Citizen Justice by M. Margaret McKeown

Author:M. Margaret McKeown [McKeown, M. Margaret]
Language: eng
Format: epub
Tags: BIO020000 BIOGRAPHY & AUTOBIOGRAPHY / Lawyers & Judges, BIO032000 BIOGRAPHY & AUTOBIOGRAPHY / Social Activists, JNF037020 JUVENILE NONFICTION / Science & Nature / Environmental Conservation & Protection
Publisher: Potomac Books

Dissenting for Culture—Douglas’s Indian Tribal Cases

Douglas was an ally of Native Americans. In an early dissent involving treaty rights to Indian land title, he complained about the Indians’ claims being lost “in the fine web of legal niceties” when a tribe’s grievances should have been “settled by this court in simple justice to a downtrodden people.”59 Douglas’s clerks summed up his perspective: “The Justice cared deeply for the underdog” and “the person at the bottom of the heap.”60

In broad terms Douglas endorsed the conservation of culture, just as he urged the conservation of the environment. Often illustrating the value of ancient cultures by drawing on his experience growing up near the ancestral home of the Yakama (Yakima) tribe in Washington, nonetheless he admitted, “We who were raised in Yakima did not know the Indians well.”61 So it is curious that Douglas parlayed this limited experience into claims of expertise, insisting in one of his dissents, “I do know, coming as I do from Indian country in Washington.”62 Tellingly, when he asked his friend Chief Jim of the Yakamas to find a reed pot for him, the chief brought one that was unfinished. “We kept the pot unfinished,” he said, “because the work of the Yakimas is unfinished—and so is the work of the Court on Indian matters.”63

When Douglas joined the Supreme Court, Indian law was not an organized body of law and, unlike today, was not a discipline taught in law schools. Douglas’s first Indian law opinion for the majority, United States v. Santa Fe Pacific Railroad, came in 1941, just two years into his tenure.64 It turned out to be “one of the most important cases ever to reach the Supreme Court in the history of our Federal Indian law,” observed Felix S. Cohen, who represented the Hualapai (Walapai) tribe in the appeal and authored the key treatise in Indian law.65 The case is often cited for the principle that Congress could not extinguish aboriginal title without making a statement of clear intent, but more important, Douglas broke new ground by accrediting cultural history as a legal fact. Noting that the Hualapai tribe had been occupying the lands in northwest Arizona “from time immemorial,” Douglas confirmed that a tribe’s ancestral home determined the validity of its contemporary occupancy.66 In so doing, “the case legitimized the very notion that indigenous histories are relevant to proving [a tribe’s] land claims.”67 One historian even observed that “ethnohistory . . . was conceived during the Hualapai case” by initiating legal inquiry into Indian history.68

During Douglas’s tenure, fifty-two Indian cases came before the court. Of those, Douglas wrote majority, dissenting, or concurring opinions in fourteen cases. Of particular significance is that he dissented in the majority of cases where the result disfavored Indian claims.69 But what does a champion of the environment do when conservation goals collide with tribal rights? Although Douglas considered Indians “noble ecologist[s]” whose aims aligned with conservationist goals, he did not rubber-stamp their petitions.70

Fishing rights cases made for especially stark

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