by Dr. Meredith Alberta Palmer
After Justice Ruth Bader Ginsburg passed away on September 18th, 2020, Cornell University committed to naming one of five new dorm buildings located in the North Campus Residential Expansion (NCRE) currently under construction, after her. Naming a building after Justice Ginsburg is an unsettling choice for anyone familiar with her harmful record regarding Indigenous nations and their legal treaties with the United States.
The new dorm buildings are the ones marked in red, at Site 1 and 2 in the map below. Just to the west of Site 1 sits the Native American residence hall Akwe:kon, on the map delineated with a purple circle. In Kanienkehaka, the language of the Mohawk people, Akwe:kon means “all of us.” Akwe:kon is the first university residence hall in the country dedicated to Native American students, communities, and scholarship, and is open to all students. It opened in 1991, and continues to house 35 undergraduate students, and to host Indigenous community and academic events. Since the announcement that a dorm building may be named after Justice Ginsburg, many in the community of Indigenous scholars and Native American studies academics at Cornell have been reckoning with this proposal, and working to assure that at the very least this Ginsburg Dorm will not be the one that now towers above Akwe:kon.
What might it mean for a new dorm building to be named after Justice Ginsburg? A building named for an individual who is so widely recognized transforms it into a space of memory. The university campus is a social and institutional landscape, and those who work and live within it draw identity and a sense of belonging—or conversely a sense of being out of place—from those memorializations. Whose memories count and are chosen to live within the design of campus landscapes is a question of power and notice. Regarding the proposed Ginsburg dedication and the one for Toni Morrison, Cornell President Martha Pollack stated that the university wants to “create a memorial that would be seen by, and have its doors open to, ‘any person’ at Cornell.” Any Indigenous student, staff, or faculty member—currently underrepresented at Cornell—who is from one of the Haudenosaunee Confederacy’s six nations (Oneida, Cayuga, Onondaga, Mohawk, Seneca, and Tuscarora), or who is Navajo, Chickasaw, Paiute, Shoshone, Potawatomi, Crow, Mandan, Hidatsa, Arikara, or Kiowa, will likely know Ginsburg as a direct adversary to their Indigenous nations and their people. She instantiated this negative legacy in the harsh, anti-Indigenous language used in her court opinions dealing with Indian law cases affecting all the specific tribes here listed directly, and more in the precedent set by these deleterious court cases.
One of the most devastating and vexing decisions she wrote occurred merely 15 years ago regarding Oneida lands in New York State, just 1.5 hours northeast of Cornell’s campus. This 2005 Supreme Court case, City of Sherrill v. Oneida Indian Nation of New York, denied the right of the Oneida Nation of New York (ONNY) to reinstate their sovereign rights on parcels of land claimed to be part of the City of Sherrill, NY. In 1985 it had been determined by the US Supreme Court that over 6 million acres of Haudenosaunee land had been appropriated by New York illegally around the turn of the 18th century, including these specific parcels which had been illegally appropriated in 1805 and 1807. The Oneida Nation of New York then purchased these parcels back in the late 1990s. In this seemingly benign case, the ONNY did not ask for jurisdiction over anyone, nor did they try to tax anyone. They merely purchased back their stolen lands and claimed rights to them: the right to not pay taxes to a foreign government. Justice Ruth Bader Ginsburg wrote the majority opinion for the Sherill case denying this claim, arguing that the Oneida could not “rekindle the embers of sovereignty that long ago grew cold.” The language she deploys reveals structures of erasure of Indigenous peoples and governance within the United States. Likening Indigenous sovereignty to an ebbing flame, Ginsburg naturalizes the imagery of a “vanishing race;” a disappearance of Oneida governance in these lands, assumed to be extinguished merely because it is unrecognizable to her. Like so many American novels, Western movies, US history textbooks, and continental philosophers, Ginsburg perpetuates this violent cliché of the “slowly fading Indian race,” within the commanding context of the US Supreme Court. She imagines that the Oneida—who were finally able to bring this case to court after over a century of denial—have emerged almost out of nowhere, and without a history of knowing who they are and continue to be.
Ginsburg’s opinion in this case also rests on the Doctrine of Discovery. That a US court can still today base decisions on a decree given by a Spanish Pope in 1493 that names non-Christians barbarians (or heathens) and thus justifiably subject to death and dispossession is almost too irrational and overtly racist to take seriously. But in the Supreme Court, such seemingly absurd propositions become an overt form of legal violence to the Indigenous peoples whose lives and livelihoods are in the jurist’s hands. Justice Ginsburg’s opinion in this case reads as follows:“…it was not until lately that the Oneidas sought to regain ancient sovereignty over land converted from wilderness to become part of cities like Sherrill” (emphasis mine). Ginsburg invokes here an anti-Indigenous hierarchy of lifeways, rendering Indian land a so-called “wilderness” that had been tamed, “civilized” by Euroamericans. Also referencing the doctrine of laches, Ginsburg argues the ONNY had “slumbered on their rights”—or waited too long to reclaim sovereignty over these lands—an insidious argument considering that state and federal governments had staunchly prevented New York tribes from bringing any land claims to court until 1974. The precedent that Sherrill set slammed the door on any unresolved Indian land claims in the United States, the majority of which take place in the Second Circuit states of New York, Connecticut, and Vermont. Just three months after Sherrill was decided, a Second Circuit Court decision in Cayuga Indian Nation of New York v. Pataki denied the Cayuga Nation of New York restitution for over 65 thousand acres also deemed illegally taken by New York State. This Second Circuit Court case involving the Cayuga (Gayogo̱hó꞉nǫʼ) peoples, whose land Cornell University’s original campus occupies, primarily applied the Sherrill ruling to deny their claims to Indigenous sovereignty and restitution. The harms of the Sherrill case, so clearly embedded in anti-Indigenous racism, have thus trampled through other Indigenous nations and, it seems, will continue to do so long after Ginsburg’s passing.
During Justice Ginsburg’s first 15 years on the court, 38 Indian law cases were argued. The rights of Indigenous nations prevailed in only seven of those cases. Indigenous nations lost in eight of nine Indian law cases for which she wrote the court’s decision, including the Sherrill case. Some legal scholars have suggested that her overwhelmingly anti-Indigenous stance on the court was due to lack of training and familiarity with Indian Law. Indian law is a complex and discrete set of treaties, statutes, and agreements that govern the long relationships existing between the three relevant sovereigns of the United States: tribal governments, the federal government, and individual states. In the United States, few law schools offer adequate training in Indian law, if they offer any at all, evidenced also by Ginsburg’s 1993 confirmation hearing. During this hearing, one Senator from South Dakota asked about her familiarity with Indian law. She replied, “I cannot pretend to any special knowledge in this area of the law,” and stated that she had never studied it or taught it. Despite the fact that she had indeed taken part in six cases as federal appellate judge that touched on Indian law, and participated in the development of an ACLU amicus brief on a Supreme Court case directly speaking to it, she still renounced any claim to competence in Indian law. In most Indian law cases in which she decided, Ginsburg drew on her knowledge of civil rights – a framework based on upholding individual rights in law.[1] Yet the framework of individual rights that civil rights law is based on ignores the question of group rights – importantly, of the over 370 treaties that tribal and Indigenous nations have made with the US federal government. Indian law cases are no small matter. They take up 5% of the Supreme Court’s docket, and court hears one or two court cases regarding Indian Law each session. Despite the prevalence of Indian law cases, training in Indian law remains paltry.
Ignorance of the law, especially by those in power, is exceedingly devastating, and as the adage suggests, ignorance of the law excuses no one. Here at Cornell Law School this injustice is being addressed. The Cornell chapter of the Native American Law Student Association (NALSA) submits that, “while Cornell Law has not always had a strong Indian law program, it is clear that the administration is working very hard to make changes. We are continuously excited about the direction CLS [Cornell Law School] is headed.” NALSA offers the following thoughtful comment on this essay:
Experts in Federal Indian Law recognize that Justice Ginsberg was a complex individual who made decisions that were wonderful for civil rights in general, and other decisions that were harmful to Native America. While our Nations will be recovering from the harm she has done to our Indigenous Communities for a long time, we recognize the good that she has done for individual Americans.
It has been rumored that Ginsburg regretted her decision on the Sherrill case more than any other decision she made. In the last few years of her life she had learned more about Indian Law and applied her knowledge to cases such as the 2020 case McGirt v. Oklahoma, in which she stood in the 5-4 majority that confirmed that much of eastern Oklahoma is “Indian territory” of the Creek Nation. Yet for the Oneida, the Cayuga, and other Indigenous peoples against whom the Sherrill decision has been used as precedent, her regret does not return the land, nor does it repair the present and future damage.
Ginsburg’s legal career is often held as a testament to her demand for justice for women – she is an esteemed icon of feminism in the US. But her destructive legacy on issues of racial justice, prisoner’s rights, and Indigenous/tribal sovereignty often goes unappraised. Her decisions regarding Indigenous peoples in the United States in particular are conscripted into a legal system that from its start has intended to erase Indigenous self-determination, and to rid all Indigenous claims to traditional home territories in the US. Time and again, so-called liberal and conservative Justices have acted to extinguish Indigenous rights and status, and the legal record is troublingly bipartisan. To the great detriment of so many Indigenous peoples, Ginsburg never troubled herself to learn about Indian law and rights until the end of her career. In August 2019, Princeton Professor of African American Studies, Eddie Glaude stated, “there are communities that have had to bear the brunt of…white Americans confronting the danger of their innocence. And it happens in every generation.” This “innocence,” Glaude says, is sometimes thinly veiled by a willful ignorance. Native experiences and Native American politics falls squarely within the blind spot of a liberal/conservative binary. In a time of stark, rising authoritarianism and white ethno-nationalism in the United States, it is more difficult than ever to sit with nuance and un-block our ears to histories, lives, and political realities that are less amplified and thus less familiar to many readers.
With her reported regret about the Sherill case in mind, would that today we could ask Ruth Bader Ginsburg her opinion about her name on this building in Haudenosaunee lands. She worked indefatigably to reform some of the harms woven through the fabric of US governance from its founding. Yet her attempts at reform have not, and many argue cannot, reach Native American people and tribal and Indigenous governments. As worthy as such advocates are of celebration, this moment requires that a campus community take stock of how our institutions and honorings are complicit in continued injustice and oppression. Racism, seen here as anti-Indigeneity, is a historical and empirical reality in US universities by way of exclusions and adverse inclusions, in many campus traditions, and certainly in course content and omissions. Again this year, departments and students at Cornell have rallied their collective voices to call out this racism and demand change on reconfigured terms. The Cornell University and Indigenous Possession Blog highlights a pathway for Cornell University to begin repairing its relations with Indigenous peoples upon whose lands and lives the institution is established. At the very least, it has been assured that the Ginsburg dorm will not be placed adjacent to Akwe:kon, which would be a serious misstep off this path. Indigenous students at Cornell, who already confront daily on-campus Indigenous erasure, do not deserve to have another reminder of entrenched ignorance of their peoples’ lives and histories tower over their community space. Currently, there is discussion with Cornell University’s Vice President for Student and Campus Life, Ryan Lombardi, and with the traditional leaders of the Cayuga peoples upon whose lands Cornell occupies, about how their people also may be honored and recognized with an NCRE dorm name. I am hopeful that these discussions continue, and materialize.
Ginsburg’s memorialization may be a beacon for many young undergraduates at Cornell who may be encouraged, like Ginsburg, to work for expansive visions of justice. That tradition can take these students beyond what Justice Ginsburg was able to accomplish during her remarkable life. To make this possible, her memorialization ought not to begin with an affront to the many Indigenous peoples who, as she perhaps realized at the end of her career, she had not done justice.
[1] Supreme Court Justices unfamiliar with Indian law may tend to “seek parallels with areas of law and modes of analysis with which they are most familiar” (Goldberg 2009, 1004)
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References:
Borgman, Amy. “Stamping out the embers of tribal sovereignty: City of Sherrill v. Oneida Indian Nation and Its Aftermath.” Great Plains Nat. Resources J. 10 (2006): 59.
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“Ruth Bader Ginsburg Wants Trump to Appoint a Native American Woman to the Supreme Court.” The Buffalo Chronicle, September 19, 2020. https://buffalochronicle.com/2020/05/05/ruth-bader-ginsburg-wants-trump-to-appoint-a-native-american-woman-to-the-supreme-court/.
City of Sherrill v. Oneida Indian Nation, (03-855) 544 U.S. 197 (2005)
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