Take her 2005 decision against sovereignty in City of Sherrill v. Oneida Indian Nation of New York for example. The Court ruled 8-1 that the repurchase of ancestral Tribal lands 200 years later did not restore sovereignty to that land. Ginsburg wrote the majority opinion, stating that standards in federal law and equity practice “preclude the Tribe from rekindling embers of sovereignty that long ago grew cold.”
In short, Tribal lands were taken illegally, but time put righteousness of the law in the hands of invaders and their descendants.
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: based solely on Ginsburg’s opinion in that case, it is reasonable to say Ginsburg was anti-Indian. The language in her decision “implies that Native Nations are a relic of America’s past, that Tribal sovereignty is nonexistent in the present day,” Goldberg told the news outlet.
Sherrill had disastrous consequences for Indian Country. Lower courts would rely on Sherrill as precedent to extinguish Native American land claims, notably in Cayuga Indian Nation of New York v. Pataki. Ginsburg later admitted remorse for the 2005 determination, saying she regretted it more than any other decision made in her 27 years on the federal bench, the Buffalo Chronicle reported.
While Ginsburg came around and recognized her shortsightedness as it relates to federal Indian law, the damage had already been done. Her decisions set a precedent for the misinterpretation of laws and treaties going forward.
All this goes to underscore that the United States needs a more proactive approach to filling the chasm of knowledge and information about Indian Country. Native American history and Indigenous experience must be injected into the consciousness of this country from pre-schools to the U.S. Supreme Court and at every level in between.
Ginsburg came to realize this. Her dying wish was not to be replaced until a new president is installed — and in May she voiced her support for a Native American to serve on the high court. “So much justice has been denied to Native American communities because they have not had a seat at the table,” Ginsburg said.
In recent cases, Ginsburg sided with Indian Country. She was part of the majority in the 5-4 McGirt v. Oklahoma historic decision that determined that half of Oklahoma is Indian land. She also voted in the 5-4 majority in the Washington State v. Cougar Den taxation case that honored a provision in the Yakama Nation’s Treaty of 1855, among other significant decisions by the high court.
As a Native American, I see the gaping holes in her early awareness and assessments regarding Native American sovereignty and treaty rights, and I believe the implications of her more damaging decisions to Indian Country cannot be overlooked.
And yet I also honor her fierce determination and resilience as a trailblazer for women and other marginalized groups, such as the LGBTQ community and those with disabilities.
Ginsburg’s legacy began decades prior to her rise to the federal court. As a lawyer and the founder and general counsel of the American Civil Liberties Union (ACLU) Women’s Rights Project from 1969 and 1980, when she left to become a judge on the U.S. Court of Appeals, Ginsburg personally argued six sex-based discrimination cases before the then all-male supreme court, winning five.
Throughout her career, Ginsburg established herself as a feminist icon. She paved the way for a woman to open a bank account and have a credit card in her own name. She opened doors for a woman to lease an apartment or buy property in her name. She made it legal for a woman to consent to her own medical treatment. She levelled the playing field for women in education, employment, reproductive rights, house rentals and mortgages, credit and loans, prison and the military.
Taking stock of Ginsburg’s deep commitment to equality and the milestones she achieved not only herself but for society at large has caused me to reflect on the meaning of legacy.
I believe true legacy is devoting your life to a purpose and a future that you may not live to see — yet you fight for it anyway. Your efforts lay the groundwork, and prepare the next generations of leaders, to continue cultivating a better world.
Across Indian Country, nearly all of us are devoted to creating legacy — to leaving our communities better than when we entered them.
At Native Business, we are committed to affecting legacy through inspiring positive change and raising the bar higher for Indian Country. We are advocates for economic development and entrepreneurship as vehicles for self-sufficiency, liberation and generational wealth.
Part of paving the way forward is honoring those who came before us — the sacrifices they made for the world we live in today. We must remember that our ancestors carried on our cultures to keep our spirits alive. They practiced business and trade to build thriving economies, from Cahokia to Tenochtitlan. Their demonstrations of self-sufficiency and sustainability reveal to us that self-empowerment is not merely a catchphrase but embedded in our bones. Business and entrepreneurship are integral to Indigenous values and ways of life — and they are the lifeblood that support our proliferation and prosperity. We are the ones tasked with carrying that on.
We have always been who we’ve been waiting for. Self-sovereignty was inherent before the term “sovereignty” even existed. It is why we are here today.
Self-sovereignty is integral to our legacy at Native Business, and I hope to the legacy that my husband Gary “Litefoot” Davis (Cherokee Nation) and I will inspire in generations to come.
The unfortunate loss of Ginsburg, widely known as “the Notorious R.B.G.,” caused me to meditate on the legacy of my life and of all of my pursuits as a proud Native American woman and entrepreneur. I invite you to do the same.
As Ginsburg said, “If you want to be a true professional, you will do something outside yourself, something to repair tears in your community, something to make life a little better for people less fortunate than you. That’s what I think a meaningful life is — living not for oneself, but for one’s community.”