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65 Guild Prac. 207 (2008)
The Marshall Trilogy and the Constitutional Dehumanization of American Indians

handle is hein.journals/guild65 and id is 215 raw text is: NATHAN GOETTING
What law have I broken? Is it wrong for me to love my own? Is it wicked
in me because my skin is red?
-Sitting Bull1
Nits make lice.
-Col. John Chivington2
I. The court as person-definer
While it is too simple to say that racism was the sole cause of the conquest
and subjugation of the North American native population, it was certainly at the
heart of it, just as racism was not the sole cause but was nonetheless at the heart
of the antebellum slave system. There was an attitude of greedy supremacy
behind Indian land snatching just as there was behind the intercontinental slave
trade. Andjust as the south's peculiar institution had a U.S. Supreme Court
case, Dred Scott v. SandfordI in which the court dehumanized an entire race of
people by affirming and promoting bigoted legal doctrines, so did the system of
expropriating Indian territories-three cases, in fact. This article seeks to explain
these three cases within the context of the court's historical role of defining who
is and is not (or what divisions of the human species are or are not) persons
under the fundamental law of the land, the U.S. Constitution.
A few times each century, it seems, the Supreme Court really does transcend
its role as a judicial tribunal and, by dint of the extraordinary constitutional is-
sues of the cases at bar, finds itself ruling as aspiring philosopher kings. These
can be dangerous moments for our republic. Oftentimes these cases involve a
decision about whether a particular sector of our population-a particular racial
or biological category of person-is fully human for purposes ofprotection under
our Constitution. These are cases in which the Court is not judging a person's
actions but instead whether the Constitution recognizes the members of certain
groups as persons at all. The aims of this section are modest. They are only to
demonstrate that such cases periodically occur and that when they do the most
basic rights of an entire group of persons can be placed in jeopardy.
When in 1857 the Court declared in Dred Scott that, because of their race,
African Americans are incapable of becoming U.S. citizens and are so inferior
that they had no rights which the white man was bound to respect4 the Court was
not just making a legal determination. It was making a pseudo-anthropological
Nathan Goetting is an assistant professor of Criminal Justice and Jurisprudence at Adrian
College in Adrian, Michigan, and is editor-in-chief of Guild Practitioner. He can be
reached at gpeditorsgn1g.org.

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