Part V examines the Supreme Court's scurrilous Oliphant v. 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. Based both in impermissible racial stereotypes and a doctrine of white supremacy, this case law is overtly racist. Part III discusses six canonical Indian law cases. As this Article demonstrates, these obligations are highly salient to federal Indian law jurisprudence. 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. 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. Federal Indian law jurisprudence is often nothing more than racism cloaked as law. Furthermore, many of the restrictions placed upon tribes by Congress are rooted in antiquated jurisprudence. 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.Īttorneys 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. Jurisprudence loaded with grotesque 19 racist stereotypes and factual errors about American Indians remains valid precedent. 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. Unfortunately, change has been far slower to come in the realm of federal Indian law. Indeed, a war was fought, and the Constitution amended, to cure its ill effects. Dred Scott serves as a reminder of how far the country has come. The case's racist rancor runs roughshod over any precedential value it may carry. 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. However, most lawyers and judges would never dream of citing Dred Scott. 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.Īlthough 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. Sandford, Chief Justice Taney infamously wrote, 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)
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