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.71 Still, if during its first several decades of existence the fledgling U.S. was obliged to recognize the sovereignty of Indian nations and to respect Indian land titles as a matter of international and domestic law,72 from the moment of its creation the

69 See William N. Fenton, Leadership in the Northeastern Woodlands of North America, 10 AM. INDIAN Q. 21, 81 (1986).

70 For Indian tribes, entry into treaty relations with the U.S. was a sacred act undertaken to secure mutual advantages as well as create kinship bonds of peace and friendship. See ROBERT A. WILLIAMS, JR., LINKING ARMS TOGETHER: AMERICAN INDIAN TREATY VISIONS OF LAW AND PEACE, 1600–1800, 112 (1997) (describing U.S.-Indian treaties as "multicultural agreements that impart duties of good faith and fair dealing"). For the U.S., Indian treaties were constitutive documents providing the framework for an economic and political joinder of mutual sovereigns. Philip P. Frickey, Marshalling Past and Present: Colonialism, Constitutionalism, and Interpretation in Federal Indian Law, 107 HARV. L. REV. 381, 408–09 (1993). Thus, the Indian treaties of the post-Revolutionary period, though they ceded Indian land in exchange for U.S. promises, must be construed not as acts of tribal surrender but as negotiated contracts, governed by international law, in which Indian tribes reserved those rights not clearly granted to the U.S. and acquired other rights and privileges from the U.S. Id. at 401–02.

71 The late eighteenth century U.S. policy with regard to land acquisition from Indian tribes is seemingly predicated upon a desire for peaceful relations and mutual respect for sovereignty and territorial integrity. See Letter from Secretary of State Knox (1789) ("The principle of the Indian right to the lands they possess being thus conceded, the dignity and the interest of the nation will be advanced by making it the basis of the future administration of justice toward the Indian tribes."); see also 25 U.S.C. § 177 (1982) ("Trade and Intercourse Act") (precluding acquisition of Indian land except for by cession via a U.S.-Indian treaty). In those rare eighteenth century instances of military hostilities initiated by the U.S. to annex Indian land, most campaigns resulted in stalemate or decisive Indian victory. CADWALADER & DELORIA, supra note 41, at 193.

72 See Statement of U.S. Attorney General William Wert, Apr. 26, 1821, cited in Atkinson, supra note 44, at 383 ("So long as a tribe exists and remains in possession of its lands, its title and possession are sovereign and exclusive . . . [and] we have no more right to enter upon their territory than we have to enter upon the territory of a foreign prince."). 2005] BEYOND REPARATIONS 15

U.S. was crafting legal solutions to the "problems caused by the . . . fact that the Indians were here when the white man arrived . . . ."73

1. Fraud and Firewater

The Indian conception of land as utterly incapable of reduction to ownership by human beings74—an essential element of pan-Indian cosmology75—crippled tribes in their early negotiations with U.S. representatives operating within an imported common law tradition that commodified land.76 While Indian tribes generally understood treaties to create sacred kinship ties entitling the U.S. to share and settle the lands in question,77 the U.S., 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.78 Moreover, U.S. negotiators secured further advantage by dulling Indian wits with alcohol.79 Deliberately faulty translations of treaty terms for Indian tribes, as well as a Weltanschauung in which land is a

73 FRANCIS P. PRUCHA, AMERICAN INDIAN TREATIES: THE HISTORY OF A POLITICAL ANOMALY 1 (1994). The Indian presence posed not only a military, but a legal, challenge to white settlement. Although the discovery doctrine purported to grant the United States, as a successor state of Great Britain, the right to impair title to all Indian lands "discovered" by Great Britain, the Indian nations "discovered" by Britain retained aboriginal title, subject only to the superior sovereign title of the United States, and as of the early nineteenth century many private titles claimed by whites under original grants by either the United States or Great Britain remained clouded by prior possessory rights as yet unceded by Indian tribes. See Mitchel v. United States, 34 U.S. 711, 746 (1835) (Baldwin, J.) ("[It is] a settled principle, that [the Indians’] right of occupancy is . . . as sacred as the fee simple of the whites.").

74 See Eric T. Freyfogle, Land Use and the Study of Early American History, 94 YALE L.J. 717, 723 (1985) ("[Indian tribes] believed that land was no more subject to ownership than was the air, water, sky, or . . . spirits.").

75 See VAN EVERY, supra note 68, at 239.

76 See CHARLES M. HAAR & LANCE LIEBMAN, PROPERTY AND LAW 15 (1977) (quoting letter from Chief Sealth of the Nez Perce tribe to President Franklin Pierce) ("[The] white man . . . is a stranger who comes in the night and takes from the land whatever he needs. The earth is not his brother but his enemy, and when he has conquered it he moves on."); see also Carol M. Rose, Possession as the Origin of Property, 52 U. CHI. L. REV. 73, 87 (1985) ("[T]he audience presupposed by [common law property concepts] is an agrarian or a commercial people" rather than the more nomadic or pastoral Indian peoples.).

77 See Gerald Torres & Kathryn Milun, Frontier of Legal Thought III: Translating Yonnodio by Precedent and Evidence: The Mashpee Indian Case, 1990 DUKE L.J. 625, 637–38 (1990) (noting inability of Indian tribes to understand Western property concepts).

78 See generally Nell Jessup Newton, Indian Claims in the Courts of the Conqueror, 41 AM. U. L. REV. 753 (1992) (suggesting language barriers and variant conceptions of relationship of people to land caused misunderstanding of legal nature of grants to whites).

79 STEPHEN PEVAR, THE RIGHTS OF INDIANS AND TRIBES 26 (2002). 16 OHIO STATE LAW JOURNAL [Vol. 66:1

sacred living thing incapable of reduction to ownership, exacerbated an unequal bargaining relationship and erased the line between consent and coercion.80 Worse, later treaties simply codified conquest and genocide. In sum, many of the Indian treaties ceding land to the U.S. are physical embodiments of the fraud,81 unconscionability,82 and duress83 governing their drafting and as such are arguably subject to reconstruction and even renunciation.84

80 Twentieth-century federal jurisprudence, in recognition of the fundamental unfairness prevailing during the creation of many Indian treaties, belatedly adopted canons of construction to guide interpretation of these instruments and mitigate the severity of their operation against Indian rights. As the United States is the party with presumptively superior negotiating skills and knowledge of the language of an Indian treaty, the Court has held that it has the responsibility to avoid taking advantage of Indians and therefore has interpreted the terms of treaties liberally in favor of Indian parties. See, e.g., Minnesota v. Mille Lacs, 526 U.S. 172, 200 (1999); Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n., 443 U.S. 658, 675–76 (1979). The canons of construction also require courts to give effect to the terms of an Indian treaty as the Indians themselves would have understood them at the time of their drafting. County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 247 (1985) (providing that "treaties should be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit."); United States v. Winans, 198 U.S. 371, 380–81 (1905). Ambiguities in Indian treaties are to be resolved "not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians . . . ." Washington, 443 U.S. at 676 (quoting Jones v. Meehan 175 U.S. 1, 11 (1899)); Winters v. United States, 207 U.S. 564, 576–77 (1908). Still, courts are "without authority to determine the rights of parties upon the ground of mere justice or fairness, much less, under the guise of interpretation, to depart from the plain import of the words of the treaty." United States v. Choctaw Nation, 179 U.S. 494, 535 (1900); see also South Carolina v. Catawba Indian Tribe, 476 U.S. 498, 506 (1986) ("The canon[s] of construction . . . [do] not permit reliance on ambiguities that do not exist; nor does it permit disregard of the clearly expressed intent of Congress."). Thus, despite the ameliorative influence of the canons of construction, Indian treaties themselves can impede enjoyment of Indian rights.

81 See Patterson v. Meyerhofer, 97 N.E. 472, 473 (N.Y. 1912) (elaborating implied duty of good faith in contracting); see also Vienna Convention on the Law of Treaties, May 23, 1969, U.N. Doc. A/CONF. 39/27 art. 49, 1155 U.N.T.S. 331, 344 (hereinafter Vienna Convention) (providing as a matter of customary international law that "if a [party] has been induced to conclude a treaty by the fraudulent conduct of another [party], the [party] may invoke the fraud as invalidating its consent to be bound . . . .").

82 See, e.g., Williams v. Walker Thomas Furniture Co., 350 F.2d 445, 449 (D.C. Cir. 1965) (holding that unconscionability includes absence of meaningful choice coupled with contractual terms unreasonably favoring the other party); see also Vienna Convention, supra note 81, at art. 53 (providing, as an international legal definition of unconscionability, that "[a] treaty is void if, at the time of its conclusion, it conflicts with a preemptory norm of general international law.")

83 See, e.g., Employers Ins. of Wausau v. United States, 764 F.2d 1572, 1576 (Fed. Cir. 1985) (providing that duress consists of the involuntary acceptance of terms of another party where circumstances permit of no other alternative and such circumstances were the result of 2005] BEYOND REPARATIONS 17

coercive acts of the other party); see also Vienna Convention, supra note 81, at arts. 51–52 ("[a] treaty is void if its conclusion has been procured by the threat or use of force").

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 tribes, increasingly aware 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.85 However, even as the U.S. waxed ever more potent, Indian tribes retained the capacity to defeat conquest, and law was invoked yet again to wrest away additional Indian lands. The seminal case Johnson v. M’Intosh86 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,"87 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 U.S.88 and that

84 See Friedman, supra note 40, at 559 (arguing that Indian cessions of lands in fraudulent, unconscionable, or duressive treaties are void or voidable); CHARLES FRIED, CONTRACT AS PROMISE: A THEORY OF CONTRACTUAL OBLIGATION 92–93 (1981) (developing basis for judicial reconstruction or voiding of unconscionable contracts).

85 P.T. SHATTUCK & J. NORGREN, PARTIAL JUSTICE: FEDERAL INDIAN LAW IN A LIBERAL CONSTITUTIONAL SYSTEM 113 (1991).

86 21 U.S. (8 Wheat.) 543 (1823).

87 Joseph William Singer, Well-Settled? The Increasing Weight of History in American Indian Land Claims, 28 GA. L. REV. 481, 489 (1994).

88 See 21 U.S. at 574. The Court continued:

Id. 18 OHIO STATE LAW JOURNAL [Vol. 66:1

and ultimately a jurisprudential affirmation of the "inferiority" of Indian nationsto 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 Indians than he,conquest by the discovering sovereign conferred good title.89 While Marshall conceded that such arguments "may be opposed to natural right," he drew from the doctrine of stare decisis,90 comparisons to the practice of other states,91 92 93 94 M’Intosh fueled subsequent claims that

89 Id. at 588–89 (noting that while the denial of good title to original Indian occupants was unjust, "[c]onquest gives a title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted.").

90 Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 128 (1810) (deeming Indian land vacant for purpose of uncompensated taking by state).

91 M’Intosh, 21 U.S. at 592 (noting uniform practice of European states in accepting discovery and conquest as operative in the Americas).

92 Id. at 573 ("[T]he character and religion of [Indians] afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendancy.").

93 Id. at 591–92.

94 See id. at 596–97

Id. See also id. at 574. The Court made clear that in the absence of conquest, Indian title can only be lawfully acquired by the U.S. through a consensual transfer, as Indians were the

Id. at 574, 603. 2005] BEYOND REPARATIONS 19

"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 . . . rights at all, but merely . . . revocable licenses, or . . . ‘permission by the whites to occupy.’"95

3. Trust Doctrine: Cherokee Nation v. Georgia

Subsequent cases further diminished tribal sovereignty over Indian land. In the 1831 case Cherokee Nation v. Georgia,96 the second in the Marshall Trilogy, Chief Justice Marshall determined that, despite their retention of reserved rights, to include occupancy of their lands subject only to voluntary cession,97 Indian tribes were mere "domestic dependent nations" under U.S. "pupilage,"98 not sovereign foreign nations or States within the meaning of the Constitution,99 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.100 Although Marshall held that the U.S. owed a common-law trust duty to Indians, not only was this duty judicially unenforceable,101 but an examination of the other justices’ opinions, construing the U.S.-Cherokee

95 Singer, supra note 87, at 489–90 (noting citation of conquest theories derived from M’Intosh for proposition that Congress has unlimited authority over Indians) (citing Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 279 (1955).

96 Cherokee, 30 U.S. (5 Pet.) 1 (1831).

97 See id. at 17 ("Indians are acknowledged to have an unquestionable . . . right to the lands they occupy, until that right shall be extinguished by a voluntary cession").

98 The Chief Justice stated:

Id.

99 Id. at 15–16 (citing U.S. CONST. art. III, § 2).

100 Id. at 20.

101 Id.

Id. 20 OHIO STATE LAW JOURNAL [Vol. 66:1

relationship as that between a conqueror and a subject people,102 hinted that the "trust doctrine," true to its roots in medieval Christian xenophobism,103 would become yet another legal tool with which to diminish Indian sovereignty.104 In short order, the U.S. claimed trust title to all Indian lands within U.S. borders. Although the trust doctrine105 generated a host of express obligations in the context of subsequent treaties, statutes, and executive orders creating Indian reservations,106 political pressure ensured that these judicially unenforceable

102 See Cherokee, 30 U. S. at 26 (Johnson, J., concurring); id. at 32–33 (Baldwin, J., concurring). The dissent proved more consonant with the trend in international law, which, although it continued to sanction the creation of consensual guardianships with powers and duties limited by treaties between sovereign peoples, shortly thereafter abandoned altogether any consideration of indigenous peoples as political bodies with rights. See S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW 21, 14 (1996).

103 See ANAYA, supra note 102 (arguing that the trust doctrine is a "form of scientific racism" that posits that whites have a duty to "wean native peoples from their ‘backward’ ways and to ‘civilize’ them"); see also Friedman, supra note 40, at 563–64 ("From the very beginning, the federal-tribal trust doctrine . . . explicitly relied upon the ‘primitivism’ of natives to justify interference in their affairs."); CADWALADER & DELORIA, supra note 41, at 196 (noting that the trust doctrine was the political will of a white population committed to the notion that Indians were a semi-barbarous people who ought to yield to white civilization).

104 Such fears proved well-founded when the Supreme Court explained the trust obligation as the duty to act as "a Christian people in their treatment of an ignorant and dependent race." Beecher v. Wetherby, 95 U.S. 517, 525 (1877). The "white man’s burden" motivated federal Indian policy as actualized through the trust doctrine well into the twentieth century. See U.S. v. Sandoval, 231 U.S. 28, 39, 46 (1913).

105 Over the course of the past two centuries the trust doctrine has broadened to encompass a set of duties greater than those pertaining strictly to land, including to "ensure the survival and welfare of Indian tribes and people" and to "provide those services required to protect and enhance Indian lands, resources, and self-government, and also includes those economic and social programs which are necessary to raise the standard of living and social well-being of the Indian people to a level comparable to the non-Indian society." ROBERT N. WELLS, JR., NATIVE AMERICAN RESURGENCE AND RENEWAL 19 (1994).

106 U.S.-Indian treaties post-Cherokee unambiguously contemplated discrete reserved land bases where Indian tribes would exercise beneficial ownership while enjoying political, economic, and cultural sovereignty under U.S. guardianship. See CHARLES F. WILKINSON, 2005] BEYOND REPARATIONS 21

obligations were almost never discharged with "good faith and utter loyalty to the best interests" of the Indian tribes.107

AMERICAN INDIANS, TIME, AND THE LAW: NATIVE SOCIETIES IN A MODERN CONSTITUTIONAL DEMOCRACY 14, 16 (1987) (asserting that the central thrust of federal Indian law has always been to create a "measured separatism"). Indian tribes under the trust doctrine would remain distinct peoples in a political relationship with the U.S. based on the treaties and the Commerce Clause, which sets Indian tribes apart from states and foreign nations as sovereigns and provides that Congress has the exclusive authority to regulate trade. See U.S. CONST., art. I, § 8, cl. 3.

4. Plenary Power: Worcester v. Georgia

In Worcester v. Georgia, Marshall interpreted the Commerce Clause108 to hold that Congress had "plenary" power over Indian affairs.109 Although the precise meaning of the term "plenary" was not subject to ready determination,110

107 In a democratic republic, a self-interested majority represents a powerful barrier to honoring treaty commitments benefiting a discrete minority not formally an organic part of the body politic yet in possession of vast lands and resources. See JOHN ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 135–79 (1980) ("There will always be a conflict when a government . . . must act both as trustee in the best interests of a small segment of the populace and also as a servant of the best interests of the entire society."); THE FEDERALIST NO. 51 (James Madison) (addressing the majoritarian problem).

108 See U.S. CONST., art I., § 8, cl. 3 (granting power to Congress "to regulate commerce with foreign Nations, and among the several states, and with the Indian Tribes.").

109 31 U.S. (6 Pet.) at 536–63 (1832). However, even as it expanded congressional power, Worcester restricted state jurisdiction. Id. at 561 ("[The] Cherokee nation . . . is a distinct community . . . in which the laws of Georgia can have no force").

110 The "plenary power" doctrine, with origins in medieval-era traditions of Christian cultural racism, was carried into the New World by Columbus, developed by successive European arrivals, and reified as moral imperative in U.S. jurisprudence to permit the "superior" race to exercise whatever power necessary to "civilize" indigenous peoples. DAVID GETCHES ET AL., CASES AND MATERIALS IN FEDERAL INDIAN LAW 177 (3d ed. 1993); see also Robert A. Williams Jr., The Algebra of Federal Indian Law: The Hard Trail of Decolonizing and Americanizing the White Man’s Jurisprudence, 1986 WIS. L. REV. 219, 265 (arguing plenary power "erase[s] the difference presented by the Indian in order to sustain . . . European norms and value structures"). Other commentators suggest Marshall’s use of the term "plenary" was not meant to denote "absolute" or "total" power but rather to signify federal, as opposed to state powers, thereby shielding tribal sovereignty from state legislation. See Rachel San Kronowitz et al., Toward Consent and Cooperation: Reconsidering the Political Status of Indian Nations, 22 HARV. C.R.-C.L. L. REV. 507, 525 (1987). The orthodox view suggests that "plenary" as used in Worcester implies general police powers, as opposed to the limited, delegated powers the federal government bears in relation to states, and as such arrogates to Congress general powers to regulate every aspect of Indian affairs. WILKINSON, supra note 106, at 78–79. By the late nineteenth century "plenary power" was accepted as the absolute prerogative of Congress vis-à-vis the Indian tribes. See United States v. Kagama, 118 U.S. 375, 381–84 (1886) (holding Congress has a right to exercise authority over Indians for their own 22 OHIO STATE LAW JOURNAL [Vol. 66:1

through congressional practice its purpose became plain, and by 1900 Congress qualified all remaining tribal powers by express legislation.111 Moreover, by the late 1840s, with the military power calculus shifting112 and gold discovered out West, "whites c[ould] no longer be kept out of Indian country."113 By adding plenary power to the legal arsenal, Worcester and its progeny ushered in a violent phase of U.S. expansion, executed under the rubric "Manifest Destiny."114

well-being); Lone Wolf v. Hitchcock, 187 U.S. 553, 566 (1903) (holding Congress, under its plenary power, could abrogate a treaty when doing so "[would be] in the interest of the country and the Indians themselves"). Plenary power to dispose of Indian land is a nonjusticiable political question, and no Congressional exercise of regulatory jurisdiction over Indian affairs has ever been set aside by the courts. See CADWALADER & DELORIA, supra note 41, at 165 (noting plenary power renders all disputes arising under U.S. Indian legislation non-justiciable political questions).

Over the next several decades the Army prosecuted a sequence of wars to perfect discovery by divesting Indians of their possessory interest.115 Still other wars were fought to suppress Indian unrest after U.S. violations of Indian treaties.116 After each genocidal campaign, a dwindled, harried, and hungry

111 See AMERICAN INDIAN POLICY: SELF-GOVERNANCE AND ECONOMIC DEVELOPMENT 3 (Lyman H. Legters & Fremont J. Lyden eds., 1994) [hereinafter LEGTERS & LYDEN] (noting that, subsequent to Kagama, Congress passed the first of more than 5,000 laws regulating Indians).

112 After the Civil War, U.S. military power was so overwhelming that all subtlety was abandonded, and armed force was employed against Indian nations west of the Mississippi. See ALBERT K. WEINBERG, MANIFEST DESTINY 115 (1935).

113 VAN EVERY, supra note 68, at 261–62. By the late 1840s, homesteaders and prospectors pressured policymakers to grant access to the material wealth of the American West—an area populated theretofore almost exclusively by Indian nations. See BRIAN W. DIPPIE, THE VANISHING AMERICAN: WHITE ATTITUDES AND UNITED STATES’ INDIAN POLICY 73 (1982).

114 "Manifest Destiny," a term which first appeared in print in 1845, refers to the nineteenth century political philosophy holding that the U.S. was charged with a divinely-inspired mission of extending its moral enlightenment, democratic principles, and republican values to the furthest reaches of North America. See generally WEINBERG, supra note 112 at 2. If fulfillment of this Manifest Destiny required the defeat, displacement, and murder of Indians, the imprimatur of the Supreme Court supported the inevitability of the expansion of the frontier and affirmed divine approbation of the mid- to late-nineteenth century Indian Wars. Id. at 81–83.

115 Theretofore, Indian claims based on lineal descendancy and exclusive occupancy earned recognition, by treaty or statute, of a limited possessory right to permanent occupancy known as "recognized Indian title." See M’Intosh, 21 U.S. at 574.

116 The Supremacy Clause establishes treaties as legal authority coequal to the Constitution itself. See U.S. CONST., art. VI, cl. 2 ("This Constitution, and the Laws . . . which shall be made in Pursuance thereof, and all Treaties made . . . under the authority of the United States, shall be the supreme Law of the Land . . . ."). A violation of a treaty is therefore a violation of federal law unless Congress subsequently and unambiguously legislates to abrogate 2005] BEYOND REPARATIONS 23

Yet despite distribution of millions of Indian nation in extremis sued for a peace that surrendered vast tracts of lands and political freedom in exchange for dependence117 and "civilization."118 During the first decade after the Civil War the U.S. acquired nearly one-fourth of the land within its modern contiguous boundaries119 entirely free of any legal obligation to pay more than token compensation.120

the treaty. Head Money Cases, 112 U.S. 580, 599 (1884) (citing common-law rule supporting legislative modification of treaties); Whitney v. Robertson, 124 U.S. 190, 194 (1888) (providing Congress may modify treaty provisions, or "supersede them altogether," by subsequent statute). Although an Indian treaty thus binds all branches of government, Congress has plenary power to abrogate or otherwise limit it provided it does so explicitly and "with perfect good faith toward Indians," which good faith is legally presumed. Lone Wolf, 187 U.S. at 566; see also Puyallup Tribe, Inc. v. Dep’t of Game of Washington, 433 U.S. 165, 174 (1977) (upholding, under political question doctrine, plenary power to abrogate Indian treaties). Moral restraint has been in as short supply as "perfect good faith": to cure breaches of land provisions of Indian treaties occasioned by invasion Congress passed abrogating statutes allowing the U.S. to violate with impunity all of the more than 400 Indian treaties. Singer, supra note 87, at 483–84. For a historical review of Congressional bad faith, see VINE DELORIA, JR., BEHIND THE TRAIL OF BROKEN TREATIES (1985).

117 VINE DELORIA, supra note 116, at 382 ("The [U.S.] Army dogged tribes across the plains, through the forests, in and out of desert canyons, and through the swamps . . . until tribe after tribe realized they would have to sign a terrible treaty or face extinction . . . ."). Treaty promises of annuities for peace were bitter bargains: defeated tribes were confined on distant, strange lands, restricted from engaging in traditional subsistence practices, and forced into dependency. Id.

118 See Beecher v. Wetherby, 95 U.S. 517, 526 (1877) ("Congress . . . expected . . . the semi-barbarous condition of the Indian tribes [to] give way to the higher civilization of our race.")

119 See Nell Jessup Newton, Compensation, Reparations, and Restitution: Indian Property Claims in the United States, 28 GA. L. REV. 453, 460–61 (1994) (discussing expropriation of one billion acres of Indian land from 1865–1875).

120 The Court refused to confine plenary power within the Due Process and Just Compensation Clauses, choosing abstention under the political question doctrine. See Lone Wolf, 187 U.S. at 553, 565–66. Although it held that takings of Indian property are subject to the Fifth Amendment, the Court adopted a formal distinction that permitted Congress near-unlimited freedom in establishing compensation requirements. See Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 279 (1955):

Given the judicially-crafted distinction between "recognized Indian title" and "aboriginal title," Congress may take even those lands exclusively occupied by a tribe since time immemorial and extinguish Indian occupancy at will, without compensation, and for any purpose, so long as 24 OHIO STATE LAW JOURNAL [Vol. 66:1

to crush the last obstacles on the march to the Pacific. cheap acres to settlers,the national greed for space, fueled by an evolving inter-branch compact authorizing gratis takings,dictated confiscation of most of the remainder of Indian Country. In 1871 Congress exercised plenary power to strip away the last formal vestiges of Indian juridical sovereignty by providing that "hereafter no 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 U.S. law to treat Indian nations as foreign sovereigns, the U.S. 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 genocide121 122 123 124

those lands were not conveyed by an official act of Congress or so long as the tribe did not claim them by treaty. Alaska v. Native Village of Venetie Tribal Government, 522 US 520, 532 (1998) (requiring explicit congressional designation to find recognized title); CADWALADER & DELORIA, supra note 41, at 187–88 (Indians occupying aboriginal title land are "mere tenants at the will of the [U.S.]"). Even with respect to recognized title, Congress may pay compensation at levels bearing no discernible nexus to market value. See Babbitt v. Youpee, 519 U.S. 234, 239 (1997) (subjecting plenary power only to limited constitutional restraint that Congress pay some compensation when extinguishing recognized title). In sum, Indian property is beyond the Constitutional pale. See Newton, supra note 119, at 457–58 (analogizing federal Indian law to Communist law in that neither afford meaningful protection against takings).

5. Allotment to Present

By 1887 all two billion acres of the U.S. continental landmass had been discovered, conquered, and expropriated save for 138 million acres apportioned to Indian reservations, which the General Allotment Act of 1887 ["Allotment"]125 targeted for dismemberment. Allotment, an exercise of plenary power, subdivided large swaths of communally owned tribal lands into parcels for the private use of

121 See, e.g., Homestead Act of 1862, 12 Stat. 392 (granting 250 million acres of Indian land to settlers for as little as $1/acre).

122 See Singer, supra note 87, at 484 (stating that, as all questions relating to Indian affairs were now nonjusticiable political questions, "Congress and the President therefore possessed absolute, unreviewable power over Indian nations").

123 Act of Mar. 3, 1871, ch. 120, 16 Stat. 544, 566 (as amended at 25 U.S.C. §71 (2000)).

124 Scores of tribes, their numbers reduced by war, disease, and starvation, were forced onto land reservations in the 1870s and 1880s. The surviving three hundred members of the last belligerents, the Chiricahua Apache, surrendered unconditionally in 1887 after the murder of three thousand of their number. For a comprehensive history of the genocide of the Chiricahua Apache, see generally LIEDER & PAGE, supra note 61, 16–49.

125 Act of Feb. 8, 1887, ch. 119, 24 Stat. 388 (codified as amended in scattered sections of 25 U.S.C.). 2005] BEYOND REPARATIONS 25

individual Indian allottees under a 25-year period of U.S. guardianship.126 Upon expiration of the trust period the U.S. issued an unrestricted fee patent to allottees who proved "competence," assumed U.S. citizenship, and paid property taxes.127 For most tribes, Allotment was devastating: although tribal governments remained in situs on vestiges still under trust protection, by encouraging Indian individuals to formally withdraw from the tribe128 for a per capita share of tribal land, and by punishing the failure of unemployed allottees to pay taxes with foreclosure, reversion of title, and sale to white speculators,129 Allotment abolished Indian reservations as autonomous and integral sociopolitical entities.130

Although several tribes attempted to block Allotment,131 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,132 but that takings of Indian land, described by Congress as a legitimate form of "investing for the tribe" that did not require either consent or notification, were precluded from judicial review.133 By

126 Id. The original plan was to allot tribal heads of household 160 acres each and to make surplus land available to non-Indians. See WILKINSON, supra note 106, at 19–20. However, effects varied, and while some reservations, such as the Jicarilla Apache, remained unallotted (see Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 134 (1982)), others, such as the Lake Traverse Reservation of the Wahpeton and Sisseton Bands of the Sioux Tribe, were held to be terminated once 85% of the reservation had been purchased by non-Indians. See DeCoteau v. District County Court, 420 U.S. 425, 427–28 (1975).

127 See PEVAR, supra note 79, at 196 (noting that Allotment subjected individual Indian landowners to the full panoply of territorial and state laws, including property taxation).

128 The concept that an Indian could not simultaneously be a tribal member and a U.S. citizen persisted until Congress granted citizenship to "all non-citizen Indians born within the territorial limits of the United States." See Act of June 2, 1924, ch. 233, 43 Stat. 253 (codified as carried forward at 8 U.S.C. 1401(b) (2000)). Prior to 1924, "Indian naturalization was conditioned on the severing of tribal ties . . . ." FELIX COHEN, FEDERAL INDIAN LAW 644 (1953).

129 JAMES LOPAC & RICHMOND CLOW, TRIBAL GOVERNMENT TODAY 20 (1990).

130 See PEVAR, supra note 79, at 8–9 (describing Allotment as a partitioning of the tribal estate).

131 Kiowa Chief Lone Wolf sued unsuccessfully to prevent allotment of 2.5 million acres of tribal lands, guaranteed by treaty against allotment, without the signature of two-thirds of the adult males. See Lone Wolf, 187 U.S. at 568 (providing that compensation for takings of Indian land need not be paid where Congress acts as a trustee in the "best interest" of Indian tribes despite violation of treaty) (abrogating Medicine Lodge Treaty, 15 Stat. 581, 589 (1867)).

132 See Cherokee Nation v. Hitchcock, 187 U.S. 294, 307 (1902) (upholding allotment of Indian land despite violation of treaties).

133 Lone Wolf, 187 U.S. at 565–66 (establishing that Congressional exercise of plenary power in regulation of Indian affairs, even to the extent of abrogating treaty-based property rights, is immune from judicial review under political question doctrine). A skein of subsequent cases has reinforced, as a matter of domestic law, the sweeping breadth and depth of plenary power to abridge Indian treaty-based property rights. See William J. Murphy, Jurisdiction—26 OHIO STATE LAW JOURNAL [Vol. 66:1

1934, Indian lands had been reduced by a further 90 million acres, with 26 million lost through fraudulent transfers, and of the two billion acres of formerly contiguous tribal landholdings all that remained was a fragmented, 47 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.134 Ninety-five thousand Indians were landless.135

Sovereign Immunity—Business Owned by Native American Nation Granted Sovereign Immunity from Suit Arising from its Private Off-Reservation Transaction, In re Greene, 980 F.2d 590 (9th Cir. 1992), cert. denied, 114 S. Ct. 681 (1994), 17 SUFFOLK TRANSNAT’L L. REV. 599, 601 n.16 (1994) (listing cases). Still, several Indian tribes continue, perhaps quixotically, to assert legal claims arising from U.S. takings of recognized Indian title. See Susan Lope, Indian Giver: The Illusion of Effective Legal Redress for Native American Land Claims, 23 SW. U. L. REV. 331, 342–49 (1994) (evaluating such claims).

In sum, the synergy of discovery, the trust doctrine, and plenary power as manifested in case law and federal policies perfected the legal theft of Indian land.136 Despite infrequent restitution and compensation of Indian land,137 the Constitution affords no protection to Indian tribes,138 and what remains of their landbase continues under siege.139 The U.S. currently wields

134 See Atkinson, supra note 44, at 398 (noting that due to Allotment many reservations are checkerboards of U.S. and Indian land, with some even populated mainly by non-Indians).

135 Frank Pommersheim, The Reservation as Place: A South Dakota Essay, 34 S.D. L. REV. 246, 256 (1989).

136 More than half of the U.S. land mass was purchased at an average price of pennies per acre, while another 300 million acres were taken without compensation and another 700 million acres are claimed by the U.S. although it has taken no action to extinguish Indian title. See Russell Lawrence Barsh, Indian Land Claims Policy in the United States, 58 N.D. L. REV. 7, 7–8 (1982). Moreover, all of "Indian Country," a legal term-of-art meaning essentially lands within the territorial limits of an Indian reservation, is now either trust land owned by the U.S. or non-trust land permanently Indian-occupied but subject to Congressional plenary power to restrict alienation and use. See 18 U.S.C. §1151 (1994) (defining "Indian Country"). In sum, the U.S. owns superior title to all land within its borders, and efforts to reacquire Indian land are vigorously opposed by all levels of government. From the Indian viewpoint, non-Indians not only shamelessly "gorg[e] themselves on the spoils of old wars" but remain unrepentant, as evinced by ongoing land seizures. Atkinson, supra note 44, at 381.

137 See, e.g., Maine Indian Land Claims Settlement Act, 25 U.S.C. §1721 et seq. (1980) (providing recognition and $81.5 million for purchase of 300,000 acres to Penobscot, Passamaquoddy, and Maliseet). While the U.S. has restored 540,000 acres since 1970, this represents .05% of the two billion acres under Indian possession at First Contact. Newton, supra note 119, at 476–77.

138 United States v. Sioux Nation, 448 U.S. 371, 415 (1980) (reiterating that nonconsensual transfers of Indian land to third parties are insulated from the Takings Clause of the Fifth Amendment provided the U.S. acts as tribal guardian, rather than as sovereign). Recently, several courts have mitigated the scope of plenary power marginally by requiring that the U.S. demonstrate a rational connection between a proposed legislative enactment and fulfillment of a "unique obligation toward the Indians" under the trust doctrine. See, e.g., 2005] BEYOND REPARATIONS 27

absolute, 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.140

C. Ethnocide141

With its Manifest Destiny secured, the U.S, heretofore oriented toward the physical separation and extermination of indigenous people, changed tacks to follow the prevailing political winds,142 and U.S. Indian policy adopted a treble action agenda: liquidation of Indian culture,143 eradication of tribal self-

139 See Larry Sager, Rediscovering America: Recognizing the Sovereignty of Native American Indian Nations, 76 U. DET. MERCY L. REV. 745, 781 (1999) (noting recent expropriations of Indian land), Newton, supra note 119, at 473 (chronicling post-World War II expropriations of Indian land). Moreover, tribal efforts to aggregate land parcels fractured by Allotment and other federal policies are kept at bay only by the occasional intervention of the judicial branch. See, e.g., Babbit v. Youpee, 519 U.S. 234, 243–45 (1997) (holding a provision of the Indian Land Consolidation Act, 96 Stat. 2519, 25 U.S.C. § 2206, prohibiting the descent or devise of small fractional interests in allotments and providing that such fractional interest would escheat back to tribes, unconstitutional as a taking of private property without compensation).

140 Singer, supra note 87, at 487. Remedial legislation designed to enforce the legal equality of "all persons within the jurisdiction of the United States" with respect to the "full and equal benefit of all laws and proceedings for the security of . . . property" and the "right . . . to inherit, purchase, lease, sell, hold, and convey real and personal property" renders the legal burden all the more indefensible. 42 U.S.C. §§1981–82 ("Civil Rights Act of 1866" 14 Stat. 27). Perhaps the only way to harmonize the statutes with the burdens upon Indian property is to deny that Indians are persons within the meaning of the Constitution.

141 Ethnocide is defined as "any act which has the aim or effect of depriving [indigenous people] of their ethnic characteristics or cultural identity [or] any form of forced assimilation or integration, [such as the] imposition of foreign life-styles." Discrimination Against Indigenous Peoples: First Revised Text of the Draft Universal Declaration on Rights of Indigenous People, at 6, P5, U.N. Doc. E/CN. 4/Sub. 2/1989/33 (1989).

142 See Russell Lawrence Barsh, Progressive-Era Bureaucrats and the Unity of Twentieth-Century Indian Policy, 15 AM. INDIAN Q. 1, 10 (1991) (identifying liberal humanist intellectuals as responsible for transformation of late-nineteenth century Indian policy).

143 Culture can be defined as a "set of shared and enduring meanings, values, and beliefs that characterize national, ethnic, or other groups and orient their behavior which is transmitted from one generation to the next and shapes interactions with others and the environment . . . ." 28 OHIO STATE LAW JOURNAL [Vol. 66:1

These interrelated policies 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,"the BIAgovernment,144 and forced assimilation of "civilized" Indians, shorn of cultural and social attachments, into the body politic.145 146 147 148 introduced religious missionaries to dissolve the glue of Indian society.

Guy O. Faure & Gunnar Sjostedt, Culture and Negotiation: An Introduction, in CULTURE AND NEGOTIATION 1, 3 (Guy O. Faure & Jeffrey Z. Rubin eds., 1993). As such, "[e]ach culture . . . records . . . experiences in ways that provide meaning, guidance and codes of rectitude that serve as compasses for the individual as he or she navigates the vicissitudes of life." W. Michael Reisman, International Law and the Inner Worlds of Others, 9 ST. THOMAS L. REV 25, 25 (1996). While culture is germane to the constitution of group identities, it is particularly so for Indian tribes: a communal culture, constituted by language, law, music, dance, religion, history, and worldview, touches every facet of Indian life and serves as a template for determining and patterning Indian behavior. See Richard Herz, Legal Protection for Indigenous Cultures: Sacred Sites and Communal Rights, 79 VA. L. REV. 691, 704 (1993) ("[Indians] without communal culture are not whole. They are, as one Indian leader derisively put it, ‘just people’ and nothing more."). Indian culture, thus construed, can be analogized to tribal property entitled to defense as such. See Christine Zuni Cruz, On the Road Back In: Community Lawyering in Indigenous Communities, 5 CLINICAL L. REV. 577, 566 (1999) ("ownership of cultural property may actually be a . . . right, not unlike a right to speak a certain language or practice a religion . . . ."). For a discussion of Indian culture as a property right, see, e.g., Walter R. Echo-Hawk, Museum Rights v. Indian Rights: Guidelines for Assessing Competing Legal Interests in Native Cultural Resources, 14 N.Y.U. REV. L. & SOC. CHANGE 437, 441–51 (1986).

1. Cultural Liquidation

a. "Kill the Indian to Save the Man"149

144 The term "self-government" refers to the autonomous determination of the institutions, structures, and processes of political organization, economic development, and legal regulation.

145 See Fenton, supra note 69, at 80–81 (interpreting 1871–1934 federal Indian policy as acquisition of Indian land, destruction of Indian political leadership, and assimilation of Indians).

146 See Strickland, supra note 54, at 713 (coining the term "genocide-at-law").

147 Barsh, supra note 142, at 10.

148 The BIA is the executive agency responsible for U.S. relations with the tribes and for discharge of the trust responsibility.

149 In 1892, Captain Richard Henry Pratt, founder of the Carlisle Industrial Indian School, opined that "all the Indian there is in the race should be dead. Kill the Indian in him and save the man." Cited in Atkinson, supra note 44, at 392–93. 2005] BEYOND REPARATIONS 29

substitution of Euro-American, Christian culture in its stead.150 Beginning in the late nineteenth century, Indian children were spirited off to boarding schools where their hair was cut, their tribal clothing was exchanged for Western garb, and harsh abuses were meted out for speaking tribal languages or engaging in customary religious practices.151 During their residence, Indian children were prohibited from visiting their relatives, who, as a result, they often did not see for years.152 Removed Indian children, and their descendants down through the generations, have typically lost the use of their languages, been denied cultural knowledge, and been deprived of opportunities to take on tribal responsibilities.153

b. American Crusade: Eradication of Indian Religion

While Indian children underwent forced conversions, the U.S. posted Christian missionaries to the reservations as Indian agents with orders to ban tribal religions, initiate Christianization, and pacify political discourse.154 At the behest of the Indian agents, Congress launched an assault upon Indian religion with laws155 that weakened "marriage, family and clan relationships, the

150 See Jorge Noriega, American Indian Education in the United States: Indoctrination for Subordination to Colonialism 380–81 in THE STATE OF NATIVE AMERICA: GENOCIDE, COLONIZATION & RESISTANCE (M. Annette Jaimes ed., 1992) [hereinafter JAIMES] (noting that boarding school curricula stressed Anglo-American, while stifling Indian, languages, cultures, and religions).

151 See id. at 371, 382 (stating that Indian children in boarding schools were subjected to beatings, whippings, and sexual abuse well into the twentieth century); see also Tsosie, supra note 67, at 1663 (terming this forcible process whereby full Indian participation in, and knowledge of, their culture was denied beginning at an early age by non-Indians as "natal alienation"); ROBERT A. TRENNERT, JR., THE PHOENIX INDIAN SCHOOL: FORCED ASSIMILATION IN ARIZONA, 1891–1935 65–66 (1988).

152 See Pommersheim, supra note 135, at 256–57 (noting that denial of visitation advanced the process of assimilation).

153 See Sarah Pritchard, The Stolen Generation and Reparations, 21 U. NEW S. WALES L. J. 259, 263 (1998) (discussing deprivation of cultural patrimony occasioned by removal of indigenous children); see also Allison M. Dussias, Waging War with Words: Native Americans’ Continuing Struggle Against the Suppression of Their Languages, 60 OHIO ST. L. J. 901, 973–77 (1999) (detailing effects of suppression of Indian languages).

154 See VINE DELORIA, CUSTER DIED FOR YOUR SINS 108 (1969).

155 By 1892 the BIA Commissioner had listed the following offenses as within the jurisdiction of the CIO: "participating in dances or feasts; entering into plural . . . marriages; acting as medicine men [i.e., practicing Indian religion]; destroying property of other Indians; engaging in immorality, [and] intoxication . . . ." Nell Jessup Newton, Memory and Misrepresentation: Representing Crazy Horse, 27 CONN. L. REV. 1003, 1033–34 (1995). 30 OHIO STATE LAW JOURNAL [Vol. 66:1

Despite the 1978 passage of the American Indian Religious Freedom Act ["AIRFA"] establishing the policy of the U.S. to "protect and preserve for American Indians their inherent right . . . to believe, express, and exercise . . . traditional religions,"in practice Indian religions—particularly when they involve the hunting of charismatic mega-fauna or the use of controlled substances—have distribution of property, and social and political organization."156 Courts of Indian Offenses ("CIO") enforced these stringent social control mechanisms.157 In arguing 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."158 For most of the twentieth century, non-Indian "cultural game wardens"159 circumscribed the legal exercise of Indian religion.160 161

156 Sidney L. Harring, Crow Dog’s Case: A Chapter in the Legal History of Tribal Sovereignty, 14 AM. INDIAN L. REV. 191, 194 (1989).

157 By 1900 CIO/CFR Courts had been created on the majority of reservations, extending the criminal jurisdiction of the U.S. See Andrea M. Seielstad, Unwritten Laws and Customs, Local Legal Cultures, and Clinical Legal Education, 6 CLINICAL L. REV. 127, 139 n.28 (1999). Judges were chosen from the ranks of "assimilated" Indians who were willing to cut their hair, wear western attire, and accept allotments. See Newton, supra note 155, at 1034.

158 Id. at 1033.

159 Rosen, supra note 39, at 253.

160 Instances of the denial of the right to practice Indian religion are legion. For several generations the BIA suppressed Indian religious practices, particularly the Sun Dance, as promoting "superstitious cruelty, licentiousness, idlreness, . . . and shiftless indifference to family welfare." COHEN, supra note 128, at 175 (citing BIA Commissioner in 1921 congressional testimony). Rigid proscriptions of all manifestations of Indian religion have been vigorously enforced by all three branches of the federal government for more than a century. See Allison M. Dussias, Ghost Dance and the Holy Ghost: The Echoes of Nineteenth-Century Christianization Policy in Twentieth-Century Native American Free Exercise Cases, 49 STAN. L. REV. 773, 788–94 (1997) (chronicling prohibition of all forms of traditional Indian religious practice). In recent times denials have often involved the right to gather or use ceremonial natural materials. See, e.g., United States v. Dion, 476 U.S. 734, 746 (1986) (finding in legislative history and text of a federal criminal statute extending protection to eagles clear evidence of Congressional intent to exercise plenary power and abrogate right of the Yankton Sioux to quiet and undisturbed possession of their reservation, to include reserved right to hunt eagles); Sharon O’Brien, The Medicine Line: A Border Dividing Tribal Sovereignty, Economies and Families, 53 FORDHAM L. REV. 315, 322 (1984) (noting international travel restrictions and domestic laws prohibiting importation of flora and fauna prevent Indians from crossing national boundaries to gather or trade sacred items); Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 441–42 (1988) (discussed infra at note 164).

161 American Indian Religious Freedom Act, Pub. L. No. 95–341, 92 Stat. 469 (1978) (codified in part at 42 U.S.C. § 1996 (1988)) (declaring as grounds for protecting and preserving expression of Indian religions against infringement by state action that "the religious practices of the American Indian . . . are an integral part of their culture, tradition and heritage"). 2005] BEYOND REPARATIONS 31

proven too enigmatic for non-Indian jurists to admit within the meaning of "religion" as enunciated in the Bill of Rights.For Indian claimants, who have not won a single religious freedom case162 163 and 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."164

162 Racism, paternalism, and romanticism conspire to prevent protection of Indian religious freedom except when it is possible to cram Indian claims into the pigeonholes of the Bill of Rights and the European-derived values and traditions supporting notions of what religion should be—organized churches, formal institutions, a separation between church and state, and a hierarchical relationship between the deity and worshippers. See GETCHES ET AL, supra note 110, at 764 (explaining inability of non-indigenous judges to translate Indian claims under AIRFA into cognizable claims). To Getches,

Id. Conflicts over land use exacerbate judicial unwillingness to draw Indian religions within the penumbra of the Constitution. As Deloria notes,

Vine Deloria, Jr., Is Religion Possible? An Evaluation of Present Efforts to Revive Traditional Religions, 8 WICAZO SA REV. 38–39 (1992).

163 See Sharon O’Brien, A Legal Analysis of the American Indian Religious Freedom Act, in HANDBOOK OF AMERICAN INDIAN RELIGIOUS FREEDOM 27, 42–43 (Christopher Vecsey, ed., 1995); see also New Mexico Navajo Ranchers’ Ass’n v. Interstate Commerce Comm’n, 850 F.2d 729 (D.C. Cir 1988) (obligating the U.S. to consider the impact of actions on Indian religion but not obligating consultation with tribes whose religion was threatened with imminent destruction of its material foundations).

164 Dean B. Suagee, Self-Determination for Indigenous Peoples at the Dawn of the Solar Age, 25 U. MICH. J.L. REFORM 671, 712 (1992). Not only did AIRFA provide little intellectual support for the finding that Indian religions were "religions" with respect to the Constitution, but it was passed as a resolution without concrete mandate other than a requirement that federal agencies evaluate their policies and procedures in consultation with Indian religious leaders and report findings to Congress. Laura Nader & Jay Ou, Idealization and Power: Legality and Tradition in Native American Law, 23 OKLA. CITY L. REV. 13, 22 (1998). Moreover, judicial 32 OHIO STATE LAW JOURNAL [Vol. 66:1

interpretation further guts constitutional protection of Indian religious practice: in 1988 the Supreme Court, finding no independent cause of action arising under AIRFA, upheld U.S. logging and construction activities on National Forest lands used for religious purposes by several tribes, even while conceding it was undisputed that the activities could have "devastating effects on . . . Indian religious practices," on the theory that to find otherwise would be tantamount to permitting a religious servitude on public lands. Lyng, 485 U.S. at 451–53 (1988) ("Whatever rights the Indians may have to the use of the area, those rights do not divest the Government of its right to use what is, after all, its land.") (emphasis omitted). In 1990 the Court refused to apply the "compelling state interest" test developed under the First Amendment to an Oregon prohibition on the use of peyote applied, in the case at bar, to religious practice by members of the Native American Church: a majority held it would be "courting anarchy" to "open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind" and that "leaving accommodation to the political process" is the appropriate means to determine the state interest in regulating Indian religion. Employment Div., Dep’t of Human Resources of Oregon v. Smith, 494 U.S. 872, 888, 890 (1990).

2. Suppression of Indian Self-Government

a. Legal Imperialism

Although no Indian tribe had codified a body of written law as of 1776, many tribes had kinship-based rules of conduct and belief that conditioned members to adhere to sacred values of order, harmony, and peace.165 Intra-tribal disputes were typically resolved not through formal adjudication but rather with the aid of respected elders who would guide disputants to a restorative compromise. "Though it appeared to the casual white observer that anarchy reigned,"166 spiritual consensus produced an internally coherent and rational jurisprudence. Despite retention of nearly exclusive subject matter and personal jurisdiction to the territorial limits of their reservations even as of the late nineteenth century,167

165 Ken Traisman, Note, Native Law: Law and Order Among Eighteenth-Century Cherokee, Great Plains, Central Prairie, and Woodland Indians, 9 AM. INDIAN L. REV. 273, 274, 278–79, 282–83 (1981).

166 WILLIAM T. HAGAN, INDIAN POLICE AND JUDGES 11 (1966).

167 Individual federal statutes had provided for piecemeal federal prosecution of crimes occurring on Indian land since the eighteenth century. See, e.g., Act of Mar. 3, 1817, ch. 92, 3 Stat. 383 (extending federal jurisdiction to crimes committed on reservations by non-Indians) (revised considerably and codified at 18 U.S.C. §1152 (1994)). Still, the legal regulation of 2005] BEYOND REPARATIONS 33

imposed legal "civilization."Indian tribes, with no easily identifiable legal institutions, procedures, or records, were beset by a constellation of proselytizers and BIA agents who, concluding they were without law,168 169

reservation transactions not involving non-Indians was left intact well into the late nineteenth century, save for the removal of virtually all tribal jurisdiction over non-Indians. See, e.g., United States v. McBratney, 104 U.S. 621, 624 (1881) (permitting Colorado to exercise criminal jurisdiction over crimes of non-Indians against other non-Indians occurring on the Ute Reservation as no exception was made to territorial jurisdiction on Colorado’s admission to Union).

The 1883 case of Ex parte Crow Dog,170 in which the U.S. Supreme Court overturned the federal conviction of an Indian charged with the murder of another Indian,171 induced Congress to extend the complete coercive power of federal criminal law to the reservations. Determined to rectify the "savage nature" of tribal law, Congress applied "white man’s morality"172 with the Major Crimes

168 See Zion & Yazzie, supra note 33, at 68 (contrasting U.S. practice with international practice of recognizing validity and legitimacy of indigenous law).

169 See Harring, supra note 156, at 224 (quoting Secretary of the Interior Carl Schurz’s 1879 report to Congress) ("If the Indians are to be advanced in civilized habits it is essential that they be accustomed to the government of law . . . .").

170 109 U.S. 556 (1883). Spotted Tail, an authoritarian Brule Sioux chief who had staked his political fortunes on accommodation of U.S. authorities, was shot and killed on the reservation by his political rival, Crow Dog. After a peacemaking ceremony, the family of Spotted Tail agreed to accept a payment of $600, eight horses, and one blanket to resolve the dispute. Harring, supra note 156, at 205. Despite the satisfaction of the entire Brule tribe, the case presented federal authorities the pretext for extension of federal criminal law to Indians. Id. at 200–01. Crow Dog was arrested, tried in the Territorial Court of South Dakota, and sentenced to hang by an all-white jury. Id. at 204–12. However, the Supreme Court reversed the conviction, finding that the Brule had the sovereign right to resolve disputes wholly internal to the tribe. See Crow Dog, 109 U.S. at 567–68, 571 (refusing to extend U.S. criminal law to acts occurring on Indian reservations on the ground that to do so would "measure[] the red man’s revenge by the maxims of the white man’s morality"). Nonetheless, for a white majority Crow Dog was a "legal atrocity" inasmuch as an Indian killer had "escaped punishment." Harring, supra note 156, at 191, 194.

171 Id. at 572.

172 Crow Dog, 109 U.S. at 571. As Rep. Cutcheon (D-Mich.) stated before the Indian Affairs Committee in 1884:

. . . . 34 OHIO STATE LAW JOURNAL [Vol. 66:1

Act of 1885 to expressly establish concurrent federal jurisdiction over major felonies committed by Indians on reservations regardless of the status of their victims.173 Legal challenges failed to reestablish tribal legal self-determination but provided the judiciary occasion to further under gird plenary power.174

16 CONG. REC. 934 (1885).

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).175 Although the IRA expressly recognized that tribes might create their own courts176 and enact their own laws,177 the legislation imposed BIA-drafted boilerplate constitutions178 that created strange new substantive and procedural obligations. Moreover, after the passage of Public Law 280 in 1954,179 providing

173 Major Crimes Act of 1885, ch. 341, 23 Stat. 362, 385 (codified as amended at 18 U.S.C. §1153 (1994) and expanded to fourteen felonies from original seven). The Major Crimes Act subjects Indians charged with serious felonies to exclusive federal criminal jurisdiction regardless of the place of the alleged offense or the identity of the victim. 18 U.S.C. § 1153 (1994).

174 See, e.g., U.S. v. Kagama, 118 U.S. 375, 384–86 (1886) (holding, in suit challenging Major Crimes Act as an unconstitutional extension of federal criminal jurisdiction over murder on an Indian reservation, that Congress has plenary power, immune from judicial review, to exercise authority over Indians as it sees fit, for their own well-being).

175 Act of June 18, 1934, ch. 576, 48 Stat. 984 (codified as amended at 25 U.S.C. §1401(b) (1994)).

176 Although the IRA appeared to encourage tribal legal self-determination, tribal courts created under the IRA were merely revamped CIO/CFR Courts, with American substantive law governing process and imposing a regime of individual rights hostile to traditional Indian legal systems. See Porter, supra note 33, at 268–70.

177 See 25 C.F.R. § 11.100(c) (1997).

178 See THE ROAD TO WOUNDED KNEE 7 (Robert Burnette & John Koster eds., 1974) [hereinafter BURNETTE & KOSTER] (noting that under the IRA as implemented, only standardized, authoritarian tribal constitutions that mirrored a BIA-promulgated model providing for no separation of powers or branches and incorporating harsh restrictions on freedom of action in trade, property, land, and political associations, were ratified). Furthermore, constitutions imposed by the IRA subject tribal governments to majority rule principles and grant the the Secretary of the Interior or his delegate, the BIA Commissioner, veto power over almost all important tribal decisions. See Shakopee Mdewakanton Sioux (Dakota) Community v. Babbitt, 107 F.3d 667, 870 (8th Cir. 1997) (upholding review and veto powers of Secretary of the Interior over tribal actions).

179 Act of Aug. 15, 1953, Pub. L. No. 83–280, ch. 505, 67 Stat. 588 (codified as amended at 18 U.S.C § 1162 (1994), 25 U.S.C. §§1321–22 (1994), & 28 U.S.C. § 1360 (1994)). Although it expressly disclaimed any grant to the states of power to tax Indian lands held in 2005] BEYOND REPARATIONS 35

and understanding that review of the exercise of regulatory jurisdiction over Indian affairs was an exercise in futility, tribes begrudgingly implemented constitutions and adversarial justice systems.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.180 Fearing that failure to create acceptable tribal courts would result in states taking jurisdiction over all cases occurring on reservations,181 182

federal trust or to abrogate Indian reserved rights under treaties, Public Law 280 extended state civil and criminal jurisdiction to most Indian tribes in California, Nebraska, Minnesota, Oregon, and Wisconsin. Alaska was added in 1958. See id. Perhaps just as significantly in terms of the devolution of authority and responsibility, Public Law 280 also shifted responsibility for administration and funding of trust-based Indian entitlement programs to the states. Id.

The penultimate blow fell in 1968 when the Indian Civil Rights Act (ICRA)183 imposed many of the individualist strictures of the U.S. Constitution on tribal governments184 and smoothed the way for what Indian activists branded "white-man’s justice."185 Although the ICRA amended Public Law 280 to require tribal consent for the exercise of State jurisdiction and left interpretation of the legislation to the tribes themselves,186 by the early 1970s pre-Columbian

180 See Williams v. Lee, 358 U.S. 217, 220–21 (1959) (upholding application of state law to Indians absent a governing federal statute without explicitly overturning Worcester, which held that state law cannot be applied due to its harmful effect on tribal sovereignty).

181 See, e.g., Nancy A. Costello, Walking Together in a Good Way: Indian Peacemaker Courts in Michigan, 76 U. DET. MERCY L. REV. 875, 896 (1999) (stating that Navajo Tribal Courts were created to exclude state court jurisdiction).

182 See COHEN, supra note 128, at 332–35 (detailing U.S. role in the development of tribal courts).

183 Indian Civil Rights Act of 1968, Pub. L. No. 90–284, Title II, 82 Stat. 73, 77 (codified as amended at 25 U.S.C. §§ 1301–1303 (1994)). ICRA limits tribal powers to define and punish offenses and imposes substantive due process provisions of Article III and the First, Fourth, Fifth, Sixth, Seventh, Eigth, and Fourteenth Amendments of the Constitution upon tribal governments. 25 U.S.C. § 1302 (1994).

184 Indian tribes were not subject to constitutional restrictions prior to ICRA. See Talton v. Mayes, 163 U.S. 376, 385 (1896) (holding that Indian tribes, as they are not states within the meaning of the U.S. Constitution, are not subject to its restrictions).

185 Porter, supra note 33, at 271–73; ICRA was foreign to sacred tribal traditions of fairness and justice, and its reference to "due process," "equal protection," "speedy trial," and "freedom of speech" were an unwelcome intrusion on tribal sovereignty. See Robert Laurence, The Convergence of Cross-Boundary Enforcement Theories in American Indian Law: An Attempt to Reconcile Full Faith and Credit, Comity and Asymmetry, 18 QUINNIPIAC L. REV. 115, 135 (1998) (indicating ICRA "significantly altered the focus . . . from the tribal community towards the individual . . . .").

186 See 25 U.S.C. §§1321–1322, 1326 (1994). Congress specifically provided that interpretation of the ICRA was to be left to tribes and admonished that its purpose was protection of individual rights against the administration of tribal justice, without eroding the 36 OHIO STATE LAW JOURNAL [Vol. 66:1

a new generation of critical jurisprudence began to question the foundations of federal Indian law.methods of social control had displaced traditional tribal justice from courts where an Anglo-American adversarial legal system had sunken roots. BIA-drafted codes permitted tribal court judges to apply tribal statutes, yet federal and state laws were supreme,187 and federal judicial review steered tribal jurisprudence into lockstep conformity.188 When, in 1978, Oliphant189 denied tribes jurisdiction over the criminal acts of non-Indians on reservations,190 191

parameters of tribal sovereignty. Laurence, supra note 185, at 123. Furthermore, the sole remedy ICRA provides for a tribal member contesting the legality of his detention by a tribal court is a writ of habeas corpus. See 25 U.S.C. §1303 (1994).

Although tribal proactivity and federal interposition hold State law partly at bay,192 at present Indian tribes may exercise jurisdiction without impediment

187 See 28 U.S.C. §1360(c) (1994) (requiring state courts exercising jurisdiction in Indian country to apply tribal laws and customs only "if not inconsistent with any applicable civil law").

188 Newton, supra note 78, at 853. One of the most powerful instruments in enforcing control is the doctrine of comity. A long-standing practice of American courts is the denial of comity to tribal court judgments on the ground that tribal justices systems do not accord sufficient due process, which courts of the United States are swift to identify where tribal justice departs "significantly" from practices "commonly employed in Anglo-Saxon society." Bird v. Glacier Electric Coop., Inc., 255 F.3d 1136, 1143 (9th Cir. 2001) (holding individual rights to due process violated by closing argument in Tribal Court referencing history of white oppression against Indians) (quoting Randall v. Yakima Nation Tribal Ct, 841 F.2d 897, 900 (9th Cir. 1988)). Although U.S. courts are quick to disavow any interest in judicial paternalism in derogation of tribal self-government, denial of recognition of tribal court judgments utterly neuters the legal autonomy of Indian tribes, particularly with respect to their transborder legal contacts. See id. at 1141–43.

189 Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 212 (1978).

190 See Montana v. United States, 450 U.S. 544, 566–67 (1981) (denying Indian tribes inherent power to regulate hunting and fishing by non-Indians on non-Indian-owned land within a reservation).

191 See Newton, supra note 78, at 753. "Federal Indian law," as distinguished from "tribal law," is the body of U.S. statutes, doctrines, and caselaw that governs relations with Indian tribes.

192 See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 62 (1996) (stating that the Indian Commerce Clause divested states "of virtually all authority over Indian commerce and Indian tribes"); See Williams, 358 U.S. at 220 (ruling that to permit states to exercise jurisdiction over Indians where "essential tribal relations" are involved would "infringe on the right of the Indians to govern themselves."). But see County of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251, 266–68 (1992) (allowing states to tax reservation lands held in fee); Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 152–53 (1980) (allowing states to tax cigarette sales on reservations); Rice v. Rehner, 463 U.S. 713, 733–35 (1980) (allowing state regulation of on-reservation liquor sales); Seminole Tribe, 517 U.S. at 62 (Indian Commerce Clause does not 2005] BEYOND REPARATIONS 37

solely over consenting tribal members on fragmented remnants of former tribal holdings.193 Even this vestige of sovereignty is threatened by the plenary power to extend all federal, and, by inaction, State laws to the reservations.194 Rediscovery of tribal dispute resolution methods after a century of legal imperialism, and the reassertion of tribal autonomy to prescribe, adjudicate, and enforce tribal laws, are pressing concerns, 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 . . . ."195

grant Congress power to abrogate Eleventh Amendment immunity of a state from suits by tribes, regardless of whether congressional intent to do so is clear). The contentious battle between tribes and states over the precise boundaries of Indian legal autonomy, fought increasingly on the plain of taxation, continues. See Robert A. Fairbanks, Native American Sovereignty and Treaty Rights: Are They Historical Illusions?, 20 AM. INDIAN L. REV. 141 (1995–96) (predicting future state attempts to tax Indian tribes).

193 See Montana, 450 U.S. at 564 ("[E]exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation."). Although the Montana Court recognized tribal competence to regulate aspects of the dealings of non-Indians who enter consensual relationships with or threaten the political or physical well-being of the tribe, subsequent decisions eroded these inherent powers still further. See Strate v. A-1 Contractors, 520 U.S. 438 (1997) ("Montana thus described a general rule that, absent a different congressional direction, Indian tribes lack civil authority over the conduct of nonmembers on non-Indian land within a reservation . . . ."). Presently, the presumption is that Indian sovereignty over Indian land is absent unless Congress explicitly legislates otherwise. Id.

194 See McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 180 (1973) (providing that states may exercise jurisdiction over Indian tribes where federal law does not preempt exercise of such power, the conduct of non-Indians is at issue, and tribal self-government will not be impeded). Although the complex web of jurisdictional issues exceeds the scope of this Article, the general pattern is the transfer of legal sovereignty from Indian tribes to federal and state governments. See, e.g., United States v. Lara, 124 S. Court. 1628 (2004) (upholding tribal inherent jurisdiction over nonmember Indians but stressing the plenary power of Congress to terminate this jurisdiction at will). For a discussion of the gradual erosion of tribal jurisdiction, see William Bradford, Another Such Victory and We Are Undone: A Call to an American Indian Declaration of Independence, 40 TULSA L. REV. 71 (2004).

195 Robert A. Williams, Encounters on the Frontier of International Human Rights Law: Redefining the Terms of Indigenous Peoples’ Survival in the World, 1990 DUKE L.J. 660, 662–65 (implicating federal Indian law in displacement of peoples, dissolution of tribal institutions, domination of legal systems, and disabling of land title and cultural practice). 38 OHIO STATE LAW JOURNAL [Vol. 66:1

b. Political Domination

Although Indian tribes are separate sovereigns in retention of all rights and powers not explicitly ceded to the U.S. by treaty,196 or abrogated by explicit legislative intent,197 U.S. Indian policy has been generally hostile to the right of Indian tribes to self-govern as politically distinct communities.198 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 hyperdemocratic and consensus-driven institutions,199 were reconstituted and subjected to the veto power of the Secretary of the Interior;200 subsequent legislative and judicial action

196 United States v. Wheeler, 435 U.S. 313, 327 n.24 (1978) (citing United States v. Winans, 198 U.S. 371 (1905)). As separate sovereigns predating the U.S. Constitution, Indian tribes possess inherent, residual powers of sovereignty not deriving from congressional grants. See Cherokee, 30 U.S. at 16. These inherent recognized powers include, inter alia, powers to establish a tribal government, determine tribal membership (Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 (1978)), administer justice, exclude persons from the reservation (see Quechan Tribe v. Rowe, 531 F.2d 408, 411 (9th Cir. 1976)), charter business organizations, exercise police power, invoke sovereign immunity (Santa Clara Pueblo, 436 U.S. at 72 (1978)), levy taxes (see Confederated Colville Tribes, 447 U.S. at 152–53), and regulate domestic relations (see Fisher v. District Court, 424 U.S. 382, 389 (1976). Still, although tribes retain many of the trappings of sovereign nations, the exercise of inherent tribal powers may be abrogated or restricted by a treaty or law or, in limited circumstances, by state laws. See Atkinson, supra note 44, at 397–98, 408.

197 See Dion, 476 U.S. at 738–40. In recent years, the legal doctrine that the powers lawfully vested in an Indian tribe are not delegated but rather inherent concomitants of a limited sovereignty never extinguished by the U.S., has been under threat. See Mille Lacs, 526 U.S. at 219 (Rehnquist, C.J., dissenting) (rights reserved by Indian tribes under treaties may be "temporary and precarious" if not explicitly guaranteed in perpetuity by their plain language) (citing Ward v. Race Horse, 163 U.S. 504, 515 (1896)).

198 U.S. hostility to indigenous political forms found expression in policy statements supporting allotment. See TERRY L. ANDERSON, SOVEREIGN NATIONS OR RESERVATIONS? AN ECONOMIC HISTORY OF AMERICAN INDIANS 94 (1995) (quoting BIA Commissioner) ("[E]xisting forms of Indian government which [are] menacing the peace . . . and irritating their white neighbors, should be replaced by a regularly organized Territorial form of government . . . .").

199 LARRY W. BURT, TRIBALISM IN CRISIS: FEDERAL INDIAN POLICY 1953–1961, 3 (1982); see also BURNETTE & KOSTER, supra note 178, at 15 (describing tribal governments prior to 1934 as council democracies advised by elders that operated on principles of consensus and voluntary compliance with decisions).

200 See BURNETTE & KOSTER, supra note 178, at 183 (noting that BIA-adopted constitutions grant the Secretary of the Interior veto power over most tribal actions and decisions). For an opposing view, see AMERICAN INDIAN LAW DESKBOOK 21–23 (Nicholas J. Spaeth et al., eds. 1993) (suggesting the IRA replaced federal with tribal governance). 2005] BEYOND REPARATIONS 39

has stripped Indian tribes of control over their form, property, and powers.201 Relations with post-IRA Indian tribes, rather than proceed as if between mutual sovereigns, are conducted largely through a welter of executive agencies.202 As a result, the terms and conditions of Indian existence are frequently dictated by Washington, rather than debated on the reservations.203 Federal agencies to which Congress delegates power smother tribes under a blanket of regulation204 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.205 A dawning recognition that Indians are entitled to self-govern has spurred calls to end the fundamental asymmetry of U.S.-Indian relations. Nevertheless, decades after introduction of the federal policy of "Indian Self-Determination,"206 tribes remain politically subordinate to, and thus economically dependent upon, the U.S.207

201 See LEGTERS & LYDEN, supra note 111, at 6 (noting that, as a consequence of the legislative and judicial diminution of their sovereignty, Indian tribes are now often junior partner in the hierarchy of federal, state, local, and tribal governments).

202 See Thomas Biolsi, "Indian Self-Government" as a Technique of Domination, 15 AM. IND. Q. 23, 24 (1991) (describing U.S. policy of "indirect rule" through a nexus of federal agencies and reorganized tribal structures). Indirect rule imposes fiscal, cultural, and social costs: increased tribal bureaucratization associated with governance from afar consumes nearly half of tribal budgets, far more than that allocated to economic development. WELLS, supra note 105, at 17.

203 See ALVIN M. JOSEPHY, RED POWER: THE AMERICAN INDIAN’S FIGHT FOR FREEDOM 84 (1971) (quoting National Indian Youth Congress President Clyde Warrior in 1967 address) ("We are not allowed to make those basic human choices and decisions about our personal life and about the destiny of our communities . . . . Our choices are made for us . . . by federal administrators, bureaucrats, and their ‘yes men,’ euphemistically called tribal governments."); see also ANDERSON, supra note 198 at 148–49 (1995) (noting that rather than foster time-honored education, cultural expression, and economic development, federal Indian agencies force tribal leaders to lobby for federal funding for social programs developed without significant Indian participation); Atkinson, supra note 44, at 393 (describing exclusion of Indian organizations and individuals from agency planning).

204 Under the trust doctrine, the U.S. funds and participates in the management of a welter of complex statutory programs, involving education, health, social services, economic development, and resource management, on Indian reservations. See infra note 219 (listing programs). Although Indian participation in the development and administration of these programs shapes them to fit tribal needs and values, the parameters within which such local influence is exercised are determined by Congress.

205 ANDERSON, supra note 198, at 247 (noting veto power of Secretary of Interior over tribal decisions).

206 In 1970 Congress delegated authority to the executive to enter into contracts with Indian tribes in which federal Indian programs would be funded by the U.S., but responsibility for planning and administration would be assumed by tribal governments. Indian Self-Determination and Education Assistance Act of 1975, 25 U.S.C §§ 450–450(n) (1976). Support 40 OHIO STATE LAW JOURNAL [Vol. 66:1

for Indian self-determination took on a bipartisan tint in the early 1980s. See President Reagan, Statement On Indian Policy, PUB. PAPERS OF RONALD REAGAN 96 (Jan. 24, 1983) ("Our policy is to reaffirm dealing with Indian Tribes on a government-to-government basis . . . ."). Congress authorized development of enhanced self–governance plans under the rubric of a "New Federalism" advanced by the Senate Select Committee on Indian Affairs. See Indian Self-Determination and Education Assistance Act Amendments of 1988, Pub. L. No. 100–472, § 209, 102 Stat. 2285, 2296 (1988) (allowing tribes to assume administration of some BIA programs). Nevertheless, federal Indian agencies remained mired in patterns of costly and unresponsive provision of services. PEVAR, supra note 79, at 37–38 (noting investigations implicating BIA as primary deterrent to development of Indian self-government in areas of employment, housing, and health care). Throughout the 1980s, Indian Self-Determination simply decentralized the fiduciary relationship, and by the start of the 1990s, both major political parties, eager to decrease the financial drain of Indian welfare programs, cut aid while pressing Indian tribes to enter the world of private enterprise. DELORIA & LYTLE, supra note 35, at 7. Although the Clinton Administration urged federal Indian agencies to adopt the Reagan principle of mutual sovereignty, many Indian tribes remain, paradoxically, under pupilage. See, e.g., WELLS, supra note 105, at 9–10 (elaborating paradox wherein continued federal funding is necessary to implement Indian Self-Determination).

c. Ethnodevelopmental Suppression

Despite significant resource endowments,208 many Indian tribes209 remain ensnared in a web of economic dependence,210 institutionalized domination,211

207 Empirical evidence suggests that, for Indian tribes, political domination produces economic dependence. See ANDERSON, supra note 198, at 245 ("Economy follows sovereignty in Indian Country . . . The most striking characteristic of . . . successful tribes . . . is that they have aggressively made the tribe itself the effective decision maker . . . ."). Nonetheless, economics and politics exert reciprocal influence, and economic dependence precludes the free exercise of Indian sovereignty. See John C. Mohawk, Indian Economic Development: An Evolving Concept of Sovereignty, 39 BUFF. L. REV. 495, 499 (1991) ("Indian economic development may be less about creating wealth than it is about creating the conditions for political power . . . .").

208 The irony of Indian poverty is rendered all the more acute by reference to the abundant, sustainable resources in Indian country. Timber, hydroelectric sources, grazing land, minerals, oil and gas, and wildlife abound. However, the U.S., as trustee, controls leasing and production of these assets. See, e.g., Prince, supra note 55, at 239–42 (noting that federal management of the $27 billion of mineral assets on the Crow Reservation currently yields a return of only .01% to the tribe).

209 The conditions of each reservation are as distinct as are the more than five hundred tribes; several "report ‘a sense of pride and accomplishment’" in recent development of autonomous programs which include "law enforcement, education, organic farming, sustainable-resource logging, recycling plants, construction, environmental repair industries, language and culture academies, arts and crafts workshops, casinos, buffalo ranches, resorts, solar and wind energy production, computer assembly, tribal courts, veterans affairs offices, housing, road improvement, sanitation, etc." Atkinson, supra note 44, at 430 (citation omitted).

210 See Daniel Boxberger, Individualism or Tribalism?: The "Dialectic" of Indian Policy, 15 AM. INDIAN Q. 29, 29 (1991) (noting "complex factors that have shaped tribal institutions . . . 2005] BEYOND REPARATIONS 41

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. To wit, the U.S. holds trust title to Indian lands and resources,and Indians 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,geographic dislocation, and gross undercapitalization.^.212 213 214 215 216 trust-based

as dependent, internal colonies"); see also ROBERT H. WHITE, TRIBAL ASSETS: THE REBIRTH OF NATIVE AMERICA 7 (1990) ("Less than 10 percent of [Indian] communities have[] any control over their economic fate . . . ."). In addition to dependence for social services, many tribes rely on low-wage federal and state jobs and the export of nonrenewable natural resources for subsistence. See, e.g., WELLS, supra note 105, at 361–70.

211 See Mohawk, supra note 207, at 496–97 (suggesting that Indian economic development is hostage to BIA interference with the organization of independent political communities).

212 See Robert A. Williams, Jr., Small Steps on the Long Road to Self-Sufficiency for Indian Nations: The Indian Governmental Tax Status Act of 1982, 22 HARV. J. ON LEGIS. 335, 342–50 (1985) (relating the remoteness of reservations from centers of commerce and education to difficulty in accessing markets, capital, and managerial expertise).

213 WHITE, supra note 210, at 273. Admittedly, tribal governments do not always speak with a single voice as to the appropriate developmental path: there is a broad intra- and inter-tribal diversity of opinion as to the objectives, pace, and direction of Indian economic development. Still, a pan-Indian near-consensus favors independent Indian allocation, free from non-Indian mediation, of the cultural values informing Indian economic life. ANDERSON, supra note 198, at 246.

214 The U.S. defines the trust responsibility as the obligation to assert plenary power "to ensure the survival and welfare of Indian[s]" by "provid[ing] those services required to protect and enhance Indian lands, resources, and self-government" and "to raise the[ir] standard of living . . . to a level comparable to the non-Indian society." WELLS, supra note 105, at 19.

215 See 25 U.S.C. §§ 393, 396, 415, 483 (1994) (providing that an Indian individual or tribe who wishes to sell, convey, lease, or mortgage property in Indian country for more than one year must first secure the permission of the Secretary of the Interior).

216 Justifications for congressional refusal to consign the trust doctrine to the ashcan of history focus on the claim that the trust is necessary to protect Indians from exposure to market forces and the improvident disposal of their property. See PERRY, supra note 62, at 16. However, it is questionable at best whether the increasingly sophisticated tribes of the twenty-first century are any longer in need of the "protection" afforded by an inept trustee such as the U.S. has demonstrated itself to be. Critical examinations of BIA management decisions, as well as recent case law, support the argument that the trust doctrine operates as legal dressing for the assertion of federal politico-economic power for the benefit of non-Indian constituencies, such as industries that compete against, or rely upon raw materials derived from Indian interests. See WELLS, supra note 105, at 381 (identifying trust doctrine as facilitating corporate exploitation of Indian lands and resources); see also Cobell v. Babbitt, 91 F. Supp. 2d 1, 6–7 (D.D.C. 1999) (finding as a matter of fact that the purpose of the trust doctrine was to "deprive [Indians] of their native lands and rid the nation of their tribal identity" to avail non-Indians of tribal lands 42 OHIO STATE LAW JOURNAL [Vol. 66:1

land-tenure constraints diminish the relative output-values of land-intensive enterprises such as agriculture, ranching, and resource development.217 Moreover, U.S. management of Indian resources grants the U.S. paternalistic control over Indian economic destiny.218 Although the U.S. is under a moral obligation to husband Indian resources, diligently advance Indian land claims against the States, secure adequate funding for Indian social services,219 and enhance the economic well-being of Indian people,220 federal agencies have withheld basic subsistence,221 mismanaged tribal resources,222 and violated the animating

217 See ANDERSON, supra note 198, at 134 (illustrating process whereby the trust imposes opportunity costs, bureaucracy, and dependence rather than permits self-determination).

218 Royalties earned from leases of rights on Indian lands are paid not to Indian individuals or tribes but are deposited by the BIA, in theory, into trust accounts. See 25 U.S.C. § 415 et seq. However, a 1996 federal audit discovered that the BIA could not account for $2.4 billion in Indian monies ostensibly safeguarded in federal trust funds. See Atkinson, supra note 44, at 424–26. Indian beneficiaries seeking remedies must confront the fact that U.S. authority over Indian resources held in trust is legally limited only by the requirement of "good faith." See United States v. Sioux Nation of Indians, 448 U.S. 371, 408–09 (1980) (holding that the United States, as trustee, may alter the form of trust assets as long as it attempts, in good faith, to provide property of equivalent value).

219 Although the trust imposes a moral obligation on the U.S. to provide funding for Indian social services, the process whereby such funds are made available is a paradigm of inefficiency and paternalism: only a fraction of what Congress allots to the BIA reaches Indian tribes, and monies are specifically earmarked for programs selected by the BIA despite tribal determinations that funds are better allocated elsewhere. WELLS, supra note 105, at 21. Nevertheless, the U.S. has created a series of Indian benefit programs that purport to uphold its obligations under the trust responsibility. See National Historic Preservation Act, 16 U.S.C. §§ 470(a)-(d)(6) (1994) (providing particular protection to properties with cultural and religious importance to Indian tribes); National Museum of the American Indian Act, 20 U.S.C. §§ 80(q)-(q)(15) (1994) (creating museum exclusively for preservation and study of history and artifacts of Indians); Drug Abuse Prevention, Treatment and Rehabilitation Act, 21 U.S.C. § 1177(d) (1994) (giving preference to grant applications aimed at combating Indian drug abuse); Native American Languages Act, 25 U.S.C. §§ 2901–06 (1994) (according Indian languages statutory protection); Workforce Investment Act of 1998, 29 U.S.C. § 2911 (1994) (supporting Indian employment); Native American Programs Act of 1974, 42 U.S.C. §§ 2991–2992(d) (1994) (creating financial and cultural benefit programs); Native American Graves Protection and Repatriation Act, 25 U.S.C. §§ 3001–13 (1994) (protecting Indian burial sites and remains).

220 Cherokee, 30 U.S. at 1.

221 DELORIA & LYTLE, supra note 35, at 181 (charging both major political parties with default on trust obligations).

222 The paternalistic policies of a non-Indian majority, violative of the moral and legal imperatives arising under the trust doctrine, add the insult of impoverishment to the injury of expropriation: the BIA arranges Indian leases, and collects their royalties and usufructuary 2005] BEYOND REPARATIONS 43

principles of the trust with near-impunity. Only in very recent years has the trust doctrine charged the U.S. 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.223 224 225

benefits for their "protection." See Atkinson, supra note 44, at 404–05, 408. Moreover, because all tribal land is held in trust, leases of more than one year are prohibited without permission of the Secretary of the Interior, and funds generated from such leases cannot be used to purchase land. U.S. mismanagement of Indian resources is of epic proportions. See, e.g., S. REP. NO. 101–216, at 105–29, 140 (1989) (documenting a century of theft of Indian oil and gas). In the most recent case, a federal court, finding the U.S. in breach of a common law fiduciary obligation due to its "long and sorry history" of gross mismanagement of over $500 million in 300,000 individual Indian Money Accounts, retained jurisdiction to enforce an accounting but stopped short of ordering further remedies unauthorized by statute. Cobell, 91 F. Supp. 2d at 7. Although the Secretary of the Interior concedes the issue of gross federal mismanagement, the means proposed as the most cost-effective to make an accounting—statistical sampling—would cost Indian claimants at least $70 million: whether relief will ever be afforded is uncertain, although the court maintains jurisdiction and defendants are currently required to file reports as to trust reform activities. Id.; see also Assiniboine and Sioux Tribe of the Fort Peck Indian Reservation v. Norton, 211 F. Supp. 2d 157, 158, 160 (D.D.C. 2002) (finding that the case at bar presented the same questions of law and fact as Cobell, and refusing to refer the case at bar, and other related tribal cases, to the Calendar Committee).

223 See Skokomish Indian Tribe v. FERC, 121 F.3d 1303, 1308–09 (9th Cir. 1997) (finding no general obligation under trust doctrine entitling tribes to rights broader than those created by statute). Moreover, tribes must exhaust administrative remedies for claims of breach of trust to be justiciable. See White Mountain Apache Tribe v. Hodel, 840 F.2d 675, 677–78 (9th Cir. 1988).

224 The full range of obligations owed under common law principles of fiduciary duty is broad. RESTATEMENT (SECOND) OF TRUSTS, §§ 170–72 (1959) (listing, inter alia, duties to exercise diligence and prudence, avoid conflict of interest, deal fairly, and assume liability for loss). A few limit U.S. management of the Indian trust. See, e.g., Cramer v. United States, 261 U.S. 219, 229 (1923) (construing statute in light of trust doctrine to protect Indian right of occupancy); Seminole Nation v. United States, 316 U.S. 286, 297 (1942) (judging U.S. conduct with respect to Indians "by the most exacting fiduciary standards"); Joint Tribal Council of Passamaquoddy Tribe v. Morton, 528 F.2d 370, 379 (1st Cir. 1975) (enforcing fiduciary obligations to Indians). For a discussion of judicial efforts to expand enforcement, see Reid Payton Chambers, Judicial Enforcement of the Federal Trust Responsibility to Indians, 27 STAN. L. REV. 1213 (1975).

225 See Cobell, 91 F. Supp. 2d at 6–7 (holding that federal courts are limited by separation of powers considerations in reviewing executive management of Indian resources and, where not authorized by statute, cannot function as "a grievance committee"); COHEN, supra note 128, at 169 (noting full body of common-law duties and rights "does not exist between the [U.S.] and the Indians"). As of 2004, the U.S. Supreme Court has never granted relief for a breach of duty arising under the trust doctrine as defined at common law: relief for a putative breach is available only in those limited circumstances where the U.S. acts in the narrow role of (quasi) private, rather than public, trustee. See Nevada v. United States, 463 U.S. 110, 128 (1983) 44 OHIO STATE LAW JOURNAL [Vol. 66:1

(holding that when the U.S. acts generally under the trust doctrine it "cannot follow the fastidious standards of a private fiduciary"). For a discussion of the recent history of the effectiveness of judicial enforcement of the trust responsibility, particularly regarding Indian lands, see generally Rebecca Tsosie, The Conflict Between the "Public Trust" and the "Indian Trust" Doctrines: Federal Public Land Policy and Native Nations, 39 TULSA L. REV. 271 (2003).

Plenary power, as well as judicial review of its exercise,226 further stifles Indian economic development by enabling Congress to terminate federal benefits227 and restrict, or even abrogate, Indian rights reserved under treaties.228 Domestic lobbying to induce Congress to allow non-Indian economic interests access to Indian resources229 threatens tribal sustenance and culture.230 Although

226 Two centuries after Worcester, the Supreme Court "continues to permit the exercise of plenary power . . . where . . . broad discretionary powers are vital to the solution of the ‘Indian problem.’" Williams, supra note 111, at 261.

227 L. Scott Gould, The Consent Paradigm: Tribal Sovereignty at the Millennium, 96 COLUM. L. REV. 809, 861 n. 329 (1996).

228 See supra notes 96–124 and accompanying text (elaborating doctrines of reserved rights, plenary power, and their intersection in federal Indian law). The legal standard for abrogation of Indian treaties remains "plain and unambiguous" congressional intent. Dion, 476 U.S. at 740 (establishing that "Congress actually [has to have] considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose[n] to resolve that conflict by abrogating the treaty."); County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 247–48 (1985); see also Lac du Flambeau Indians v. Stop Treaty Abuse-Wisconsin, Inc., 759 F.Supp 1339 (W.D. Wis. 1991). Absent this showing, federal courts have read reserved rights to require imposition of corresponding state and federal duties, including obligations to secure access rights to historic lands and waters, insulate tribes from state licensing fees, and protect against discriminatory state regulations. See Michael C. Blumm & Brett M. Swift, The Indian Treaty Piscary Profit and Habitat Protection in the Pacific Northwest: A Property Rights Approach, 69 U. COLO. L. REV. 407, 500 (1998) (enunciating duties of U.S. and states to protect Indian reserved rights).

229 Recent critics of Indian reserved rights have attacked the foundations of the reservation system itself, not merely as "some sort of Rube Goldberg device for control of Indian people" but as an inefficient, ineffective system. See, e.g., George P. Castile, NATIVE NORTH AMERICAN AND THE NATIONAL QUESTION, in THE POLITICAL ECONOMY OF NORTH AMERICAN INDIANS 275. (John H. Moore ed., 1993) [hereinafter MOORE]. Some call for the dissolution of reservations and the redistribution of reservation-based resources. Id.

230 Indian reserved rights to fish, hunt, use water, and possess land have been frequent subjects of violent treaty abrogation campaigns. See, e.g., Progressive Animal Welfare Society v. Slater, No. 98–36053, 1999 U.S. App. LEXIS 3525, at *3 (9th Cir. March 4, 1999) (affirming decision of district court in refusing to grant preliminary injunction to prevent Coast Guard from implementing a rule establishing a protective zone around the Makah Indian tribe exercising reserved right to whale); John Enders, Ore. Farmers Rejoice at Water’s Release, BOST. GLOBE, Mar. 30, 2002, at A2 (reporting conflict between Klamath Basin Indian religious rights to take fish and farmers’ interest in use of dammed water in Oregon). For a discussion of the cultural and religious importance of hunting and fishing rights to Indian tribes, as well as a sketch of the dimensions and intensity of the conflict over Indian reserved rights and their 2005] BEYOND REPARATIONS 45

Indians, as prior sovereigns, reserved rights in treaties to use water,hunt and fish, and engage in traditional modes of production and worship on customary lands and waters,recent cases suggest that these are merely "temporary and precarious"privileges subject to revocation even absent explicit congressional intent to do so.The synergy of the trust doctrine, plenary power, and judicial review in derogation of reserved rights is felt most acutely when tribes employ development methods that promote Indian culture and identity.When Indian "ethnodevelopment"231 232 233 234 235 236 threatens the regulatory jurisdiction, market power, and

intersection with and opposition to non-Indian economic interests, see Shelley D. Turner, The Native American’s Right to Hunt and Fish: An Overview of the Aboriginal Spiritual and Mystical Belief System, the Effect of European Contact and the Continuing Fight to Observe a Way of Life, 19 N.M. L. REV. 377 (1999).

231 Machinations within the so-called "iron triangle"—interlocking directorates of the Bureau of Reclamation, state officials, and corporate interests—have denied Indians the beneficial use of reserved water rights. See LLOYD BURTON, AMERICAN INDIAN WATER RIGHTS AND THE LIMITS OF THE LAW 23 (1991). For a discussion of this contested Indian right, see Taiawagi Helton, Comment, Indian Reserved Water Rights in the Dual-System State of Oklahoma, 33 TULSA L. J. 979 (1998).

232 Analysis of access to resources on lands ceded by treaty tracks closely with reserved rights in land not ceded, with explicit congressional intent the standard for abrogation. See Oregon Dept. of Fish and Wildlife v. Klamath Indian Tribe, 473 U.S. 753, 770 (1985) (termination of usufructuary rights requires express statutory language and cannot be inferred).

233 See Race Horse, 163 U.S. at 515 (holding Indian usufructuary rights are "temporary and precarious" privileges that do not survive admission of the state in which those rights are exercised into the Union).

234 Recent case law suggests that, while the standard for abrogation remains clear expression of congressional intent, legal protection of Indian reserved rights is backsliding. See, e.g., Mille Lacs, 526 U.S. at 226 (Thomas, J. dissenting) (finding Indian reserved rights, where they can be construed to operate in derogation of state sovereignty, are mere privileges subject to state regulation) (citations omitted); Western Shoshone Nat’l Council v. Molini, 951 F.2d 200, 200 (9th Cir. 1991) (upholding ICC finding that Shoshone reserved rights to hunt and fish were extinguished "by gradual encroachment by whites") (citation omitted); Crow Tribe of Indians v. Repsis, 73 F.3d 982, 994 (10th Cir. 1995), cert. denied, 517 U.S. 1221 (1996) (finding treaty rights reserved "during the pleasure of the President" abrogated by the equal-footing admission of Wyoming into the Union).

235 Indian culture is a meta-value informing and legitimizing Indian politico-economic organization. Stephen Cornell & Joseph P. Kalt, Culture and Institutions as Public Goods: American Indian Economic Development as a Problem of Collective Action, in PROPERTY RIGHTS AND INDIAN ECONOMIES 246 (Terry L. Anderson ed., 1992). Preferences, institutions, and strategies are determined by Indian culture, and observers identify BIA failure to craft development plans that enjoy a cultural "goodness of fit" as a primary determinant of relative Indian deprivation. See, e.g., Prince, supra note 55, at 19 (positing cultural fit as condition precedent to sustainable Indian development).

236 See Mireya Maritza Peña Guzmán, The Emerging System of International Protection of Indigenous Peoples’ Rights, 9 ST. THOMAS L. REV. 251, 257 (1996) (defining 46 OHIO STATE LAW JOURNAL [Vol. 66:1

legal sovereignty of the Statesand the U.S.,federal Indian law checks its expression. 237 238

3. Forced Assimilation

Early U.S.-Indian treaties did not contemplate incorporation of Indians as U.S. citizens, and later treaties incorporated only those individuals who had been "detribalized."239 Against the force of a clear general preference for a primary affiliation with tribal institutions,240 federal Indian policy has subsumed individual Indians within the body politic, thereby facilitating the seizure of tribal

237 Indian gaming, though but one of the economic modalities that generate competition and conflict with states, is perhaps the most visible. See Naomi Mezey, The Distribution of Wealth, Sovereignty, and Culture Through Indian Gaming, 48 STAN. L. REV. 711, 736 (1996) (noting that states may soon enter the gaming market as competitors).

238 Profound polarization of belief systems and underdeveloped historical understandings conspire to deprive Indian tribes of ethnodevelopmental rights, as a recent case illustrates. In 1855 the Makah reserved the right to hunt gray whales as they had for millennia in traditional waters off Washington State. See Treaty between the United States of America and the Makah Tribe of Indians, Jan. 31, 1855, 12 Stat. 939, 940. By the 1920s, non-Indian whalers had hunted gray whales to near-extinction, and the Makah, motivated by a deep religious connection to gray whales, voluntarily ceased whaling. When by 1993 gray whales were no longer endangered as a matter of U.S. law, the Makah asked the U.S. to espouse their petition for an aboriginal subsistence exception to the international legal prohibition on whaling. See International Convention for the Regulation of Whaling, Dec. 2, 1946, art. VIII, 62 Stat. 1716, 1719–20, 161 U.N.T.S. 72, 82 (prohibiting whaling listed species without a permit). Although the U.S. assisted the Makah in receiving a quota to whale under international law, the Ninth Circuit interpreted procedural provisions of environmental legislation narrowly so as to divest their substantive right to whale. See Metcalf v. Daley, 214 F.3d 1135, 1145 (9th Cir. 2000) (interpreting U.S. executive action in support of Makah petition prior to completion of Environmental Assessment as violating timing requirements of NEPA); William Bradford, "Save the Whales" v. Save the Makah: Finding Negotiated Solutions to Ethnodevelopmental Disputes, 13 ST. THOMAS L. REV. 155 (2000) (discussing the case).

239 See 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, 111–12 (1999) (discussing mechanisms whereby Indians became citizens prior to 1924, including acceptance of individual share of communal landholdings and assumption of "characteristics and mannerisms of a civilized person").

240 See Rosen, supra note 39, at 246 ("Many [Indian tribes] want true self-governance to the exclusion of any other polity; many do not want citizenship imposed upon them . . . ."). 2005] BEYOND REPARATIONS 47

added legal momentum by foisting an awkward dual allegiance upon Indians and pressuring them to transfer loyalties from their tribes to the U.S.lands and resources, the elimination of contending governmental entities,241 and the eradication of a critical mass of practitioners of alien cultures "stand[ing] in the way of progress."242 The first such assimilative measure, Allotment, divested many Indians of land and created great physical and social distance between them and their tribes. The imposition of U.S. citizenship in 1924243 244

a. Termination

241 See Herz, supra note 143, at 691–92 (stating that indigenous groups "undermine political and social stability by creating an orthodoxy in competition with . . . the dominant culture" that "undermines the state’s claim to territorial sovereignty as well as its status as the representative of all citizens."). The solution to the problem of competing governance regimes is, for many states, the assimilation of indigenous peoples, whether through force or cooptation. Id. at 692 (citation omitted).

242 LOPAC & CLOW, supra note 129, at 20; see also Tsosie, supra note 67 at 1656 ("American Indian[s] . . . have experienced cultural imperialism not merely as an unspoken [social] phenomenon . . . but through government policies that promoted their forcible assimilation . . . "); RUSSEL L. BARSH & JAMES Y. HENDERSON, THE ROAD: INDIAN TRIBES AND POLITICAL LIBERTY viii (1980) (chronicling "a history of attempts to subvert [tribal] consciousness and replace it with naked, alienated individualism"). As with many other dimensions of U.S. Indian policy, many assimilationists attach benign purposes to their proposals; "friends of the Indian" suggest assimilation is promotive of racial and ethnic harmony. See, e.g., ARTHUR M. SCHLESINGER, JR., THE DISUNITING OF AMERICA: REFLECTIONS ON A MULTICULTURAL SOCIETY 17 (1992); J. Harvie Wilkinson III, The Law of Civil Rights and the Dangers of Separatism in Multicultural America, 47 STAN. L. REV. 993, 1000 (1995). This "benign assimilationism" flies in the face of culturally deprived, economically dependent urban Indians, who, as a consequence of their inability to participate meaningfully in either traditional tribal or majoritarian societies, suffer physical and mental ills. See WELLS, supra note 105, at 61 (correlating increased incidence of Indian social pathology with assimilationist policies that divided kinship groups and divested Indians of culture); LAURENCE FRENCH, THE WINDS OF INJUSTICE: AMERICAN INDIANS AND THE U.S. GOVERNMENT xvi (1994) (discussing challenges facing assimilated urban Indians).

243 See Act of June 2, 1924, Pub. L. No. 68–175 ch. 233, 43 Stat. 253, 253 (codified as carried forward at 8 U.S.C. § 1401(b) (1988) ("Indian Citizenship Act") (granting citizenship to all non-citizen Indians "born within the territorial limits of the United States").

244 See Joseph William Singer, The Stranger Who Resides With You: Ironies of Asian-American and American Indian Legal History, 40 B.C. L. REV. 171, 174 (1998); see also Atkinson, supra note 44, at 263 (noting that after passage of the Indian Citizenship Act it became extremely difficult as a matter of law for an Indian to claim dual citizenship). 48 OHIO STATE LAW JOURNAL [Vol. 66:1

offensive for many non-Indians to tolerate.245 House Concurrent Resolution 108 ["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 . . . ."246 Termination, under the direction of the former head of the War Relocation Authority,247 ended the U.S. trust relationship with over 100 selected tribes,248 curtailing federal benefits and services, dissolving tribal governments, and distributing former tribal lands and assets on a per capita basis.249 By legislatively disappearing tribes,250 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 280,251 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.252

245 DELORIA & LYTLE, supra note 35, at 111.

246 H.R. Con. Res. 108, 83d Cong., 1st Sess., 67 Stat. B132, B132 (Aug. 1, 1953) (enacted) (repealed by 25 U.S.C. § 2502 (1988)) (authorizing administrative and Congressional action to terminate tribes in California, Florida, New York, and Texas).

247 Perhaps uncoincidentally, the BIA Commissioner responsible for executing Termination, Dillon Myer, served as Head of the War Relocation Authority, the agency in charge of Japanese-American internment. FRENCH, supra note 242, at 65–66.

248 Charles F. Wilkinson & Eric R. Biggs, The Evolution of the Termination Policy, 5 AM. INDIAN L. REV. 139, 151 (1977) (identifying 109 terminated tribes). Although the process whereby tribes were selected for Termination is beyond the scope of this Article, scholars note correlations with wealth and political activism. CADWALADER & DELORIA, supra note 41, at 119.

249 See H.R. Con. Res. 108, 67 Stat. at B132 (1953).

250 Termination has been partially reversed: thirty-one previously terminated tribes have been reinstated to federally-recognized status. See, e.g., Oklahoma Indians Restoration Act of 1977, Pub. L. No. 95–281, 92 Stat. 246, 246 (1977) (codified at 25 U.S.C. §§ 861–861(c) (1982)). However, many tribes remain terminated or unreconstituted and therefore unrecognized, a status which precludes availment of the protective aspects and benefits programs of the trust doctrine.

251 Act of Aug. 15, 1953, Pub. L. No. 83–280, ch. 505, 67 Stat. 588, 588–90 (codified as amended at 18 U.S.C §§ 1161–1162 (1994), 25 U.S.C. §§ 1321–22 (1994), & 28 U.S.C. § 1360 (1994)).

252 Subsequent to Public Law 280, state Departments of Health seized Indian children and placed them with non-Indian parents at rates disproportionate to other races, relying on the culturally-bound theory that traditional Indian parenting, reliant on extended kinship groups for monitoring and nurturing children, was tantamount to neglect. BURNETTE & KOSTER, supra note 178, at 133–34; see also Pritchard, supra note 153, at 259 (noting long history of forced division of Indian families). Although legislation has heightened protection of Indian familial and tribal rights, the right of Indian children to be raised as Indians by Indian parents remains a focal point in the struggle to remedy the assimilative effects of Public Law 280. See Indian 2005] BEYOND REPARATIONS 49

Child Welfare Act, Pub. L. No. 95–608, 92 Stat. 3069, 3069–78 (1978) (codified at 25 U.S.C. §§ 1901–1963 (1982)). Similarly, adult urban Indians experience considerably more contact with criminal justice systems than they did prior to the passage of Public Law 280. See "We Are Not Free:" Testimony of Clyde Warrior, President, National Indian Youth Council, in JOSEPHY, supra note 203, at 87 (linking Indian maladjustment with federal Indian law and policy and stressing that "[f]or the sake of our psychic stability as well as our physical well-being we must be free men and exercise free choices"); see also ERIC K. YAMAMOTO, INTERRACIAL JUSTICE: CONFLICT AND RECONCILIATION IN POST-CIVIL RIGHTS AMERICA 94–95 (1999) (linking cultural imperialism of federal Indian policies such as Public Law 280 with psychological trauma and social dysfunction, including substance abuse, incarceration, and domestic violence).

b. Relocation

Predicated upon the misapprehension that the emerging "Indian problem"253 was rooted in segregation and parochialism rather than a cascade of assimilative legislation, Public Law 959 ["Relocation"]254 directed federal agencies to create "Indians who were Indian in appearance but not in culture"255 and sap remaining tribal political strength. At a time when reservations were increasingly unable to provide material necessities,256 Relocation, by portraying "contented Indian[s] working at good jobs and sitting beside televisions and refrigerators [in Northern cities,]"257 induced an exodus to magnet urban areas. A generation of the Indian best and brightest258 were dumped into substandard housing259 and menial employment260 and subsumed in the American melting pot.261

253 The "Indian problem" from the mid-twentieth century dominant perspective consisted of (1) continuing tribal sovereignty on land within U.S. borders and (2) social maladjustment experienced by Indians forced from reservations by Allotment and Termination.

254 Act of Aug. 3, 1956, Pub. L. No. 84–959, 70 Stat. 986, 986 (1956) ("Relocation").

255 PEVAR, supra note 79, at 32.

256 See JOSEPHY, supra note 203, at 72 (noting that by the 1950s many reservations could not support their populations).

257 Russel L. Barsh, Are We Stuck in the Slime of History? 15 AM. INDIAN Q. 159 (1991).

258 BURT, supra note 199, at 78 (identifying Indians with leadership skills as targets of Relocation). More than 35,000 were relocated after signing an agreement that they would never reestablish residence on reservations. Atkinson, supra note 44, at 409.

259 See BURNETTE & KOSTER, supra note 178, at 172 (noting institutionalized housing discrimination against urban Indians).

260 FRENCH, supra note 242, at 66.

261 Off-reservation Indians who do not enroll as tribal members are not only ineligible for reservation-based federal services; they are, for reasons of physical and social distance, unable to participate in the languages, lifestyles, and communities constituting Indian identity. WELLS, supra note 105, at 5–6. 50 OHIO STATE LAW JOURNAL [Vol. 66:1

become simply another American citizen"262 has sustained tribalism against a malign tide of assimilationism unto the present day.263 Although Indian individuals currently possess both tribal and federal citizenship, federal Indian law treats tribes as subordinate governments,264 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" was a genocidal act destructive of tribal political identities,265 and few believe that tribal and national political participation can coexist when Indian self-determination is construed to threaten U.S. territorial integrity.266

D. Summary: The Claim for Indian Redress

"We have borne everything patiently for this long time."267

The past two centuries of U.S. relations with Indians have been replete with "tremendous violence, treachery, and . . . pure ‘evil.’"268 Millions of Indians were murdered to depopulate and seize Indian land while eliminating rival polities within the colonial state constructed thereon. Presently, a set of institutionalized legal impediments269 runs through the domestic order, trammeling what remains

262 J. C. WISE, THE RED MAN IN THE NEW WORLD DRAMA 399 (Vine Deloria, Jr., ed., 1971) ("While the years have shown . . . assimilation of other groups, only the red man has stood firm, resisting all efforts to merge him with the groups that surround him.")

263 Relocation continues as federal policy, albeit outside the legislative orbit of Public Law 959. See CADWALADER & DELORIA, supra note 41, at 121 (describing exercises of plenary power to relocate Indians within reservations to facilitate mineral extraction and corporate development).

264 See Richard A. Monette, A New Federalism for Indian Tribes: The Relationship Between the United States and Tribes in Light of Our Federalism and Republican Democracy, 25 U. TOL. L. REV. 617, 632 (1994) (elaborating on the theory of "compact federalist" incorporation of Indian nations within the federal system in a constitutional relationship "roughly approximating [that] between the states and the federal government . . . .").

265 See Porter, supra note 239, at 166–68 (arguing that forcing Indians to accept U.S. citizenship, along with ongoing practices of forced relocation and assimilation, qualify as genocidal acts within the meaning of the Genocide Convention).

266 See AMERICAN INDIAN POLICY IN THE TWENTIETH CENTURY 99 (Vine Deloria, Jr. ed., 1985).

267 Joseph Brant, Mohawk, available at http://thunder-fox.com/DailyFeast/2004_03_01_archive-DailyFeast.html (last visited Mar 7, 2005).

268 Tsosie, supra note 67, at 1662.

269 Taken together, the trust doctrine, plenary power, and judicial subversion of reserved rights constitute a matrix of legal disability that refers Indian rights to property, culture, and self-government to interpretation and suppression by an often hostile non-Indian majority. Further, although it incorporates principles that are not "relentlessly hurtful" and provides 2005] BEYOND REPARATIONS 51

of the Indian right to legal, political, and economic self-determination.270 Caught in a web woven from a malign history and a skein of ongoing legal disabilities, Indians have been rendered the most materially deprived,271 politically and economically dependent, and legally exposed group in the nation. It is perhaps impossible to overstate the magnitude of the human injustice perpetrated against Indian people: indeed, the severity and duration of the harms endured by the original inhabitants of the U.S. may well rival those suffered by any other group domestic or international.272 The next Part will present several theories of justice in regard to the Indian claim.

270 Self-determination raises the question of precisely who has the right to decide the political, legal, cultural, and economic norms and rules that govern Indian tribes. See Felix S. Cohen, Indian Self Government, in JOSEPHY, supra note 203, at 35. By exercising their rights to self-determine, Indian tribes challenge states, transnational corporations, NGOs, and others who impose norms and rules. See MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES 45–50 (1994).

271 Indian reservations remain among the most impoverished areas in the U.S. Whereas between 8–14% of the U.S. population toils below the poverty line, the figure is 40% of all Indians, with some tribes faring worse. See 138 Cong. Rec. S5318 (1992) (statement of Sen. John McCain (Rep.-Ariz.)); BUREAU OF THE CENSUS, SOCIAL AND ECONOMIC CHARACTERISTICS, UNITED STATES 95 (tbl. 95), 98 (tbl. 98) (listing poverty rates for nine largest tribes). Indian unemployment hovers at 40%, eight times the national average, and the median Indian family income is less than half the national average. ANDERSON, supra note 198, at 1–4. Underfunded reservation schools are the worst in the U.S. See Atkinson, supra note 44, at 421. The socioeconomic status of "urban" Indians—the bulk of the Indian population—is no better. See Terrel Rhodes, The Urban American Indian, in AMERICAN INDIANS: A CULTURAL GEOGRAPHY, at 254, 262 (tbl. 14.1) (Thomas E. Ross et al. eds., 1995) (data for 1990) (noting only 24% of Indians live on reservations). Unemployment, infant mortality, suicide, homicide, substance abuse, homelessness, and poor health are common: by every objective indicator Indians are the most disadvantaged group in the U.S.

272 See BROOKS, supra note 3, at 241.

Id. 52 OHIO STATE LAW JOURNAL [Vol. 66:1

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

"Hardly any two . . . agree on what should be done."273

Extant theories of justice with respect to the Indian claim cluster around three distinct approaches: supersession, compensation, and restoration.274

A. Justice as Supersession

While the historical record of genocide, land theft, and ethnocide inflicted upon Indians might be understood as establishing a factual predicate presumptively obligating the U.S. and its political subdivisions to remedy these gross historical injustices, some theorists, foremost among them proponents of the Justice as Supersession ["JAS"] theory, reach a very different conclusion. JAS theorists reject as foolishly naïve a "natural way of reasoning" that would require that lands illicitly taken by colonial invaders and passed on to their descendants through the generations be nonetheless returned.275 Although JAS theory recognizes that the historical record has an important place in the development and application of a theory of justice with respect to Indian claims, for JAS theorists the historical injustices suffered by Indian claimants must be weighed against the current injustice that would be inflicted upon innocent owners now in possession of erstwhile Indian lands were those lands stripped away and restored to Indian ownership.276 To sanction a moral understanding that demands

273 Spotted Tail, Lakota, quoted in HIFLER, supra note 34, excerpted at http://thunder-fox.com/DailyFeast/2004_03_01_archive-DailyFeast.html (last visited March 8, 2005).

274 This Article does not treat the category of responses to Indian claims calling for the resubjection of Indians to genocide or forced relocation as a theory of justice, although for some these measures are appropriate means to defend against the prospect that the redress of Indian claims might redistribute resources or otherwise offend their moral senses. See, e.g., PAUL BRODEUR, RESTITUTION: THE LAND CLAIMS OF THE MASHPEE, PASSAMAQUODDY, AND PENOBSCOT INDIANS OF NEW ENGLAND 65 (1985) (describing white reactions to Indian legal claims for land restoration in the Northeastern United States); Bradford, supra note 238, at 205 (describing use of violent methods by non-Indians convinced that preventing Indians from exercising reserved rights is a moral imperative); Iver Peterson, Despite Promise of Easy Money, Indian Casinos Meet Resistance, N.Y. TIMES, Feb. 1, 2004, at A29 (reporting virulent anti-Indian sentiments are gathering nationwide).

275 David Lyons, The New Indian Claims and Original Rights to Land, 4 SOC. THEORY & PRACT. 249, 252 (1977); see also Jeremy Waldron, Superseding Historic Injustice, 103 ETHICS 4, 27–28 (1992) (dismissing Indian claims as "simple" convictions).

276 See Waldron, supra note 275, at 26–27 (rejecting disruption of the settled expectations of non-Indian property owners and querying whether it is "fair to expropriate the land of an immigrant who purchased the land in good faith and whose ancestors had nothing to do with the injustice, in order to end the continued injustice of the expropriation of indigenous people’s lands?"). 2005] BEYOND REPARATIONS 53

—in other words, while injustice may have been inflicted in centuries past, injustice is perishable, and the accreting rights of non-Indians in Indian land have incrementally extinguished, or at least rendered morally irrelevant, any present claims for its restoration.restoration of Indian lands would have practical effects, foremost among them the dispossession and impoverishment of non-Indian landowners, an outcome with which JAS theorists are not prepared to abide.277 To avoid this, JAS theorists urge us to reconceive of the historical injustices suffered by Indian tribes and individuals as a "dead history"278 and to accept that Indian claims for redress have been superseded by demographic and ecological transformations279280

Although they recognize that "[t]he view that a violated entitlement can ‘fade’ with time may seem unfair,"281 JAS theorists defend their supersession thesis by way of two arguments. First, they claim that it is impossible to know with any degree of certainty whether Indian claimants would in fact have remained seized of their land entitlements (and thus transmitted their landholdings to their descendants) in the absence of non-Indian expropriation or whether they might have voluntarily parted with them for good consideration.282 In other words, because Indians might in theory have been divested of title by some other process, the moral relevance of forcible and fraudulent expropriation to the contemporary question of whether to afford redress for the seizure of Indian land is to be discounted in proportion to the perceived probability that Indians would have sold or otherwise alienated their entitlements.

Second, JAS theorists posit that the true test of the legitimacy of an entitlement stems not principally from the inherent justice of the process whereby it was acquired283 but rather from its indispensability to the subsistence of the party claiming it. Thus, if a disentitled claimant, who is generations removed from

277 See Lyons, supra note 275, at 270 (rejecting the return of Indian lands now occupied by non-Indians on the ground that it "would impose enormous burdens on small home owners and small businesses . . . ."); Waldron, supra note 275, at 26 (divestiture of Indian lands from contemporary non-Indian possessors "would mean many people going hungry who might otherwise be fed and many people living in poverty who might otherwise have an opportunity to make a decent life.").

278 Lyons, supra note 275, at 252.

279 See, e.g., Solem v. Bartlett, 465 U.S. 463, 471–72 (1984) (stating that "subsequent demographic history" is relevant to determining whether, with arrival of significant numbers of non-Indians upon Indian land, Indian rights in such land have been diminished).

280 Lyons, supra note 275, at 257 ("From the fact that [Indians] had morally defensible claims two hundred or four hundred years ago it cannot be inferred that those claims persist.").

281 Waldron, supra note 275, at 15.

282 See Id. at 8.

283 See J. Angelo Corlett, Wrongdoing, Reparations and Native Americans, in INJUSTICE AND RECTIFICATION 147, 151–52 (Rodney C. Roberts ed., 2002). 54 OHIO STATE LAW JOURNAL [Vol. 66:1

ownership, cannot demonstrate that he has "organized [his] life around the use of [the property interest]," rather than simply "organize[d] [his] life around the campaign for its restoration," his claim based upon original entitlement is depreciated and even forfeited to a party currently in possession for whom the property is presumptively indispensable as his current residence, business, or farm.284 In practice, because Indians have managed to stave off extinction and starvation despite the divestiture of nearly 98% of their pre-contact land mass, and because that land mass has been thickly settled over the course of several generations by non-Indians who would "starve" or be "hurt or degraded"285 if they were evicted, it is plain to JAS theorists that the lands in question are indispensable only to their present possessors. Although JAS theorists concede that the mechanisms whereby Indian claimants were separated from their entitlements were unjust, they maintain that the remediation of past injustices cannot be accomplished without inflicting a present and even greater injustice upon the non-Indian majority, and thus JAS theory rejects proposals to restore land to Indian ownership as practically irrelevant and fundamentally unfair in light of fundamental changes in circumstances.286 In short, property rights are "thinner and much more flexible, or variable with circumstances," than Indian claimants understand them to be, and they must "bend to the needs and interests of human beings."287

JAS proponents defend what they further concede is very much a prospective theory288 by asserting that only a deliberate discounting of the past can possibly ensure that resources are allocated in a manner that is "fair to all of [the world’s] existing inhabitants." Because they now constitute the overwhelming majority,

284 Waldron, supra note 275, at 19; see also Corlett, supra note 283, at 156–57 (describing this proposition as the "Acquired Rights Trumping Original Land Rights Objection" to restoration or compensation); JANNA THOMPSON, TAKING RESPONSIBILITY FOR THE PAST: REPARATION AND HISTORICAL JUSTICE xvi (2002) (noting that the question of how historical entitlements ought to be weighed against the rights of current possessors of real property may be the central dilemma in developing a coherent theory of justice for historical acts of gross injustice).

285 Waldron, supra note 275, at 26–27.

286 JAS theorists carve out a narrow exception to the general refusal to restore land to Indian claimants in respect to lands of "symbolic or religious significance" on the ground that such lands are "particularly important for [Indians’] sense of identity as a community" and "form the center of a present way of life" and as such can be deemed indispensable to their collective social organization and therefore not superseded by the passage and transformations of time. Id. at 19.

287 Lyons, supra note 275, at 254.

288 See Waldron, supra note 275, at 27 (differentiating JAS, a "prospective theory of justice" that prioritizes the claims of existing persons and discounts claims rooted in historical injustice, over retrospective theories that seek to redress historical injustices while discounting the interests of persons who have benefited from historical injustice). 2005] BEYOND REPARATIONS 55

Compensation is thus, at best, an act of grace unrelated to any moral or legal obligation; at worst it is an undeserved handout to the losers of a long-ago struggle for the continental landmass that, if employed injudiciously, may threaten non-Indians with personal financial loss and justifiably provoke resentment. non-Indians—rather than the Indians they have displaced, reduced, and greatly outnumbered—are the primary reference point for assessing the requirements of justice. For JAS theorists, even had non-Indians not come by their current entitlements through fraud and force they would presently be entitled to a share of Indian lands proportionate to their numbers by the simple virtue of their existence here in North America coupled with their legitimate need.289 Thus, although they accept that symbolic recognition and remembrance of historical injustices inflicted upon Indians may often be morally appropriate and that Indians are entitled to a more equitable distribution of the panoply of resources generally available within society,290 JAS theorists, protective of the interests of present possessors whom they hold blameless or at least legally and morally unaccountable for historical injustices,291 categorically reject any and all proposals that would go so far as to "actually . . . rectify past wrongs" by either re-transferring lands to Indian claimants or by paying their full, as distinct from symbolic, value in compensation.292

289 Id. at 25 (insisting that "[Indians] would have had to share their lands, whether the original injustice had taken place or not."); Lyons, supra note 275, at 370–75.

290 See Lyons, supra note 275, at 268 (allowing that Indians are entitled to some redress for systematic discrimination and to a "fair share of . . . resources as well as to social and economic opportunities"). Although his broader theory is best characterized as falling within the parameters of the Justice as Compensation paradigm, Will Kymlicka adopts the language of JAS theorists in calling for remediation of current Indian material inequalities on distributional and equitable grounds, rather than in redress of past injustice. WILL KYMLICKA, MULTICULTURAL CITIZENSHIP 219–20 (1995) (elaborating an "Equality Argument" that maintains what is due to Indians is reparation not for what was taken in the past but for what is missing presently).

291 See Lyons, supra note 275, at 268 ("Most [non-Indians] have had little, if anything, to do with dispossession of Native Americans . . . ."); Stephen Kershnar, Reparations for Slavery and Justice, 33 U. MEM. L. REV. 277, 299 (2003) ("[L]imitation on ownership has to be strict enough so that goods stolen 400 years ago . . . are capable of being legitimately owned today.").

292 Waldron, supra note 275, at 7; Lyons, supra note 275, at 270 (calling for largely symbolic compensation to Indian claimants in lieu of land restoration); THOMPSON, supra note 284, at 90–91 (describing compensation available under JAS theory as politically limited by the requirement that it not disrupt the social "status quo"). In other words, JAS seems to be saying that because "there is neither wealth nor wisdom enough in the world to compensate in money for all the wrongs of history," why should we bother to compensate anyone? See Editorial, Strange Precedent, N.Y. TIMES, Sept. 9, 1969, at A28. 56 OHIO STATE LAW JOURNAL [Vol. 66:1

basic human need to belong to groups "united by some common links—especially language, collective memories, continuous life upon the same soil," and perhaps "race, blood, religion, [and] a sense of common mission,"293 reject Indian tribes as mere "partisans of small-scale community" lacking in any entitlement to "special support or assistance or to extraordinary provision or forbearance"294 from the U.S. Rather than encourage an "artificial" commitment to tribalism, JAS theorists would require Indian cultures to "wither away," to "amalgamate with other cultures" and to "adapt themselves to geographical or demographic necessity."295 Further, rather than accept that Indian culture and the right to self-govern as distinct tribal communities are worthy of preservation and that injuries to either give rise to obligations to afford redress, JAS theory demands that Indians submit to a "‘mongrelization’ of [their] identity" and assimilate into the body politic in service to a cosmopolitan vision that broadens the scope of individual life possibilities and serves as a more "authentic response to the world in which we live . . . ."296 Although JAS theory does not go so far as to immunize ethnocide and forcible denial of the right of Indian tribes to self-determine, it suggests strongly that the historical processes responsible for the loss of culture and the right to self-govern as discrete and insular communities are at worst of trivial moral or legal consequence and at best are even promotive of the individual rights and life possibilities of individual Indians.

In sum, JAS theory holds that while the U.S. may be obligated to negotiate toward a settlement that would offer some symbolic redress for expropriation, genocide, and ethnocide,297 any retrospective proposal to restore lands, pay market value for expropriations, or transform existing legal regimes to lend genuine political and material support to Indian self-determination would inflict greater injustices upon living non-Indians than the historical injustices visited upon long-dead Indians it would be intended to redress while simultaneously interfering with the opportunities of living individual Indians to partake of the superior virtues of Western liberal cosmopolitanism.

293 Benjamin Disraeli, Karl Marx and the Search for Identity, in ISAIAH BERLIN, AGAINST THE CURRENT 252, 257 (Henry Hardy ed., 1980).

294 Jeremy Waldron, Minority Cultures and the Cosmopolitan Alternative, 25 U. MICH. J.L. REFORM 751, 762, 778 (1992).

295 Id. at 787–88.

296 Id. at 788.

297 Lyons, supra note 275, at 270 (accepting the notion of a political resolution of Indian claims by federal intervention). 2005] BEYOND REPARATIONS 57

B. Justice as Compensation

For Justice as Compensation ["JAC"] theorists, a much more parsimonious approach to justice requires, quite simply, that where land has been acquired unjustly through fraud or force it must, regardless of whether or not it has been subsequently transferred lawfully, either be restored to its rightful owner or be paid full compensation.298 Where sacred lands are concerned, the obligation to restore is at a zenith, and where restoration is pragmatically imprudent or otherwise not consistent with the requirements of justice inasmuch as it would require the dispossession of non-Indians,299 Indians must be granted rights-of-way to such sites.300 By accepting the duty to restore or compensate and thereby settling the normative question, JAC theorists are free to direct their energies to prudential issues such as membership in the remedial class, the form compensation is to assume, and the identities of the parties from whom restoration or compensation must issue. JAC theorists accept the argument that the historic deprivation of Indian lands is causally related to the denial of the Indian right to self-determine and to the material deprivation currently experienced by Indian tribes and individuals, and consequently view compensation for expropriation as "just an example of ordinary corrective justice" that, coupled with "some form of group-based political autonomy"—whether exemptions from general tax legislation or other group-specific entitlements—befits the redress of Indian claims.301

298 See ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 152 (1974) (stating that justice in property entitlements can only be the result of just acquisition and just transfer or full compensation for unjust expropriation); Corlett, supra note 283, at 149–50; Posner & Vermeule, supra note 13, at 733.

299 See, e.g., Ross Poole, Justice or Appropriation? Indigenous Claims and Liberal Theory, 101 RADICAL PHIL. 5, 7 (2000) (accepting the general obligation to restore lands or compensate their former owners but mitigating this duty by noting that "there is no way in which indigenous people could have preserved their relationship to the land unchanged," that "[g]iven the needs of the rest of the world, some sharing of land and resources was required," and that "sometimes the needs of many count against the rights of the few"); KYMLICKA, supra note 290, at 219–20 (stressing that to require a restoration, as opposed to a compensation, remedy "would create massive unfairness, given that the original European settlers and later immigrants have produced hundreds of millions of descendants, and this land is the only land they know").

300 See THOMPSON, supra note 284, at 63 (incorporating the obligation to grant easements to sacred sites not susceptible of restoration as part of a theory of justice in regard to Indian land claims).

301 See Posner & Vermeule, supra note 13, at 733–34, 741. 58 OHIO STATE LAW JOURNAL [Vol. 66:1

Nevertheless, many who would otherwise recognize the duty to afford redress to Indians for land expropriation point to relevant treaties and statutes,302 the Indian Claims Commission ["ICC"],303 and a host of federal Indian benefits programs legislated and appropriated under the trust responsibility304 as evidence that compensation has already been paid and claims have been (at least partially) settled.305 Even those JAC theorists who would accept that further measures of

302 See Cherokee, 30 U.S. at 48 (Baldwin, J., concurring) (noting that although they ceded Indian territories to the U.S., many Indian treaties either recognized Indian title to unceded lands, provided tribes in lieu lands west of the Mississippi River, and granted compensation); Sioux Nation, 448 U.S. at 424 (holding that 1877 act removing Black Hills from Lakota ownership was a taking of recognized title under the Fifth Amendment and upholding Court of Claims judgment for monetary damages); 43 U.S.C. §§ 1601 et seq. (2000) (providing $1 billion compensation to Alaskan Natives for takings of 335 million acres); Yamamoto, supra note 21, at 484 n.22 (listing compensations of takings of Indian lands including U.S. $23 million to Ottowa, $81 million to Klamath, $31 million to Chippewa, $12.3 million to Seminole, and $105 million to Sioux) (citation omitted).

303 In 1855 Congress created the Court of Claims to award compensation for property seized by the U.S. See Act of Feb. 24, 1855, ch. 122, 10 Stat. 612, 612–614 (1855). Congress soon precluded claims based on Indian treaties from its jurisdiction. Act of Mar. 3, 1863, ch. 92, §9, 12 Stat. 765, 767 (1863). Indians remained without a forum until 1946, when, embarrassed by Nazi comparisons of Lebensraum and death camps to Manifest Destiny and reservations, Congress created the ICC, providing a forum for adjudication of U.S. treaty violations and broad moral "claims based upon fair and honorable dealings that are not recognized by any existing rule of law or equity." 25 U.S.C. § 70a (1976). The ICC was charged with assessing damages in accordance with the specific factual history of the tribe, relative U.S. responsibility, and price per acre at the time of expropriation. 25 U.S.C. §§ 70–70v(3) (1976). Although the ICC found that 35% of the continental U.S.—750 million acres—is legally Indian land, it adopted procedural and evidentiary rules favoring the U.S., which defended each claim as an adversarial, rather than a remedial, proceeding. Newton, supra note 78, at 776–84. Moreover, the ICC read the "fair and honorable dealings" clause out of its organic statute, the text of which prohibited in natural restitution. Id. at 778. Ultimately, before its legislative demise in 1978 the ICC redressed less than 1/3 of land seizures with cash only, most at rates far below a just level of compensation. See BURNETTE & KOSTER, supra note 178, at 121 (calculating median payment at $225/Indian individual). Equation of money with justice soon cast the ICC as another assimilative vehicle; many defiant tribes "refused to touch a cent . . . ." Atkinson, supra note 44, at 400–04. For a discussion of the ICC, see generally H.D. ROSENTHAL, THEIR DAY IN COURT: A HISTORY OF THE INDIAN CLAIMS COMMISSION (1990).

304 Under the trust doctrine, the U.S. funds and participates in the management of a welter of complex statutory programs, involving education, health, social services, economic development, and resource management, on Indian reservations. See supra note 219 (listing representative programs).

305 See, e.g., Chad W. Bryan, Precedent for Reparations? A Look at Historical Movements for Redress and Where Awarding Reparations for Slavery Might Fit, 54 ALA. L. REV. 599, 600 n.15 ("[T]he federal government has paid reparations to [Indians]"); Alfreda Robinson, Corporate Social Responsibility and African American Reparations: Jubilee, 55 RUTGERS L. REV. 309, 381–82 (2003) (describing the Alaska Native Claims Settlement Act as 2005] BEYOND REPARATIONS 59

compensatory relief are still due Indian claimants insist that amounts be negotiated through the political process rather than determined in accordance with some rational, objective framework.Some are likely to insist that a "commitment device" be engineered that would definitively and finally resolve Indian land claims and prevent their subsequent reopening even if justice should be determined to so require at some later date.306 307

an act of reparations and empowerment); Harris, supra note 21, at 445 (claiming Indians have been compensated for land seizures and implying that Indian claims have thus been adequately settled); Posner & Vermeule, supra note 13, at 695 (describing the ICC as a reparations program).

C. Justice as Restoration

Justice as Restoration ["JAR"] aims at a more holistic approach to the remediation of historic injustices. For proponents of JAR, in-kind compensation, even if theoretically equivalent in value to that which was taken, is insufficient to rectify the original injustice occasioned by its expropriation; restoration of the illicitly appropriated property itself is essential to "set unjust situations right." 308 Only by restoring land can the ongoing injustice of the original expropriation be

306 See, e.g., James Tully, Aboriginal Property and Western Theory: Recovering a Middle Ground, 11 SOC. PHIL. & POL’Y, Summer 1994, at 153, 157 (advocating that indigenous property claims be negotiated with, rather than unilaterally resolved by, states).

307 Posner & Vermeule, supra note 13, at 745 (insisting that compensatory mechanisms incorporate a "commitment device" that would "entrench" a settlement against future legislation mandating additional payments that would "overcompensate" Indians).

308 Rodney C. Roberts, Justice and Rectification: A Taxonomy of Justice, in INJUSTICE AND RECTIFICATION, supra note 283, at 15 ("[J]ustice requires first and foremost that we restore the exact same thing whenever possible."). JAR theorists envision harm as resulting not merely from the expropriation of private titles but also from the unjust seizure of Indian rights to freely elect whether and how to dispose of their sovereignty over the lands in question: compensation may suffice for the injury to private landholdings, but only restoration can reinvest Indians with their rights of sovereignty over aboriginal lands. See Corlett, supra note 283, at 152 (stating that JAR depends upon "property sovereignty or occupancy rights therein" rather than upon private "ownership rights") (emphasis omitted). 60 OHIO STATE LAW JOURNAL [Vol. 66:1

terminated.309 Moreover, and, from a legal perspective, quite importantly, JAR theorists would reverse the presumption inherent in the arguments propounded by JAS, and to a lesser extent JAC theorists, that non-Indian occupants of what was once Indian land are to be regarded as secure in their right to possession on the ground that they have acquired moral rights by accretion through the passage of time that are now immune from attack. On the contrary, JAR theory rejects the argument that justice is perishable and maintains instead that the burden falls upon the U.S. to justify the entitlements of the present inhabitants of land seized from Indian tribes: Indian land is thus presumptively Indian land irrespective of the length of time it has been out of Indian possession.310 Accordingly, when JAR theorists "have good reason to think that appropriate reparation should take the form of returning some of the land that was unjustly taken, then the entitlements of present owners should give way."311

Even more significantly, JAR does not limit its remedial scope to the issue of land rights: rather, the remedial focus of JAR extends to those "injustices that may in fact loom larger in the minds of the victims or their descendants—murder, torture, enslavement, discrimination and denigration." 312 Because the restoration of land rights alone is inadequate to the project of restoring moral parity between the Indians and the U.S., JAR theorists insist that a full moral, as distinct from a merely legal, accounting and settlement of claims necessitates that the U.S. first publicly acknowledge and apologize for specific past acts and then accept some form of social punishment (even if sanctions are limited to critical moral judgments).313 Many particularized JAR theories rely on truth and reconciliation commissions ["TRCs"],314 tribunals that investigate the gross human injustices of

309 See Susan Dodds, Justice and Indigenous Land Rights, 41 INQUIRY 187, 195 (1998) ("Rather than trying to imagine how things might have been had an injustice not occurred, we should focus on stopping the continuation of injustice; thus we should give back the land.").

310 THOMPSON, supra note 284, at 89; see also Corlett, supra note 283, at 160–61 (contending that non-Indians have "at best . . . trumping or overriding moral claims" and attaching no presumption of validity to the title of current possessors).

311 THOMPSON, supra note 284, at 93. Some JAR theorists would accept conveyance of other lands as substitute for reconveyance of expropriated lands. Id. at 59. However, in the main, JAR is insistent upon full and complete restoration.

312 Id. at xiv. Some JAR theorists refer to these injuries as "spirit injuries," defined as a combination of physical, emotional, and spiritual harms that cause the "slow death of the psyche, the soul, and the persona" at the individual level and lead to the "devaluation and destruction of a way of life or of an entire culture" at the level of the group. Adriene Katherine Wing, Healing Spirit Injuries: Human Rights in the Palestinian Basic Law, 54 RUTGERS L. REV. 1087, 1089 (2002) (citations omitted).

313 Corlett, supra note 283, at 153.

314 Since 1974 more than twenty TRCs have been initiated on nearly every continent in states as diverse as Argentina, Bolivia, Chad, Chile, El Salvador, Ethiopia, Germany, the Philippines, Malawi, Rwanda, South Africa, Uganda, and Zimbabwe, and still more have been 2005] BEYOND REPARATIONS 61

the previous regime and construct and publicize an unflinching historical record,315 as integral to this process.316

demanded for Bosnia, Mexico, South Korea, Honduras, and Sri Lanka. KENNETH CHRISTIE, THE SOUTH AFRICAN TRUTH COMMISSION 2 (2000). Though a lack of cash and courage has hampered them, several TRCs have aided reconciliation processes. See id. at 54–55 (tbl. 2.1), 58–59 (tbl. 2.2) (providing dates, objectives, and accomplishments).

Furthermore, JAR contends that theories which purport to remedy the results of a genocidal and ethnocidal history solely "through the language of missing property"317 fail to reach and redress moral and other non-material harms while missing transformative opportunities whereby to reconcile victims and wrongdoers and lay the foundation for a peaceful and cooperative joint future. Accordingly, in conjunction with land restoration and apologies, JAR theorists call for rehabilitative measures designed to heal the injured psyches of individuals and to nurture the capacity of victim groups to engage in meaningful self-determination.318