Lightnews — Scholar-powered news

Reposted by Tanner Allread

Mark Joseph Stern @mjsdc.bsky.social · 15h

Washington Supreme Court Justice Mungia has an extraordinary opinion condemning "the underlying racism and prejudices that are woven into the very fabric" of SCOTUS opinions about Native people.

"We must clearly, loudly, and unequivocally state that was wrong.”
www.courts.wa.gov/opinions/pdf...

MUNGIA, J. (concurring)—I concur with the majority’s opinion.1
And yet I
dissent. Not from the majority’s opinion, but I dissent from the racism embedded in the
federal case law that applies to this dispute.
FEDERAL INDIAN LAW IS A PRODUCT OF THE RACIST BELIEFS ENDEMIC IN OUR SOCIETY
AND OUR LEGAL SYSTEM
While it is certainly necessary to follow federal case law on issues involving
Native American tribes and their members, at the same time it is important to call out that
the very foundations of those opinions were based on racism and white supremacy. By
doing this, readers of our opinions will have no doubt that the current court disavows, and
condemns, those racist sentiments, beliefs, and statements.

Since the founding of our country, the federal government has characterized
Native Americans as “savages”: They were “uncivilized.” They had little claim to the
land upon which they lived. At times, the federal government attempted to eradicate
Native Americans through genocidal policies. At other times, the federal government
employed ethnic cleansing by forcibly removing children from their parents’ homes to
strip them from their culture, their language, and their beings.2
Federal Indian case law arises from those racist underpinnings.
The majority correctly cites to Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8
L. Ed. 25 (1831), which is one of the foundational cases involving tribal sovereignty.
That opinion is rife with racist attitudes toward Native Americans. Chief Justice John
Marshall, writing for the majority, describes a tribe’s relationship to the federal
government as one of “ward to his guardian.” Id. at 17. In effect, the opinion presents
tribal members as children, and the federal government as the adult. That theme would
follow in later opinions by the United States Supreme Court—as would the theme of
white supremacy.
Cherokee Nation began with the premise that Native American tribes, once strong
and powerful, were no match for the white race and so found themselves “gradually
sinking beneath our superior policy, our arts and our arms.” Id. at 15. The white man
was considered the teacher, the Native Americans the pupils:

Meanwhile they are in a state of pupilage. Their relation to the United
States resembles that of a ward to his guardian.
Id. at 17.
This characterization of superior to inferior, teacher to student, guardian to ward,
was repeated in later United States Supreme Court opinions.
In Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S. Ct. 216, 47 L. Ed. 299 (1903),
often characterized as the “American Indian Dred Scott,”
3
the Court used that rationale to
justify ruling that the United States could break its treaties with Native American tribes.
These Indian tribes are the wards of the nation. They are communities
dependent on the United States. Dependent largely for their daily food.
Dependent for their political rights. . . . From their very weakness and
helplessness . . . there arises the duty of protection, and with it the power.
Id. at 567 (quoting United States v. Kagama, 118 U.S. 375, 383-84, 6 S. Ct. 1109, 30 L.
Ed. 228 (1886)).
Our court also carries the shame of denigrating Native Americans by using that
same characterization: “The Indian was a child, and a dangerous child, of nature, to be
both protected and restrained.” State v. Towessnute, 89 Wash. 478, 482, 154 P. 805
(1916), judgment vacated and opinion repudiated by 197 Wn.2d 574, 486 P.3d 111
(2020).
3 See A

Returning to Cherokee Nation, Justice William Johnson’s separate opinion was
less tempered in how he considered the various Native American tribes:
I cannot but think that there are strong reasons for doubting the
applicability of the epithet state, to a people so low in the grade of
organized society as our Indian tribes most generally are.
Cherokee Nation, 30 U.S. at 21. Native Americans were not to be treated as “equals to
equals” but, instead, the United States was the conqueror and Native Americans the
conquered. Id. at 23.
In discussing Native Americans, Justice Johnson employed another racist trope
used by judges both before and after him: Native Americans were uncivilized savages.
[W]e have extended to them the means and inducement to become
agricultural and civilized. . . . Independently of the general influence of
humanity, these people were restless, warlike, and signally cruel.
. . . .
But I think it very clear that the constitution neither speaks of them as states
or foreign states, but as just what they were, Indian tribes . . . which the law
of nations would regard as nothing more than wandering hordes, held
together only by ties of blood and habit, and having neither laws or
government, beyond what is required in a savage state.
Id. at 23, 27-28.
This same characterization was used by Justice Stanley Matthews in Ex parte KanGi-Shun-Ca (otherwise known as Crow Dog), 109 U.S. 556, 3 S. Ct. 396, 27 L. Ed. 1030
(1883). Justice Matthews described Native Americans as leading a savage life.

3 180 530

Tanner Allread @tannerallread.bsky.social · 16h

Congrats!!

1

Reposted by Tanner Allread

State Court Report @statecourtreport.org · Aug 18

NEW: There are 574 federally recognized American Indian tribes in the United States, each with their own unique legal system. @milov-cordobam.bsky.social and Dan Lewerenz provide a brief overview of the tribal courts, law, and constitutions that shape governance for American Indian tribes.

Tribal Courts and Constitutions of American Indian Tribes

Tribal courts and constitutions shape governance for American Indian tribes, balancing sovereignty with federal law in their unique legal systems.

statecourtreport.org

3 9

Reposted by Tanner Allread

Rebecca Nagle @rebeccanagle.bsky.social · Jul 25

IMO, if Indigenous nations are sovereign, then we are responsible for our mistakes. We cannot hold the United States accountable for the wrongs of history committed against us, but not take account for our wrong of chattel slavery. On the long path of repair, citizenship is only the first step.

4 38

Tanner Allread @tannerallread.bsky.social · Jul 24

This is huge!! A win for Freedmen and another step in the right direction for Native nations upholding treaty rights!

NonDoc @nondocmedia.bsky.social · Jul 23

The #Muscogee Nation Supreme Court affirmed a district court’s ruling that Muscogee #Freedmen are entitled to tribal citizenship. The ruling, which ends a decades-long battle, strikes references to "by-blood" requirements from all of the tribes's laws.

nondoc.com/2025/07/23/m...

Muscogee high court rules 1866 treaty requires Freedmen citizenship, strikes 'by blood' language

The Muscogee Nation Supreme Court ruled July 23, 2025, that Freedmen descendants can be tribal citizens, voiding a 1979 constitutional change

nondoc.com

1 9

Tanner Allread @tannerallread.bsky.social · Jul 21

Congrats, Maggie!! Very much looking forward to reading this!

4

Tanner Allread @tannerallread.bsky.social · Jul 21

Yes, you definitely are! I don’t think historical methodology is purely the province of those with history Ph.D.’s. Plenty of people without those degrees, including you and Julian, are doing careful and robust history (just not those who often claim to be originalists and thus do “history”).

4

Tanner Allread @tannerallread.bsky.social · Jul 20

Couldn’t think of a better book on the constitutional history of the early American republic! The Interbellum Constitution (and really all of Alison’s work) is masterful scholarship!

SHEAR @shearites.bsky.social · Jul 19

Congratulations to Alison LaCroix on winning The SHEAR Book Prize. #SHEAR2025

1 2 2

Tanner Allread @tannerallread.bsky.social · Jul 20

So well deserved! Go read Sarah’s amazing scholarship on abolition and Black activism in New York!

SHEAR @shearites.bsky.social · Jul 19

Congratulations to Sarah L.H. Gronningsater on winning The James H. Broussard Best First Book Prize. #SHEAR2025

3

Tanner Allread @tannerallread.bsky.social · Jul 20

This was a really fun panel!! And it was an honor to sit alongside and be in conversation with some of the best constitutional historians: Mary Sarah Bilder, @rachelshelden.bsky.social, @janemanners.bsky.social, & @jdmortenson.bsky.social. And thanks to @jgienapp.bsky.social for organizing this!

1 2 20

Tanner Allread @tannerallread.bsky.social · Jul 17

Exactly. If everybody saw me before and after talks and teaching, they’d see how much time I have to spend by myself to gather the energy for my performance persona 😆

2

Tanner Allread @tannerallread.bsky.social · Jul 16

I’d gladly meet with you anytime of day, Anna, but getting you first thing in the morning—when I as an introvert will also be at my best—can’t be beat!

Tanner Allread @tannerallread.bsky.social · Jul 16

Looking forward to your panel too and to hopefully meeting in person!

1 4

Reposted by Tanner Allread

Rebecca Nagle @rebeccanagle.bsky.social · Jul 11

At a moment when the problems our world is facing feel insurmountable, I found a lot of inspiration in this. My friend and reporter Allison Herrera sat down with recently freed Leonard Peltier, one of the longest-serving political prisoners in the U.S.

Leonard Peltier talks freedom, future after nearly 50 years in prison

After spending most of his life behind bars, Leonard Peltier now lives in a home on the Turtle Mountain Band of Chippewa reservation in North Dakota. He says he has no regrets but still harbors…

www.mprnews.org

6 250 700

Tanner Allread @tannerallread.bsky.social · Jul 3

Also shout out to @crispinsouth.com for great legal scholarship (cited in the article) on the constitutional provision this amendment addresses!

1 1

Tanner Allread @tannerallread.bsky.social · Jul 3

And while this amendment introduces uncertainty regarding some rights, as I say in the article, I don’t think the recognition of same-sex marriage is “jeopardized” due to the Indian Civil Rights Act and the lack of political will in the Choctaw Nation to overturn it.

1 1

Tanner Allread @tannerallread.bsky.social · Jul 3

However, I think the framing of this article is slightly misleading. Decoupling Choctaw rights from OK and federal rights is certainly narrowing, but not “lessening” when you’re bolstering tribal autonomy to determine what rights citizens should enjoy.

1 1

Tanner Allread @tannerallread.bsky.social · Jul 3

Nice to have my work on tribal constitutions become directly relevant to my own tribe. Read what I had to say hear:

NonDoc @nondocmedia.bsky.social · Jul 3

Citizens of the #Choctaw Nation are voting on 5 proposed constitutional amendments alongside their July 12 Tribal Council elections, including one which would lessen the nation's Bill of Rights and jeopardize same-sex marriage and adoption protections.

nondoc.com/2025/07/03/a...

Among 5 Choctaw constitutional amendments on ballot, one would lessen 'Bill of Rights'

Five Choctaw constitutional amendments are on a July 12, 2025, ballot alongside the nation's regularly scheduled Tribal Council elections.

nondoc.com

1 1 6

Reposted by Tanner Allread

Torey Dolan @toreydolan.bsky.social · Jul 2

The Oklahoma Supreme Court (post-McGirt v. Oklahoma) has been making a mockery of law through its egregious and incoherent misapplication of fundamental Indian law principles. Yesterday, they did so once again re: income taxes: turtletalk.blog/wp-content/u...

turtletalk.blog

2 1 4

Tanner Allread @tannerallread.bsky.social · Jul 1

David Weber’s The Spanish Frontier in North America is a good place to start

3 13

Reposted by Tanner Allread

Crisp @crispinsouth.com · Jun 10

Happy to share that my Note, “Transplanted Rights in the Choctaw Nation: Threats to Sovereignty and Potential Solutions,” has been published in the Texas Journal on Civil Liberties and Civil Rights!

Link below if #LawSky #LawTwitter wants to check it out!

sites.utexas.edu

4 27

Tanner Allread @tannerallread.bsky.social · Jun 7

I’m honored, and glad you found them helpful! Looking forward to reading the book and returning the favor!

Tanner Allread @tannerallread.bsky.social · Jun 6

Yes, I’ll be there! Looking forward to catching up!

Tanner Allread @tannerallread.bsky.social · Jun 5

Congrats, Brian!

1