Steven Newcomb: Justice Scalia didn't know anything about Indian law

Law | Opinion

Steven Newcomb: Justice Scalia didn't know anything about Indian law

antonin scalia

religion

sovereignty

steven newcomb

supreme court

Posted: Friday, February 26, 2016

Steven Newcomb. Photo from Finding the Missing Link

Steven Newcomb (Shawnee / Lenape) of the Indigenous Law Institute once talked with the late Justice Antonin Scalia about the Indian law precedents at the U.S. Supreme Court. Scalia's answer was shocking:

Given that he had been on the U.S. Supreme Court for twenty years by that time, imagine my surprise when he told me in response to my initial question that he had never heard of the doctrine of discovery or the Johnson v. M’Intosh ruling, which law schools in the United States typically regard as the starting point of U.S. property law, as well as U.S. federal Indian law.
. . .
Shocked at what he had just told me, I said to Justice Scalia, “I don’t understand [how you’ve never heard of the doctrine of discovery], just last Spring [in 2005], in City of Sherrill v. Oneida Indian Nation of New York, the Supreme Court cited to the doctrine of discovery in footnote number 1.”
He simply ignored my incredulity and began to compare the policies of the United States, Australia, and New Zealand, regarding Native peoples. He summed up by saying that the United States had arrived at a policy of conquest. He said this as if it were something perfectly ordinary. “That’s very interesting.” I said, “Can you point me to any decisions that actually said that.” He simply replied, “No.” Realizing there was no point in carrying the conversation any further, I thanked him for his time and made way for the next person waiting to speak to him.
There is always the possibility that Scalia was simply pretending that he knew nothing about the doctrine of discovery and Johnson v. M’Intosh. Assuming, however, that this wasn’t the case, what I took away from my one brief conversation with Scalia is that he was woefully uninformed about the foundational conceptions of U.S. federal Indian law, and of U.S. property law (given that he evidently did not even recognize the name of the Johnson ruling). It probably sounds axiomatic to say this, but the men and women who sit on the U.S. Supreme Court can only make decisions based on what they know. They cannot make decisions on the basis of information they don’t know.

Get the Story:
Steven Newcomb: What Justice Scalia Said He Didn’t Know About U.S. Indian Law (Indian Country Today 2/26)

Another Opinion:
Editorial: Senate Republicans Lose Their Minds on a Supreme Court Seat (The New York Times 2/25)

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