Robert B. Porter

The Demise of the Ongwehoweh and the Rise of the Native Americans: Redressing the Genocidal Act of Forcing American Citizenship upon Indigenous Peoples, 15 Harv. BlackLetter L.J. 107-183 (1999)(citations  omitted).

Editor's note: This article has over 400 footnotes. The footnotes have been edited out for presentation in this forum. I encourage you to see the original article for not only the scholarly documentation but the extensive explanations that Professor Porter  provided in his footnotes.

IV.  The Effects of Forcing American Citizenship

A. Genocide through Americanization

Forcing American citizenship upon Indigenous peoples was undisputedly part of a concerted and comprehensive effort destroy the unique Indigenous way of life. But was it genocide?

As a historical matter, the United States has on occasion committed genocide against Indigenous people. In the course of expanding the territorial boundaries of the United States, the American military killed over 50,000 Indians. This effort, however, was insufficient in permanently eliminating the Indigenous population. Even after the military threat posed by the Indian nations had ended, the United States never seriously considered simply letting Indian people choose their own path of self-determination. In part, this was due to the inability of the American government to keep its citizens from illegally settling upon Indian lands and interfering with Indian society. Foremost, however, was the fact that America had committed to wiping out the Indigenous population.

While forced removal, reservation life, and disease killed even more Indians, there remained a significant Indian population in the late nineteenth century. These Indians became America's "problem," an entire class of destitute and uncivilized "pagans" that were both an obstacle to Manifest Destiny and an annoying source of embarrassment. It was believed that "they" had to be eliminated--for their own good as well as for the good of the country--once and for all. With a powerful development lobby urging the confiscation of all remaining Indian lands, the social reformers succeeded in inducing pliant federal policymakers during the late nineteenth and early twentieth century to effectuate their Indian civilization agenda through the allotment of Indian lands, the imposition of Christianity and Western education upon Indian children, and the granting of American citizenship to all Indians. As a result of these actions, the Indigenous population in the United States was reduced from 600,000 to 250,000.

While this dramatic population decline speaks for itself, accusing the United States of committing genocide is not an accusation to be made lightly. It is important that this conclusion have some legal foundation.

The international community, under the Convention on the Prevention and Punishment of the Crime of Genocide, defines "genocide" as "acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such ...." The United States has implemented the Genocide Convention and has accepted this definition subject to its own particular restrictions and understandings. In determining whether genocide has occurred, Thomas Simon has argued that three central elements must be present: "[(i)] the intentional killing of members of a group, [(ii)] negatively identified by perpetrators, [(iii)] because of their actual or perceived group affiliation."

In analyzing whether any of America's actions toward Indigenous peoples have been genocidal, it can be safely assumed that the "negative identification" and "group affiliation" elements are satisfied. There is more than sufficient evidence in the historical record that the United States targeted the entirety of the Indigenous population for special treatment simply for being Indigenous.

The more difficult inquiry is whether America's actions toward Indians constitutes "intentional killing." As to whether America acted with the requisite "intent," intent can be determined both from direct expressions and inferences "from words and deeds to demonstrate 'a pattern of purposeful action."' It is important as an element because it "demands that those in positions of responsibility should have foreseen the consequences of the act."

On the basis of the historical record, there seems little doubt that the United States intended to carry out its actions toward Indigenous peoples. One example of a clear expression of America's genocidal intent comes from Colonel Richard Henry Pratt, the founder and president of the Carlisle Indian School, who carried out his Indian "educational" responsibilities with the intent to "kill the Indian and save the man." The record is replete with similar statements from other federal officials and even the Congress itself about the desire to eliminate the Indian population.

If statements such as these are not deemed sufficient evidence of genocidal intent, then the federal government's abandonment of Indian policy and administration to the social reformers and missionaries bent upon eliminating the Indigenous population should also be brought into evidence. This is an acceptable incorporation of non-government officials because "[g]enocide employs a corporate intent" that "can occur within the complete breakdown of institutional authority." Thus, the entirety of statements made and actions taken by both public and private actors and organizations in directing Indian policy and administration during the late nineteenth and early twentieth centuries should be considered in determining whether the United States acted with the requisite genocidal intent. Accordingly, statements such as that from Herbert Welsh, the founder of the Indian Rights Association, must be considered as supportive of this conclusion: "The solution of the [Indian] problem lies in a natural and human absorption of the Indian into the common conditions of American life-- annihilation for the Indian race, but a new life for the individual Indian." On the basis of this historical record, then, it can be concluded that the United States acted with the requisite genocidal intent.

As to whether the United States through its actions intended to "kill" Indians, until the late nineteenth century, the United States and its citizens engaged in the mass killing of Indians and thus did commit genocide under the Convention's definition of the term. Notable examples of American genocide include the Creek War of 1813-14, in which 1600 were massacred, the 1864 Sand Creek Massacre, in which 150 Cheyenne were murdered, the 1862 "Sioux Uprising" in which 38 Dakota were hanged, the campaign against the Apache between 1835 and 1885, in which at 2000 were killed, the so-called Battle of Wounded Knee, where 300 old men, women, and children were massacred, and the untold thousands of Indians killed in California "due chiefly to the cruelties and wholesale massacres perpetrated by miners and early settlers."

These killings constitute genocide because they were "acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such." It is unlikely, however, that the United States would agree with this conclusion. The United States would most likely argue that the killings occurred against the backdrop of war and thus may not be construed to have occurred with the requisite "specific intent". Nonetheless, it would be a far stretch to argue that killing Indian men, women, and children simply because they are Indian are justifiable acts of war devoid of genocidal intent.

Against the backdrop of these brutal killings, it can be concluded that the United States at various times in its history has acted with the requisite intent in killing Indigenous people and has thus committed genocide as defined under the Genocide Convention. But can it be said that America "killed" Indians when it carried out its forced assimilation policies, including the imposition of American citizenship under the Act of 1924?

Forcing American citizenship upon Indigenous people was not genocide per se, but doing so did constitute a genocidal act as defined under the Genocide convention. Genocide can be "graded" in terms of its intensity and so too can particular acts of genocide. The Convention lists the following acts of genocide:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

Simon argues that only the first category--"killing members of the group"--constitutes actual genocide because "[i]t is the killing of individuals because of their group membership. It is not the killing of the group, except in a metaphorical sense."

Simon argues that the genocidal acts defined under subsections (b) through (e) should not be defined as genocide in and of themselves but merely should be considered as "harm to individuals because of their group identity." Moreover, while he agrees that these acts too should be condemned, he argues that they should be considered only as "non-lethal group harm" that is separate and distinct from actual killing. Acts of this sort, he concludes, should be considered "actually or potentially linked to the killings defined in (a), not as independent acts of genocide."

Simon concedes that the Genocide Convention was deliberately drafted to focus on physical acts of genocide (to ensure ratification) rather than to encompass broader claims of cultural genocide. Despite Simon's acknowledgment that the Convention defines genocide to include acts other than killing, he concludes that these latter claims "dilute the concept" of genocide considerably because "[o]n the scale of group harms, prohibiting the use of a language ranks far below physically harming individuals because of their group identity."

While this argument has some merit in a temporal sense, the plain language of the Convention's text dictates that such a narrow interpretation should not be made. The Convention defines acts of genocide that go beyond just killing, to include other harmful acts as set forth under clauses (b) through (e). In asserting that the determination of a genocidal act should be limited only to killing, Simon seeks to "improve" upon the definition contained in the Convention. In doing so, however, he narrows it to such a degree as to exclude a wide range of genocidal acts that the Convention itself acknowledges as such.

Thus, forcing American citizenship upon Indigenous peoples qualifies as a genocidal act under subsection (c) of the Genocide Convention because the United States "deliberately inflicted" on Indigenous peoples "conditions of life calculated to bring about [their] physical destruction in whole or in part." Forcing American citizenship on the Indigenous population was an integral part of America's comprehensive efforts to "kill the Indian." As citizens of sovereign nations that pre-existed the United States, the Indians retained a powerful tool for ensuring that separate political existence notwithstanding the emergence of the United States as the dominant power--an independent political identity. Granting American citizenship to Indians was designed to destroy this exclusive Indigenous political identity and the loyalty associated with it by creating a new object of political allegiance and fealty--the United States. While the United States continued to recognize Indians as dependent wards and as citizens of their own Indigenous nations, the act granting American citizenship was designed to facilitate the complete and total assimilation of the Indigenous population into American society. In so doing, the United States took the "calculated" step of creating "conditions of life" designed to destroy the Indigenous population. Accordingly, it was a genocidal act because it was "committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such."

While it can be concluded that the Indian Citizenship Act of 1924 was a genocidal act as defined under the Genocide Convention, it is rather obvious that this action was not of the same genocidal intensity as the killings of Indigenous people that occurred at the hands of the America military in the nineteenth century. Nonetheless, the Act was explicitly designed and targeted to eliminate Indians as Indians by turning them into the visage of the "perfect" American--the Christian, educated, citizen-farmer. By the words and deeds of its architects, America's assimilationist actions toward Indians during this period were intended to transform the mass of "uncivilized pagans and savages" into a new class of "civilized" members of American society. In short, "Americanization" was the "final solution" developed for dealing with the "Indian problem". The loss of Indigenous identity associated with these efforts radically altered all and, in some cases, completely extinguished some Indigenous peoples. The fact that this killing did not occur instantaneously is not a reason recognized under the Genocide Convention as a basis for denying its categorization as a genocidal act.

Perhaps most amazingly, the effort to wipe out the "savages" spawned from the hearts and minds of the so-called "friends of the Indian" in American society. These social reformers--who supposedly were most concerned about the human condition of Indigenous people--came up with the master plan to cure the Indians of the "disease" of being Indian. To be fair, had the American military and the speculators prevailed in this debate over what to do with the Indians, it is most likely that Indigenous people would simply have been killed off in a form of human clear-cutting. Had this occurred, there would be no debate today over America's genocidal legacy. While the wars, forced marches, and massacres of Indian people carried out by the military never "succeeded" in exterminating large numbers of the Indigenous population in the same way that a Hitler, a Stalin, or a Pol Pot "succeeded" in their extermination campaigns, the fact remains that the United States for much of its history sought to obtain the same measure of "success".

Aside from the legal analysis of whether forcing American citizenship upon Indigenous peoples was a genocidal act or not, there is no practical reason to draw a distinction between whether these acts were genocide, cultural genocide, or even a form of cultural euthanasia. America's efforts to change Indians into White people was a grand experiment in social engineering on par with any of human history's most grotesque efforts to subjugate, transform, and eliminate those "other" peoples who have been perceived as a threat to the colonizing nation. Unfortunately, the legacy of American colonialism is not just the death of Indigenous peoples and the destruction of Indigenous societies; it is also the continuing legacy of infecting the remaining Indigenous population with the virus of Americanism, an affliction that grows exponentially as a threat to the preservation of a distinct Indigenous future.

Forcing American citizenship upon Indigenous peoples was but one way in which America's colonial agenda was effectuated. Doing so, however, has precipitated at least two additional effects that continue to carry out this agenda as the twentieth century draws to a close: the transformation of Indigenous political identity and the weakening of Indigenous self- determination and sovereignty.

B. Transformation of Indigenous Political Identity

Forcing American citizenship upon Indigenous people transformed Indigenous political identity in the way it was intended. This effect can best be depicted by imagining an "Indigenous citizenship continuum," with on one end of the continuum the pure "Indigenous nationalists"--those Indigenous people who reject American citizenship and who maintain an exclusive conception of Indigenous citizenship--and on the other end the "Native Americans"--those people of Indigenous ancestry who have fully accepted American citizenship and rejected any notion of retained Indigenous citizenship. Along the continuum are Indigenous people who think of themselves as being some degree of a "dual citizen" of both the United States and their Indigenous nation. As this continuum looks today, it most likely would be skewed heavily to the side favoring Native Americans with very few Indigenous nationalists and very many falling somewhere between dual citizenship and being considered a Native American.

It may seem totally innocuous that most Indigenous people today self-identify as dual citizens and that a great many do not maintain a citizenship connection with any particular Indian nation. But this misconception ignores the fact that maintaining dual political allegiance has a negative effect on the loyalty that one has to a political community. Failure to hold absolute political allegiance toward one nation can compromise ones' political loyalty to either or both of the nations of which the individual is a citizen. This can be a threat to both of the nations extending citizenship status and is the main reason why the United States does not generally recognize dual citizenship for its citizens (except, of course, for its "Native American" citizens). This effect can be even more destructive if one of the two nations is small and weak in relation to the other.

Because forcing American citizenship upon Indigenous peoples undermines the loyalty that one has to one's Indigenous nation, as the commitment of Indigenous citizens to their Indigenous nation diminishes, dual citizenship will have the effect of destroying the Indigenous nation from within. This conclusion must be true because, after all, American citizenship was forced upon Indigenous peoples for precisely that reason.

If there is any doubt about this proposition, one need only look at the increase in Indian participation in the American political system during the last thirty years. In an unprecedented manner and degree, Indians today are becoming more active participants in the American political process. Proponents argue that this is the best evidence that Indians are reestablishing--for the first time in 200 years--a strong voice in its relations with the United States. If Indians are able to "work the system" to their advantage, these defenders say, then the pinnacle of political power will have been achieved. Success in the American political system would thus constitute an Indian "political renaissance" that would allow Native Americans to preserve advantages associated with both their Indigenous and American heritage.

It was exactly this state of affairs that was anticipated by one of the founders of the SAI, Arthur Parker, an American of Seneca descent:

To survive at all [the Indian] must become as other men, a contributing, self-sustaining member of society .... The true aim of educational effort should not be to make the Indian a white man, but simply a man normal to his environment .... No nation can afford to permit any person or body of people within it to exist in a condition at variance with the ideals of that nation. Every element perforce must become assimilated. I do not mean by this that the Indian should surrender things and passively allow himself, like clay, to be pressed into a white man's mold ... I do mean, however, that the Indian should accustom himself to the culture that engulfs him and to the force that directs it, that he should become a factor that directs it, that he should become a factor of it, and that once a factor of it he should use his revitalized influence and more advantageous position in asserting and developing the great ideals of his race for the good of the greater race, which means all mankind.

What Parker failed to appreciate, and what the modern proponents of this view fail to comprehend, is that participating in the American political system wholly abandons the notion of Indigenous sovereignty and the nation-to-nation relationship established by the treaties with the United States. Voting in American elections, running for political office and lobbying American officials totally concedes to the United States the controlling authority that it has long sought. Being able to participate equally and successfully in the American process has been one of the most important objectives of historically disenfranchised groups in American society. For Indigenous people to accomplish this objective, however, is to casually relinquish the unique path for Indigenous citizens carved out and preserved by the treaties with the United States. This unique relationship--that even the United States still honors to a significant degree--can only perpetuate itself through the discourse and currency of nations--diplomacy and bilateral nation- to-nation relations. Foreign nations do not direct their citizens to vote in American elections, nor do they fund American political candidates to effectuate their agendas with the American government; they send ambassadors and engage in diplomatic relations. Indeed, this view is so strongly held by the United States that federal law prohibits its officials from taking political contributions from foreign governments.

For Indigenous people to act like Americans and scrap for votes, lobby politicians, and make political contributions simply puts us in the same category as every other political interest group in the United States. Having the status as a corporation, trade association, or special-interest group may look pretty good for an Indigenous nation that has never had much of a voice in American political affairs, much less its own. But such a political status is very limited compared to being recognized as a separate sovereign nation.

Acceptance of American citizenship status wholly undermines what it means to be a citizen of a sovereign Indigenous nation. After attending the 1998 Arizona Indian Voters Convention, David Wilkins and Richard Witmer came to a similar conclusion:

We found this keen eagerness to participate in American politics, so keen that a young Hopi woman went to the podium and invited the audience to join her in a rendition of the Star Spangled Banner, both exciting and troubling. It is exciting in that Arizona Indians are finally in a demographic ... and financial ... position to potentially be able to affect the outcome of some state or even congressional and gubernatorial elections. But it is troubling in that it raises questions about the literal extent and actual meaning of tribal sovereignty ... if tribal members are so actively involved in non- Indian electoral politics, can they still legitimately claim to belong to separate if connected sovereign nations?

Indian participation in the American political process is the natural result of forcing American citizenship upon the Indigenous population. Not surprisingly, over time this change in identity has induced Indian people to abandon what it means to be a citizen of a separate sovereign nation and to think, believe, and act like Americans when it comes to political activity. This is not only significant in its own right, it is an effect that feeds upon itself. As more and more Indigenous people come to identity strongly with their American citizenship, the pressure to conform to this conception of political identity and to abandon notions of Indigenous political identity will grow with it. Over time, the political discourse amongst Indian people will only be thought of in terms of how one can influence the American political process directly and not how one's Indigenous nation can carry out diplomatic relations with the United States. Thus, the act of forcing American citizenship upon Indigenous peoples will continue to increase pressure on all Indians to conform to this behavioral paradigm and to abandon any remaining conception of a distinct Indigenous citizenship. When this happens, John Marshall's haunting prediction will have been proven true: "the distinction between them is gradually lost, and they make one people."

C. The Weakening of Indigenous Sovereignty

Forcing American citizenship upon Indigenous people not only has had the effect of incorporating the native population into the fabric of American political society, it also has had the effect of weakening Indian self- determination and sovereignty. This effect can be demonstrated by looking at the practical consequences of encouraging Indians who still live in their own territories to participate in the American political process through voting.

While proponents of Indian participation in the American political process trumpet the reasons why Indians should do so, they undervalue the fact that Indians also have their own Indigenous governments and political processes. There is much activity that tribal government engages in that can have a dramatic effect on the life of the average ordinary Indian citizen. How strong and capable these governments are able to deal with the demands place upon them may have as much to do with affecting their lives, if not more so, than what goes on in Washington.

Unfortunately, when it comes to political participation, every person has only so much time in the day to devote. Indian people, as dual citizens, are thus presented with yet another difficult choice. Should he or she spend time trying to help some Democratic or Republican "friend of the Indian" Governor or Senator get re-elected, or should he or she spend time trying to drive the incumbent, and perhaps corrupt and incompetent, tribal chair out of office? Few Indian people have the luxury of making a meaningful commitment to carrying out both efforts with much success. The practical effect, then, is a kind of zero-sum game of political participation in which time spent participating in the American political system is time taken away from participating in the tribal political system.

As a result, Indian participation in the American political system serves to undermine the quality of Indigenous government, and thus, Indigenous sovereignty. This sovereignty is a reflection of the degree to which an Indian people believe in the right to define their own future, the degree to which they have the ability to carry out that belief, and the degree to which their collective actions are recognized by others within the tribal nation and the outside world. Indigenous sovereignty cannot survive or be strengthened if Indigenous citizens spend all of their available political action time working on the political campaigns of the colonizing nation's politicians. If Indigenous nations are to grow stronger, it will be because of the commitment and energy of their citizens working together toward improving things from within. Sovereignty, after all, does not come from the federal government, it comes from the people, and if it is not cultivated and nurtured, it will be lost.

In addition to this effect, participation by non-reservation Indians in the American political process can also have a detrimental effect on Indigenous sovereignty. As the Indigenous population in America has become increasingly urbanized in this century, the rise in Native political participation has had the disproportionate effect of giving a greater political voice to non-reservation Indians. This is not inherently problematic, but urban Indians have a different set of political priorities than Indians maintaining residence in their Indigenous nation. Some have argued that educated, urban Indians, while "thoroughly grounded ... in municipal bonds, capital formation, and other esoteric topics ... do not understand the perspective of tribal leaders, or of Indian people" who must deal with the milieu of cultural and social problems found on the reservation as well as the challenges of self- government. This gap in ideology has the very real effect of shifting the debate away from reservation Indians--who have the stronger connection to Indigenous self-government and sovereignty--to urban Indians--who have a much weaker and even nonexistent connection.

As American politicians become increasingly more concerned about the "Native" vote, this difference will also serve to undermine Indigenous sovereignty over time. Urban Indians will naturally vote based upon their self- interest and seek to have their political concerns addressed over the concerns of reservation Indians. This may result in a shift of economic resources to urban Indian communities. But it may also include a detrimental shift in focus on the political issues that are perceived as important by American politicians. In the absence of the need to concern themselves with Indigenous self-government, urban Indians have become increasingly preoccupied with their status as minorities in the American political system and the racism and discrimination that is inflicted upon Indigenous people by virtue of that status. These are surely legitimate concerns, but American politicians have a tin ear for genuine assertions of Indigenous sovereignty and will not perceive the shift away from the reservation Indian voice. And because this urban Indian political message is very similar to the message heard from other political minorities in the United States, these factors will combine to make the Indigenous political agenda more and more Americanized over time. Sovereignty, rather than being the true manifestation of Indigenous self-government, will simply become a mantra to be used by Indian advocates as leverage against other minorities in the competition for political power within the American political system.

D. Summary

The degree to which Indigenous people avail themselves of the American citizenship that has been conferred upon them is directly related to the degree to which the Indigenous population has assimilated into American society and the degree to which Indigenous sovereignty has been jeopardized. If Indian people believe that participating in the American political system will have more of an impact on their well-being than participating in tribal politics or seeking to revitalize reservation life, then that alone is the best evidence that the colonizing nation has succeeded in devaluing the role of one's Indigenous nation in daily life. Ideally, rather than finding ways in which to extend American society even more so into Indigenous life, Indian people should be working toward the day when their own tribal governments are strong enough and legitimate enough to serve as the exclusive mechanism for representing tribal concerns in relations with the federal, state, and local governments.

Willing and aggressive participation in the American political system suggests that Indigenous people have forgotten that we are citizens of our own nations. At least for now, the United States recognizes this fact even if we fully do not. Rather than being merely classified as a racial minority, America continues to recognize us as citizens of our own sovereign nations in a nation- to-nation relationship with it. When we stop acting like citizens of our own nations and only act like citizens of the United States, our sovereignty will have expired. This objective, of course, was the reason why the Citizenship Act of 1924 was enacted in the first place. But unfortunately, too many Indigenous people today have been "educated" to ignore the reality that our recognition as sovereign nations has always been tenuous. This could be a costly mistake. As Wilkins and Witmer have concluded:

tribal members' full throttle participation in the American political process might foretell starker days in the future when the collective rights of sovereign tribes might be curtailed or even terminated because of these very acts of political participation.