This book traces the history of the U.S. government’s control of Indigenous peoples

Keith Richotte is the director of the Indigenous Peoples Law and Policy Program at the University of Arizona. He’s also Indigenous himself — a member of the Turtle Mountain Band of Chippewa Indians.

Throughout his legal career, he’s been nagged by a frustrating question: when and how did the United States come to justify its essentially limitless power over Native Americans?

To finally get an answer to his question, earlier this year Richotte wrote a book called “The Worst Trickster Story Ever Told.” In it, he traces the pernicious history of a series of Supreme Court decisions that established what’s known as “plenary power” — basically, the government granting itself legal authority over a group of people.

Richotte models his narrative on the Native tradition of the trickster story — parables of creation and change where an unreliable narrator dupes the listener into reshaping their perception of reality.

Richotte spoke with The Show shortly after the book’s publication.

Full conversation

KEITH RICHOTTE: Well, just imagine if you had a neighbor, right? And the neighbor all of a sudden comes over to your property and starts saying, hey, wait a minute, this is my property. And you start to say, well, how or why do you think that it's your property? And they say, well, because I am more civilized than you.

And then not only starts telling you that they can dictate for you what you should do on your own property, and how you should live your life, and where you should go to church, and how you should be educated and who you can spend time with, and so on and so forth. So the plenary power doctrine was a method for the United States to justify its colonial authority.

SAM DINGMAN: Yeah. Well, there are so many conversations happening in politics right now, about the idea that the judicial branch is a kind of backstop to prevent executive overreach, and that that is something that the framers ostensibly had in mind when they designed the government and wrote the Constitution. 

But the thing that your book points out is that in many ways, at least when it came to Native Americans, the idea behind the judicial branch was to support the expansion of American empire and to kind of reify the notion that the colonial project was not just necessary but urgent.

RICHOTTE: Absolutely. And also trying to figure out how to deal with all of these non-white people, right? And so, in the Indian law realm, it's all about, well, what do we do with these folks who are on this land that we really want?

DINGMAN: The trick that the Supreme Court Seems to have deployed here is not to deny the fact that there were Native Americans on this land who might have some interest in it. The trick, it seems like they pulled off, was to invent some sort of legal rationale for the fact that, well, the U.S. needs to be able to engage in commerce in these places. We all accept that as a reality, right?

So it transforms the Native Americans from people with interest in the land to obstacles to commerce, at which point the law can then begin to act upon them in a different way.

RICHOTTE: Yes, and so the very first case that's really the big plenary power case, case from 1886 called U.S. v. Kagama, they were trying to essentially justify this criminal law statute that allowed the federal government to criminally prosecute Native peoples who committed crimes against other Native peoples in Indian country, which was somewhat akin to the federal government passing a law that says we have the authority to prosecute one Canadian citizen who commits a crime against another Canadian citizen in Toronto.

Poor federal government lawyers had to find some sort of hook in the Constitution. They tried to use the Commerce Clause. Commerce Clause did not work, according to the court. The court called it a very strain construction.

And so then the real trick is, is tying this plenary power, which was started and openly understood in racial terms, into something that is somehow then justified by the highest law in the land.

DINGMAN: Yeah. In the earliest days of all this, there was this fundamentally racist idea in the American legal philosophy, which was that the Native American community was somehow fundamentally ungovernable because there was this inherent violence happening, which, as you point out, was the result of the Americans showing up in the first place. 

RICHOTTE: Yes, and John Marshall does this interesting thing. He does a series of cases that we referred to as the Marshall Trilogy from the 1820s and 1830s. And, and so he spins this crazy tale about how well, there's a way that colonization usually works.

And what usually happens is the colonizer comes in, but everybody's really cool, right? Nobody's too worried about any of this. Eventually, everybody starts mixing together, right?

And then at a certain point in time, you can't tell one group of people from the other. They kind of become all one thing. And he says that's the usual course of things.

DINGMAN: Right.

RICHOTTE: And maybe, OK, fine. Good. Great. But here on the North American continent, we can't do that. And the reason why we can't do that is because all these Indians are so wild and crazy. And their appeal is to the tomahawk. And they're high spirited and savage. And so there's none of that blending with them.

DINGMAN: Right.

RICHOTTE: Which is totally not true. But, right, the idea is that there's none of that blending with them.

DINGMAN: Right. 

RICHOTTE: So we have this rule called the doctrine of discovery, which allows the colonizing nation to make claims to the land and then to gain hold of that land, either through purchase or conquest. And it's kind of an unfortunate rule, Marshall says. But, hey, it's the one that got used before, and it's the one that has to be used in this instance because of who we're dealing with.

And so then ultimately, the totality of this field of law is built upon this notion or idea of Native peoples being savage, so that the fundamental question of the book is, when did plenary power become constitutional? And that's the question that helps to trace what the story is and why.

Ultimately, it is the worst trickster story ever told.

DINGMAN: Yeah. Tell us about why you wanted to use the trickster story framing. Why did that feel so fitting to you for this? 

RICHOTTE: Because when I started really looking at these cases and digging through it, I recognized something, and I recognized, hey, wait a minute. This seems somewhat familiar in that at its most basic, a trickster is somebody who creates. And a trickster story is a story of creation.

That's why you get stories about how this trickster figure changed the landscape, or this trickster figure is the reason why this animal has these markings or the tree. You know, certain trees or foliage look this way. It's because of the trickster.

And so then when I was going through these cases and I was trying to discern when plenary power became constitutional, I began to realize that this was another story of creation, the totality of federal Indian law, the area of law that I specialize in, can probably be summed up very simply by recognizing that the question is, what do we do with all these wild and crazy Indians?

And that question exerts itself in different contexts in different times. It's not just one trick. It's a series of tricks that allow the federal government to keep justifying itself. This remarkable and gigantic authority over Native peoples that does not and would not make sense in any other context.