

If, as Rice, Balzac, and Lone Wolf appear to demonstrate, the power
relationships overwhelm the Rights of Man metanarrative in American
jurisprudence, what are the consequences for an American Indian
orthopraxy? Is there anything to be done beyond exposing hypocrisy?
Foucault (1978), in particular, offers penetrating critique without
normative guidance. He argues persuasively that discipline used to come
from the state acting on the body, but in our time discipline comes from
"private" institutions (schools, factories, hospitals) acting on the mind.
If he is correct about these subtle and diffuse power relationships that
produce discipline outside of the juridical regime, then resistance may
in fact be futile. Even when he seems to advocate resistance, his ideas
are less than pellucid in identifying a point of attack (Foucault 1980). As
Litowitz (1997) has demonstrated, none of the major postmodern
critiques of law offer convincing support for a positive jurisprudence.
Dan Gunter (1998) has published a study of the Lemhi tribe's effort
to establish federal recognition that imputes a Foucauldian power
technology to the federal government. His observations are acute, but
Foucault is unnecessary to explain federal obstruction of tribal recogni-
tion. A more parsimonious explanation is that the federal government
simply wants to limit its responsibility to Indians by limiting the
614 Legal Studies Forum Vol. 25

number of persons who can claim to be Indian, or to make tribal

recognition difficult in deference to state governments and their fears of
losing property off their tax rolls and gaining unwanted casinos.
Should the Lemhi be recognized and given tribal status? Will the
government bureaucrats desist because their tactics are exposed? The
Lemhi should be recognized, if at all, because they are a people whose
political organization predates that of the United States, and the
government bureaucrats will desist, if at all, when public opinion is
mobilized to demand justice. With the idea of justice, we return to the
Rights of Man metanarrative, and the lack of correspondence between
that metanarrative and the body of federal Indian law which is our
primary weapon. Even the ugliest imperial decisions-e.g., locking up
Jesus Balzac for criticizing the colonial government-are couched in
terms of an Enlightenment conception ofhuman worth. Questioning this
claim and deconstructing the claim of fidelity to the Rights of Man
metanarrative is where postmodern thought shows us a point of attack.
Indian orthopraxy should be to place a critical wedge in the gap between
human rights theory and human rights praxis and hammer it until the
body of federal Indian law breaks, until the American people either do
good or unambiguously embrace evil. Postmodernism locates that gap in
the colonial text but denies that good and evil are anything but
cotningent labels for power relationships. If all that matters is power
relationships, we were lost at the turn of the last century. In the face of
that, Indians require a narrative wherein we have value without regard
to power and therefore resistance is not futile. Within this narrative, we
find the reason and the courage to assert that we will not be assimilated.
2001 The Jurisprudenceof Colonialism

REFERENCES

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Greenfield, Lawrence A. & Smith, Steven K (1999). American Indians
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 Legal Studies Forum Vol. 25

LaDuke, Winona. (1999). All Our Relations: Native Struggles for Land
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Pound, Roscoe. (1942,1969). Social Control Through Law. New Haven:
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Russell, Steve. (1999). A Black and White Issue: The Invisibility of
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Russell, Steve. (1998). American Indians in the Twilight of Affirmative
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SUGGESTED FURTHER READING

Debo, Angie. (1970). A History of the Indians of the United States.

Norman, Oklahoma: University of Oklahoma Press.
Deloria, Vine Jr. (1969). CusterDiedfor Your Sins:An Indian Manifesto.
New York: The Macmillan Company.
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