Property Theft

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

One of the first constitutional law cases I studied in law school was Johnson v. M’Intosh. The opinion was written by this country’s first great Chief Justice, John Marshall. Many call him “the great Chief Justice.” No opinion more exemplifies why “great” doesn’t necessarily mean kind, or compassionate, or even wise.

That opinion, from 1823 to this very moment, doomed American Indians to the legal theft of their lands, wherever and whenever the United States chose (and chooses today) to steal it.

I am reminded of that case by a documentary I watched the other day, called “Broken Rainbow.” It’s about the forced relocation of native peoples from Navajo and Hopi reservations in Arizona, so energy companies could get at the minerals lying beneath their sacred land. Of course it was understood that the land was sacred only to the Indians, who couldn’t possibly understand that the sacristy of the white man usually takes the form of a bank.

It’s an odd kind of situation that Arizona, which recently passed laws to try to kick immigrants across the border into Mexico, is full of lawmakers who but for Marshall’s Supreme Court land grab would be considered illegal aliens on Indian land.

The film was released in 1985, and shows another revered politician, Morris Udall, blithely dismissing the Indians for not being more American, because an American would say, well, we had a tough break, it wasn’t fair, but that’s okay, we’ll find another place to raise our children that’s just as good. I was one of those people who at least thought Udall was entitled to some reverence, but after watching this film, not so much.

And if you think I’m reaching back a bit far in time to bemoan this theft, the DVD that “Broken Rainbow” comes on contains a 2006 coda, where another great American from Arizona, John McCain, is sponsoring a bill to kick out the remaining Indian sub-Americans who refused to budge back in 1985.

You gotta love manifest destiny.