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