Meaghie Champion: The Notorious RBG

Many Indigenous people are struggling to reconcile the legacy of the social justice champion of the U.S. Supreme Court

By: Meaghie Champion

In 1777, in the midst of the American revolution, one Indian band made a decision that may have determined the course of history in North America. The warriors of the Oneida Nation sided with the Americans instead of the British. And at the Battle of Oriskany, the Oneida warriors prevented the British from linking up with their Iroquois allies. The Oneida were among the few nations to side with the Americans in a battle that would wind up being among the bloodiest of the revolution.

And yet, all that history did them little good in the long run. 

In 2005, in the case of the City of Sherrill V. Oneida Indian Nation of N.Y., the U.S. Supreme Court ruled against the Oneidas, after the nation had attempted to assert sovereignty in traditional land they had to re-purchase after it had been illegally acquired. 

Writing the majority position was the late liberal figurehead now being lionized in U.S. media — Ruth Bader Ginsburg. 

Granted, she fought for women's rights and accomplished a lot. She was a law school professor and a judge. She was one of the leaders of the American Civil Liberties Union. She was the second woman to ever serve on the United States Supreme Court. She was influential in a lot of cases on the Supreme Court, including a labour law case that inspired a law to be passed, and an environmental case that set new standards for who could be heard in court on environmental issues. Since her recent death, the news coverage has been singing her praises like hagiography.

But study history and you will find lots of villains, and no saints. Many First Nations people in North America look on Ginsburg's reification with a much more skeptical eye. 

Meanwhile, the sovereignty of many Indigenous nations in B.C. has never been extinguished. Many First Nations here are being corralled into signing treaties that give up lands, rights and sovereignty. They may look to the Oneida as a cautionary tale. When it comes to sovereignty, you must use it or lose it. Don’t look to courts to give it back later. Not even when you have a social justice saint for a judge.

Ginsburg ruled that Indian land in central New York acquired in violation of U.S. federal law, a treaty, and the U.S. Constitution, could not be reintegrated into the ancestral lands of the Oneida Indian Nation — that the Oneidas would be required to pay property taxes to the local government of the City of Sherill. That is, unless the Oneidas sacrificed that land and allowed the federal government to administer it as a trust.

Justice Ginsburg wrote that 200 years had passed since the initial illegal acquisition, the land had passed hands between jurisdictions multiple times over the period, and that the Oneida had just waited too long. (Even though the U.S. Supreme Court acknowledged in 2005 that there was no specific time limit on this kind of case.) She claimed in her opinion that it would just be "unfair" to the non-natives in this case. If the Oneida had sued in court sooner, then it would have been different.

But when? In 1805 when they lost their last lands in New York because it was U.S. government policy to drive Indians off their land and send them west? Would a Supreme Court that considered slavery legal have given them a fair hearing? During the days of segregation and residential schools, maybe?

Maybe the Oneida didn't wait long enough for a court that would give them a fair hearing. In footnote number 1 of Justice Ginsburg's ruling, she cited the infamous Discovery Doctrine. The doctrine was historically used to provide a legal pretext for claiming ownership over lands that Europeans had "discovered." Formulated in 1494, this allowed Christian monarchs to lay claim to the lands that were not yet ruled by other Christian monarchs — even if those lands had been home to native peoples for thousands of years. 

The Europeans just treated native nations as if they weren't real nations. It claims that indigenous people are not in fact people at all. They were "savages" to be conquered. And that's exactly what they did for hundreds of bloody years of colonization and massacre. The French and the English adopted the same doctrine as did others including the U.S. Supreme Court in 1823.

But that was centuries ago. We're enlightened now, right?

In modern international law, nations don't lose their sovereignty because they aren't Christian. Nor do they lose their sovereignty just because they didn't sue in the courts of the nations that tried to conquer them. Quebec was allowed to vote on its independence, most recently in 1995. Scotland held a referendum in 2014. In a democratic state, why should we ever consider a question of sovereignty to be truly and finally resolved? 

Perhaps it is worth remembering that the U.S. was not always so strong. During the War of the American Revolution, the Oneidas were one of the six nations of the Iroquois Confederacy. In those days, the Iroqois were a very significant military power in North America. Their warriors were a match for the largest army anyone could send. In 1753, a leader of the Iroqois named Hendrick Theyanoguin threatened to capture New York City, and this was entirely possible. Thousands of warriors could have come down the Hudson River from Mohawk territory. The river would have taken them right to the edge of New York City.

The government of New York agreed to an alliance with the Iroqois rather than risk the challenge, and because of that alliance, the British were able to defeat the French in the French and Indian War.

In 1775 the American Revolution began: loyalists and the rebels both sought the help of the Iroqois Confederacy,. The Confederacy’s choice of alliance could prove decisive in the coming battles. At first it seemed that the Iroqois would side with the King of England, but two of the six nations broke with the Confederacy to join the rebels. One of those two nations was the Oneida — the same nation that came before Justice Ginsburg in 2005.

The Oneida did their part during the war. It can never be known whether the efforts of the Oneida warriors in the battles of the Revolution made the difference, but maybe they did. There might not even be a United States of America if not for the sacrifices of the Oneida, who came to America’s aid in 1777

Justice Ginsburg, on behalf of the United States, wrote that this same nation lost its sovereignty because 200 years ago is just too long ago to matter. And that even though the foundation of the decision rests on the logic that Indigenous people aren't nations in any meaningful sense. 

Well, perhaps some nations just have longer memories than others. And they will remember Justice Ginsburg in a very different light than America’s progressives.

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