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Yes, we can both mourn and criticize Ruth Bader Ginsburg on indigenous/treaty rights. But we should also research & inform #onhere. Tell the whole story from dispossessing Oneida Nation to affirming Indian territory in McGirt v. Oklahoma. @CarwilBJ/1309318371922513920Permalink On twitter.com
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RBG's opinion in City of Sherrill v. Oneida (2000) has gotten much deserved criticism this week, but her joining with the pro-sovereignty majority in McGirt v. Oklahoma (2020) has not, even though we're talking about substantially the same issue, on larger scale in 2020.Permalink On twitter.com
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Want to know what went wrong in City of Sherrill v. Oneida Indian Nation (2000)? And how RBG shifted since? Check out this article on Ginsburg & American Indian law from Carole Goldberg. supremecourt.gov/opinions/19pdf/18-9526_9okb.pdfPermalink On twitter.com
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Goldberg: "The use of laches in City of Sherrill has had disastrous consequences for the underlying land claims of the Oneidas and other New York tribes with the same history of unlawful treatment"Permalink On twitter.com
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"Indian law scholars have been harshly critical of Justice Ginsburg’s opinion, specifically its lack of historical depth, its misuse of equitable doctrine, its inadequate normative analysis, and its apparent eagerness to resolve a tough issue on an undeveloped record."Permalink On twitter.com
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Small wonder that Ginsburg recalled it has her greatest regret on the Supreme Court. buffalochronicle.com/2020/05/05/ruth-bader-ginsburg-wants-trump-to-appoint-a-native-american-woman-to-the-supreme-court/Permalink On twitter.com
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But Goldberg traces RBG's evolution on the issue, which she calls (semi-ironically, I think) "a journey of discovery." And analyzes all 38 Indian rights cases under Ginsburg (as of 2009).Permalink On twitter.com
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"City of Sherrill was widely viewed as confirmation that she did not “get” Indian law at all and that she was fundamentally unsympathetic to tribal claims. Justice Ginsburg’s recent dissents in Wagnon and Plains Commerce, however,suggest far more potential for leadership. …Permalink On twitter.com
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"Quite possibly [RBG's] repeated exposure to Indian law issues and conflicts, as well as the criticisms of some of her opinions, has led her to develop a clearer understanding of the basis for longtime Indian law doctrine. …Permalink On twitter.com
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"[RBG] has been constrained by a Court that has little patience with tribal sovereignty, and even less appreciation for the ongoing injustices affecting Indian country and the realities of Indian nations as governments for their distinct communities. …On twitter.com
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"… On such a Court, it is important to lay the groundwork for future corrective action through narrow holdings for the majority and powerful dissents. Justice Ginsburg has begun to do some of that important work."Permalink On twitter.com
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(Carole Goldberg's bona fides here: nnigovernance.arizona.edu/people/carole-goldberg)Permalink On twitter.com
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It's too easy to be caught up in the two-click response: Praiseworthy Person A did horrible Act B, as if that cancels their whole story. Ellie Tumbuan @ellietumbuan laying that out here: medium.com/@ellietumbuan/can-we-say-ruth-bader-ginsburg-and-stolen-land-in-the-same-sentence-yes-and-we-must-18b7a2db7001Permalink On twitter.com
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Given that we have the whole Internet at our fingertips, I want us to do more. If we're angry enough to criticize, we should also be curious enough to tell more of the story.Permalink On twitter.com
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Corrected link for Goldberg article on Ginsburg and Indian law. sct.narf.org/articles/finding_the_way_to_indian_country-justice_ruth_bader_ginsburgs_decisions_in_indian_law_cases_goldberg_2010.pdfPermalink On twitter.com