|
William Bradford
excerpted from: William Bradford, With a Very Great
Blame on Our Hearts": Reparations, Reconciliation, and an American
Indian Plea for Peace with Justice, 27 American Indian Law Review 1-174,
19-75 (2002-2003) (811 Footnotes)
II. The Claim for Indian Redress: How the West Was Stolen
Concealed behind the benevolent facade of the American mission
civilisatrice is the brutal reality of invasion, slavery, forced
relocation, genocide, land theft, ethnocide, and forcible denial of the
right to self-determination wholly incompatible with contemporary
understandings of U.S.-Indian history and with the notions of justice
informing the human rights regime. It is perhaps impossible to overstate
the magnitude of the human injustice perpetrated against Indian people
in denial of their right to exist, on their aboriginal landbase, as
self-determining peoples: indeed, the severity and duration of the harms
endured by the original inhabitants of the United States may well exceed
those suffered by all other groups domestic and international.
A. Genocide: "The Metaphysics of Indian Hating"
1. Conquest
On May 3rd, 1493, Pope Clement called upon Spanish conquistadores to
discover and conquer new lands in the Americas in order to draw
"barbarous nations" to the Christian faith. The subsequent
invasion of the Western Hemisphere, predicated upon a jurisprudential
assumption that the indigenous inhabitants were a distinctly inferior
species, was governed by the legal principles of discovery and conquest.
The latter provided as a matter of international law that a nation
became the sovereign of territory its agents "discovered"
provided it subjugated the population and annexed its lands. Although
prudence restrained pre-eighteenth century aggression in lands that
became the United States, conquest was eventually applied in all the
Americas, and the period subsequent to first contact is notorious as the
"Age of Genocide."
2. Slavery
In the aftermath of conquests, colonizers offered financial
incentives to corporate slavers to create bounties between tribes,
thereby facilitating a divide and conquer strategy that served
territorial objectives while providing free labor to developing
economies. The abomination of the Indian slave trade
played a significant role in both colonial trade and in the
extermination of most of the southeastern tribes ... [T]he Indian slave
trade involved all the colonies and ... involved all the horrors long
associated with the worst images of slavery, including beatings,
killings, and tribal and family separation. It became routine policy to
separate families, sending the Indian men off to the northern colonies
while keeping the women and children in the south .... In the east,
Indian slaves became a viable component of trade, along with deer skins
and furs; in the west, American Indians were enslaved by the Catholic
Church in order to build and maintain its missions ... Indian slavery
was ... an integral part of the colonial economy.
Although Indian slavery had largely discontinued in favor of African
American slavery by the early nineteenth century, Californian Indians,
as late as the mid nineteenth century, were regularly raided by
slave-hunters looking for men to work in mines and women to work in
brothels, and extermination befell many who resisted.
3. Transcontinental Ethnic Cleansing
The precise number of Indian victims of the genocide committed by
Euro-American colonizers over the past half-millennium evades
quantification. Estimates of the pre-Columbian indigenous population in
what later became the United States range from five to ninety four
million, yet by 1880 disease, slaughter,slavery, and aggressive wars
reduced their number to as few as 300,000 -- and declining. Although
luminaries such as President Thomas Jefferson denounced the genocide as
it unfolded, the prevailing racial ideology reassured the public that
the disappearance of an inferior people before the United States'
continental advance was a "historical and scientific
inevitability." Initially, a legislative approach effected physical
removal of Indian people from ancestral lands; however, when this proved
politically inefficient, measures more clearly within the inherent
powers of the executive and therefore less susceptible to judicial
review were devised: Indian genocide became official policy of the
United States and its political subdivisions.
In the aftermath of the Civil War, the might of the U.S. Army was
directed toward Indian eradication. Military and civilian contractors
induced deliberate starvation by destroying primary food sources such as
the buffalo, yet Indian tenacity necessitated more direct applications
of force. One by one, the Seminole, Nez Perce, Lakota, Shoshone,
Comanche, Apache, and other tribes were hunted, pursued, cornered, and
murdered. A series of "massacres" were written in Indian blood
on the pages of American history: Blue River (1854), Bear River (1863),
Sand Creek (1864), Washita River (1868), Sappa Creek (1875), Camp
Robinson (1878), Wounded Knee (1890), and about forty others. Gruesome,
shocking, deliberate exterminations of defenseless women and children,
were perfectly legal exercises of State and federal authority as the law
then stood. By the conclusion of the "Indian Wars" in 1890,
the pre- Columbian Indian population was reduced as much 98%, and an
Indianrein United States was not beyond possibility. Although radical
depopulation of Indian land may have been merely an efficient means to
capture and annex territory, the United States nonetheless committed
genocide in overtly manifesting a clear intent to kill, and killing,
Indians as such.
B. Land Theft
The relationship between the land and Indian people is fundamental to
their physical and cultural survival as distinct, autonomous groups.
Indian land is constitutive of the Indian cultural identity and
designative of the boundaries of the Indian cultural universe. Indian
land transmits knowledge about history, links people to their ancestors,
and provides a code of appropriate moral behavior. From the moment of
first contact with European "discoverers," Indians proclaimed
a sacred responsibility to preserve and transmit Indian land, and with
it, identity, religion, and culture, to successive generations. The
discharge of that responsibility was compromised by federal policies of
land acquisition ranging from fraud and deceit to expropriation and
outright theft.
Throughout the seventeenth and early eighteenth centuries, prudence
directed Euro-Americans to formally recognize militarily potent Indian
tribes as independent societies and accord them diplomatic recognition
as sovereigns. Even subsequent to the defeats of France in the Seven
Years' War in 1763 and Britain in the War of Independence in 1781, the
Euro-American foothold in North America remained tenuous, and ongoing
military insecurity stymied territorial ambitions while stifling any
notions of conquest. Moreover, the United States' land hunger was
largely sated by available space within the original thirteen colonies,
and land acquisitions from Indian tribes were of necessity accomplished
by treaties of cession after peaceful negotiations. Still, if during its
first several decades of existence the fledgling government was obliged
to recognize the sovereignty of Indian nations and to respect Indian
land titles as a matter of international and domestic law, from the
moment of its creation the United States was crafting legal solutions to
the "problems caused by the ... fact that the Indians were here
when the white man arrived[.]"
1. Fraud and Firewater
The Indian conception of land as utterly incapable of reduction to
ownership as property by human beings -- an essential element of
pan-Indian cosmology -- crippled tribes in their early negotiations with
U.S. representatives operating within an imported common law tradition
commodifying land. While Indian tribes generally understood treaties to
create sacred kinship ties entitling the United States to share and
settle the lands in question, the goverment, disinterested in kinship
but desirous of no less than fee simple title, manipulated Indian
(mis)appreciations of Western property rights in treaty texts
incomprehensible to Indian negotiators not proficient in the English
language. Moreover, U.S. negotiators, notwithstanding their claims of
moral ascendancy over Indian tribes as the philosophical basis for
acquiring dominion over their lands, secured further fraudulent
advantage by dulling Indian wits with alcohol. Deliberately faulty
translations of treaty text and inaccurate explanations of treaty terms
to Indian tribes possessed of limited language skills and a
Weltanschauung in which land is a sacred living thing incapable of
reduction to ownership exacerbated a fundamentally unequal bargaining
position and erased the line between consent and coercion; worse, later
treaties simply codified the results of more pronounced forms of
coercion, including conquest and genocide. In sum, many, if not all, of
the Indian treaties ceding land to the United States are physical
embodiments of the fraud, unconscionability, and duress governing their
drafting and as such are arguably subject to revisitation,
reconstruction, and even renunciation as
2. Conquest by Fiction: Johnson v. M'Intosh
By the early nineteenth century the U.S. population was clamoring for
more Indian land even as Indian tribes, increasingly convinced of the
insatiability of white land hunger, began to resist. Original legal
protections for Indian land grew incompatible with white notions of
progress, and pressure mounted to annul the marriage of political
convenience and legal principle effected by the discovery doctrine.
However, even as the United States waxed ever more militarily potent,
Indian tribes retained the capacity to defeat conquest, and thus it fell
not to armed force but yet again to law to wrest away additional Indian
lands. The seminal case Johnson v. M'Intosh provided the opportunity
whereby to expand the Euro-American foothold.
Although he acknowledged both the "impossibility of undoing past
events and the fact that the sovereign he represented was born in
sin," and although he recognized that Indian tribes were as yet
independent political communities in retention of original rights to
property and self-governance, Chief Justice John Marshall accepted the
extravagant arguments that European discovery, not Indian occupancy,
constituted ultimate title to lands in the United States and that
purchase or, in the alternative, conquest of territories by the
discovering sovereign conferred good title to those lands. While
Marshall conceded that such arguments "may be opposed to natural
right, and to the usages of civilized nations," he drew from the
doctrine of stare decisis, comparisons to the practice of other states,
and ultimately a jurisprudential affirmation of the
"inferiority" of Indian nations to find that "if [such
arguments] be indispensable to that system under which the [U.S.] has
been settled, and be adapted to the actual condition of the two people,
it ... certainly cannot be rejected by Courts[.]" Although the
progressive Marshall intended to impose legal limits on the future
conduct of conquerors less charitably disposed toward Indian tribes than
he, M'Intosh fueled subsequent claims that "Indians were conquered
as soon as John Cabot set foot on American soil," "that it
only required the inevitable march of history to carry out this
preordained outcome," and that "tribal property rights are not
properly understood as rights at all, but merely as revocable licenses,
or ... 'permission by the whites to occupy."'
3. Trust Doctrine: Cherokee Nation v. Georgia
Subsequent cases further diminished tribal sovereignty over Indian
land. In the 1831 case, Cherokee Nation v. Georgia, the second in the
Marshall Trilogy, Chief Justice Marshall determined that, despite their
retention of a set of reserved rights and powers to include occupancy of
their lands subject only to voluntary cession, Indian tribes were
"domestic dependent nations" and "wards" under U.S.
"pupilage," not sovereign foreign nations or states within the
meaning of the Constitution, and that as a result the Court could not
take original jurisdiction over a case wherein the Cherokee sought to
enjoin enforcement of the laws of Georgia on land guaranteed by
treaties. Although Marshall held that the United States owed a
common-law trust duty to Indian tribes, not only was this duty
specifically held to be judicially unenforceable, but an examination of
the other justices' opinions, construing the U.S.-Cherokee relationship
as that between a conqueror and a subject people, hinted that the
"trust doctrine," true to its roots in medieval Christian
xenophobism and scientific racism, would serve as yet another legal tool
with which to diminish Indian sovereignty. In short order, the United
States claimed trust title to all Indian lands within its borders.
Although U.S. federal Indian policy with respect to Indian land under
the trust doctrine generated a host of express obligations to ceding
Indian tribes undertaken in subsequent treaties, statutes, and executive
orders to create and protect permanent land reservations as against
States and private parties, popular political pressure ensured that
these judicially unenforceable obligations were almost never discharged
with "good faith and utter loyalty to the best interests" of
the Indian tribes.
4. Plenary Power: Worcester v. Georgia
In Worcester v. Georgia, Marshall interpreted the Commerce Clause of
the U.S. Constitution to hold that Congress had "plenary"
power over Indian affairs. Although the precise meaning of the term
"plenary" was not subject to ready determination, Worcester
loosed Congressional plenary power upon Indian tribes, qualifying all
remaining tribal powers by express congressional legislation by 1900.
Moreover, by the late 1840s, with the military power calculus shifting
and gold discovered out West, "whites c[ould] no longer be kept out
of Indian country." By adding plenary power to the legal arsenal,
Worcester and its progeny ushered in a violent phase of expansion,
executed under the rubric "Manifest Destiny."
Over the next several decades the Army prosecuted a sequence of wars
to perfect discovery by divesting Indians of their possessory interest
and enabling the United States to claim trust title and exercise plenary
power. Still other wars were fought to suppress Indian unrest after
violations of Indian treaties. After each genocidal campaign, a
dwindled, harried, and hungry Indian nation in extremis sued for a peace
that surrendered vast tracts of lands and political freedom in exchange
for dependence and "civilization." During the first decade
after the Civil War, the United States acquired nearly one-fourth of the
land within its modern contiguous boundaries entirely free of any legal
obligation to pay more than token compensation. Yet despite distribution
of millions of cheap acres to settlers, the national greed for space,
fueled by an evolving inter-branch compact authorizing takings of Indian
land, dictated confiscation of the remainder of Indian country.
5. Sunset of Indian Sovereignty: End of the Treatymaking Era
In 1871 Congress exercised plenary power to strip away the last
formal vestiges of Indian juridical sovereignty by providing that
"[n]o Indian nation or tribe shall be acknowledged or recognized as
an independent nation, tribe, or power with whom the United States may
contract by treaty." No longer compelled as a matter of federal law
to treat Indian nations as foreign sovereigns or to regulate Indian
affairs by treaty, the government could now acquire Indian land without
even the pretense of consent, and Congress, unwilling to allow
"(a)n idle and thriftless race of savages ... to stand guard at the
treasure vaults of the nation[,]" gave the Army free rein to employ
genocide to crush the last obstacles to the orderly march to the
Pacific.
6. Allotment to Present: "Mighty Pulverizing Engine"
By 1887 all two billion acres of the U.S. continental landmass had
been discovered, conquered, and expropriated save for the 138 million
acres apportioned to Indian reservations, which the General Allotment
Act of 1887 (Allotment) targeted for further dismemberment and
colonization. Allotment, an exercise of plenary power, subdivided large
swaths of communally- owned tribal lands into parcels for the private
use of individual Indian allottees under a twenty-five-year period of
federal guardianship. Upon expiration of the trust period, the United
States issued an unrestricted fee patent to allottees who proved
"competence," assumed U.S. citizenship, and paid real estate
taxes. For most tribes, Allotment was devastating: although tribal
governments remained in situs on vestiges of reservations still under
trust protection, by encouraging Indian individuals to formally withdraw
from the tribe in exchange for a per capita share of tribal land and by
meeting the failure of unemployed Indian allottees to pay property taxes
with foreclosure, reversion of title, and sale to white speculators at
prices far below market value, Allotment abolished Indian reservations
as autonomous and integral sociopolitical entities.
Although several Indian tribes attempted to block Allotment, the
Supreme Court ruled not only that Indian land was subject to the
sovereign right to take for public use upon payment of just
compensation, but that takings of Indian land, described as a
"legitimate form of 'investing for thetribe"' that did not
require either consent or notification, were precluded from judicial
review. By 1934, Indian lands had been reduced by a further ninety
million acres, with almost twenty-six million lost through fraudulent
transfers, and of the two billion acres of formerly contiguous tribal
land holdings all that remained was a fragmented, forty-seven million
acre mosaic of reservation lands under trust, plots owned in fee simple
by whites, and plots held by Indian individuals no longer members of any
tribe. Moreover, 95,000 Indians were now landless. In sum, the synergy
of discovery, the trust doctrine, and plenary power as manifested in
Allotment perfected the legal theft of Indian land.
Despite infrequent restitution and compensation for Indian land, the
Constitution affords no protection to Indian tribes, and what remains of
their landbase continues under siege. In light of the progressive
evolution of rights regimes it is surreal that the United States
continues to wield:
[a]bsolute, unreviewable power to continue the conquest of Indian
nations that have not yet been forced to sign a treaty ... [and to] take
land held under original Indian title as it pleases, ... without any
constitutionally mandated obligation to pay compensation for the taking
of land possessed by Indian nations for thousands of years, and despite
the fact that the members of such tribes are United States citizens
otherwise protected by the Constitution.
C. Ethnocide
With its Manifest Destiny secured, the United States, heretofore
oriented toward the physical separation and extermination of indigenous
people, changed tacks to follow the prevailing political winds, and U.S.
Indian policy adopted a treble action agenda for implementation in
conjunction with private actors: liquidation of Indian culture,
eradication of tribal self-government, and forced assimilation of
"civilized" Indians, shorn of cultural and social attachments,
into the body politic. These interrelated policies, along with the
specific laws, regulations, practices, and customs developed throughout
the late nineteenth and much of the twentith centuries to deny Indians
the right to maintain separate and autonomous polities and preserve
their culture from interference, painted Indian tribes as targets for a
sinister "genocide-at-law." Promising to free
"backward" Indians from an "outmoded past" and endow
them with "civilization," "education," and
"prosperity" whether they desired these "blessings"
or not, the BIA, along with religious missionaries, set about dissolving
the "glue" of Indian society.
1. Cultural Liquidation
a) "Kill the Indian to Save the Man"
Of all the processes engineered to strip away the Indian sense of
self, world view, and tribal identity, perhaps the most nefarious was
Congressional funding of religious schools geared toward eradication of
Indian culture and the substitution of Euro-American, Christian culture
in its stead. Beginning in the late nineteenth century, Indian children
were taken, often without parental or tribal consent, to boarding
schools where their hair was cut, their tribal clothing exchanged for
Western garb, forced manual labor was required, and harsh abuses of a
physical and sexual nature were meted out for speaking tribal languages
or engaging in customary religious practices. During their residence,
Indian children were prohibited from visiting their relatives, who, as a
result, they often did not see for years. Removed Indian children, and
their descendants down through the generations, have typically lost the
use of their languages, been denied cultural knowledge and inclusion,
and been deprived of opportunities to take on tribal responsibilities.
b) American Crusade: Eradication of Indian Religion
While Indian children were spirited off to forced conversions at
distant boarding schools, the United States, exercising its plenary
power, posted Christian missionaries to the reservations as Indian
agents with orders to ban tribal religions, initiate Christianization of
tribal populations, and pacify political and cultural discourse. At the
behest of the Indian agents, Congress launched a broad-based assault
upon Indian religion with laws that weakened "marriage, family and
clan relationships, the distribution of property, and social and
political organization." Courts of Indian Offenses
("CIO") enforced these stringent social control mechanisms. In
arguing before Congress for the suppression of tribal dancing and
feasting, the Secretary of the Interior proclaimed that "[i]f it is
the purpose of the [U.S.] to civilize the Indians, they must be
compelled to desist from ... savage rites and heathenish customs."
For most of the twentieth century, non-Indians played "cultural
game warden," circumscribing the legal exercise of Indian religion.
Despite passage of the American Indian Religious Freedom Act (AIRFA)
establishing the federal policy to "protect and preserve for
American Indians their inherent right of freedom to believe, express,
and exercise ... traditional religions," in practice Indian
religions have proven too enigmatic for non-Indian jurists to admit them
within the meaning of "religion" as enunciated in the Bill of
Rights. For Indian claimants, who have not won a single case of
religious freedom since AIRFA was signed in 1978 and who may not
celebrate the sacraments of their faith without threat of prosecution
for violation of controlled-substance or species- protection
legislation, the American tradition of religious freedom has been a
"cruel hoax." With AIRFA ineffectual in the courts and
Congress unwilling to strengthen statutory protection, a new millennium
reveals only that Indians' freedom to preserve their religious beliefs
"amounts to nothing more than the right to believe that their
religion will be destroyed." Even as Indians continue to assert
that denial of their religious freedom is a deprivation of the highest
magnitude, the preservation of teachings, values, objects, and places
for which they bear sacred inter generational responsibility is yet
diminished by federal law.
2. Suppression of Indian Self-Government
The United States' Indian policy has long disabled autonomous
determination of the political organization, economic development, and
legal regulation of Indian tribes and people, principally by
disintegrating tribal institutions and supplanting them with
Euro-American forms of governance. From the dark ages of the Allotment
Era to the present, Indian legal institutions have presented an
attractive point-of-entry to agents of forced "social
evolution" whose labors have wrought the domination and physical
assimilation of Indian tribes and people.
a) Legal Imperialism
Although no Indian tribe had codified a body of written law as of
1776, many tribes had "rules of conduct and attitudes of the mind
concerning their kinship system." Tribal legal systems conditioned
members to adhere to a sacred system of well-elaborated tribal values of
order, harmony, interdependence, and peace. Consequently, disputes
within the tribe were typically resolved not in formal institutions
using adjudicative procedures, but rather with the aid of respected
elders who would guide disputants to a restorative compromise.
"[T]hough it appeared to the casual white observer that anarchy
reigned," spiritual consensus produced a coherent jurisprudence
that served Indian tribes well despite the absence of the
"paraphernalia of European civilization." In contrast, the
Anglo-European model imported by discovering nations focused on
individual rights, the placement of the burden of proof on accusers, and
the punishment and removal of offenders from the community by
imprisonment. Despite retention of nearly exclusive subject matter and
personal jurisdiction to the territorial limits of their reservations
even as of the late nineteenth century, Indian tribes, with no easily
identifiable legal institutions, procedures, or records, were beset by a
constellation of religious proselytizers, "friends of the
Indian," and BIA agents who, concluding Indians were without law or
justice, imposed legal "civilization."
The 1883 case of Ex parte Crow Dog, in which the U.S. Supreme Court
overturned, for lack of jurisdiction, the federal conviction of an
Indian charged with the murder of another Indian, induced Congress to
extend the complete coercive power of federal criminal law to
thereservations. Determined to rectify the barbarous, "savage
quality" of tribal law and mollify public fervor, Congress applied
"white man's morality" with the Major Crimes Act of 1885 to
expressly establish concurrent federal jurisdiction over major felonies
committed by Indians on reservations regardless of the status of their
victims. Legal challenges to the Major Crimes Act failed to reestablish
tribal legal self-determination but provided the judiciary occasion to
further undergird the trust doctrine and plenary power.
The paternalistic assault upon Indian legal sovereignty, joined on
the religious front with the adoption of the CIO/CFR courts, intensified
during the Great Depression with the passage of the Indian
Reorganization Act of 1934 ("IRA" or "Dawes Act").
Although the IRA expressly recognized that tribes might create their own
courts and enact their own laws, the legislation imposed BIA-drafted
boilerplate constitutions that created strange new substantive and
procedural obligations. Moreover, after the passage of Public Law 280 in
1954, providing that specified states could unilaterally accept
concurrent jurisdiction over Indian territory within their borders, the
entire body of state civil and criminal law was extended to classes of
cases involving Indians. Fearing that failure to create acceptable
tribal courts would result in states taking jurisdiction over all cases
occurring on reservations, and understanding that review of plenary
power in the exercise of regulatory jurisdiction over Indian affairs was
an exercise in futility, the tribes begrudgingly implemented
constitutions and adversarial justice systems.
The penultimate blow fell in 1968 with the Indian Civil Rights Act
("ICRA"), which imposed many of the individualist strictures
of the U.S. Constitution -- in particular the Bill of Rights and the
Fourteenth Amendment -- on tribal governments and smoothed the way for
what Indian activists branded "white-man's justice." Although
the ICRA amended Public Law 280 to require tribal consent for the
exercise of state civil and criminal jurisdiction and left
interpretation of the legislation to the tribes themselves, by the early
1970s the centuries-long federal assault on tribal legal systems had
displaced pre- Columbian methods of social control from tribal courts
where an Anglo-American adversarial legal system had acquired tenure.
BIA-drafted codes permitted tribal court judges to apply tribal
statutes, yet federal and state laws were supreme, and federal judicial
review steered tribal court jurisprudence into lockstep conformity with
the U.S. legal system. Individual reliance on foreign legal concepts and
advocacy removed Indian disputes from their natural contexts and
compounded growing acrimoniousness in reservation communities. With
tribal governments increasingly shackled by American legal hegemony,
enforcement of judgments became far more difficult, further damaging
tribal harmony. When a landmark 1978 case extended the United States'
legal colonization of Indian tribes still further by denying them
jurisdiction over the acts of non-Indians occurring on reservations, a
new generation of critical legal jurisprudence, influenced by the Civil
Rights Movement, began to question the foundations and institutions of
federal Indian law.
Although tribal proactivity and federal interposition hold state law
partly at bay, at present Indian tribes may exercise jurisdiction solely
over consenting tribal members on fragmented remnants of former tribal
holdings. Even this vestige of sovereignty is threatened by the plenary
power to extend all federal, and, by inaction, state laws to the
reservations. Rediscovery of tribal dispute resolution methods after a
century of legal imperialism, and their reintroduction in Indian Country
as an assertion of legal autonomy, are pressing concerns of Indian
scholars and activists, yet reacquisition of Indian law is inadequate by
itself to offset the crushing force of federal Indian law, a mechanism
"genocidal in both its practice and intent."
b) Political Domination
Although Indian tribes are separate sovereigns in retention of all
rights and powers not explicitly ceded to the United States by treaty or
abrogated by explicit legislative intent, U.S. Indian policy has been
generally hostile to the right of Indian tribes to self-govern as
politically distinct communities. If the theme of the nineteenth century
was eradication of Indians and the seizure of their land, the motif of
the twentieth century was the destruction by law of tribal sovereignty.
With the passage of the IRA, Indian tribes, traditionally hyper
democratic and consensus-driven institutions, were reconstituted in the
image of non-Indian society and subjected to the veto power of the
Secretary of the Interior. Subsequent legislative and judicial action
has stripped artificially reconstructed Indian tribes of most of their
inherent sovereignty over their form, property, and powers. Relations
with post-IRA Indian tribes, rather than proceed as if between mutual
sovereigns, are conducted largely through a welter of executive
agencies. As a result, the terms and conditions of Indian existence are
frequently dictated from Washington, rather than debated on the
reservations. Federal agencies to which Congress delegates power smother
tribes under a blanket of regulation and programming that, although it
provides the means of subsistence, suppresses traditional modes of
social control and value allocation, and the Secretary of the Interior
looms large over every aspect of tribal life.
Driven in part by the Civil Rights Movement, a "dawning
recognition that [Indians] must be freed from federal dominance ... and
that Indian[s] must have more control over ... their lives and
institutions" spurs calls to end the fundamental asymmetry of
U.S.-Indian relations. Nevertheless, several decades after official
introduction of the federal policy of "Indian Self-
Determination," many Indian tribes remain politically subordinate
to and, consequently, economically dependent upon the United States
Whether political subordination of Indian tribes is the translation of
the majoritarian principle of democracy into action or a statist
demonstration, by induction, of the inferiority of competing governance
structures and philosophies, Indian Self-Determination, absent an
ideological revolution spanning from the treetops of the international
human rights regime to the roots of federal Indian law, will remain a
chimera.
c) Ethnodevelopmental Suppression
Despite significant endowment with resources natural and human, many
Indian tribes remain ensnared in a web of economic dependence
deliberately fashioned by the United States over centuries from the
strands of institutionalized domination, geographic dislocation, gross
undercapitalization, and various legal disabilities. Although the
non-legal obstacles to Indian economic independence, the first and
foremost goal of tribal governments, are very real, the constraints
imposed by federal Indian law are even more formidable.
The United States holds trust title to Indian lands and resources,
and Indian property owners cannot sell, lease, or borrow against their
property without the express approval of the Secretary of the Interior.
As the very question of Secretarial approval introduces political
uncertainty, trust- based land-tenure constraints diminish the relative
output-values of land-intensive enterprises such as agriculture,
ranching, and resource development. Moreover, federal management of
Indian resources grants the government paternalistic control over Indian
economic destiny. Although the United States is under amoral obligation
to husband Indian resources, diligently advance Indian land claims
against the states, secure adequate funding for Indian social services,
and enhance the economic well-being of Indian people, federal agencies
have withheld basic subsistence, mismanaged tribal resources, and
violated the animating principles of the trust with near-impunity: only
in very recent years has the trust doctrine charged the United States
with judicially enforceable obligations apart from those incorporated in
specific treaties, statutes, or executive orders. Although the
protective dimensions of the trust doctrine have broadened, aggrieved
Indian beneficiaries still lack effective legal recourse for its breach.
Plenary power, as well as judicial review of its exercise, further
stifles Indian economic development by enabling Congress to terminate
federal benefits and restrict or even abrogate Indian rights reserved
under treaties. Domestic lobbying to induce Congress to allow non-Indian
economic interests access to Indian resources threatens tribes with
divestiture of sustenance, culture, religion, and income. Furthermore,
although Indians, as prior sovereigns, reserved rights in treaties to,
inter alia, use water, hunt and fish, and engage in traditional modes of
production and worship on customary lands and waters, recent federal
jurisprudence suggests that Indian reserved rights are "temporary
and precarious" privileges subject to revocation even in the
absence of explicit Congressional intent to abrogate them. The synergy
of the trust doctrine, plenary power, and judicial review of Indian
treaties in derogation of Indian rights are felt most acutely when
tribes employ development methods that promote Indian culture,
spirituality, and identity. As Indian "ethnodevelopment"
threatens the regulatory jurisdiction, market power, and legal
sovereignty of the states and the United States, federal Indian law has
been carefully crafted to check its expression.
3. Forced Assimilation
Early U.S.-Indian treaties did not contemplate incorporation of
Indians as United States citizens, and later treaties incorporated only
those individuals who had been objectively "detribalized."
Against the force of a clear general preference for a primary
affiliation with tribal institutions, federal Indian policy, for more
than a century, has subsumed individual Indians within the broader body
politic, thereby facilitating seizure of tribal lands and resources,
elimination of contending governmental entities, and eradication of a
critical mass of practitioners of alien cultures and religions
"stand(ing) in the way of progress." The first such
assimilative measure, Allotment, divested many Indians of their lands
and created great physical and social distance between them and their
tribes. The imposition of U.S. citizenship in 1924 added legal momentum
to forced assimilation by foisting an awkward dual allegiance upon
Indians and pressuring them to transfer loyalties from their tribes to
the United States
a) Termination
Although assimilationist pressure abated during the Depression and
World War II, with the onset of the Cold War and mounting fears of
enemies within, the preservation of distinct political communities
within U.S. boundaries became too offensive for many non-Indians to
tolerate. House Concurrent Resolution 108, known colloquially as
Termination, exercised plenary power to "make the Indians ...
subject to the same laws and ... responsibilities as are applicable to
other citizens of the [U.S., and] to end their status as wards[.]
Termination, under the direction of the former head of the War
Relocation Authority, ended the U.S. trust relationship with over 100
selected tribes, curtailing federal benefits and services, forcing
dissolution of tribal governments, and distributing former tribal lands
and assets on a per capita basis. By legislatively disappearing Indian
tribes, Termination stripped Indian people not only of primary sources
of political allegiance and economic sustenance but of sacred sites and
other fonts of cultural renewal. Assimilationist pressure mounted, and
in 1954 Public Law 280, by according states extensive jurisdiction over
Indian tribes and individuals, granted non-Indian institutions of social
control the legal authority to adjudge and condemn Indian domestic
relations and employment practices.
b) Relocation
Predicated upon the misapprehension that the emerging "Indian
problem" was rooted in segregation and parochialism rather than a
cascade of assimilative legislation, Public Law 959, dubbed
"Relocation," directed federal agencies to create
"Indians who were Indian in appearance but not in culture" and
sap remaining tribal political strength. At a time when reservations
were increasingly unable to provide material necessities, Relocation, by
portraying "contented Indian[s] working at good jobs and sitting
beside televisions and refrigerators [in Northern cities,]" induced
an exodus to magnet urban areas where a generation of the Indian best
and brightest were dumped into substandard housing and menial employment
and subsumed in the American melting pot.
By 1970 reservation populations had dwindled so far that a final
solution to the "Indian problem" appeared to be at hand, and
yet the "stubborn [Indian] refusal to ... become simply another
American citizen" has sustained Indian tribalism against a malign
tide of assimilationism unto the present day. Although Indian
individuals currently possess both tribal and federal citizenship,
federal Indian law treats Indian tribes as subordinate governments, and
thus meaningful "dual citizenship" -- predicated upon the
assumption that tribal and federal governments exercise separate, if
overlapping, spheres of authority in "good faith" -- is a
legal fiction. For many Indians, this forced "split identification
of citizenship" was a genocidal act destructive of tribal political
identities, and few believe that tribal and national political
participation can coexist when Indian self-determination is construed to
threaten U.S. territorial integrity.
D. Summary: The Claim for Indian Redress
More than two centuries of genocide, land theft, and ethnocide,
implemented by the brutal instrument of federal Indian law, have
depopulated and seized Indian land and eliminated rival polities within
the colonial state constructed thereon. The historical review of
U.S.-Indian relations has revised a mythical account in order to prepare
the intellectual terrain for contemporary remediation. Although the role
of the United States in the deliberate destruction of Indian
populations, property rights, and cultural patrimonies is for most
Americans a hidden history, it presents an archetype for the
contemporary exposition, analysis, and redress of a gross human
injustice. However, even if re-envisioning history instructs the
non-Indian majority in its moral and legal obligations to redress Indian
claims, unless two fundamental, transformative principles guide and
inform redress, it is foreordained to fail.
First, because a set of institutionalized legal impediments runs
through the domestic order and trammels Indian rights, it falls to a
process of legal reform to make the nation safe for the peaceful
coexistence of basic value-differences between people as well as between
peoples. Necessary reforms will include legislation to strengthen
protection of Indian religious, cultural, and property rights; create
specific remedial programs; tighten judicial canons of construction to
resolve ambiguities and construe treaty terms in favor of tribal
reserved rights; and incorporate those principles of conventional and
customary international law protective of the rights of indigenous
peoples. A Constitutional amendment may be necessary to renounce plenary
power and restore Indian tribes to a position superior to states in the
federalist hierarchy. Proposed reforms will "portend changes in
power and well-being for specific persons or groups" and may
compromise the universalist approach to conceiving of, promoting, and
protecting rights. Redress thus invites contestation over its form,
pace, and scope.
Consequently, the second principle, a corollary to the first, is that
the non-Indian majority must assist in the infusion of "Indian
Self-Determination" with genuine meaning. The United States and
Indian tribes are not only intertwined geographically and historically,
they are interdependent. Indian autonomy and prosperity on the one hand,
and U.S. legitimacy and global leadership on the other, are inseverable,
with each a necessary condition for the full realization of the other.
Enhancement of the positive externalities of reciprocal transactions
will serve both Indian and non-Indian peoples. If U.S.-Indian
relationships advance on the basis of a recognition of, and respect for,
mutual sovereignties, with differences and disputes attended not by
coercion and domination but by negotiation and harmonization, a new era
of domestic peace with justice, more worthy of emulation and export than
earlier periods of American history, will follow.
The next section defines and contrasts the theories, procedures,
assumptions, and remedies that distinguish reparations and
reconciliation, the dominant contending modes of redress available to
group victims of human injustice; bring each mode to bear upon the
Indian claim; and evaluate the relative utilities and disutilities of
each.
[1]. The Lakota Indian, "American Horse," commented on the
December 29, 1890, Massacre at Wounded Knee where U.S. Army troops of
the 7th Cavalry slaughtered over 300 peaceful Indian women and children
after a fruitless search for weapons in their encampment:
The women as they were fleeing with their babes were killed together,
shot right through, and the women who were very heavy with child were
also killed. All the Indians fled in these three directions, and after
most all of them had been killed a cry was made that all those who were
not killed or wounded should come forth and they would be safe. Little
boys who were not wounded came out of their places of refuge, and as
soon as they came in sight a number of soldiers surrounded them and
butchered them there. Of course we all feel very sad about this affair.
I stood very loyal to the government all through those troublesome days,
and ... being so loyal to it, my disappointment was very strong, and I
have come to Washington with a very great blame on my heart ....
WHEN SORRY ISN'T ENOUGH: THE CONTROVERSY OVER APOLOGIES AND
REPARATIONS FOR HUMAN INJUSTICE 253 (Roy L. Brooks ed., 1999)
[hereinafter BROOKS].
[a1]. Chiricahua Apache. LL.M., 2001, Harvard Law School; Ph.D.,
1995, Northwestern University; J.D., 2000, University of Miami.
Assistant Professor of Law, Indiana University, Indianapolis, Indiana. |
