For Native Americans, the Supreme Court Lost Legitimacy Long Ago
Tuesday, November 1, 2022
Today, we do not doubt that the Supreme Court will lose further legitimacy by striking down college admissions that take account of the racial animus that so many students and families have suffered in the Harvard and North Carolina cases.
No person shall be denied by any state the equal protection of the laws under the 14th Amendment and Congress has the authority to implement this directive by legislation. Clearly, where the Federal, state, local and societal institutions have infringed on minority rights for generations, Congress can act to allow redress and to promote diversity in education to provide a more meaningful environment for education for all.
In Dobbs in June 2022, the Supreme Court lost legitimacy with women by undermining reproductive rights and women’s right to life. Apparently, the Supreme Court does not know that child birth can be fraught with life and death challenges. We know because, confined to Indian health care, our Native women have had high maternal health challenges for decades.
Before Dobbs, the Supreme Court lost legitimacy in Bush v. Gore when it ruled that America has more legitimacy when states do not count votes. Later, the Supreme Court struck down voting rights because, in its view, racism in America is over. The Supreme Court has lost its connection to America’s truth.
For Native Americans, the Supreme Court lost legitimacy long ago.
Treaties are made by mutual consent between nations. The Supreme Court’s rulings concerning Native Sovereign Nations are genocidal, contrary to the Constitution, and in violation of our natural law rights for centuries.
Among the Lakota, Tunkasila Wakan Tanka, Grandfather the Creator, blessed the first woman and first man with the breath of life, and with life, came the freedom to follow our sacred visions and our duty to serve Unci Maka, Grandmother Earth. Black Elk, our visionary Lakota elder said, “Sometimes dreams are wiser than waking…. Peace comes when a person learns that the Creator dwells at the Center of the Universe. The Center of the Universe is everywhere. It is within us in the center of our being.”
Lakota rights to sovereignty, self-government and self-determination are the Creator’s original, inherent, and inalienable gift of life. No one may take the Creator’s gift of life from our Lakota Oyate. For thousands of years, prior to Europeans coming to American shores, Dakota was our nation’s territory, our People’s home. Living in harmony with Grandmother Earth, with food and shelter shared by the Buffalo Nation, the animals and plants, Lakota were happy and healthy. We worked for our children and grandchildren, the Wakanyajea, the Creator’s sacred gift, to provide a good life, a life of freedom.
The Constitution, framed by “We the People … excludes “Indians not Taxed” from U.S. citizenship, because Lakota had our own Native Sovereign Nation, our own democracy, laws and traditions. When America asked for safe passage across our lands for settlers on the Oregon Trail, we agreed and America recognized our homeland in the 1851 Treaty. In the 1854 Kansas—Nebraska Territory Act, the United States pledged to honor native rights of person and property and to rigidly follow our treaties. The 1861 Dakota Territory Act repeated these legal assurances.
When America found gold in Montana, miners sought to overrun our homelands and the Government sent the Army. Red Cloud, Crazy Horse, One Horn, and Sitting Bull fought for our lands. In the 1868 Treaty, America pledged “war shall forever cease,” recognized our self-government, and pledged to respect our permanent home, including the Black Hills.
Then America was overtaken by the White Man’s Burden: President Grant said America must have “civilization” because the only other choice was “extermination.” Custer found gold in the Black Hills, and Grant sent Custer to steal our land. Our Lakota and Cheyenne warriors defended Custer’s attack on our peaceful village. Congress sent more Armies and violated our treaty and the Constitution by taking our sacred lands without consent. America assassinated Crazy Horse and Sitting Bull and took more land. Lakota children were sent to boarding schools, with the motto “Kill the Indian, Save the Man.” Students were buried behind those schools.
For one hundred years, the Supreme Court sat idle raising procedural barriers to justice. In 1980, in United States v. Sioux Nation, the Supreme Court held that America’s taking of our Black Hills treaty lands was unconstitutional, yet for the past 40 years there has been no justice.
In June, in Oklahoma v. Castro-Huerta, the Supreme Court held that the 10th Amendment gives states governing power on Indian reservations. Not true. Native Sovereign Nations are prior sovereigns and states agreed not to encroach on Indian lands as part of the bargain of their statehood. Our treaties are the Supreme Law of the Land, nothing in the state constitutions withstanding.
Within the past decade, the Supreme Court declared that even when Indian nations win, Congress may choose to wipe us out any time. Wipe out another People? That’s more Putin than America. The Supreme Court is an anachronistic body of elderly politicians, who can never be expected to do justice by Native Sovereign Nations. With the Supreme Court it’s a one way street that no longer serves America, especially when the 1880 cases relied on are grounded on white supremacy. As Lakota, we never consented to the Supreme Court’s supremacy claims.
Natural justice, the Constitution and our treaties establish an enduring nation-to-nation relationship between America and Native Sovereign Nations based upon mutual consent. It’s time for America to honor its word.
To bring about restorative justice, President Biden must work with Native Nations based on mutual consent and mutual respect.
Harold Frazier is
serving his second consecutive term as chairman of the Cheyenne River Sioux Tribe, an Indian nation based in South Dakota. He also serves as president of the Great Plains Tribal Chairmen’s Association. He previously served as chair and vice chair of his tribe. He currently serves as a regional vice president for the National Congress of American Indians.