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US Fact check: Ruth Bader Ginsburg had 'mixed' record on tribal law, Native American sovereignty

00:01  23 september  2020
00:01  23 september  2020 Source:   usatoday.com

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The claim: Ruth Bader Ginsburg was 'anti-Indian'

Ruth Bader Ginsburg sitting in front of a mirror posing for the camera: Justice Ruth Bader Ginsburg, the first Jewish woman to be appointed to the Supreme Court, talks with filmmaker David Grubin in Washington about his PBS series © Kevin Wolf, AP Justice Ruth Bader Ginsburg, the first Jewish woman to be appointed to the Supreme Court, talks with filmmaker David Grubin in Washington about his PBS series "The Jewish Americans" in 2008.

A post on Instagram claims that Supreme Court Justice Ruth Bader Ginsburg, who died Friday, was "anti-Indian."

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The group has circulated a meme with a picture of Thomas Jefferson next to a quote that says, “the greatest da nger to American freedom is a government Pictured above that in the meme is Supreme Court Justice Ruth Bader Ginsburg with a quote that says, “I would not look to the U. S . Constitution.”

She tweeted that Ginsburg had once told her that she wanted to be remembered as someone who tried to "make things a little better through the use of whatever ability she has ". She proved that women belong in all places of power where decisions are made. Rest in peace, Ruth Bader Ginsburg .

"She enforced the racist 'Indian character' of stolen land in cases such as Sherill v. Oneida," the post reads. "She wrote the majority opinion, saying the court must prevent 'the Tribe rekindling the embers of sovereignty that a long ago grew cold.'"

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The user behind the post did not respond to a request from USA TODAY for comment.

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In Sherrill v. Oneida, Ginsburg delivered blow to Native American sovereignty claims

It's true that in 2005 Ginsburg wrote the majority opinion in City of Sherrill v. Oneida Indian Nation of New York. The high court ruled 8-1 in favor of the city of Sherrill.

At issue in the case was whether land parcels granted to the Oneida Nation by a treaty in 1794, which had since been sold and only recently repurchased by the tribe, should be considered part of its reservation and therefore be exempt from local taxes.

In her opinion, Ginsburg held that the Oneida Nation could not reassert its sovereignty over the land, and had to pay taxes to the city.

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"Given the longstanding, distinctly non-Indian character of the area and its inhabitants, the regulatory authority constantly exercised by New York State and its counties and towns, and the Oneidas’ long delay in seeking judicial relief against parties other than the United States, we hold that the Tribe cannot unilaterally revive its ancient sovereignty, in whole or in part, over the parcels at issue," Ginsburg wrote. "The Oneidas long ago relinquished the reins of government and cannot regain them through open-market purchases from current titleholders."

Her opinion also included the quote in the post; she wrote that standards in federal law and equity practice "preclude the Tribe from rekindling embers of sovereignty that long ago grew cold."

Carole Goldberg, a law professor at the University of California-Los Angeles who wrote an analysis of Ginsburg's decisions on tribal law, told USA TODAY that based solely on her opinion in that case, it'd be reasonable to say Ginsburg was anti-Indian.

Goldberg said the language in the decision was "very offensive," because it "implies that Native nations are a relic of America's past, that tribal sovereignty is nonexistent in the present day."

"If you look just at that decision, it's accurate," Goldberg added. "But if you take a broader look at her record, I would say the record is mixed. And her record improved from a tribal perspective over time."

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Ginsburg has had several bouts with cancer. She had radiation therapy for the pancreatic cancer in Supreme Court Justice Ruth Bader Ginsburg is seen in Washington in 2013. She is the second With Ginsburg , from left, are her brother-in- law Ed Stiepleman; her nephew David Stiepleman; and

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Other decisions — including her last — affirmed Native American rights

In her nearly three decades on the Supreme Court, though, Ginsburg adjudicated hundreds of cases, and wrote dozens of opinions.

Some, like Sherrill v. Oneida, did not uphold tribal sovereignty. Others did.

In its reflection on her death, for example, the Spokane Spokesman-Review noted two  close decisions — both 5-4 — in which Ginsburg voted to affirm tribal rights.

In her analysis in 2009, Goldberg wrote that her more recent opinions "suggest greater appreciation for the realities of tribal histories, aspirations, and struggles within a colonizing nation."

Goldberg told USA TODAY that the "most revealing" instance of how her record on tribal rights changed was in the United States v. Bryant in 2016.

In her opinion, which was 9-0 for the U.S., Ginsburg upheld the legitimacy of two convictions for domestic violence in tribal court.

"It was a decision that upheld protection for women who are victims of violence, but it also posed very starkly the choice between individual rights, particularly of criminal defendants, and tribal sovereignty," Goldberg said. "And she came down on the side of affirming tribal sovereignty."

And in what became one of her last votes, Ginsburg voted in the 5-4 majority in McGirt v. Oklahoma, which ruled that the eastern half of Oklahoma can be considered Native American territory, per USA TODAY.

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Prominent Native Americans offered kind words upon her death

Despite her mixed record on tribal law, numerous prominent members of the Native American community reacted to her death with heartfelt tributes.

All four members of Congress who belong to tribal nations issued statements commemorating her time on the bench, per Native News Online.

Rep. Sharice Davids, D-Kansas, for example, called her "a tireless champion for justice and a fierce advocate for the rights of all people under the law."

Jonathan Nez, the president of the Navajo Nation, also called Ginsburg "a true champion of justice."

"Her compassion for all people will always be cherished," he told Indian Country Today. "We are stronger because of her contributions to the Supreme Court and Indian Country.”

Stacy Leeds, a law professor and dean emeritus at the University of Arkansas, who is Cherokee, also told Indian Country Today that Native American lawyers held Ginsburg in "very high regard."

"Justice Ginsburg was incredibly smart and brave. She carried immeasurable stress with such grace. That’s why so many Native attorneys held her in very high regard, despite her mixed record in Indian law cases," Leeds said. "Her vote to reaffirm Muscogee (Creek) Nation boundaries on the final day of her final term will long be remembered."

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Our rating: Missing context

Based on our research, the claim that Ruth Bader Ginsburg was "anti-Indian" is MISSING CONTEXT, because it could be misleading. Though she did author a much-critiqued decision in Sherrill v. Oneida that denied tribal sovereignty and was considered "offensive" to some, she also authored opinions that affirmed tribal law. Her record overall was "mixed." Nevertheless, upon her death, prominent members of the Native American community paid tribute to her character and legacy.

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Our fact-check sources:

  • The Oyez Project, City of Sherrill v. Oneida Indian Nation of New York
  • Justia, City of Sherrill v. Oneida Indian Nation of N. Y., 544 U.S. 197 (2005)
  • Ohio State Law Journal, 2009, Finding the Way to Indian Country: Justice Ruth Bader Ginsburg’s Decisions in Indian Law Cases
  • Interview with UCLA Law Prof. Carole Goldman, Sept. 21
  • Spokane Spokesman-Review, Sept. 20, Realizations in Ginsburg’s final months highlights complex impact on tribal issues, including in the Northwest
  • The Oyez Project, United States v. Bryant
  • USA TODAY, July 9, Supreme Court says eastern Oklahoma remains Native American territory
  • Native News Online, Sept. 19, Four American Indians in Congress Remember Supreme Court Justice Ruth Bader Ginsburg
  • Indian Country Today, Sept. 21, 'A true champion of justice': Indigenous reactions of Justice Ginsburg’s death
  • USA TODAY, Sept. 18, Ruth Bader Ginsburg: Second woman on Supreme Court had been nation's leading litigator for women's rights

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This article originally appeared on USA TODAY: Fact check: Ruth Bader Ginsburg had 'mixed' record on tribal law, Native American sovereignty

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