Tansi Nîtôtemtik,
When Ruth Bader Ginsburg took a judicial oath to join the United States Supreme Court in August of 1993, she brought to the highest court her life’s work; advancing the cause of equality under the law. For nearly three decades on the bench she practiced an unwavering commitment to the advancement of gender equality[1] and human rights[2] – her careful decisions and fiery dissents will guide generations of legal thinkers to come. Ruth Bader Ginsburg’s legacy has already been enshrined beyond the legal world as a feminist icon, trailblazer and champion of equality.
As it pertains to this blog, Ruth Bader Ginsburg’s legacy presents profound realities on reconciliation - that even those with the sharpest eye towards ‘equality under the law’ can fail to move past the historic legal frameworks that dehumanize Indigenous communities and invalidate their autonomy. There exists an uncomfortable premise that Justice Ginsburg’s body of work perpetuates - that true principles of reconciliation can lie beyond the imagination of even the most progressive decision makers in a colonial state.[3]
The ‘Doctrine of Discovery’ was the lens through which European theocratic monarchies viewed the world as theirs for the taking, its modern origins forming in the 15th century.[4] It espoused that Non-Christians lacked the basic humanity to lay claim to land and exist as free and equal people. This allowed European entities to unilaterally ‘discover’ not only exclusive fee title to the land, but sovereign governmental rights over the Indigenous people ‘occupying’ such land.[5] The Doctrine of Discovery first officially entered the American Supreme Court Jurisprudence in 1832, with the decision of Johnson v M’Intosh,[6] - a decision based on ‘[…] self-serving, imperialist foundations,’[7] ‘rife with glaringly apparent racist assumptions.’[8]
Far from a historical remnant, the legal fiction of the Doctrine of Discovery was what Ruth Bader Ginsburg relied on, in part, in the United States Supreme Court 2005 decision Sherrill v Oneida Indian Nation of New York, a decision that overturned the Circuit Court and denied the Oneida Nation tribal immunity over their ancestorial and territorial lands.[9] The Oneida Nation ancestorial land that had been purchased by the State without treaty or congressional consent, was later repurchased by the Nation through straightforward ‘modern’ mechanisms, on the real-estate market.
In Sherrill, Justice Ginsburg reasoned that this land, initially vested to European powers through the Doctrine of Discovery,[10] had simply been out of the Oneida’s control for too long, rendering sovereignty in this instance an ‘ancient’ and untenable concept.[11]The decision in Sherrill provided the Doctrine of Discovery a dangerous injection of life. [12]
While we celebrate the momentous life and inspirational career of Ruth Bader Ginsburg, we wish to pose the following questions leading into the weekend:
What meaning can reconciliation be given when even the strongest advocates for human rights cannot see beyond racist and colonial frameworks?
Can current legal frameworks function to truly recognize Indigenous Nations as equal and sovereign entities?
We look forward to continuing our reviews Monday. Until next time,
Team ReconciliAction YEG
1United States v. Virginia, 518 U.S. 515 (1996), Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007).
2Burwell v. Hobby Lobby, 573 U.S. 682 (2014).
3 This is by no means an American phenomenon. Just as Pierre Elliot Trudeau championed the Canadian Charter of Rights and Freedoms, he also fathered the White Paper.
4Robert J Miller, "The Doctrine of Discovery in American Indian Law" (2005) 42:1 Idaho L Rev 1.The Doctrine’s origins can be traced to the Crusades and Christian claims to the ‘Holy Lands’ in 1096-1271.
5Ibid.
6Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823)
7Kent McNeil, "The Doctrine of Discovery Reconsidered: Reflecting on Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies" (2016) 53:2 Osgoode Hall LJ 699.
8Ibid.
9City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197 (2005)
10Ibid, at 2 n 1.
11Ibid at 2.
12See e.g. Cayuga Indian Nation of New York v. Pataki, 413 F.3d 266 (2d Cir. 2005), Bay Mills Indian Community v Snyder 372 F.Supp.3d 570 (2018).
