RBG's Mixed Record

Following the death of US Supreme Court Justice Ruth Badger Ginsburg and the online praise she was receiving, I became aware of a number of articles suggesting that Ginsburg in fact did not have a favourable record when it came to issues of Indigenous rights. The proposed ‘champion for all’, though instrumental in the assertion of women’s rights in America, had what some would call a ‘mixed record’ when it came to more intersectional feminist views.

I felt that it was important to look into the cases that make Justice Ginsburg’s record on Indigenous cases less than the caliber of judicial excellence that much of the public remembers. A quick search yielded results that I had not previously thought to look into given the widely publicized image of Ginsburg as the ‘Notorious RBG,’ the fierce fighter of women’s rights.

During Ginsburg’s tenure as Supreme Court Justice the opinions she wrote for the court regarding what are referred to as “Indian Law” cases were comparatively less favourable towards groups of Indigenous people than had been written in previous years. Ginsburg’s record upholds the opinion that she was unreceptive to indigenous claims. In hindsight, it can be inferred that the Supreme Court itself has shown preferential treatment to those enforcing state rights, rather than Indigenous rights or what is referred to in Carole Goldberg’s analysis of past Indigenous cases involving Ginsburg as ‘tribal rights’.

Ginsburg’s record is particularly interesting as it is her opinions that are the bigger issue, not necessarily how she voted in these individual cases, where scholars take issue. One such opinion which she wrote in regard to the City of Sherill V. Oneida Indian Nation frequently pops up as one of the more problematic. The case itself dates back hundreds of years, to the American Revolution. The Oneida had broken ranks with the other Iroquois Nations to support the US, providing the army with corn that was considered a much-needed resource at the time. Following the Revolution, in acknowledgement of their efforts, the US signed a treaty with the Oneida to provide 300 000 acres of land in what is now New York. Later, in 1970, New York pressured the Oneida into signing all but 5000 acres of their land away. The US never intervened, despite a 1790 law stating land could not be allocated without express permission of the US. By 1838, after more pressure from the state, the Oneida only owned 32 of the original 300 000 acres.

By the nineteenth and twentieth centuries numerous attempts to reclaim Oneida land were made. When the Oneida finally managed to reclaim a small part of their ancestral land, however, another issue occurred. Though Oneida was understood to be a sovereign nation, as the treaties that were signed outline, the City of Sherill was still imposing a tax on their land. When brought to the Supreme Court, the decision was rendered in favor of the City of Sherill, which lower courts have suggested acts as an invitation to deny Indigenous claims in the future. In Ginsburg’s opinion to the court, she consistently references the Oneida’s dispossession of land as ‘ancient’ rather than recognizing that their rights were being dismissed in the present. The struggle that the Oneida were currently facing was disregarded. As a historian, I find fault in the lack of understanding about the depth to which these issues persist, and the past in which they are connected to.

In more recent years, Ginsburg’s voting had been more favorable towards the affirmation of Indigenous Sovereignty. In one of her last votes, Ginsburg voted 5-4 in McGirt V. Oklahoma. This ruling affirmed that the eastern half of Oklahoma was considered Native American Territory. If anything, these facts point to a need to grapple with dissenting stories opposing a common public storyline. Ginsburg’s opinions to the court also outline a distinct gap in the law more generally when it comes to the understanding of

Indigenous traditions, law, and ways of understanding the world. Nearly nobody is untouched by an ingrained history of colonialist views. Ginsburg, though the pinnacle of women’s independence, lacked the capacity to understand the Indigenous perspective for much of her law career.