WILLIAM BRADFORD*

TABLE OF CONTENTS

I. INTRODUCTION............................................................................................3

A. Genocide: "The Metaphysics of Indian-Hating".............................8

1. Conquest........................................................................................8

2. Slavery.........................................................................................10

* Chiricahua Apache and Associate Professor of Law, Indiana University School of Law, Indianapolis, Indiana. The Author would like to thank Rob Porter, Joe Singer, Rob Williams, and George Wright for reading and commenting on earlier drafts. 2 OHIO STATE LAW JOURNAL [Vol. 66:1

3. Ethnic Cleansing.........................................................................10

B. Land Theft.........................................................................................13

1. Fraud and Firewater..................................................................15

2. Conquest by Fiction: Johnson v. M’Intosh...............................17

3. Trust Doctrine: Cherokee Nation v. Georgia............................19

4. Plenary Power: Worcester v. Georgia......................................21

5. Allotment to Present...................................................................24

C. Ethnocide..........................................................................................27

1. Cultural Liquidation...................................................................28

a. "Kill the Indian to Save the Man".......................................28

b. American Crusade: Eradication of Indian Religion..........29

2. Suppression of Indian Self-Government....................................32

a. Legal Imperialism.................................................................32

b. Political Domination............................................................38

c. Ethnodevelopmental Suppression........................................40

3. Forced Assimilation....................................................................46

a. Termination...........................................................................47

b. Relocation.............................................................................49

D. Summary: The Claim for Indian Redress........................................50

III. THE INDIAN CLAIM FOR REDRESS: EXISTING THEORIES OF JUSTICE....52

A. Justice as Supersession....................................................................52

B. Justice as Compensation..................................................................57

C. Justice as Restoration.......................................................................59

D. Analysis.............................................................................................62

IV. JUSTICE AS INDIGENISM: AN AMERICAN INDIAN THEORY OF JUSTICE.69

A. General Theoretical Premises.........................................................69

B. JAI Applied: The Redress of Indian Claims for Genocide, Ethnocide, and Land Expropriation..................................................72

1. Acknowledgement: The American Indian Reconciliation Commission..................................................................................72

2. Apologies.....................................................................................74

3. Peacemaking...............................................................................75

a. Cultural Hermeneutics.........................................................75

b. Tribal Peacemaking (TPM).................................................77

4. Commemoration.........................................................................81

5. Compensation.............................................................................83

6. Land Restoration........................................................................84

7. Legal Reformation......................................................................90

a. Indian Self-Determination....................................................91 2005] BEYOND REPARATIONS 3

b. Omnibus Indian Rights Act..................................................94

c. Constitutional Amendments.................................................98

8. Reconciliation...........................................................................100

V. CONCLUSION..........................................................................................102

I. INTRODUCTION

"Although wrongs have been done me I live in hopes."1

The number of states, corporations, and religious groups formally disowning past records of egregious human injustice is mushrooming.2 Although the Age of Apology3 is a global phenomenon, the question of reparations—a tort-based mode of redress whereby a wrongdoing group accepts legal responsibility and compensates victims for the damage it inflicted upon them4—likely consumes more energy, emotion, and resources in the U.S. than in any other jurisdiction. Since the final year of the Cold War, the U.S. and its political subdivisions have apologized or paid compensation to Japanese-American internees,5 native Hawaiians,6 civilians killed in the Korean War,7 and African-American victims of

1 Black Kettle, Cheyenne, after the massacre of hundreds of Cheyenne by the U.S. Army at Sand Creek, Colorado, in 1864 at http://www.pbs.org/weta/thewest/program/episodes/four/whois.htm (last visited Mar. 9, 2005).

2 See William Bradford,"With a Very Great Blame on Our Hearts": Reparations, Reconciliation, and an American Indian Plea for Peace with Justice, 27 AM. INDIAN L. REV. 1, 5–9 (2002/2003) (chronicling the global history of reparations).

3 See WHEN SORRY ISN’T ENOUGH: THE CONTROVERSY OVER APOLOGIES AND REPARATIONS FOR HUMAN INJUSTICE 3 (Roy L. Brooks ed., 1999) (coining the phrase).

4 Reparations is a mode of redress "where a guilty party makes up for an injustice by paying or otherwise benefiting a victim." Samuel C. Wheeler III, Reparations Reconstructed, 34 AM. PHIL. Q. 301, 301 (1997).

5 In 1942 all persons of Japanese ancestry resident in designated military exclusion zones in the Western U.S. were relocated to internment camps. See Korematsu v. United States, 323 U.S. 214, 218–23 (1944) (upholding internment based on "the judgment of the military . . . that there were disloyal members of [the Japanese American] population"). In 1988 the Civil Liberties Act finally granted each individual who was relocated, interned, or deprived of property $20,000 and an apology from President Bush. Pub. L. No. 100-383, 102 Stat. 903 (1988) (codified as amended at 50 U.S.C. app. 1989(2)&b–4(i) (1988 & Supp. V. 1993)).

6 See Joint Resolution to Acknowledge the 100th Anniversary of the January 17, 1893 Overthrow of the Kindgom of Hawaii, Pub. L. 103-150, 107 Stat. 1510, 1513 (1993) (apologizing for the U.S. role in the forcible overthrow of the Hawaiian monarchy).

7 Richard Pyle, U.S. Commanders Told Troops to Shoot Korean Civilians, MILW. SENTINEL, Nov. 25, 2001. 4 OHIO STATE LAW JOURNAL [Vol. 66:1

medical experiments,8 racial violence,9 and lending discrimination.10 A barrage of lawsuits demanding reparations from slavery profiteers is on the dockets of several courts, and more are expected.11 In the U.S., circa 2004, reparations is the topic not only of litigation but legislative proposals, academic and popular articles, news editorials, town hall meetings, campus demonstrations, television programs, office water cooler debates, dinner table conversations, and cyberchat groups. If reparations is not a uniquely American remedy, it is no stretch to say that in the U.S. "reparations talk"12 is very much with us.

The phrase "reparations talk" is an understatement. "Reparations debate" better describes current social discourse over what to do about gross historical injustices. Although advocates maintain that reparations is the first step in recovering history and fashioning a more equitable collective future, critics describe a divisive and retrospective13 movement threatening to widen racial and ethnic fault lines running through the American body politic. Consequently, reparative justice is hotly contested on doctrinal, political, and practical grounds: opponents reject the notion of collective harm and responsibility14 for "ancient wrongs,"15 deny linkages between the relative socioeconomic status of aggrieved

8 See Editorial, Apologize but Don’t Forget, AUSTIN AMERICAN-STATESMAN, May 16, 1997 at A14 (African Americans denied medical treatment in syphilis study under federal auspices at Tuskegee Institute received compensation and presidential apology).

9 In 1923 the black community of Rosewood, Florida was immolated by white rioters with the consent of public officials. Martha Minow, Not Only for Myself: Identity, Politics, and Law, 75 OR. L. REV. 647, 679–80 (1996). In 1994 House Bill 591 compensated nine survivors and created a scholarship fund for their descendants. C. Jeanne Bassett, House Bill 591: Florida Compensates Rosewood Victims and Their Families for a Seventy-One-Year-Old Injury, 22 FLA. ST. U. L. REV. 503, 520–23 (1994).

10 A class of African American farmers recently settled a suit against the U.S. Department of Agriculture, alleging failure to investigate discriminatory lending practices. Emily Newburger, Breaking the Chain, 52 Harv. L. BULL. 18–19 (Summer 2001), at 19.

11 See Charles J. Ogletree, Jr., The Current Reparations Debate, 36 U.C. DAVIS L. REV. 1051, 1065 (2003) (discussing these suits).

12 See Alfred L. Brophy, Some Conceptual and Legal Problems in Reparations for Slavery, 58 N.Y.U. ANN. SURV. AM. L. 497, 497 (2003) (coining the phrase "reparations talk" to refer to a broadening discourse on reparations for gross historical injustices).

13 See Eric A. Posner & Adrian Vermeule, Reparations for Slavery and Other Historical Injustices, 103 COLUM. L. REV. 689, 692 (2003) (describing reparations as "backward-looking").

14 See id. at 698–99 (contrasting theories of group rights, or "ethical collectivism," with the theory of "ethical individualism" that treats only individuals as the bearers of moral rights and duties).

15 See Wheeler, supra note 4, at 301. 2005] BEYOND REPARATIONS 5

racial minority groups and past injustices,16 and cling to limiting doctrines that deny remedies for acts and omissions that were lawful centuries ago.17 Reparations thus fuel unresolved debates over the nature of minority disenfranchisement, the adequacy of civil rights legislation,18 the constitutionality of group entitlements, the ideal racial distribution of socioeconomic power, and the appropriate channel to pilot between the pursuit of racial justice and the preservation of social peace.19 Moreover, because a successful reparations movement might awaken other dormant claims, reparations debates generate resistance20 and backlash.21

16 See Vincene Verdun, If the Shoe Fits, Wear It: An Analysis of Reparations to African Americans, 67 TUL. L. REV. 597, 643 (1993) (summarizing arguments denying that present African-American economic deprivation is caused by slavery).

17 For a much more detailed analysis of doctrinal objections to reparations lawsuits see Bradford, supra note 2 at 78–91. For a philosophical examination of hostility to reparations, see generally HANOCH DAGAN, THE FOURTH PILLAR: THE LAW AND ETHICS OF RESTITUTION (2003).

18 Critics of reparations are adamant in their defense of the sufficiency of existing civil rights laws. See Tuneen Chisholm, Sweep Around Your Own Front Door: Examining the Argument for Legislative African American Reparations, 147 U. PA. L. REV. 677, 704 n. 160 (1999) ("‘[M]ost of my African American friends and advisors don’t believe that we should get into what was essentially a press story about whether there should be an apology for slavery in America. They think . . . we need to be looking toward the future.’" (quoting Interview by EBONY, JET, and American Urban Radio Network with President William J. Clinton, Cape Town, South Africa (Mar. 27, 1998) (first alteration in original)).

19 Heritage and life experience polarize the lens through which reparations is viewed. See Verdun, supra note 16, at 646 ("What is obviously right to the opponent of reparations is clearly wrong to the reparationist."). For a detailed discussion of political and philosophical objections to reparations, as well as counter-arguments, see generally Gregory Kane, Comment: Why the Reparations Movement Should Fail, 3 MARGINS 189 (2003).

20 Politics is a numbers game, and a white majority strongly disfavors reparations. See generally Lee A. Harris, "Reparations" as a Dirty Word: The Norm Against Slavery Reparations, 33 U. MEM. L. REV. 409 (2003); Alfred L. Brophy, The Cultural War Over Reparations for Slavery, 53 DEPAUL L. REV. 1181, 1184 (2004) (citing surveys indicating that as few as four percent of whites support reparations for slavery, compared to 67% of African-Americans).

21 See Eric K. Yamamoto, Racial Reparations: Japanese American Redress and African American Claims, 19 B.C. THIRD WORLD L.J. 477, 494 (1998) (noting that demands for reparations trigger "regressive reactions," rooted in fear of reduction in relative social advantage, by the dominant social group); see generally DAVID HOROWITZ, UNCIVIL WARS: THE CONTROVERSY OVER REPARATIONS FOR SLAVERY (2002) (condemning reparations as "socially destructive" and "un-American"). 6 OHIO STATE LAW JOURNAL [Vol. 66:1

case of specific meta-wrongs, foremost among them slavery.22 A significant element in the slavery reparations claim is the lost value consequence of the unpaid labor extracted from slave ancestors,23 and thus it is logical that, with few exceptions,24 proponents of slavery reparations equate the remedy with financial compensation.25 Although money cannot undo history, it can ameliorate the socioeconomic conditions of the descendants of former slaves, and money is the lodestar of most reparationists.26

However, justice is not a one-size-fits-all commodity, and the potential suitability of compensatory remedies to the harms absorbed by any particular group is not dispositive of, nor even instructive in regards to, the question of whether reparations is appropriate for other claimant groups. Slavery is not the sole, the first, nor even, arguably, the most egregious historical injustice for which the U.S. bears responsibility.27 Moreover, cash is not the primary, or even an important, objective of some aggrieved groups. Non-monetary modes of redress28

22 From 1619–1865, the enslavement of Africans "hulled empty a whole race . . . . Every . . . custom, every ritual, every god, every language, every trace element of . . . identity, [was] wrenched from them and ground into a sharp choking dust." RANDALL ROBINSON, THE DEBT: WHAT AMERICA OWES TO BLACKS 216 (2000). Slavery also stole the value-consequences of billions of man-hours of black labor. See CLARENCE J. MUNFORD, RACE AND REPARATIONS: A BLACK PERSPECTIVE FOR THE 21ST CENTURY 428 (1996) (claiming value of expropriated labor between $96.3–$97.0 billion).

23 See, e.g., Charles J. Ogletree, Jr., Reparations for the Children of Slaves: Litigating the Issues, 33 U. MEM. L. REV. 245, 261 (2003) (explaining that the primary goal of reparative justice on behalf of the descendants of slaves is financial compensation).

24 See generally, e.g., Lee A. Harris, Political Autonomy as a Form of Reparations to African-Americans, 29 S.U.L. REV. 25 (2001) (positing an independent African-American state, rather than money, as the proper form for reparations in redress of slavery); see also Thomas Bray, Granholm Tries to Slip Reparations Hook, DETROIT NEWS, Oct. 9, 2002, at 11A (reporting demand by Nation of Islam leader Louis Farrakhan for "millions of acres that black people can build").

25 For a discussion of contemporary African-American reparations theory, see generally Note, Bridging the Color Line: The Power of African-American Reparations to Redirect America’s Future, 115 HARV. L. REV. 1689 (2002).

26 See, e.g., Robert Westley, Many Billions Gone: Is It Time to Reconsider the Case for Black Reparations?, 40 B.C. L. REV. 429, 470 (1998); Molefi Kete Asante, The African American Warrant for Reparations: The Crime of European Enslavement of Africans and Its Consequences, in SHOULD AMERICA PAY? 3, 12 (R. A. Winbush ed., 2003); Ogletree, supra note 24, at 261.

27 See infra Part II (presenting the Indian claim for redress).

28 Reconciliation, the primary paradigmatic challenger of reparations in the field of remedies for historical injustices, "aims to heal social wounds by bringing back into the community those wrongly excluded, essentially healing through restoration of the polity." Eric K. Yamamoto et. al., American Racial Justice on Trial—Again: African American Reparations, Human Rights, and the War on Terror, 101 MICH. L. REV. 1269, 1336 (2003). Although 2005] BEYOND REPARATIONS 7

may be more effective in inducing the national government to accept moral responsibility, in restoring the dignity and autonomy of injured groups, and in healing, reconstituting, and relegitimizing the nation.29

reconciliation may be augmented by compensation, its primary concerns are to encourage the dominant group to recognize moral responsibility, restore the dignity of the aggrieved minority group, and craft a more symmetrical distribution of economic, political, and legal power. See generally Stephen P. Garvey, Punishment as Atonement, 46 UCLA L. REV. 1801 (1999).

In other words, the specific claims posed by each aggrieved group bear examination and evaluation on their unique merits. Although the interests of groups may converge on particular issues and proposals emerging in reparations debates,30 what suffices to make one group "whole" may be wholly inadequate for, or even harmful to, another. Prevailing theories of justice, even those drafted in good faith with the intent that they be universally applicable or at least readily malleable in transit from one application to another, may in fact be so bounded by the cultures and worldviews in which they were incubated that they are unable to recognize, capture, and remedy all the injuries inflicted upon the aggrieved group. Without judging its value as a remedy in general, reparations, as well as other theories of justice sketched and pitched at a high level of abstraction but without a comprehensive analysis of the context and history of the claims of the particular group in question, may, when applied, be useless at best and damaging at worst. Just as "all politics is local,"31 so is all (in)justice.

For the indigenous peoples32 who have inhabited, since time immemorial, the lands within the external borders of the U.S., remediation of historical injustice is a pressing issue. Despite this, reparations would fail to advance, and might even frustrate, important Indian objectives, primarily the reacquisition of the capacity to self-determine as autonomous political communities on ancestral lands. Because the immense injustice at the core of U.S. national history is neither broadly acknowledged nor deeply understood, Part II of this Article will provide some historical foundation and briefly sketch the necessary factual predicate to

29 See infra Part IV.

30 See, e.g., Donald Laverdure, An Indigenous Perspective of Brown v. Board of Education: A Historical Braid of Inequality, 43 WASHBURN L. R. 285, 287 (2004) (suggesting that a "braid of inequality" suffered by both African-American and Indian peoples could lead to a "red-black interest convergence" on questions of remediation of past injustices) (referencing Derrick Bell, Jr., Brown v. Board of Education and the Interest-Convergence Dilemma, 93 HARV. L. REV. 518 (1980)).

31 The phrase is attributed to former Representative Thomas "Tip" O’Neill (D-Mass.), Speaker of the U.S. House of Representatives. See TIP O’NEIL, ALL POLITICS IS LOCAL: AND OTHER RULES OF THE GAME, xv–xvi (1994).

32 Indigenous peoples are "descen[dants] of the populations which inhabited [a] country . . . at the time of conquest or colonisation." Convention Concerning Indigenous and Tribal Peoples in Independent Countries, June 27, 1989, art 1.1.b, 28 I.L.M. 1382, 1384–85 [hereinafter ILO Convention No. 169]. 8 OHIO STATE LAW JOURNAL [Vol. 66:1

the Indian33 claim for redress. Part III will present and evaluate several theories of justice with respect to this claim. Part IV will counter these theories with an indigenist theory of justice intended to transcend the limitations of extant theories and accord the full measure of relief to Indian claimants consistent with the requirements of justice for all individuals and groups.

"I want to tell you this, because I believe if you know it you will correct the evil."34

The brutal reality of invasion, slavery, forced relocation, genocide, land theft, ethnocide, and forcible denial of the right to self-determination has not percolated deeply into contemporary understandings of U.S.-Indian history. The role of the U.S. in the deliberate destruction of Indian populations, property rights, and cultural patrimonies is for most Americans a hidden history that must be revealed and asserted as a factual predicate supporting redress before theories of justice can be evaluated.35

A. Genocide: "The Metaphysics of Indian-Hating"36

1. Conquest

In May 1493 Pope Alexander VI called upon Spanish conquistadores to discover and conquer new lands in the Americas in order to draw "barbarous

33 "Indian," "Indians," and "Indian tribe(s)" denote the indigenous inhabitants of the U.S. in the singular, plural, and collective forms. James W. Zion & Robert Yazzie, Indigenous Law in North America in the Wake of Conquest, 20 B.C. INT’L & COMP. L. REV. 55, 55 (1997). "‘Native American’ is a ["politically correct"] term . . . [that] perpetuates colonial efforts to subordinate indigenous sovereignty to mere ethnicity, as in the case of African-Americans or Irish-Americans." Robert B. Porter, Strengthening Tribal Sovereignty Through Peacemaking: How the Anglo-American Legal Tradition Destroys Indigenous Societies, 28 COLUM. HUM. RTS. L. REV. 235, 237 at n.7 (1997).

34 Little Raven, Arapaho, quoted in, JOYCE SEQUICHIE HIFLER, II, A CHEROKEE FEAST OF DAYS (1999), excerpted at http://thunder-fox.com/DailyFeast/2004_09_01_archive-DailyFeast.html (last visited Mar 7, 2005).

35 Most Americans are ignorant of the dark history of U.S.-Indian relations. See VINE DELORIA, JR. & CLIFFORD M. LYTLE, AMERICAN INDIANS, AMERICAN JUSTICE 102 (1983) (describing knowledge of U.S.-Indian relations as limited).

36 The phrase is the title of a book chapter from a Melville novel that propounds the view that U.S.-Indian policy is a confidence game with the government the confidence-man and U.S. citizens, ignorant of the genocide ongoing against the Indian population, the dupes. See HERMAN MELVILLE, THE CONFIDENCE-MAN MASQUERADE ch. XXVI (1857). 2005] BEYOND REPARATIONS 9

nations" to the Christian faith.37 The subsequent invasion of the Western Hemisphere, predicated upon a jurisprudential assumption that the indigenous inhabitants were a distinctly inferior species,38 was governed by the legal principles of discovery39 and conquest. As a matter of existing international law, a nation became sovereign of territory its agents "discovered" provided it subjugated the population and annexed its lands.40 Although prudence restrained pre-eighteenth century aggression in what became the U.S.,41 conquest was eventually applied in all the Americas, and the period subsequent to first contact is notorious as the "Age of Genocide."42

37 See WILCOMB E. WASHBURN, RED MAN’S LAND / WHITE MAN’S LAW: THE PAST AND PRESENT STATUS OF THE AMERICAN INDIAN 5 (2d ed. 1995) (citing Inter Caetera).

38 Donald Juneau, The Light of Dead Stars, 11 AM. INDIAN L. REV. 1, 8 (1983).

39 The international legal fiction of "discovery" bestowed occupancy and exclusive negotiating rights to impair the title of a "discovered" Indian nation upon a so-called discovering European nation. Although Europeans initially affirmed the collective rights of indigenous peoples, once European military superiority was established state sovereignty trumped claims to collective rights, and indigenous peoples were relegated to the status of minorities devoid of legal personality and entitled to protection only as individuals within states. See Lawrence Rosen, The Right to Be Different: Indigenous Peoples and the Quest for Unified Theory, 107 YALE L. J. 227, 242 (1997). By fiat, discovery permitted colonial powers to construct mutually exclusive spheres of influence and thereby prevent internecine conflicts. See Johnson v. M’Intosh, 21 U.S. 543, 573 (1823).

Id. Although the discovery doctrine impaired Indian title only via allocation of spheres of influence, it provided colonial nations sufficient time and space to survey, claim, and defend footholds in what became the United States.

40 See Juneau, supra note 38, at 8. However, the right to acquire territory by conquest was not theoretically absolute: a "conquering" state only gained recognizable rights to land if it entered armed struggle defensively, and as empire-building expeditions did not qualify as defensive wars, lands obtained thereby did not qualify as legitimately conquered. See Lesley Karen Friedman, Native Hawaiians, Self-Determination, and the Inadequacy of the State Land Trusts, 14 HAWAII L. REV. 519, 560 (1992). In practice, however, the legal proscription against conquest was circumvented by claims to self-defense buttressed by papal imprimatur.

41 See THE AGGRESSIONS OF CIVILIZATION: FEDERAL INDIAN POLICY SINCE THE 1880S 190 (Sandra L. Cadwalader & Vine Deloria, Jr. eds., 1994) (noting pre-nineteenth century European "conquerors" would have been handily defeated); M’Intosh, 21 U.S. at 590 (Marshall, C.J.) ("Indians . . . were fierce savages, whose occupation was war . . . [T]hey were as brave and as high-spirited as they were fierce, and were ready to repel by arms every attempt on their independence.").

42 See DAVID E. STANNARD, AMERICAN HOLOCAUST 55–146 (1992). 10 OHIO STATE LAW JOURNAL [Vol. 66:1

2. Slavery

In the aftermath of conquests, colonizers offered financial incentives to corporate slavers to create bounties between tribes, facilitating a divide and conquer strategy that served territorial objectives while providing free Indian slave labor to developing economies.43 Although Indian slavery had largely discontinued in favor of African-American slavery by the early nineteenth century, Californian Indians, as late as the early twentieth 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.44

3. Ethnic Cleansing45

The precise number of Indian victims of the genocide46 committed by Euro-American colonizers over the past half-millennium evades quantification. Estimates of the pre-Columbian indigenous population in what later became the U.S. range from five to ninety-four million,47 yet by 1880 disease,48 slaughter,

43 BROOKS, supra note 3, at 242 (stating that "Indian slavery was . . . an integral part of the colonial economy").

44 See Mathew Atkinson, Red Tape: How American Laws Ensnare Native American Lands, Resources, and People, 23 OKLA. CITY U. L. REV. 379, 389 (1998). For a detailed discussion of Indian slavery, see generally L.R. BAILEY, INDIAN SLAVE TRADE IN THE SOUTHWEST: A STUDY OF SLAVE-TAKING AND THE TRAFFIC IN INDIAN CAPTIVES (1966); CAROLYN THOMAS FOREMAN, INDIANS ABROAD 1493–1938, 3–21 (1943).

45 See Ibrahim Gassama, Transnational Critical Race Scholarship: Transcending Ethnic and National Chauvinism in the Era of Globalization, 5 MICH. J. RACE & L. 133, 143 (1999) (applying to U.S.-Indian relations the euphemism "ethnic cleansing," coined during Bosnian war to describe violent depopulation by one ethnic group of a territory populated by another).

46 See Convention on the Prevention and Punishment of the Crime of Genocide, December 9, 1948, 78 U.N.T.S. 277 (entry into force Jan. 12, 1951) (hereinafter "Genocide Convention"), at art. II (defining genocide as "any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (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.").

47 See James P. Sterba, Understanding Evil: American Slavery, the Holocaust, and the Conquest of the American Indian, 106 ETHICS 424, 424–25, 438, 440. (1996) (stating that between seventy-four and ninety-four million Indians died during conquest of the Americas and comparing this number with the number of African-Americans who perished during slavery—forty to sixty million—and the number of Jews killed in the Holocaust—six million).

48 See generally JARED DIAMOND, GUNS, GERMS, AND STEEL: THE FATES OF HUMAN SOCIETIES (1999) (describing introduction of European diseases against which Indians had no 2005] BEYOND REPARATIONS 11

slavery, and aggressive wars had reduced their number to as few as 300,000—and declining.49 Although luminaries, such as President Thomas Jefferson, denounced the genocide as it unfolded,50 the prevailing racial ideology reassured the public that the disappearance of an inferior people before the U.S. continental advance was a "historical and scientific inevitability."51 Initially, a legislative approach effected physical removal of Indian people from ancestral lands; however, when this proved inefficient,52 measures more clearly within the inherent powers of the executive and therefore less susceptible to judicial review were devised:53 Indian genocide became official policy of the political subdivisions of the U.S.54

immunities); RUSSELL THORNTON, AMERICAN INDIAN HOLOCAUST AND SURVIVAL (1992) (providing demographic data on destruction by disease of Indian populations).

49 See Lenore A. Stiffarm & Phil Lane, Jr., The Demography of Native North America: A Question of American Indian Survival, in THE STATE OF NATIVE AMERICA: GENOCIDE, COLONIZATION, AND RESISTANCE 23, 26, 36 (M. Annette Jaimes ed., 1992).

50 See, e.g., THOMAS JEFFERSON: WRITINGS 1313 (Merrill Peterson, ed., 1984).

Id. (reprinting personal letter of Thomas Jefferson, Nov. 6, 1813).

51 See REGINALD HORSMAN, RACE AND MANIEST DESTINY: THE ORIGINS OF AMERICAN RACIAL ANGLO-SAXONISM 6 (1981).

52 Of the many forcible relocations, the removal of the Cherokee Nation from ancestral homes in the Eastern Woodlands is perhaps the most infamous. With a federal statute explicitly overruling a contrary Supreme Court opinion, the entire Cherokee Nation was forced, in the dead of winter, on a 1000–mile "Trail of Tears" trek to Oklahoma. See Indian Removal Act of May 28, 1830, ch. 148, 4 Stat. 411 (overruling Cherokee Nation v. Georgia, 30 U.S. 1, 1 (1831)) (holding Cherokee were entitled to retain possessory interest and to exercise reserved rights under treaties of peace). Gloating after passage of the Indian Removal Act, President Jackson reportedly remarked, "Marshall has made his decision let him enforce it now." FERGUS M. BOREWICH, KILLING THE WHITE MAN’S INDIAN 47 (1996). More than 4000 Cherokee died during the Trail of Tears. Id.

53 See id. at 44–45 (quoting Georgia Governor Wilson Lumpkin) ("Our government over that [Indian] territory, in order to be efficient, must partake largely of a military character, and consequently must be more or less arbitrary and oppressive . . . .").

54 See Rennard Strickland, Genocide-at-Law: An Historic and Contemporary View of the Native American Experience, 34 U. KAN. L. REV. 713, 718 (1986) (listing passages by state legislatures of resolutions legalizing murder of Indians); see also STANNARD, supra note 42, at 142–46 (noting that several U.S. states legalized murder of Indians). Introduction of diseases to effect Indian deaths, although initially indeliberate when carried by infected "discoverers," constituted genocide, as the crime is now defined, when deliberately transmitted. See Genocide Convention, supra note 46. 12 OHIO STATE LAW JOURNAL [Vol. 66:1

By the conclusion of the "Indian Wars" in 1886,destroying the buffalo,55 yet Indian tenacity necessitated more direct applications of force.56 One by one, tribes were hunted, pursued, cornered, and murdered.57 A series of "massacres" were written in Indian blood on the pages of American history: Blue River (1854), Bear River (1863), Sand Creek (1864),58 Washita River (1868), Sappa Creek (1875), Camp Robinson (1878), Wounded Knee (1890), and over forty others.59 Gruesome exterminations of defenseless women and children were perfectly legal exercises of State and federal authority as the law then stood.60 61 aggression and disease had reduced the pre-Columbian Indian population as much 98%,62 and an Indian-free U.S. was a possibility.63 Although radical depopulation of

55 See Steven J. Prince, The Political Economics of Articulation: Federal Policy and the Native American/Euroamerican Modes of Production 186 (1993) (unpublished Ph.D. dissertation, University of Utah) (on file with University of Utah Library) (noting by the 1870s many thousands starved due to deliberate buffalo eradication programs).

56 Most Indian tribes were not passive subjects of genocide during the dark decades of the 1870s and 1880s. Courageous armed resistance earned Indian warrior-heroes the begrudging admiration of adversaries. As General George Crook, a famed "Indian fighter" commented in 1873, "[t]he American Indian commands respect for his rights only so long as he inspires terror for his rifle." http://www.glendonswarthout.com/screenplays/sergeantsladyexcerpt.htm (last visited Mar. 9, 2005).

57 See Atkinson, supra note 44, at 389. Aggressive Indian Wars of the nineteenth century—campaigns intended to depopulate territory as prelude to annexation—clearly satisfy the element of deliberate killing of persons belonging to a protected class.

58 In one of the most brutal incidents of genocide on U.S. soil, 133 Cheyenne and Arapaho women and children were murdered in the village of Sand Creek, Colorado on Nov. 29, 1864, by Col. Chivington and seven hundred troops of the U.S. Cavalry. See generally STAN HOIG, THE SAND CREEK MASSACRE (1961).

59 Atkinson, supra note 44, at 391.

60 See generally Carol Chomsky, The United States-Dakota War Trials: A Study in Military Injustice, 43 STAN. L. REV. 13 (1990) (describing collusion of law and force producing one such massacre-by-law).

61 In 1886 the surviving three hundred members of the Chiricahua Apache, suffering from disease, starvation, and the murder of over three thousand of their number, became the last Indian tribe to surrender. DONALD E. WORCESTER, THE APACHES: EAGLES OF THE SOUTHWEST 167 (1979). The entire tribe was incarcerated for a generation in military prisoner-of-war camps in which the population was reduced to less than half by disease, hunger, and exposure. See RICHARD J. PERRY, APACHE RESERVATION: INDIGENOUS PEOPLES AND THE AMERICAN STATE 119–59 (1993) (chronicling Chiricahua Apache conflict, surrender, incarceration, relocation, and genocide). Upon their release in 1913, the Chiricahua were divided in two and relocated to reservations far from ancestral lands and surrounded by traditional rivals. See MICHAEL LIEDER & JAKE PAGE, WILD JUSTICE: THE PEOPLE OF GERONIMO VS. THE UNITED STATES 49 (1997).

62 Sterba, supra note 47, at 430.

63 Though a fraction of the pre-contact Indian population survived, the remainder were corralled on reservations, many infested with vermin and disease and lacking in adequate 2005] BEYOND REPARATIONS 13

Indian land, particularly in the latter half of the nineteenth century, may have functioned primarily as an efficient means to facilitate the annexation of territory, the U.S. nonetheless committed genocide in overtly manifesting a clear intent to kill, and killing, Indians as such.64

shelter and food. Desperate reservation populations were initially forbidden to depart by illegal threats of renewed military force. See United States ex rel. Standing Bear v. Crook, 25 F. Cas. 695, 700–01 (C.C.D. Neb. 1879) (No. 14, 891) (holding, contrary to position of War Department, that Indians are "persons within the meaning of the law" with rights to protest and move freely throughout the U.S.).

B. Land Theft65

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 identity66 and designative of the boundaries of the Indian cultural universe.67 Long before 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.68

64 See Genocide Convention, supra note 47, at art. II. Forced sterilization of Indian women in BIA health clinics also constituted genocide within the meaning of the Convention. See THOMAS M. SHAPIRO, POPULATION CONTROL POLITICS: WOMEN, STERILIZATION, AND REPRODUCTIVE CHOICE 91 (1985) (noting routine sterilization of over one thousand Indian women per year by the Indian Health Service); Lindsay Glauner, Comment: The Need for Accountability and Reparation: 1830–1976 The United States Government’s Role in the Promotion, Implementation, and Execution of the Crime of Genocide Against Native Americans, 51 DEPAUL L. REV. 911, 939–40 (2002) (describing covert sterilization of up to 42% percent of Indian women of childbearing age between 1930 and 1976) (citing Bill Wagner, Lo, The Poor and Sterilized Indian, AMERICA 75 (1977)).

65 See ALASDAIR MCINTYRE, AFTER VIRTUE 13–14 (1990) ("The property-owners of the [U.S.] are not the legitimate heirs of Lockean individuals who performed. . . . acts of original acquisition; they are the inheritors of those who . . . used violence to steal . . . vast tracts . . . .").

66 See VINE DELORIA, JR., GOD IS RED: A NATIVE VIEW OF RELIGION 122 (2d ed. 1992) ("Indian tribes . . . identify their origin as a distinct people with a particular geographic site. This origin place—which may be a river, mountain, plateau, or valley—becomes a central and defining feature of the tribe’s religion and cultural world view . . . .").

67 Rebecca Tsosie, Sacred Obligations: Intercultural Justice and the Discourse of Treaty Rights, 47 UCLA L. REV. 1615, 1640 (2000).

68 See THE QUEST FOR JUSTICE: ABORIGINAL PEOPLE AND ABORIGINAL RIGHTS 22–23 (Menno Boldt & J. Anthony Long eds., 1985) [hereinafter Boldt & Long] ("Our aboriginal responsibility is to preserve the land for our children."). So sacred is the Indian obligation to preserve the tribal landbase for future generations that the loss of Indian land, and the severance of links to ancestors, religion, and culture, is universally deemed the ultimate catastrophe. See DALE VAN EVERY, DISINHERITED: THE LOST BIRTHRIGHT OF THE AMERICAN INDIAN 239 (1966). 14 OHIO STATE LAW JOURNAL [Vol. 66:1

Throughout the seventeenth and early eighteenth centuries, prudence directed Euro-Americans to formally recognize militarily potent Indian tribes as independent sovereigns and accord them diplomatic recognition.69 The Euro-American foothold in North America remained tenuous and ongoing military insecurity stymied territorial ambitions while stifling any notions of conquest. Moreover, U.S. land hunger was largely sated by available space within the original thirteen colonies and most land acquisitions from Indian tribes were of necessity accomplished by treaties of cession70 after peaceful negotiations.