“Conquest Masquerading as Law”, an essay by Vine Deloria, Jr, lays out how the highest court in the US, the Supreme Court, did not uphold US treaties with Native American nations from at least the 1830s to the 1970s. It used racism in place of logic and legal precedent.
The turning point came in the 1830s when the state of Georgia wanted Cherokee lands and President Jackson ordered the Trail of Tears, forcing Cherokees off their land, sending them to the wastelands beyond the states, to what is now known as Oklahoma.
At first the Supreme Court upheld the treaty rights of Natives, but President Jackson would not obey the Court. Instead of forcing a constitutional showdown, the Court let it slide. Jackson had cowed the Supreme Court. After that, for over a hundred years, it wrote nearly all of its opinions concerning Natives to suit the President, Congress and the states, legal precedent be damned. Even if it had to write opinions that made no sense. But their decisions made it settled law. Conquest masquerading as law.
The Supreme Court excused overriding treaties by claiming that Whites were morally superior to Natives!
That idea goes back to the Doctrine of Discovery, “an agreement among thieves”, cooked up by one of Machiavelli’s evil popes, Alexander VI, shortly after Columbus “discovered” the Americas. It said that Christians had a right to any non-Christian land that they “discovered” – regardless of what the people already living there wanted or thought best.
In 1823 Supreme Court Chief Justice John Marshall put it like this:
“The potentates of the old world found no difficulty in convincing themselves, that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence.”
“Although we do not mean to engage in the defense of those principles which Europeans have applied to Indian title, they may, we think, find some excuse, if not justification, in the character and habits of the people whose rights have been wrested from them.”
In other words, Whites could rob and cheat Natives because Whites had better “character and habits”. It was Natives, not Whites, who were morally flawed.
The Court saw Natives as overgrown children in need of their “help”. The only decision Natives were capable of making on their own was giving up land to White people. Otherwise they were seen as unfit to manage their own affairs. That unfitness was determined not by, say, their level of (never defined) “civilization” – as the Cherokees and other civilized tribes found out – but by race.
The Court got its ideas about Natives not from Natives themselves but from White religious leaders, writers and scholars. The Court, by shaping the law, in turn shaped the outlook of those Whites. Round and round it goes.
“Law is often a means of expressing and enforcing the prejudices of the majority.”