Saturday, August 19, 2017

Articles related to Indigenous Peoples

The Demise of the Ongwehoweh

 

Robert B. Porter*

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

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



Most usually, they are incorporated with the victorious nation, and become subjects or citizens of the government with which they are connected. The new and old members of the society mingle with each other; the distinction between them is gradually lost, and they make one people.

--Chief Justice John Marshall, writing for the U.S. Supreme Court in Johnson v. M'Intosh (1823)

Can we fulfill the promise of America by embracing all our citizens of all races, ... [C]an we become one America in the 21st century? Can we define what it means to be an American, not just in terms of the hyphen showing our ethnic origins but in terms of our primary allegiance to the values America stands for and values we really live by? Living in islands of isolation ... is not the American way.

--President William Jefferson Clinton, announcing his Initiative on Race (1997)




INTRODUCTION

For many generations now, a cultural divide has been widening between the Ongwehoweh** --the Indigenous peoples in the United States who seek to preserve their distinct existence and right of self-determination--and Native Americans--those individuals of Indigenous ancestry who seek to assimilate into and become a part of American society. This conflict has not been an inherent part of Indigenous existence, but is instead a symptom of the efforts taken by the United States throughout its history to colonize Indigenous lands and incorporate Indigenous peoples into its polity.

In its quest to achieve its Manifest Destiny, America realized early on that simply killing Indians to make way for Westward expansion was neither a politically viable nor humane public policy option. Early nineteenth-century policymakers ultimately concluded that the best approach for dealing with the Indian nations was to forcefully remove them from the East and relocate them to new lands in the West. Establishing these "reservations," however, created new problems. The radical transformation associated with herding Indigenous people onto unfamiliar lands was highly disruptive to the workings of Indigenous societies, which eventually resulted in their being greatly dependent upon the United States for the basic means of survival. Moreover, the American appetite for land and resources was far greater than first imagined and, by the late nineteenth century, new efforts were being taken to confiscate the remaining Indian lands.

To American policy makers, then, the Indigenous population was a "problem" in need of fixing. While American business interests proposed a brutally simple approach for dealing with the Indian problem--simply taking the land--there remained the relatively "sticky" problem of what to do with the Indians once the land had been taken.

The ultimate solution to the Indian problem that emerged in the late nineteenth century was designed to effectuate the total assimilation of Indigenous peopleinto American society. Christian activists and other social reformers were deeply troubled by how "uncivilized" and "pagan" the Indians were. Because they were convinced that the Indians were a doomed race, these interests concluded that the best approach would be to "kill the Indian and save the man." Thus, they sought to "civilize" Indians through a four- pronged attack that served as a kind of Four Horsemen of the Indian Apocalypse: convert the Indians to Christianity, force Indian children to obtain Western education, allot tribal common lands to individual Indians, and extend to the Indians American citizenship.

The effort to destroy Indigenous tribal existence and bring about the "civilization" of the Indians was not, for the most part, motivated by maliciousness. To the contrary, the sponsors of this policy approach very much believed in their hearts that this was the morally correct thing for both the Indians and American society. Of course, the proponents were limited greatly by their own cultural myopia, which prevented them from formulating other policy options, such as simply leaving the Indians alone. Nonetheless, the "Four Horsemen" largely succeeded in working their transformative effect on Indian society. Indians became Christians and traditional religions were abandoned. Indian children went to school and traditional education was relinquished. Most Indian lands were allotted and eventually turned over to Whites. And by 1924, all Indians had been made American citizens, and in some cases, at the direct cost of their tribal citizenship.

Much has been written about the way in which American colonization has destroyed the integrity of Indigenous societies. All Indian nations have been affected by colonization to some degree. For most Indians today, being Christian, going to state public school, or owning their own land in fee is hardly controversial. As a result it might be concluded that colonization has largely succeeded in accomplishing its intended objective.

There remain, however, many formidable obstacles that have prevented American colonization from bringing about the total extinction of Indigenous peoples within the United States. Many Indians today continue to practice their own traditional religion, educate their children in the traditional ways through their own language, and otherwise continue to live a traditional way of life. Not surprisingly, Indigenous people who seek to preserve a unique Indigenous spirituality, continue the traditional knowledge base, and maintain a lifestyle founded upon the sharing of common resources are often in great conflict with the growing American minority group known as Native Americans. In very real ways, those Indigenous people who seek greater participation in American society do so at the direct expense of those who do not.

Despite the seriousness and intensity of this modern cultural conflict, the fact that Indians are now considered to be American citizens is not a source of considerable controversy within Indian country. Most Indians today, it seems (including many of the most culturally traditional), appear to fully accept that they are American citizens. To be sure, there also seems to be broad acceptance of the notion that, as Indians, there is dual national citizenship--status as Americans as well as status as citizens of a particular Indigenous nation. But there is also a large class of individuals-- the Native Americans--who self-identify as having Indian ancestry, but who primarily identify themselves politically as Americans. Perhaps most troubling of all are those within this category who might be recognized as citizens of an Indian nation, but who have chosen to forgo such identification in favor of exclusive identification as an American.

This Article will assess the effects of forcing American citizenship upon Indigenous peoples and set forth a possible mechanism for redressing this genocidal act. In doing so, I write primarily for an Indigenous audience concerned about the fate of our sovereignty and the survival of our future generations. My hope, however, is that non-Indigenous people may also find the Article informative and thought-provoking. Part I recounts the history of America's efforts to eliminate the Indian population through a variety of measures, including the conferral of American citizenship. Part II describes the current legal status of Indigenous people in the United States. Part III highlights how Indians have come to accept American citizenship and status as a racial and ethnic minority group within American society. Part IV assesses the genocidal effects of forcing American citizenship upon Indigenous people. Finally, part V sets forth a proposal for decolonizing Indian citizenship and restoring choice on this issue to those Indigenous people who might still desire it.



I. America's Crusade to Wipe Out the Savages

A. Citizenship and Early Federal Indian Control Policies

Upon the founding of the American Republic, it was well acknowledged that the Indians were citizens of their own nations separate and apart from the United States. This was an easily drawn conclusion because most Indians were located outside the territorial boundary of the original thirteen states. As a result, early relations with the Indian nations were based upon the discourse of international relations and were reflected by the primary instrument of international law-treaties. This was an acknowledgment of both the legal status of the Indian nations as well as the practical limitations associated with the federal government's lack of power. Following the Revolutionary War, it was simply impossible for the new United States to address Indian affairs in any other way.

The first half of the eighteenth century saw the United States emerge as the dominant continental power. The Indian nations resisted the onslaught of American military and economic power but were ultimately unsuccessful. They were thus made subject to policies that effectuated forced removal, confiscation of lands, and relocation to "reservations."

These policy developments were not surprising, since for nearly 300 years, the American mentality regarding Indians was founded upon the belief that they were uncivilized savages that had to be kept at bay so that "civilization" could thrive. The historian Frederick Hoxie writes that "[t]he belief that savagery was the antithesis of civilization ... fueled American expansion and development by assuring presidents, soldiers, and historians that civilization could only succeed where Indian culture failed." As a result, early American Indian policy focused on controlling the Indian nations and keeping them separate from American society. Indians had to be removed to the West and forced onto reservations simply because their uncivilized nature was viewed as a potent threat to the American way of life.

Associated with the process of removing the Indians to the West, a number of "incentives" were offered, including the grant of American citizenship. Rather than be confronted with the need to remove all of the Indians, it was thought that the burden on the federal government could be lessened if some Indians simplydecided to stay behind and assimilate. Thus, some of the early treaties between the United States and the Indian nations provided that Indians could obtain American citizenship. Against the backdrop of impending forced removal, it could hardly be said that these grants of citizenship were consensual. To receive American citizenship, it was often required that tribal lands be sold, individual allotments issued, and the tribe's status dissolved.

In addition to the treaty process, there were other ways in which Indians could become citizens. Congress began to grant citizenship to Indian tribes through legislation. In other instances, Indians could also obtain American citizenship upon their assimilation and acceptance of the American way of life. Finally, there was the unique case of the Pueblo Indians, who were deemed United States citizens in 1846 by virtue of their failure to elect Mexican citizenship under the Treaty of Guadalupe Hildalgo. This was the first instance in which "Native citizens [were] 'permitted' to retain their tribal organization and culture" and thus be considered as dual citizens.

These early instances of granting Indians American citizenship had to overcome two primary legal barriers. The first barrier was that federal naturalization statutes restricted American citizenship to free whites. While there was some ambiguity associated with applying these statutes to Indians, it was generally believed that Indians could not be naturalized. The second was that early citizenship was deemed to be exclusive; because Indians had an allegiance to their own Indigenous nation, they could not become American citizens.

B. Indian Citizenship and the Allotment Era

By the mid-nineteenth century, social reformers, led by missionaries from both Protestant and Catholic denominations, began to agitate for a more humane approach toward Indian relations. The Removal and Reservation Policies had virtually destroyed the way of life of many Indian nations. Disease, dependence, and death were common and the cause of considerable alarm on the part of fair-minded Americans. While the Indian War was still on-going, considerable pressure was put on federal officials to ensure a better quality of life for those Indigenous people who had been neutralized as a military threat to the United States.

President Ulysses S. Grant responded with the adoption of his so- called Peace Policy. This policy focused on assimilating the Indians and otherwise transforming them from "savages" into "civilized" men. This process took the form of converting Indians to Christianity and providing Western education to Indian children, with the federal government expending considerable sums on building boarding schools and hiring teachers. To accomplish this objective, the federal government gave money directly to Catholic and Protestant churches, in clear violation of the Constitution's prohibition against the establishment of religion. Because missionaries had always been at the forefront of Indian assimilation efforts, federal policymakers eventually concluded that they could be enlisted to effectively take over the administration of Indian affairs. Government support for religious activities in Indian country continued into the early twentieth century and was an instrumental part of the Indian citizenship campaign that was to follow.

By 1880, Congress came to the conclusion that Grant's Peace Policy had failed. Two primary flaws were identified. First, the Policy failed to clearly delineate the status of the Indian nations under American law and policy. While Congress had ended treaty making with the Indian nations in 1871, bilateral agreements continued to be relied upon, complicating the Indian nations' understanding of their legal status. Second, the Peace Policy had failed to bring about Indian assimilation and civilization as quickly as had been hoped. In significant part, this was because "jurisdictional squabbles between Catholics and Protestants had undermined its success." But there were also concerns about whether the policy would even work at all.

Against the backdrop of increasingly violent conflicts between settlers, the Indians and the military, federal policymakers were forced to consider a different policy approach. Two important questions remained. First, would separate Indian enclaves--the reservations--be continued? Second, would the "civilization" program be continued? The answers to both questions turned on the broader question of whether the United States would continue to deal with the Indians as a people separate and apart from the United States. Hoxie explains the foundation for this policy dilemma:

Unlike other minorities, American natives had had a territorial base for their culture within the boundaries of the United States. Prior to 1865 this unique position necessitated a policy of exceptionalism toward Indians. After the Civil War, many native controlled areas disappeared. Nevertheless, the Peace Policy, with its promise of secure reservations and helpful agents, had encouraged the retention of an exceptionalist perspective. By 1880, however, settlers had completely undermined the native land base, and the idealism of the Civil War era had disappeared. Only then did Congress face the issue of exceptionalism as an open question.

Congress was under considerable pressure from two competing interests to resolve this question in favor of ending a separatist approach. The railroads and other business interests were eager to appropriate the remaining Indian lands to promote further Westward expansion. These were extremely powerful forces that were offset and tempered only by the intensity and commitment of the social reformers bent on "helping" the Indians through the perpetuation of their Indian civilization efforts.

One of the most significant players in the campaign to civilize the Indians was the Indian Rights Association. Formed in Philadelphia in 1882, this group of philanthropic minded Americans was responsible for laying the intellectual foundation of the federal government's Indian policy for the next 50 years. The IRA's agenda was unmistakably clear:

The Association seeks to secure the civilization of the ... Indians of the United States ..., and to prepare the way for their absorption into the common life of our people. The Indian as a savage member of a tribal organization cannot survive, ought not to survive, the aggressions of civilization, but his individual redemption from heathenism and ignorance, his transformation from the condition of a savage nomad to that of an industrious American citizen, is abundantly possible.

To implement this agenda, the IRA focused on the enactment of federal legislation to give Indian people Western notions of law, education, and land title.

The members of the IRA were not extremists or religious fanatics, but highly respected members of the intelligentsia with firm convictions about how best to deal with an Indian population that had been so cruelly treated by the American military. One of the leading IRA members was Merrill E. Gates, a former president of Rutgers and Amherst Colleges, who was appointed by President Arthur in 1884 to serve as a member of the Board of Indian Commissioners. He often presided over meetings of the IRA's Lake Mohonk Conference and, by virtue of his position, exercised great influence in its proceedings. His writings reveal the deep commitment that he had to "help" the Indians, but also the great contempt that he had for the traditional Indian way of life.

Because Gates was so influential, his writings read like a Congressional Committee report for the legislation that later followed and are thus worthy of closer examination. Excerpts from one of his more significant writings, "Land and Law as Agents in Educating Indians," best reveals the mentality of those policymakers responsible for the comprehensive plan to assimilate the Indians:

What should the Indian become? To this there is one answer--and but one. He should become an intelligent citizen of the United States. There is no other 'manifest destiny' for any man or any body of men on our domain .... [W]e are, as a matter of course, to seek to fit the Indians among us as we do all other men the responsibilities of citizenship.

[The Indians] are the wards of the Government. Is not a guardian's first duty so as to educate and care for his wards as to make them able to care for themselves? It looks like intended fraud if a guardian persists in such management of his wards and such use of their funds entrusted to him as in the light of experience clearly unfits them and will always keep them unfit for the management of their own affairs and their own property.

Why, if a race inured to toil were cut off from all intercourse with the outside world, and left to roam at large over a vast territory, regularly fed by Government supplies, how many generations would pass before that race would revert to barbarism? We have held [the Indians] at arm's length, cut them off from the teaching power of good example, and given them rations and food to hold them in habits of abject laziness.

We have not seemed to concern ourselves with the question, How can we organize, enforce, and sustain institutions and habits among the Indians which shall civilize and Christianize them? The fine old legend, noblesse oblige, we have forgotten in our broken treaties and our shamefully deficient legislation ....

Two peculiarities which mark the Indian life, if retained, will render his progress slow, uncertain and difficult. These are: (1) The tribal organization. (2) The Indian reservation. I am satisfied that no man can carefully study the Indian question without the deepening conviction that these institutions must go if we would save the Indian from himself.

The tribal organization, with its tenure of land in common, with its constant divisions of good and rations per capita without regard to service rendered, cuts the nerve of all that manful effort which political economy teaches us proceeds from the desire for wealth. True ideas of property with all the civilizing influences that such ideas excite are formed only as the tribal relation is outgrown ....

We must as rapidly as possible break up the tribal organization and give them law, with the family and land in severalty as its central idea. We must not only give them law, we must force law upon them. We must not only offer them education, we must force education upon them. Education will come to them by complying with the forms and the requirements of the law.

Lessons in law for the Indian should begin with the developing and the preservation, by law, of those relations of property and of social intercourse which spring out of and protect the family. First of all, he must have land in severalty. Land in severalty, on which to make a home for his family. This land the Government should, where necessary, for a few years hold in trust for him or his heirs, inalienable and unchargeable. But it shall be his. It shall be patented to him as an individual.

Among the parts of the reservation to be so assigned to Indians in severalty retain alternate ranges or townships for white settlers .... Let especial advantages in price of land, and in some cases a small salary be offered, to induce worthy farmers thus to settle among the Indians as object- teachers of civilization. Let the parts of the reservations not needed by the Government for the benefit of the Indians, and the money thus realized be used to secure this wise intermingling of the right kind of civilized men with the Indians. Over all, extend the law of the States and Territories, and let Indian and white man stand alike before the law.

Christian missionaries, teachers, and farmers among the Indians, and the awakening of moral thoughtfulness among our people about Indian rights are the means to the civilization of the Indian; proper legislation devised and enforced by these must be the method; and the intelligent citizenship of the Indian will be the result.

So powerful was the influence of Gates and the IRA that within a few years Congress abandoned Grant's failed Peace Policy and adopted a new policy designed to accomplish the two-fold mission of promoting Indian assimilation while at the same time furthering westward expansion.

In 1887, in furtherance of this agenda, Congress adopted the Allotment Policy with the enactment of the General Allotment Act. Sponsored by Senator Henry Dawes, the Allotment Act mandated a process by which Indian common lands would be allocated to individual Indians with the "surplus" land sold off to White settlers. Under the Act, individual Indian allotments were to be held in protected government trust status for twenty-five years and could not be taxed, leased, or sold during that time. After that period expired, however, the trust restriction would automatically be lifted and the Indian allottee would become the owner of the land in fee.

The debate on the Allotment legislation echoed the sentiment of the social reformers. One sponsor argued that

the Indian must either perish, depend upon the Government for support, or abandon his thriftless habits, learn to eat bread in the sweat of his face, and finally rise to the level of the civilization that surrounds him and take upon himself the duties and responsibilities of American citizenship. Starvation, pauperism, or independent, self-supporting citizenship--between these the Indian must take his choice, or, rather, we as his guardians, must choose for him ....

What shall be his future status? Shall he remain a pauper savage, blocking the pathway of civilization, an increasing burden upon the people? Or shall he be converted into a civilized tax-payer, contributing toward the support of the Government and adding to the material prosperity of the country?

[T]he tribal relations must be broken up ... the practice of massing large numbers of Indians on reservations must be stopped ... lands must be allotted in severalty ... [and] where there is more land in any reservation than the Indians on that reservation can profitably use, such surplus lands must be so disposed of that the white man may get possession of them and come into contact with the Indians.

While the General Allotment Act established a mandate for allotting Indian lands, separate legislation was required to actually allot the lands of a particular Indian nation. Usually, government officials would negotiate with a tribe's leaders to secure their cooperation in the allotment process. In addition to the grant of individual lands and monetary compensation to the tribe, other incentives were given to induce Indians to relinquish their tribal lands. Often, however, these incentives failed to have their desired effect. But the government proceeded to allot the reservations anyway, even when doing so violated prior treaties with the affected Indian nation.

One of these incentives was the granting of American citizenship. Senator Dawes was a firm supporter of the efforts to "civilize" the Indians. Indians who agreed to have their lands allotted would be granted citizenship. "We do this," he said, "in order to encourage any Indian who has started upon the life of a civilized man ... to be one of the body politic in which he lives; giving the encouragement that if he so maintains himself, he shall be a citizen of the United States."

Motivated by this sentiment, Dawes provided in the General Allotment Act two ways in which Indians could become citizens. First, American and state citizenship would be granted to an Indian upon the issuance of an allotment. In addition, the Act provided

That every Indian born within the territorial limits of the United States who has voluntarily taken up within said limits his residence, separate and apart from any tribe of Indians therein, and has adopted the habits of civilized life is hereby declared to be a citizen of the United States, and is entitled to all the rights, privileges, and immunities of such citizens, whether said Indian has been or not, by birth or otherwise, a member of any tribe of Indians within the territorial limits of the United States, without in any manner impairing or otherwise affecting the rights of any such Indian to tribal or other property.

To carry out this mandate, the treaties and agreements implementing the Allotment Act for specific Indian nations contained provisions allowing American citizenship to be granted upon issuance of an allotment. In addition, subsequent legislation established a procedure by which members of the Five Civilized Tribes could become American citizens upon application to a federal court.

The Secretary of the Interior also developed a procedure for determining when an Indian was "competent" and thus eligible for obtaining citizenship. From this process there developed a ceremony and oath that Indians being granted American citizenship were required to recite:

Representative of [Government] speaking:

For men: (Read white name), what is your Indian name? (Gives Indian name)

(Indian name), I hand you a bow and arrow. Take this bow and arrow and shoot the arrow. (Shoots arrow).

(Indian name), you have shot your last arrow. That means that you are no longer to live the life of an Indian. You are from this day forward to live the life of a white man. But you may keep that arrow, it will be to you a symbol of your noble race and of the pride you feel that you come from the first of all Americans.

(White name), take in your hand this plow. (Takes plow).

This act means that you have chosen to live the life of the white man--and the white man lives by work. From the earth we all must get our living, and the earth will not yield unless man pours upon it the sweat of his brow. Only by work do we gain a right to the land and enjoyment of life.

(White name), I give you a purse. This purse will always say to you that the money you gain from your labor must be wisely kept. The wise man saves his money, so that when the sun does not smile and the grass does not grow, he will not starve.

I give into your hands the flag of your country. This is the only flag you have ever had or ever will have. It is the flag of freedom, the flag of free men, the flag of a hundred million free men and women of whom you are now one. That flag has a request for you, (White name); that you take it into your hands and repeat these words:

"For as much as the President has said that I am worthy to be a citizen of the United States, I now promise to this flag that I will give my hands, my head, and my heart to the doing of all that will make me a true American citizen."

And now beneath this flag I place upon your breast the emblem of citizenship. Wear this badge of honor always; and may the eagle that is on it never see you do aught of which the flag will not be proud.

Obtaining American citizenship through the allotment process changed slightly as the result of amendments to the General Allotment Act inserted in 1906. The Burke Act amendments postponed the granting of citizenship until after a patent in fee simple had been issued to the affected Indian. This was intended to delay the granting of citizenship until after the end of the twenty-five-year trust period on allotments. However, the Burke Act also allowed for that time period to be shortened upon the Secretary's determination that an Indian was "competent" to manage his own affairs.

Depending upon one's perspective, the Allotment Policy was either an abysmal failure or a wild success. On the one hand, the social reformers greatly underestimated the magnitude of their "Indian problem." Rather than improving the lives of individual Indians, the Allotment Act actually made their condition worse. Vested with their land allotment, Indians did not quickly assimilate to the agrarian lifestyle as had been hoped. Oftentimes this was due to the poor quality of the land that they had been allotted (the better quality "surplus" lands were reserved for sale to Whites) or the inability to manage the business of agriculture. As a result, the human condition of Indian people was dramatically diminished by allotment.

On the other hand, the Allotment Policy was a "success" because it divested Indians of their land. Indians easily lost their allotments at the end of the trust period. Absent good credit, many were forced at some point to pledge their allotment to obtain loans. When the mortgagor invariably defaulted, the bank took title to the allotment, which was relieved of the trust period after twenty-five years, and sold at auction to Whites. While it is not known whether this was part of the original allotment plan, through the foreclosure process and the outright sale of the surplus lands, two-thirds of all Indian lands held in 1887--87 million acres--were lost to Whites by 1934.

While Congress eventually was pressured to accept that the Allotment Policy was a failure for the Indians, the change in policy that it brought about clearly had long-term effects. Certainly the transferring of large quantities of Indian land to non-Indians made possible further American colonial expansion in the West. In addition, the way in which the land was taken greatly promoted the assimilating purpose that was intended. For example, the irregular distribution of land to non-Indians made many reservations look like "checkerboards," a condition that has continued to the present day. Thus, Gates' original plan of promoting the "wise intermingling of the right kind of civilized men with the Indians" actually was achieved. Both this "intermingling" and the allotment of land itself contributed to the breakup of tribal life and the rise of individualism amongst Indians living in such territories. In fact, some Indians have so assimilated the colonizing nation's property values that they have thwarted modern efforts by Congress to remedy the checkerboarding problem that would directly benefit their tribal nation.

Thus, while it was not readily obvious to federal policymakers at the time, the Allotment Policy successfully implemented the Indian "civilization" agenda. These "successes" occurred primarily through the government and missionary sponsored boarding schools that were established. With such captive young audiences (literally), these schools were able to effectuate both the conversion of Indians to Christianity and indoctrination in the American way of life. Indeed, federal Indian agents were told that "[t]he great purpose which the Government has in view in providing an ample system of common school education for all Indian youth of school age, is the preparation of them for American citizenship." To maximize success in this endeavor, these agents were instructed to tell teachers in the Indian schools to "carefully avoid any unnecessary reference to the fact that [their students were] Indians."

The adoption of the Allotment Policy also had the permanent effect of changing the debate surrounding the issue of granting American citizenship to all Indians. Once the Policy was adopted, it was no longer the case that federal policymakers believed that a distinct Indigenous existence should be preserved. Instead, it was generally accepted that the Indian population should be absorbed into American society. Senator Orville Platt accurately described the future of federal Indian policy in 1892 when he said that "[o]ur whole policy in dealing with the Indian has changed. It is now the purpose of the government to wipe out the line of political distinction between the Indian citizens and other citizens of the Republic."

C. The Citizenship Act of 1924

By 1924, there were a number of ways by which an Indian could become a citizen: through a treaty provision; through the granting of an allotment; through issuance of a patent in fee simple by the Secretary; by "adopting the habits of civilized life"; by minor status; by birth; through service in the American military upon judicial application, by marriage, and pursuant to specific acts of Congress. As a result, at the time the Citizenship Act was passed, most Indians already were citizens and only 125,000 Indians, or about one-third of the total American Indian population at the time, were not.

This perceived deficiency was remedied when the Congress enacted the Indian Citizenship Act in 1924. This legislation was notably different from previous efforts to confer American citizenship upon Indians in that consent or any other precondition was not required. Nonetheless, the Congress clearly sought to preserve the status of Indians as Indians by explicitly providing that tribal rights would not be affected by the grant of American citizenship. The Act stated:

That all noncitizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States: Provided, That the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property.

There was little debate and discussion of this legislation in Congress. The House Report accompanying the legislation stated only that it was "very difficult for an Indian to obtain citizenship without either being allotted and getting a patent in fee simple, or leaving the reservation and taking up his residence apart from any tribe of Indians." The proposed legislation was designed to "bridge the present gap" and not make citizenship contingent upon "the question of land tenure or the place of his residence." The Senate echoed this theme, arguing that "as a large number of other Indians had become citizens under various acts of Congress, it was only just and fair that all Indians be declared citizens."

Interestingly, it appears that the 1924 Act was not passed out of a direct desire to further Indian assimilation, but rather to prevent the Interior Department from having greater authority over Indian affairs. Early drafts of the citizenship legislation would have allowed the Secretary to grant certificates of citizenship to Indians, which would have given the government great discretionary power over whether an Indian could become a citizen. The Progressives on the Senate Committee on Indian Affairs (including 1924 Progressive presidential candidate Robert M. LaFollette) opposed this approach. They redrafted the bill to eliminate the government's discretion by providing a blanket grant of citizenship "to strike a blow at big bureaucracy in the way earlier Progressive legislation had struck at big business." Because of this motivation, the Citizenship Act of 1924 has been characterized as not "a piece of social legislation" but rather as "regulatory in nature."

While the final move in the effort to grant Indian citizenship may have been driven by broader political concerns, it remains true that the social reformers and the government's Allotment Policy of the late nineteenth century had already cast the die on the question of whether Indians should become citizens. When the Act was being considered, there was some debate within American society over the issue. Some reformers thought that citizenship would not serve either American or Indian interests. Others strongly supported and reaffirmed their longstanding commitment to granting citizenship to the Indians. But on the whole, the reformers agreed to enactment of citizenship legislation so long as there was specific protection for Indian tribal and property rights upon their release from federal wardship. The officials who ultimately pushed through the citizenship legislation, however, made no issue of whether granting citizenship was the right thing to do or not. Granting citizenship was so obviously just that there was no meaningful opposition to the legislation and it received very little public attention. The Indian Rights Association, not surprisingly, hailed it as "the advent of the Indian as our equals before the law."

As a general matter, Indians had a mixed reaction to the conferral of American citizenship. Since the late nineteenth century, there had always been Indians who thought that it was extremely important to become American citizens. Most of these proponents were either mixed-bloods or those who had been raised in the boarding schools and thus conditioned to accept relinquishment of their tribal status. One such organization promoting the citizenship effort was the Society of American Indians. Most of the SAI members had been educated at the Carlisle School, and included such prominent figures as Henry Roe Cloud, J.N.B. Hewitt, Francis LaFlesche, Carlos Montezuma, and Arthur Parker. They were "well-educated and had achieved success in their chosen professions" and thus "espoused a national philosophy and platform that was modeled after their own personal history."

Most Indians, however, had long resisted the efforts to confer citizenship upon them and continued to think of themselves only as members of their Indigenous nation. In 1877, when the Congress was considering the Ingalls bill to allow the naturalization of all Indians, considerable opposition to the legislation was stated by the Choctaw and the Chickasaw. These nations were concerned about their land and treaty rights because the legislation explicitly protected an individual's claim to such rights despite having lost, as a matter of tribal law, their tribal citizenship by virtue of choosing to become an American.

This sentiment was echoed by the Seminole and Creek Nations who were concerned that their treaties would be abrogated by the passage of the bill. Moreover, aside from the potential impact on their treaty rights, they were still opposed to the bill due to the internal conflict it would create within their nations: "the presence among Indians of those of their own blood who have thrown off their allegiance and claimed the protection of an outside power, could not be other than a fruitful cause of discord ...." Foremost, these nations were concerned about the bill's influence on their future existence: "if all the Creeks and Seminoles were to become citizens, the Creek Nation and the Seminole Nation would cease to exist and their national domain would revert to the United States." While this proposed legislation suggested that the United States was becoming more open to the idea of treating Indians as citizens, it was clear that at least some Indian nations were not.

Similar sentiments were expressed as Congress continued with its efforts to grant citizenship to Indians into the twentieth century. Thus, even though Congress in 1919 had authorized Indian veterans to become citizens upon judicial application "few Indians refused to turn their backs on their heritage or go through the demeaning process of being declared 'competent'."

Perhaps the most aggressive resistance taken against the Citizenship Act was put up by the Haudenosaunee, or Six Nations Iroquois Confederacy. Shortly after the Act was passed, the Grand Council of the Confederacy "sent letters to the president and Congress of the United States respectfully declining United States citizenship, rejecting dual citizenship, and stating that the act was written and passed without their knowledge or consent."

Even though many Haudenosaunee willingly participated in World War II, others held the view that their citizenship in the Confederacy precluded the authority of the United States to draft them. Many were arrested and prosecuted as draft evaders. The Six Nations Grand Council rejected the authority of the United States to draft its members stating that first, Haudenosaunee were separate nations; second, their treaties with the United States forbade either nation from drafting the members ofthe other; and third, Haudenosaunee people could not be drafted under tribal law."

In 1941, the Confederacy challenged the legality of granting citizenship to its members when it brought Ex Parte Green, an action challenging the Selective Service Act of 1940 authorizing the conscription of citizen Indians into the American armed forces. The court reached its conclusion "reluctantly" and "taxed [its] ingenuity in vain to find any interpretation which would result in a decision in [Green's] favor," but it upheld the applicability of the Selective Service Act on the grounds that acts of Congress supersede treaty provisions.

Despite the Haudenosaunee failure to strike down the Citizenship Act in these cases, their action highlights the fact that many Indigenous people actively resisted the extension of American citizenship and its assimilating effect. On this whole saga, Tuscarora Chief Clinton Rickard remarked that

The Citizenship Act did pass in 1924 despite our strong opposition. By its provisions all Indians were automatically made United States citizens whether they wanted to be or not. This was a violation of our sovereignty. Our citizenship was in our own nations. We had a great attachment to our style of government. We wished to remain treaty Indians and reserve our ancient rights. There was no great rush among my people to go out and vote in the white man's elections. Anyone who did so denied the privilege of becoming a chief or a clan mother in our nation.



II. The Legal Status of American Indians

Conferring American citizenship on all Indians born in the United States was but one of a series of actions taken by the federal government to redefine Indian legal status to suit its purposes. Throughout its history, America has sought to categorize Indians under its law in a variety of ways. At least four different approaches have been taken: (1) treating Indians as citizens of separate nations, (2) treating Indians as wards of the federal government, (3) treating Indians as American citizens, and (4) treating Indians as members of a racial minority group. Despite the efforts taken to have one uniform definition apply, indecision as to how best to deal with the "Indian problem", as well as the wide diversity of self-governing capacity that exists amongst the Indian nations, has prevented any one definition from have any conclusive effect.

A. Treating Indians as Citizens of Separate Nations

As has been discussed above, the United States originally viewed Indians exclusively as citizens of their own separate nations. Early relations with the Indian nations reflected this view as the United States relied upon diplomacy and treaties--the instruments of international relations--as the primary means of discourse with them. In these treaties, the United States acknowledged the separate political status of the Indian nations party to the treaty, even though the same treaty may have contained provisions for the extension of the federal government's protection over them and their lands. This conceptualization was reaffirmed by early federal laws dealing with Indian affairs, which viewed the Indian nations as separate territories over which the United States could not exercise direct control. This policy of treating Indians as citizens of their own separate nations has continued to the present day, albeit with periodic digressions.

B. Treating Indians as Wards of the Federal Government

With the demise of the Indian nations as potent military threats to the United States in the early nineteenth century, there emerged in American law the notion that the Indians were wards of the federal government. This notion emanated from the treaty provisions that acknowledged the protection of the United States. But the real impetus for the incorporation of this view in American law came from the Supreme Court, and in particular, Chief Justice Marshall. In the now famous "Marshall Trilogy" of cases--Johnson v. M'Intosh, Cherokee Nation v. Georgia, and Worcester v. Georgia, --the Court laid out the fundamental principles that would define the future legal relationship between the United States and the Indian nations under federal law.

In Johnson, the Court dealt with the question of what power Indian nations had to pass title to non-Indians, holding that Indians had been divested of fee title to their own land solely by virtue of being "discovered" by the European explorers. In Cherokee Nation, however, the Court was called upon to address the question of whether the Cherokee Nation could invoke the Court's original jurisdiction on the grounds that it was a "foreign nation." This directly confronted the question of how the United States would conceptualize Indian legal status under its law. The Court held that the treaty relationship between the Cherokee Nation and the United States required that the Cherokee Nation could only be considered a "domestic dependent nation" under federal law. In part this conclusion was driven by Marshall's assessment that the Indians were "in a state of pupilage" and that:

[t]heir relation to the United States resembles that of a ward to his guardian. They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the president as their great father.

This principle was reaffirmed in Worcester, where the Court held that the relationship between the federal government and the Indian nations was exclusively federal in origin and thus preemptive of state assertions of power in the Indian territory.

As the Indian nations became less and less of a threat to the America and more and more surrounded by it, the predominant view came to be that the Indians were the wards, or beneficiaries, of the federal government, which assumed the role of guardian or trustee. In accordance with this view, Congress passed laws granting the Secretary of the Interior sweeping authority over the management and control of Indian affairs. Thus, the federal government began to assume a wide variety of responsibilities for its Indian "wards" on the grounds of what was later judicially defined as its "trust responsibility." This conception of the federal-tribal relationship was rooted in Marshall's assertion in Cherokee Nation that Indians were in a "state of pupilage."

While as a general matter the United States viewed Indians as citizens of their own nations as well as its wards, some Indians were considered as neither. By the time the Republic was founded, a few Indians had sufficiently assimilated into American society. These Indians had assumed the "responsibilities of civilized life," were taxpayers, and were thus acknowledged to be part of American society by virtue of their acceptance of the American way of life. Thus, the Constitution contained the provision regarding the exclusion of "Indians not taxed" for purposes of apportionment because some Indians were, in fact, taxed and thus eligible to be counted.

Assimilated Indians, however, were not necessarily deemed citizens. In an 1856 opinion, United States Attorney General Caleb Cushing was called upon to determine whether a mixed-blood Chippewa could be considered an American citizen for purposes of exercising preemptive rights available to all citizens. The Attorney General first concluded that Indians could not be born citizens because they were only "subjects" of the United States. As a result, Indians could not be naturalized under existing federal law because "[t]hose acts apply only to foreigners, subjects of another allegiance. The Indians are not foreigners, and they are in our allegiance, without being citizens of the United States." Moreover, he concluded, those acts only apply to "white" men, although Congress could pass laws or enter into treaties that could make Indians citizens.

A further question addressed in this opinion was whether Indians "by continual crossing of blood, cease to be Indians" and thus no longer be considered incapacitated and ineligible for citizenship. His answer was "undoubtedly" and that such a matter was to be determined by the states. While he acknowledged that "[m]any persons of this class ... are of most respectable character, and mentally and morally capable to be citizens of the United States," this could only occur "by ceasing to be a member of the tribe." The Attorney General concluded that it was "reasonable and just" that one "who claims and takes the benefits of such tribal membership, shall not be allowed at the same time to claim benefits which are only attached by law to persons not Indians."

By the late nineteenth century, the notion that Indians were the wards (or subjects) of the federal government was firmly embedded in American law. In U.S. v. Kagama, the Supreme Court was called upon to decide the question of whether Congress had the authority to exercise its criminal jurisdiction within Indian territory. In upholding this assertion of power, the Court held:

These Indian tribes are the wards of the nation. They are communities dependent on the United States .... From their very weakness and helplessness, so largely due to the course of dealing of the Federal government with them and the treaties in which it has been promised, there arises the duty of protection, and, with it, the power.

Both the federal government's trust responsibility and the idea that Indians are wards (or beneficiaries) of the federal government have continued to the present day. Because the United States has continued to recognize Indians as citizens of their own nations, this has established the somewhat incongruous status that Indians are both citizens of one nation but wards of another. This status, perhaps, can only be reconciled if one accepts the Supreme Court's conclusion in Cherokee Nation that Indians are merely citizens of "domestic dependent nations."

C. Treating the Indians as American Citizens

1. Legal Development Prior to the Indian Citizenship Act of 1924

As has been discussed above, the United States took concerted action throughout the nineteenth and early twentieth centuries to ensure that all Indians became American citizens and citizens of the states in which they resided. This has further added to the confusion regarding Indian status under American law. Today, Indians can be citizens of their own Indigenous nation, as well as both citizens and wards of the United States.

An important question regarding this "layering" of political status was similar to that raised in the Attorney General Cushing's 1856 opinion-- whether an Indian could become a citizen simply by virtue of abandoning his tribal affiliation and choosing to assimilate into American society. In 1884, the Supreme Court addressed this issue in Elk v. Wilkins. The plaintiff, an Indian named John Elk, sought to vote in an Omaha city election on the grounds that "he had severed his relation to the Indian tribes, and had fully and completely surrendered himself to the jurisdiction of the United States ...." Elk argued that by virtue of the newly adopted 14th Amendment and the fact that he had been born in the United States, he should be allowed to vote.

The Court denied Elk's petition on the grounds that Indians could not become American citizens of their own accord, but only if the United States explicitly consented through a naturalization process to such a grant of citizenship. In doing so, the Court reaffirmed the principle that the Indian tribes were not "foreign states", but "alien nations", and as a result, Indians "owed immediate allegiance to their several tribes, and were not a part of the people of the United States." As regarding the Fourteenth Amendment argument that Elk had been born in the United States and was thus entitled to citizenship, the Court concluded that

Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes, (an alien though dependent power), although in a geographical sense born in the United States, are no more 'born in the United States and subject to the jurisdiction thereof,' within the meaning of the first section of the fourteenth amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations.

The Court determined that while Congress had taken specific action to make citizens out of Indians of some Indian nations --even after the adoption of the Fourteenth Amendment--it had not done so with respect to Elk or Elk's tribe and thus he was not an American citizen eligible to vote.

As the campaign to "civilize" and assimilate the Indians into American society continued throughout the late nineteenth and early twentieth century, Congress increasingly took efforts to grant citizenship to Indians. Eventually, however, the question arose as to what effect the granting of American citizenship had on retention of citizenship in an Indian nation and status as a ward of the federal government. As to citizenship, Elk rejected the notion that "a member of an Indian tribe can at will be alternatively a citizen of the United States and a member of the tribe." This decision was affirmed by the Court's later decision in Matter of Heff, where it was held that wardship status terminated, and American citizenship was conferred, upon issuance of title under the General Allotment Act.

The Court, however, transformed this conception of the citizen/ward dichotomy in 1916 when it decided U.S. v. Nice. Nice had sold liquor to a Sioux Indian on his trust allotment on the Rosebud Sioux Reservation in violation of a 1897 federal statute regulating liquor transactions with Indians. The questions presented to the Court were (1) whether the Indian had been granted citizenship under section 6 of the Allotment Act when his trust allotment was issued in 1889 and (2) whether the federal government retained power to regulate liquor transactions with Indians in this situation.

As to the first question, the Court overruled its decision in Heff and concluded that

[c]itizenship is not incompatible with tribal existence or continued guardianship, and so may be conferred without completely emancipating the Indians, or placing them beyond the reach of congressional regulations adopted for their protection.

It then concluded that Congress had not totally dissolved tribal status under the General Allotment Act and thus the "allottees remain tribal Indians, and under national guardianship." Accordingly, it reversed the dismissal of Nice's indictment because Congress was determined to have the power to regulate liquor transactions with Indians.

In arriving at this conceptualization, Congress placed Indians in a unique position under American law, one that has withstood constitutional challenge. In some respects, Indians today have the status of a minor--acknowledged as citizens but not fully recognized as being able to care for one's own affairs. But unlike minors or any other group dealt with by American law, Congress has also continued to recognize Indians as citizens of separate nations. While Congress abandoned its commitment to this principle during the Allotment and Termination eras, and effectively eliminated Indigenous citizenship for some Indians, it nonetheless has recognized since America's founding that Indians retain citizenship in their own Indigenous nation.

2. The Constitutionality of the Indian Citizenship Act of 1924

The Supreme Court has not passed upon the constitutionality of the Citizenship Act, but every federal court that has done so has upheld it. The rationale of these cases, however, is thin and does not adequately address the question of "whether a self-governing people can be made citizens of the United States by the unilateral fiat of the federal government." Failure to address this question raises the possibility that the Citizenship Act might be found unconstitutional if fully reviewed by the Supreme Court at a later date.

The Constitution says very little about Indians. Its only provisions exclude "Indians not taxed" from the American population for representation and taxation purposes and give to the Congress the power to regulate commerce "with the Indian tribes." Despite the limited reference to Indians, however, these provisions reveal a great deal on the question of what power the federal government has over Indians.

The "Indians not taxed" provision--by explicitly excluding tribal Indians from the American population--combined with the language allowing Congressional regulation "with" the Indian nations strongly suggests that the Indian nations exist outside of the federal government's authority to regulate their internal affairs. Despite the inherent logic of this conclusion, however, the Supreme Court has consistently upheld plenary Congressional power over Indians. Nonetheless, there remains a lingering Constitutional problem that the Indians--at least those who continue to assert their Indigenous citizenship--cannot be incorporated into the American citizenry without a Constitutional amendment.

Despite the absence of Constitutional authority, the United States has long exercised authority over Indians as its dependent "wards." This authority has been exercised on an individual basis devoid of any connection to Indigenous citizenship and, in some respects, can be said to "follow" the individual regardless of their tribal status. Thus, the granting of American citizenship to its "wards"--with the implication of equal status with other Americans--naturally challenges the continued viability of the wardship status.

As a general matter, citizens of the United States are such by virtue of their consent to become "members of the geographic community who have established the constitutional government for the promotion of their general welfare and the protection of their individual and collective rights." In accordance with American political theory then, citizens can establish any government they choose and are generally viewed as possessing the ultimate sovereignty.

The Constitution established by the American people, pursuant to the Fourteenth Amendment, provides that "[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States." The Supreme Court, however, has determined that Indians cannot become American citizens solely by virtue of being born within the United States and desiring American citizenship.

Nonetheless, in addition to being born in the United States, a person can also become a citizen if naturalized in accordance with federal law. Congress has established two primary mechanisms for obtaining citizenship, through a uniform rule or statute, or by treaty or statute under which a group of individuals is collectively naturalized. The Court acknowledged in Elk that an Indian could become a citizen in accordance with such a naturalization act.

Since the first naturalization act was passed in 1790, Congress has required that an individual seeking American citizenship (1) take an oath of allegiance to the United States, (2) be able to read, write, and speak the English language, (3) understand basic American history and government, and (4) be well disposed to good order and happiness. On the basis of these requirements, it reasonably can be concluded that those people who wish to become American citizens must give their consent. This makes even more sense given that Congress has always required that those becoming American citizens "renounce forever all allegiance and fidelity to any foreign prince, potentate, state or sovereignty whereof such alien may, at the time be subject."

Obtaining consent is obviously problematic in cases where collective, rather than individualized naturalization is involved. In such a case, the individual cannot be said to have explicitly consented to the grant of citizenship. As a result, "there should be serious doubt as to the constitutionality of a legislative fiat collectively conferring citizenship upon a group of individuals."

The Supreme Court has addressed this question in Boyd v. Nebraska in considering how Congress had collectively naturalized both Indians and non- Indians. In cases involving newly admitted states, the Court determined that the body of individuals comprising the political community seeking statehood, while not actually consenting, had effectively consented to becoming American citizens. And as to collective naturalization through treaties, it was determined that the subjects of another sovereign, by their request or cession of territory, would become American citizens after a certain period of time unless they indicated otherwise. The other instances of collective naturalization discussed in Boyd involved the Indian nations. In these instances, as well as in every other discussed case of collective naturalization, "the sovereign to which the naturalized individual had formerly owed allegiance either disclaimed dominion by treaty or was incorporated as a state of the Union."

Against this legal backdrop, the Citizenship Act of 1924 is fundamentally flawed because it does not require relinquishment of an individual Indian's Indigenous citizenship or the dissolution of that individual Indian's Indigenous nation. In short, it does not require consent to either individual or collective incorporation into the citizenry of the United States as a precondition to naturalization. In the United States, the citizenry is the ultimate sovereign and so consent is the sine qua non to becoming a member of that citizenry. While it could be argued that tacit consent might exist where individual Indians assert the rights and assume the duties of citizenship that might be collectively conferred, consent cannot be inferred so long as individual Indians assert, and Congress recognizes a right to self-government existing outside of the Constitution. Because Indians do in fact assert a right of self-government and Congress continues to recognize it, the Citizenship Act of 1924 is a constitutionally suspect act of collective naturalization.

D. Treating Indians as Minorities on the Basis of Race, Ethnicity, or National Origin

Within the framework of being considered American citizens, a further question arises whether Indians constitute a minority group subject to the prohibitions against discriminatory treatment on the basis of race, ethnicity or national origin.

Regarding race, the Supreme Court has determined that Indians shall not be considered as a racial class and thus, acts of Congress in relation to Indian affairs will not be subject to strict scrutiny. In Morton v. Mancari, non-Indian employees of the Bureau of Indian Affairs challenged the BIA's Indian preference hiring and promotion policy on the grounds that it constituted "invidious racial discrimination in violation of the Due Process Clause of the Fifth Amendment." The Court recounted the unique history and treatment of Indians under the Constitution, federal laws, and court decisions and concluded that the preference at issue was "not even a 'racial' preference" but rather "an employment criterion reasonably designed to further the cause of Indian self-government and to make the BIA more responsive to the needs of its constituent groups." In doing so, the Court stated: "The preference, as applied is granted to Indians not as a discrete racial group, but, rather as members of quasi-sovereign tribal entities whose lives and activities are governed by the BIA in a unique fashion."

In construing Indians as a "political" class of persons, rather than a "racial" class, the Court did not disrupt the Congressional power to take action that, in some cases, might be construed as beneficial to Indians vis-a- vis other groups, but that, in other cases, clearly would be discriminatory and detrimental. For example, under federal law it is clear that Congress could grant a hiring preference in federal employment to Indians that it could not grant to racial minorities solely on the basis of race. At the same time, however, Congress could deny recognition of one's status as an Indian in a way that it could not deny to someone else solely on the basis of his or her race.

In contrast to being classified as members of a political class, Indians are acknowledged as racial and ethnic minorities when dealt with by the government outside of the context of the unique federal-tribal relationship. The Equal Protection Clause of the Fourteenth Amendment prohibits state officials from discriminating against a person based on race, color, creed, or religion. IndividualIndians have challenged various discriminatory state measures and have succeeded in ensuring equal protection of the laws in a manner similar to other racial minorities.

Not only have Indians been treated as a political class and as a racial minority, Indians have also been classified on the basis of national origin. In Dawavendewa v. Salt River Project Agricultural Improvement and Power Districti, the plaintiff, a Hopi Indian, alleged that he was discriminated against because the private employer defendant hired a Navajo in accordance with Navajo Nation preference law and its lease with the Navajo Nation. He claimed that granting the preference constituted "national origin" discrimination on the basis of Title VII of the Civil Rights Act of 1964. The court determined that "national origin" discrimination occurs when "discriminatory practices are based on the place in which one's ancestors lived." Thus,

Because the different Indian tribes were at one time considered nations, and indeed still are to a certain extent, discrimination on the basis of tribal affiliation can give rise to a "national origin" claim under Title VII. The fact that "new political structures and boundaries" now exist has no significance.

The court then held in plaintiff's favor because Congress had not intended to favor some Indians over other Indians when it enacted the "Indian Preferences exemption" to Title VII.

Looking at the overall treatment of Indians as members of a minority class, it is possible, depending upon the circumstances, for an Indian to fall into a number of different classes. If the circumstances relate to the uniqueness of the federal-tribal relationship, then the political classification will govern and Congress can do whatever it desires. If the circumstances relate to treatment by a non-federal authority, or a federal authority outside the context of the unique federal-tribal relationship, then a racial, ethnic, or national origin classification may apply.

E. Treating Americans as Indians

A discussion of the legal status of Indigenous peoples would not be complete without mentioning that the United States not only has acted to confer American citizenship upon Indians, but it has also acted to confer Indian status on people who would otherwise simply be considered solely as Americans.

This situation arises in at least two different ways. First, the United States currently makes determinations whether a group of Americans claiming to be an Indian nation will be recognized as such and thus have all of the benefits and burdens associated with that status. This can occur through a regulatory recognition process conducted by the BIA or through recognition by Congress. Second, the United States characterizes individuals as Indians for certain purposes who may not be citizens of Indian nations. For example, eligibility for certain federal services may be determined on the basis of percentage of Indian blood rather than tribal citizenship. Another example would be the way in which the United States determines Indian population statistics on the basis of one's self- identified racial background regardless of Indigenous citizenship. Federal redefinition of Indian status is a significant contributing factor to the emergence of the racial minority group known as "Native Americans," which is composed of persons who are not Indigenous citizens but are of Indigenous descent.


 

III.  Acceptance of American Citizenship And Minority Status

America's efforts to incorporate Indigenous people into its polity have been largely successful. While there are no official statistics on the number of Indians who reject their American citizenship, it is likely that only a few would identify themselves solely as citizens of their own Indigenous nation. In part, this conclusion is a reflection of how few Indigenous people there are in the United States. But patterns of behavior suggest that most Indians today appear to fully accept their status as American citizens. By looking at such things as political activism, voting, and direct participation in the American legislative process, it can be seen that not only are Indians today mindful of their American citizenship, but some have come to identify so strongly with being an American that they appear to have totally relinquished their status as citizens of their own Indigenous nations.

A. Indian Demographics and Political Identity

As of the 1990 census, there were approximately 2 million Indians in the United States (less than 1% of the American population) and approximately 7.1 million people of Indian ancestry. These numbers are somewhat unreliable because they were obtained through the census process, which relies upon self-identification rather than tribal enrollment figures. Nonetheless, they can serve as a workable foundation upon which to generally assess Indian racial and ethnic composition within the United States.

Not every person who identifies as having Indian ancestry identifies himself or herself as a member of the Indian "race." There are many "ethnic" Indians who self-identify as being members of the Indian race with multiple ancestry, and others who self-identify as being Americans of Indian descent. In addition, there are the "core" Indians--people who identify as being persons of both the Indian race and of Indian ancestry. Being an ethnic Indian of Indian race or a core Indian, i.e., "Indians," however, says nothing about one's status as a citizen of an Indian nation. It is estimated that only one-half to two-thirds of those self-identifying as Indians are actually tribal members.

The distinction between core Indians, ethnic Indians, and Indigenous citizens provides no direct evidence of the degree to which a person in any of these groups acknowledges or accepts American citizenship. It is possible, however, to draw a reasonable conclusion about which group might be most inclined to reject American citizenship. By definition, it can be safely assumed that all ethnic Indians who think of themselves only as Americans of Indian descent would fully accept their status as American citizens. This would exclude 5.1 million people from the potential pool of Indians who might reject American citizenship. Thus, Indians who reject American citizenship should fall within the category of being either a core Indian or an ethnic Indian with multiple ancestry. The number of Indians in these two categories is the population statistic set forth in the census--about 2 million people.

By definition, those Indians who reject American citizenship do so because they maintain strong allegiance to their Indigenous nation. Necessarily this would require that such an Indian be a citizen of an Indian nation. Adding in the fact that only one-half to two-thirds of Indians so categorized under the census are estimated to be citizens of an Indian nation, the maximum number of Indians who might reject American citizenship may only be 1 million people.

While this may seem to be a considerable number, this number is further reduced by the fact that the Indigenous people falling in this category have undergone over 100 years of colonizing efforts by the United States to transform their Indigenous identity. As a result, those Indians rejecting American citizenship should most likely fall into two categories--those Indians who never assimilated into American society and those Indians whose ancestors were assimilated but who have since undergone "ethnic renewal." While the precise answer to this question would require empirical analysis, it is highly likely that the population of Indians rejecting American citizenship is a small percentage of the total Indian population.

There is little data regarding how Indians view themselves as citizens. Nonetheless, a recent survey of 1000 Indian college and high school students indicated that 96% identified themselves as members of their Indian nation, with slightly more than 50% identifying themselves as Americans, and 40% identifying themselves solely by their Indigenous nationality. On the basis of such statistics, it might be concluded that there is a strong resurgence among Native youth of exclusive notions of Indigenous citizenship. On the other hand, this same survey revealed that 70% of young adults and 60% of the youth affiliated with an American political party and that 72% of the Native youth polled said that Martin Luther King was their most admired leader because "his efforts proved to be beneficial to all minorities." Overall, then, this survey reflects considerable ambivalence about the political identity of the Indians participating in the survey. Moreover, the relatively small size of the sample and the focus exclusively on Native youth makes the survey of limited use. Nonetheless, the survey is interesting and does suggest the difficulties associated with accurately assessing contemporary Indigenous political identity.

B. Behavioral Evidence of Acceptance of American Citizenship by Indigenous Peoples

In recent years, it appears that Indigenous people are identifying more and more with American society and have come to accept a place within that society as one of its racial or ethnic minority groups. In the absence of reliable statistics on the number of Indians who reject American citizenship, this conclusion can be supported by observing the way in which Indians engage in political activities ordinarily associated with being an American. Considerable evidence can thus be obtained by assessing the degree to which Indians have become involved in the American political process through activism, voting and participation in the legislative process.

1. Activism

For many years following the grant of American citizenship in 1924, states imposed barriers in their voting laws to prevent Indians from voting. These actions, not surprisingly, had the effect of inhibiting Indian participation in the American political system. With the passage of time and the enactment of federal civil rights laws addressing the disenfran-chisement of African Americans, the legal barriers to the exercise of the Indian vote were eliminated. Indians, however, did not immediately begin to vote in American elections. They were unfamiliar with the process, unable to read and write in English, and were otherwise passive about voting. Moreover, many thought the notion of participating in the colonizing nation's electoral process was seen as an abandonment of citizenship in one's Indigenous nation. In the words of one Mohawk woman, "my parents taught us that once you vote, you stop being Indian."

This view changed dramatically after the emergence of the Red Power movement in the late 1960s. During the twenty years prior to that time, the United States had adopted and carried out its Termination Policy--an effort analogous to the Allotment Policy of the late nineteenth century--that focused on denying the recognition of the separate political status of the Indian nations. Influenced heavily by the activist movement that was occurring nationally, Indians--mainly from urban centers--began to take more aggressive efforts to assert Indigenous political rights. It is well acknowledged that the Red Power movement was tied to the civil rights and anti- war protests common to the era. Indeed,

Red Power borrowed from civil rights organizational forms, rhetoric, and tactics but modified them to meet the specific needs and symbolic purposes of Indian grievances, targets, and locations. The black lunch counter "sit-in" became the tribal "fish-in"; "Black Power became "Red Power"; the term "Red Muslims", paralleling the Nation of Islam's "Black Muslims," was used for a short time in the 1960s to refer to American Indian militants.

These activist efforts led to the emergence of the American Indian Movement (AIM), the foremost and most aggressive of the activist organizations, and such political activities as the "fish-ins" in the Pacific Northwest to assert treaty violations in the 1960s, the occupation of Alcatraz Island in 1969 and the takeovers of the BIA building in Washington in 1971 and 1972. While AIM and the Red Power movement eventually sought to move from civil rights activism to treaty rights activism--through such efforts as the Trail of Broken Treaties protest march to Washington in 1972 --it eventually moved toward violence, such as the siege at Wounded Knee.

The Red Power movement came to an end during the late 1970s and early 1980s as the result of many of the movement's leaders being repressed by federal, state and local law enforcement agencies. Moreover, the federal government effectively co-opted many of the movement's leaders by including them in its Indian policy making process and incorporated the Indian nations themselves through recognition of Indigenous self-determination and the provision of considerable federal funding.

This era of Indian activism was "not only a political mobilization; it was also a wellspring of transformation and renewal." Instead of being perceived simply as victims, Indians following the Red Power movement were perceived as "victorious rather than victimized, confronting an oppressive federal bureaucracy, demanding redress of long-standing grievances, challenging images of Indians as powerless casualties of history, [and] redefining 'red', 'native', and 'tribal' as valued statuses imbued with moral and spiritual significance."

Unfortunately these positive benefits overshadow the fact that the Red Power movement contributed greatly to the assimilation of Indians into American society. This occurred in at least two ways. First, Indian advocacy was directed away from the government-to-government relationship between the Indian nations and the United States and shifted toward the individual rights orientation of the civil rights movement. Individual Indians, and not the recognized or even traditional Indian leadership, were the primary leaders and spokespersons of the Red Power movement. This blurred the conception of Indian status in the eyes of both Americans generally as well as the Indians involved in the movement.

By adopting the tactics of the civil rights movement, Indigenous people relinquished much of the power associated with being citizens of separate sovereigns located within the United States. This was realized later on by the movement's leaders when they sought to strengthen ties with the reservation Indians and their leaders. Unfortunately, the methods and tactics associated with the movement by then were not only foreign and frightening to many reservation Indians, but the nature of the advocacy was genuinely ill-suited to redressing the problems associated with Indigenous self- determination. Rather than participate in the much more important but less provocative day-to-day business of strengthening Indigenous sovereignty through, for example, the operation and management of tribal government, the movement became ideologically predisposed to attacking all governments on behalf of what it perceived to be the downtrodden and oppressed. This meant attacks on tribal government, as well as attacks on the federal government.

Second, the movement was unable to sustain itself against the federal government's efforts to co-opt the movement's leaders and to incorporate them into the American political process. Through such vehicles as the American Indian Policy Review Commission established by the federal government in 1975, many of the movement's leaders went "mainstream" in the effort to effectuate the Indian agenda from the "inside." This was combined with the fact that by the late 1960s, the first generation of Indigenous lawyers began to graduate from American law schools. Rather than relying on the direct political action associated with the movement, these new Native lawyers had been trained as part of the colonizing nation's legal system and were thus committed to working within that system for the betterment of Indigenous peoples. In addition to the efforts taken to co-opt the Indigenous leadership, Congress gave Indian tribal governments millions of dollars to effectuate their self-determination and thus their absorption into the American economic and political system.

The lasting legacy of the Red Power Movement, then, is that it promoted the absorption of the Indian nations into American society. The Movement led to broad acceptance of the view held by both Indians and non- Indians that the Indian nations are part of America, that Indians are Americans, and moreover, that Indians are simply members of a minority group-- "Native Americans"--on par with other minority groups like African Americans, Asian Americans, and Hispanic Americans. Vine Deloria, Jr., the renown Indigenous scholar, affirmed this conclusion when he said that

Until 1960, it would not have been proper to have discussed American Indians in the context of American minorities because few Indians saw themselves as a minority within American society .... As Indians became more familiar with the world outside the reservations, there is no question that they began to see themselves as another minority group within American society. The activism of the 1970s only confirmed this viewpoint and made it a regular part of the Indian perspective, even of the reservation people.

2. Voting and Lobbying

Despite the fact that Indigenous people have become more assimilated into American society during the past thirty years, the Indigenous population has been slow to participate in American elections and to participate in the federal legislative process. Historically, Indians have been much more inclined to participate in tribal elections rather than federal elections. In 1992, for example, the Senate estimated that over 85% of Indians voted in tribal elections but that only about 20% of Indians voted in federal elections.

During the last ten years, however, Indians have begun to vote in American elections in increasingly higher numbers and have spent millions lobbying Congress to further Indigenous interests. So dramatic has been this recent spate of Indian political activity that some have suggested that Indian nations are now undergoing a "political renaissance." A number of factors appear to be contributing to this "renaissance," including leadership from national federal and tribal political figures, the end of Republican control of the White House, the need to protect tribal gaming rights and general acceptance of the American political credo that participation in the system will make things better.

It would be hard to pinpoint any one person or group of people who might be responsible for the increase in Indian voting during the last decade, but it would be hard not to notice the prominence of such national Indian leaders as Ben Nighthorse Campbell, the Republican Senator from Colorado, who is the only Indian member of Congress. Campbell, who did not grow up in an Indian community or serve in tribal government , is a firm believer that "[i]f you want to make change, you may bring some attention to the problem on the outside, but you've got to get on the inside to make policy changes." Indeed, he appears to have considerable disregard for the activist politics of the American Indian Movement that arguably precipitated the mobilization of Indians to accept a role in the American political system that made his career possible. Regarding his efforts in Congress to have the Custer Battlefield renamed the Little Big Horn Battlefield, he concluded that "[w]ith all that yelling and complaining and protesting and marching, [AIM] never got it done."

Another prominent leader in the effort to increase the Indian vote in recent years was Ada Deer, a former tribal leader, Congressional candidate, and the Assistant Secretary of the Interior for Indian Affairs (the top official in Washington responsible for administering Indian affairs) during the first Clinton term. Deer has said that Indians must vote to change Congress or else no federally funded Indian program will be safe from budget cuts. Her successor, Kevin Gover, while an attorney in private practice representing Indian nations, was in charge of the effort to increase Indian voting on behalf of candidate Bill Clinton and the Democratic Party in 1992. Gover said that Clinton "reached out to the tribal community in a way that was unprecedented in the presidential campaigns." In 1996, Gover was involved in a similar effort to "get out the Native vote" and was later appointed as Deer's successor as Assistant Secretary.

There have been other national Indian leaders promoting Indian voting during this decade, including Larry Echohawk, the former Attorney General of Idaho, who during his tenure was the only Indian elected to statewide political office in the United States. While in office during the early 1990s, Echohawk focused on getting more "Native American people involved in the [American] political system, not necessarily as candidates for office but as participants and workers."

Tribal leaders, too, have been involved in the effort to promote Indian participation in American politics. Joe Byrd, Principal Chief of the Cherokee Nation, believes that "[Indians] must rise up to defend issues that are important to all of us--not only as citizens of tribal government, but as citizens of the United States." Former chairman of the Quinault Tribe, Joe DeLaCruz, was instrumental in launching a voter registration drive amongst the Indian nations in the state of Washington. And others, such as Dean Chavers, a renown Indian educator, argues that "[i]t makes eminent sense ... to vote in the national elections ... [because] [t]o Indian Country, the umbilical cord to Washington, D.C. is still attached. It is the people in D.C. who hold the power of life and death over Indians."

Aside from Campbell (who switched to the Republican Party in 1995) , all of those vigorously promoting Indian participation in the political process are Democrats, which no doubt coincides with the fact that Democrats have taken over the White House and that Indians who do vote tend to vote Democratic. Indians have come under heavy pressure from Indian leadership to vote in American elections and to contribute to the Democratic Party. In this decade, aggressive efforts have been waged by many Indian leaders to mobilize Indian voters on behalf of Democratic candidates for office, particularly President Bill Clinton. Indians have been encouraged by Indian leaders and Democratic party officials to register to vote, to get involved in political campaigns, and to give money to support political candidates and issues. So concerned has the Democratic Party been with its own success that party officials have even sought to convince Indians to vote against one of the strongest champions of Indian rights and the only Indian in Congress, Ben Nighthorse Campbell.

While Republicans also court Indian votes and support, the results appear to have paid off mainly for Democrats. In 1988, there were a record fifty-one Indian delegates to the Democratic National Convention and in 1992, there were sixty-two. In addition, a number of Democrats (and Campbell) can attribute their elections to the strength of the Native vote. Indians have also begun to have impact on state and local races.

One of the main reasons for this increase in political activity appears to be the need to safeguard gaming rights, a phenomenon that has emerged in the last ten years to make a few select Indian nations extremely wealthy and allowed many more to generate modest income to support tribal government operations. Some of these Indian nations, naturally, have used this new income to lobby Congress for protecting these rights.

Because Indian gaming activities are so heavily dependent upon federal law, some Indian nations stand to gain or lose millions in gambling revenue depending upon how Congress responds to pressure from anti-Indian gambling interests. Thus, Indian nations have spent millions of dollars lobbying Congress to prevent adverse amendments to the Indian Gaming Regulatory Act, to oppose efforts to impose income taxes on casino revenues, and to thwart attempts to waive tribal sovereign immunity. Moreover, tribal leaders have urged their people to vote in state elections to protect gaming rights controlled by state officials. And perhaps most dramatically, Indian nations in California recently spent $68 million to persuade the California electorate to change state law to allow them to expand into casino gambling.

Despite these influences, much of the recent spate of Indian political activity appears to be driven by the genuine belief that working through the American political system is the only way in which toeffectuate the Indian political agenda. "We have to make Indians understand that decisions of concern to Indians are made in Washington, D.C., and they have to vote in federal elections," said Janice Chilton, a tribal planner and Democratic Party official. This view is shared by Frank LaMere, a Democratic Party activist and one of two Indians on the DNC, who believes that

the [American] political process is perhaps the most important vehicle that drives individuals in society ... politics determines who is represented, who is heard, who is provided for and who gets opportunities. 'And to put it bluntly, politics determines who lives and who dies.'

LaMere says that his work for the Democrats is motivated, "first and foremost," by a commitment to "our Winnebago veterans and to my own brother, who gave his life in defense of our Constitution." Perhaps as a reflection of this commitment, Senator Bob Kerry of Nebraska says of LaMere that his most significant quality is that he "is a patriot who loves his country [the United States]." Many others, such as Dean Chavers, share the view that change for Indians can only come through the American political system.

In the face of these efforts to spur Indian suffrage, tribal leaders appear to have accepted the notion that working within the American political system is a necessary requirement to properly represent tribal interests. For example, ten years ago, only five of the twenty-three members of the United South and Eastern Tribes, Inc., a tribal lobbying organization, had paid Washington lobbyists. Today, fourteen do. These Indian nations have made considerable changes in the way they deal with Washington. Now "they are using high-priced lobbyists, savvy public relations firms and big campaign contributions to win influence, make friends and crush opponents." In contrast, but still attempting to accomplish similar objectives, the Washo Tribe of Nevada has managed to get 85% of its 1600 members registered as Democrats. Brian Wallace, their chairman, says, "We're not an independently wealthy group of people. We rely on delivering votes .... For us, it's a matter of survival."

In recent years, individual Indians as well as Indian nations have become increasingly inclined to exercise their rights to vote and to participate in the American political process. To be sure, these activities are frequently accompanied by assertions that doing so will promote tribal sovereignty. But regardless of whether the Indian nations are involved in attempting to directly influence Congress or whether individual Indians are simply voting and helping candidates for American political office, these activities are little different than the political activity engaged in by American corporations or American citizens generally.

Indeed, much of this recent political activity seems predicated upon the faulty assumption that what is good for Americans politically is also good for Indians politically. A recent study by Geoff Peterson concluded that "Native Americans do not vote at the same levels as other groups when controlling for socioeconomic factors." His explanation for what this means, however, is symptomatic of what appears to be the emerging political philosophy amongst Indian leadership:

The continued inactivity of Native Americans in the political process should be a major cause for concern for all persons who value democratic principles ....

 

Full participation in the political process is a desirable quality for the maintenance of a democratic government. If communities are underrepresented in the process, the potential for majority dominance increases. If Native Americans want to have their views taken into account in the political process, they need to show themselves to be a force in the electoral arena.

This philosophical approach ignores an inherent limitation on the ability of Indians to manipulate the American political system and it suggests additional reasons why Indians should not blindly commit to such an advocacy approach. Despite the assurances of those supporting a greater role for Indians in the American political system, there is no convincing evidence that the candidates supported by Indians (whether they be Indian or non-Indian) are consistently able to promote Indian interests. Senator Campbell, for example, recently made a controversial deal with long time opponent of Indigenous sovereignty Senator Slade Gorton over tribal sovereign immunity and the ability of states to collect taxes from Indian nations. Assistant Secretary Kevin Gover, also has made a controversial agreement with Senator Gorton regarding federal funding of tribal governments. And President Clinton too has made critical compromises adverse to tribal sovereignty, such as his signing of legislation denying the Narragansett Tribe the right to conduct gaming activities on their own land.

Moreover, not only might the message being sent to Indian people be flawed, but the messenger might be flawed as well. Most of those Indian leaders supporting an increased role for Indians in the American political process appear themselves to already be a part of the American political establishment. This mentality suggests a predisposition in favor of federal, rather than tribal, solutions to the problems facing Indian people. Indeed, the comments conceding a belief that the federal government has control over the "life and death" of Indians suggests a deference to federal power that makes the decision to support Indian voting in American elections follow quite naturally. And of course, there is always the possibility that support for Indian voting may be driven by the more self- interested motives of promoting one's political career by offering up Indian votes to the White political establishment.

While some tribal leaders seem to have agreed that increased voting and lobbying is the best way to defend and strengthen tribal sovereignty, the absence of a large number of Indigenous people aggressively supporting these efforts--as evidenced by the lack of Indian voters--makes this strategy inherently suspect.

3. Acceptance of Racial Minority Status

Additional evidence that Indigenous people have been absorbed into America's political culture is the seemingly well-settled belief that Indians are simply a racial minority group within American society. Even though Indigenous society is rooted in a sovereignty separate and apart from American sovereignty, Indians today appear to be suggesting that they should be treated in the same way as such racial minority groups as African Americans and Asian Americans. Primarily, this suggestion arises within the context of complaining about racism directed toward Indians. While it is certainly the case that Indians have long been thought to be of a different "race," protestations solely along racial lines can only serve to undermine the perception that Indian nations have a political existence separate and apart from that of the United States.

A good example of this effect was the Indian response to the recent effort by President Clinton to address race relations in the United States through his One America To carry out his initiative, the President appointed a seven-member advisory board comprised of three White men, an Asian American woman, a Hispanic American woman, and two African Americans (including its chairman). When the appointments of the Board members were announced, there was an immediate outcry from Indian leaders condemning the President for not appointing an Indian to the Board. While the President never did appoint an Indian to the Board, the Board itself appointed Laura Harris, a Comanche Indian and Bambi Kraus, an Alaska native, to serve as advisors on American Indian issues.

This action did not assuage Indian critics, and the matter came to head during the Board's scheduled public hearing in Denver in late March of 1998. Indigenous activists attending the meeting condemned the absence of Indian representation on the Board and disrupted the meeting by shouting down the Board members in attendance and preventing the planned agenda from going forward. Noted Indian academic and AIM leader Glenn Morris yelled at the Board, "How can you have a national dialogue on race without one American Indian on your board?" and, "There can be no national dialogue on race without dealing with the first peoples of this hemisphere." Board members tried to take the position that determining representation on the Board was beyond their limited authority, and argued that they have met with Native Americans more than any other group. While there was some sentiment that taking over the meeting was the right thing to do, criticism of the Board did not cease.

In September of 1998, the Board issued its final report. To its credit, it sought to distinguish the status of Indians from other racial minority groups on the basis of Indigenous sovereignty. In acknowledging that "American Indians and Alaska Natives ... are the only minority population with a special relationship with the United States," the Board concluded that the "more than 550 ... tribes are home to people who are both U.S. citizens and members of tribes that are sovereign nations." The Report also described the complex legal relationship that exists between the United States and the Indian nations, how important sovereignty is "to [their] existence as Indians," how "little, if any information about tribal governments is taught in most schools" and how "[d]eeply entrenched notions of white supremacy" have made Indians "America's most invisible minority."

But the Report failed to draw a clear distinction between the treatment of Indigenous people as citizens of the United States and as citizens of their own separate sovereign nations. Thus, the Report's conclusion that racism affects American Indians in ways similar to "other non-White and Hispanic minorities in America" undermines its acknowledgment of Indigenous people as having "a distinctive and extraordinarily complex status in the United States." Unfortunately, Indians compounded the erosion of this distinction with such oxymoronic statements such as "the most virulent and destructive form of racism faced by Indian people today is the attack on our tribal sovereignty."

The failure for all involved in this debate to appreciate the difference between Indigenous people as a race and Indians as citizens of separate sovereign nations has confused the message sent to American society about Indigenous political status and thereby compromised the existence of Indigenous sovereignty. Given the degree of cultural and political assimilation that has occurred to date, confusion regarding this issue is not surprising. Not all Indigenous people are Indigenous citizens, and not all Indigenous people live within an Indigenous nation. Thus, the existence of these "Native Americans" creates very real issues of racial discrimination that are indistinguishable from that faced by other minorities in the United States. That an Indian is a citizen of a separate sovereign nation means little as a legal matter when that person is living outside of his or her nation. Discrimination can and does occur solely on the basis of having a racial background different from that of the majority population.

The problem, then, with fixating on "race" when dealing with discriminatory treatment faced by Indigenous people is that Indigenous people are thus only perceived by American society in terms of race. This is true notwithstanding the fact that many of these discussions about "race" actually focus on concerns about Indigenous sovereignty and self-government.

For example, a recent dialogue involving a few Indigenous leaders commenting on the President's Report highlights how this mixed message is conveyed. Under the caption, "Reflections on Racism," a national Indian affairs newsmagazine asked several Indian leaders to respond to a number of different questions. The first was "[d]o you think American Indians identify with the struggles of other ethnic or racial groups that have experienced discrimination?"

Ray Halbritter, Representative of the Oneida Nation of New York simply answered yes to the question, but then proceeded to give a more detailed answer highlighting the differences between Indians and other minorities:

Minority groups in America share a struggle with racism in one form or another.

The fundamental difference between sovereignty and equal protection under the law makes our struggle to maintain our identity unlike that of any other ethnic group. Our governments, laws and cultures existed long before the United States and its laws came into being. Our sovereign rights are recognized in repeated treaties with the federal government. Yet that same federal government continually passes laws that infringe on those sovereign rights. And state and local governments often enact legislation and pursue court actions that completely disregard Indian sovereignty. Only the American Indian in this country is engaged in this never-ending struggle to protect our pre-existing inherent sovereign rights.

Conversely, Marge Anderson, chief executive of the Mille Lacs Band of Ojibwe, impliedly answered no to the question by first highlighting the differences between Indians and other minorities and then arguing that there were similarities:

There are important differences between the struggles of other racial groups in this country. The obvious one is that we did not immigrate here. We were not forced to relocate here. We were not forced to relocate here as slaves. We are the first Americans.

But in some respects, our story is similar to the stories of other racial groups. While I don't pretend to be an expert on African-Americans or Asian- Americans or Hispanic-Americans, I do know that these people--like my People--have struggled for years to keep from being swallowed up by the dominant culture. American Indians have had to fight off deliberate attacks against our culture, as well as sincere but misguided attempts to help us assimilate. I'm sure these are struggles that sound familiar to other racial groups.

To anyone reading these two statements looking for Indian "reflections on racism," it would be hard to get a clear sense of how Indians interrelate with minority groups on the basis of race. Halbritter actually dismisses the question and instead gives a strong explanation about how Indians are totally different than racial minorities because of sovereignty. Anderson starts down the same route, but then changes her position by mistakenly assuming that Indians are like racial minorities because of a common desire to resist assimilation. In light of the fact that all racial and ethnic minorities in the United States, unlike Indigenous peoples, have always generally resisted segregation and wanted to obtain equal status with Whites, her statement is an accurate one regarding Indians that is misleading against the backdrop of what she states as the goal of racial minorities in the United States.

Sending confusing messages to American society relating to questions of Indians and race threatens Indigenous sovereignty because Americans as a general matter are so ignorant about the subject. If all answers to similar questions were like Halbritter's, except that they began with a rejection of the "racism" categorization instead of an acceptance of it, over time there might be the possibility of educating an American audience about the significance if Indigenous sovereignty. But American, as well as Indigenous ignorance of America's colonial history makes it difficult to fully develop the sophistication of thought necessary to parse away the labeling and rhetoric about race from the substance about sovereignty.

Fundamentally, when Indian tribal leaders talk about American "racism" toward reservation Indians, a large part of what they are really seem to be referring to is "xenophobia"--a fear of foreigners. When Indians are attacked personally by Whites--Anderson, for example, says that she was called a "squaw" in high school --the discrimination is driven by a cocktail of hatred, jealousy and cultural supremacy spawned by generations of conflict over life, land and way of life. This kind of discriminatory treatment might more properly be thought of as national origin, rather than race discrimination. This might be less true with those Indians living outside of an Indigenous nation, who could argue that discriminatory treatment faced by them is most likely race discrimination. But when Whites attack Indians because of assertions of treaty rights, for example, accusations of racism only confuse the underlying facts associated with what are fundamentally nation-to-nation political conflicts.

Because of the success thus far in transforming conceptions of separate political status to merely conceptions of race, there will most likely continue to be an erosion of the perception of Indigenous people as citizens of separate sovereigns. It seems clear that Indians engaging in this debate are foremost driven by a deep frustration with America's unwillingness to accept Indigenous people as both citizens of separate nations and as human beings. Unfortunately, the tools made available by the colonizing nation to redress this frustration such as anti-discrimination law and "race" panels often only confuse the message being sent to American society at the detriment of Indigenous nationhood.

C. Behavioral Evidence of Indian Rejection of American Citizenship

While there is much indication that Indigenous people have become increasingly incorporated into American political society, there have always been Indigenous voices that have rejected being designated as American citizens. For example, in relation to the efforts to obtain voting rights for Indians in New Mexico in 1948, then-Taos Pueblo Governor Manuel Lujan said "Mr. And Mrs. Voters, we arenot interested in [a] mixup [in your] political affairs .... We have been getting along nicely from generation down to generation until this thing of registering and voting comes in our way."

The most sustained effort at opposing the forced conferral of American citizenship has come from the Haudenosaunee. One of the earliest and strongest voices against the Citizenship Act of 1924 was Tuscarora Chief Clinton Rickard. As the leader of the Indian Defense League of America, he was a "traditionalist" who argued that "citizenship and voting in the white man's system jeopardized the sovereignty of the Indian nations." When the Citizenship Act was passed, he asked the question, "how can you be a sovereign nation and be forced to be a citizen in a foreign government?"

In recent years, a leading voice on the subject has been Doug George- Kanentiio, a Mohawk writer and activist, who has critiqued the fixation of Indian people on participating in the American political system in the 1990s. He concedes that "the Iroquois realize that whomever occupies the White House ... will have a profound impact on their lives, for good or ill." But despite this reality, he states that

[T]rue citizens of the Haudenosaunee (Iroquois) Confederacy will not cast ballots in 1996. They will not take an active role in any campaign, nor will they contribute advice or material support to American politicians.

According to Iroquois law they are expressly prohibited from participating in the political process of an alien nation. Since the Iroquois are certainly citizens and residents of their own distinct country they consider themselves separate from the United States.

He explains that objection to participating in the American political process and to the Citizenship Act of 1924 itself is predicated upon the belief that "it is clearly impossible for the citizens of a particular country to have a treaty with its own government." Because the Haudenosaunee have treaties with the United States, it should naturally be assumed that

the 1924 Act was pushed through Congress with the idea it would one day be used to extinguish Native rights, including aboriginal claims to hundreds of millions of acres land from their possession. It would only be a matter of time ... before a US court stated the obvious and ruled against the Native nations.

Thus, Kanentiio concludes that "[i]f Indians do vote they have clearly decided to exercise their rights as Americans and therefore have no claim to separate status." Moreover, Indians who do vote not only would sacrifice their treaty claims, but they would also subject themselves to having to pay taxes to support the various levels of American government. And because accepting American citizenship would mean the demise of Haudenosaunee nationhood, Kanentiio argues that if a Haudenosaunee leader urges his own people "to vote, or interfere, in an American election," such a leader will have violated Haudenosaunee law and be deemed to have lost his Haudenosaunee citizenship.

Not only the Haudenosaunee have looked upon the conferral of American citizenship as an interference with their claims of nationhood and sovereign status. Recently, the Teton Sioux declared their "intentions to renounce U.S. citizenship, reestablish the legally agreed upon territorial boundaries of the Lakota Nation ... and to completely disengage from further control or supervision by the U.S. Government."

Despite these voices of opposition, there is little evidence that large numbers of Indigenous people reject their designation as American citizens. It is obvious, however, that in an era when colonization has so changed the Indigenous way of life, that the temptation to obtain more control over one's future through voting is a great temptation. For example, Miguel Trujillo, a citizen of the Isleta Pueblo, sued the State of New Mexico in 1948 to become the first Indian to vote in that state. Despite doing so, his daughter said that "'Dad had mixed feelings about it ... [h]e knew it was a real benefit, but at the same time he did turn many people against him--even from his own tribe."' The animosity was undoubtedly real, because it was believed by some Indians in New Mexico that voting would "chip away at tribal sovereignty or that the government would impose more taxes or strip them of their rights."

In the face of the temptation to accept America's offer to join its polity, there nonetheless remains a strong view amongst some Indigenous leaders that the survival of Indigenous people requires continued resistance against incorporation into the American political system. As Seneca scholar John Mohawk describes the challenge,

Indian leadership needs to understand that when they stand as Indians for Indian rights they are in direct conflict with U.S. aspirations, and that an Indian allegiance to the United States is secondary to their allegiance to their own nations because the former by nature seeks to eliminate the latter.


 


 


IV. The Effects of Forcing American Citizenship

A. Genocide through Americanization

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) Killing members of the group;

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

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

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

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

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

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

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

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

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

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

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

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

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

B. Transformation of Indigenous Political Identity

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

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

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

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

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

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

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

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

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

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

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

C. The Weakening of Indigenous Sovereignty

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

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

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

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

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

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

D. Summary

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

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

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



V. Redressing the Effects of Forcing American Citizenship upon Indigenous People

There is no significant evidence that many Indigenous people today believe that status as an American citizen promotes genocide or is otherwise problematic. Indeed, the recent trend seems to be the development of a deep appreciation for and acceptance of American citizenship and the rights associated with it. For most Indians, then, when it comes to questions about American citizenship, there is nothing in need of redress. Nonetheless, there remain Ongwehoweh and the descendents of Ongwehoweh who would believe that retaining exclusive Indigenous citizenship is critical to the preservation of sovereignty and a distinct way of life. Accordingly, for the treaties with the United States to have meaning, the United States must recognize this exclusive Indigenous citizenship. To give full effect to the right of all peoples to self-determination, corrective action must be taken.

If the United States ever decides to purge itself of its colonial and genocidal legacy toward Indigenous people, it should withdraw those policies and laws that continue to have a colonial and genocidal effect. Only if America remains committed to effectuating the destruction of the Indigenous nations should it refuse to take immediate efforts to decolonize its federal Indian control law. Given the relatively few numbers of Indigenous people that might be committed to the preservation of a distinct political existence, it is unlikely that America would suffer great harm by doing so.

A. Modified Repeal of the Citizenship Act of 1924

The decolonization of federal Indian control law should include the reconsideration and withdrawal of all laws enacted to force American citizenship upon Indigenous peoples without their voluntary consent. Thus, Congress should demonstrate its commitment to recognizing Indigenous sovereignty by repealing the Citizenship Act of 1924 and all other related citizenship legislation. Only by doing so will the corrosive effect of American citizenship upon Indigenous self-determination be eliminated.

While repealing the Indian Citizenship Act would be welcomed by some Indigenous people, most would likely resist this effort and seek to exercise their newly found power and status within the American political system to keep it from happening. Given the degree to which colonization has succeeding in incorporating much of the Indigenous population into American society, this would not be surprising or unexpected. Moreover, because of the way in which the United States has colonized Indigenous peoples--by transforming both heart and mind--most Indigenous peoples, in particular the Native Americans, may not even be cognizant of the fact that they are victims of a concerted colonial effort to transform their political identity.

In the face of such substantial objection, it would be a colonial and paternalistic act in and of itself to unilaterally repeal all legislation conferring American citizenship on Indigenous people. But remedying the wrongs of American colonial aggression requires that an equal and opposite act of colonial aggression take place. Failure to do so will ensure that any remedial action taken will be insufficient to redress colonialism's underlying corrosive effect. Colonialism's victims must be allowed to confront the reality of the political and societal transformation that has taken place. While this "tough love" approach may bring some pain, the fact that there are many Indigenous people today who have incorporated the American citizenship status thrust upon them should not mean that those Indigenous people who reject American citizenship should continue to fall prey to its destructive assimilating influence. Self-determination means the right to choose one's own political loyalties and one's own political identity, and if the United States truly respects that right, it should take action to ensure that it is available to all Indigenous peoples over which it has influence.

Nonetheless, because colonialism is simply not just "undone", the practical effects of transforming Indigenous political identity must be taken into account in the development of a fair and just citizenship policy for Indigenous people in the United States. Thus, humanity (as well as political reality) dictates that such a policy should include the choice to preserve one's American citizenship upon the repeal of the citizenship legislation. For this choice to have real meaning, however, no allowance can be made for preserving under American law the status of a dual citizen. Dual citizenship, like any system of concurrent authority or allegiance, cannot be preserved because its existence comes at the expense of the weaker of the competing powers. In federal-Indigenous relations, this will always mean a sacrifice of Indigenous nationhood. Preserving dual citizenship would simply maintain the status quo and thus perpetuate the assimilating influence of American citizenship on Indigenous peoples into the future.

Instead, the United States should end its recognition of dual citizenship and require that Indians choose between retaining either their American citizenship or citizenship in their Indigenous nation. Under this "Choice of Citizenship Act", Indians who chose to remain American citizens would no longer be recognized under federal law as citizens of an Indigenous nation. If such a choice is made, these Indians would have the same legal status as every other American and would not be afforded any special benefit or burden by virtue of being a person of Indigenous ancestry (except such special treatment that might be afforded minorities generally under American law). In short, an Indian making the choice to renounce his or her Indigenous citizenship would be treated just like any other American citizen. If an "Indian is considered to have manifested his consent to be governed under the Constitution of the United States, then he must join the ranks of the citizenry; his wardship status will have come to an end."

If an Indian making such a choice were living outside of an Indian nation, there most likely would be no meaningful effect of having chosen American citizenship. Life as that person knew it would continue materially unchanged. Income would be earned, taxes would be paid and the same laws that protect other racial and ethnic minorities from discrimination would continue to apply. But if such an Indian were living within an Indian nation, however, their status would be changed markedly since they would now be treated by the United States as a non-Indian for such purposes as jurisdiction and taxation. Nonetheless, if some Indians choose to abandon their tribal citizenship in order to preserve their American citizenship, then they must be made to feel the full effects of this decision. If they truly desire to become "Native Americans"--Americans of Indigenous ancestry with unequivocal political allegiance to the United States--then the law should recognize and give life to that decision.

Making the choice to relinquish one's Indigenous citizenship may not necessarily have any effect as it relates to citizenship in one's Indigenous nation. Simply because the United States does not recognize dual citizenship does not mean that an Indian nation could not do so if it so desired. It may be entirely possible that an Indian nation may want to continue to recognize as citizens those of its members who choose to retain American citizenship. On the other hand, it might not be surprising if an Indigenous nation chose to punish these citizens by formally stripping them of Indigenous citizenship. This punishment, including such lesser used remedies such as denying citizenship but preserving membership status, are all within the realm of possibility. The ultimate decision, of course, would be up to that Indigenous nation alone.

Allowing Indigenous people to choose whether to retain American citizenship would recognize for the first time in seventy-five years the existence of a new class of persons within American society--citizens of Indigenous nations who owe no political allegiance to the United States. Relinquishing American citizenship, obviously, would result in the immediate loss of certain benefits and burdens of being an American citizen. Indians would not be allowed to vote in American elections, be candidates for American political office, or contribute funds to American political candidates and ballot initiatives. They would also be ineligible for any services that are available by virtue of being an American. Of course, they should also be exempt from many of the responsibilities, such as paying taxes or serving in the military.

Given the fact that the Indian nations are located within the United States and that life within said nations has become increasingly interrelated with the rest of America, the existence of this class of Indigenous citizens presents interesting questions of legal status that must be resolved. For example, if these Indians are not American citizens, could they live and work within the United States without special permission? Would they have to pay federal taxes for income earned in their own territories? Would they continue to be eligible for educational, social welfare, and other services provided by the states surrounding their territories?

Conceptually, the answer to these questions should be no. But the unique political relationship between the United States and the Indian nations--one founded upon treaties--should not preclude some unique formulations from being developed to address these questions. Already under American immigration law there is a class of non-citizens--permanent resident aliens--who are able to live and work in American society without being American citizens. Perhaps this model can serve as the backdrop for formulating a new legal status for Indigenous citizens who live in their own territories but otherwise enter the United States on a frequent basis. Because of the complexity and uniqueness of these questions, an entire article could be devoted to developing workable solutions. Lest anyone think the task too daunting, it is hard to imagine that resolution of the difficult questions that would arise from recognizing this class of non-citizen Indigenous people would be any more complicated than the existing body of federal Indian control law.

Regardless of what the ultimate answers to these questions are, they should not be resolved unilaterally by political or judicial declarations made by the United States government or its courts. If the United States were to take action to repeal its Indian citizenship legislation and recognize once again exclusive Indigenous citizenship, it should also be willing to resolve the myriad of questions that might arise through the medium of international relations--bilateral nation-to-nation negotiations and agreements. Under such a process, the answers to these and other questions can be negotiated and resolved in as fair, effective, and flexible a way as is humanly possible. Even under its colonial law, the United States has long recognized the sovereignty of the Indian nations. Surely a more unique and innovative solution can be developed for dealing with these difficult issues than simply continuing to destroy Indigenous political identity by paving it over with American citizenship.

B. Overcoming the Legal Barrier to Repeal of the Indian Citizenship Act

It could be argued that repealing the Indian Citizenship Act would be unconstitutional. In Afroyim v. Rusk, the Supreme Court struck down as a violation of the Fourteenth Amendment a federal law that provided for the loss of citizenship if an American voted in a foreign political election. The Court rejected the argument that the government possessed an inherent sovereign power to "sever its relationship to the people by taking away their citizenship" because "[i]n [the United States] the people are sovereign." The Court concluded that while the Constitution explicitly provided a mechanism for obtaining citizenship--by birth or naturalization--it gave no power to Congress to strip the people of it. The Court concluded that the Fourteenth Amendment did not provide for

a fleeting citizenship, good at the moment it is acquired but subject to destruction by the Government at any time. Rather the Amendment can most reasonably be read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it. Once acquired, this Fourteenth Amendment citizenship [is] not to be shifted, canceled or diluted at the will of the Federal Government, the States, or any other governmental unit.

The Court's conclusion that Congress has no power to tinker with citizenship was unequivocal:

We hold that the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race.

On the basis of Afroyim, it might reasonably be concluded that any Congressional effort to repeal the Indian Citizenship Act of 1924 would violate the Fourteenth Amendment. This conclusion is supported by the Court's decision in Elk v. Wilkins, where the Court held that the Fourteenth Amendment of its own accord does not confer citizenship upon Indigenous peoples in the United States who desire it. The Court determined that for an Indian to become a citizen, Congress would have to consent to it by establishing some kind of naturalization process. It could be argued that the Indian Citizenship Act was just such a naturalization process. Accordingly, once American citizenship had been conferred upon Indians under the Act, Congress would be constitutionally prohibited from taking it away.

Despite this potential legal barrier, there are a number of approaches that could be taken to effectuate the results of the Choice of Citizenship Act described above. One approach would be to directly attack the constitutionality of the Citizenship Act itself. As discussed above, the Citizenship Act may be an unconstitutional naturalization act because it confers citizenship upon an entire class of people without their consent.

Another way to carry out the Choice of Citizenship Act would be to modify the proposed legislation by requiring Indians to choose whether the federal government would continue to recognize their Indigenous citizenship. Failure to make any choice at all would be construed as a choice in favor of retaining American citizenship. Thus, an Indian would have to affirmatively decide to relinquish their American citizenship in order for it to be lost. This should not raise any Constitutional complications because federal recognition of citizenship in one's Indian nation is not a constitutionally protected right. Indeed, in the past, the United States has even engaged in a Termination Policy of denying federal recognition of entire Indian nations without running afoul of the Constitution.

In some respects, this modified Choice of Citizenship Act is just an indirect way of restating the only constitutionally protected method of losing one's American citizenship--voluntary relinquishment. The Court in Afroyim held that every American has "a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship." This right to voluntarily relinquish American citizenship has been acknowledged by statute and case law. In Vance v. Terrazas, the Court was called upon to decide the appellant's nationality, which was in controversy because he was a dual citizen of both Mexico and the United States and had sworn an oath of allegiance to Mexico and renounced his American citizenship. The Court held that the federal government must prove intent to surrender American citizenship and not just rely upon the voluntary commission of an expatriating act. It concluded that "[i]n the last analysis, expatriation depends on the will of the citizen rather than on the will of Congress and its assessment of his conduct." As a result of the Court's analysis in Vance and Afroyim, any Indian could regain exclusive citizenship in his or her Indigenous nation simply by voluntarily relinquishing his or her American citizenship.

The difference between the existing statutory scheme allowing for voluntary expatriation and the proposed Choice of Citizenship Act is obvious. The latter forces the question of whether an Indian will retain their dual citizenship status. While it might be said that this proposal poses a cruel choice--whether to retain American citizenship or Indigenous citizenship--it does so in a way that brings the issue of consent back into the equation. The Indian Citizenship Act of 1924 denied the opportunity for Indigenous people to consent to the conferral of American citizenship. The proposed Choice in Citizenship Act would simply restore this element of choice.

C. Reassertion of a Distinct Indigenous Political Status

Redressing the problem of continued assimilation of Indigenous peoples through American citizenship need not be limited to federal government action. There are a number of different measures that can be taken by Indigenous peoples and their nations to help strengthen a distinct Indian political status. While many of these options may seem wholly impractical to some, they all have been utilized in the past by one or more Indian nations and should be reconsidered if there remains is a strong desire to maintain Indigenous nationhood.

First, Indigenous people should consider foregoing the opportunity to participate directly in the American political process through voting, funding candidates and issues, and running for office. To do so is not to say that Indigenous people living within an Indigenous nation should not exercise political power with respect to relations with the federal, state, or local governments. Rather than seek to assert influence through the ordinary and normal channels available to all Americans, however, Indians can and should interact with the American political process through the collective voice of tribal government. Doing so will help ensure maximum influence of any particular Indian nation on its governmental neighbors. Much of the problem today with Indian political influence arises out of the cacophony of tribal and individual Indigenous voices that abound. Consolidating tribal political power and directing a unified voice toward American political officials through diplomatic channels will help reorient the political influence of the Indigenous people away from the weak government-citizenship relationship to the much stronger government-to-government relationship.

Second, Indian nations should minimize the role that non- Indian lawyers play in representing their interests in Washington and appoint citizens of their own nations as ambassadors to represent them in diplomatic relations with the United States and its governmental subdivisions. It is very easy to deny the governmental stature of an Indian nation when the primary governmental representative is a non-Indian lawyer simply paid to represent that nation's interests. Indeed, there is already some evidence "that the slickness of Indian lobbying is creating a political backlash." Some Indian nations now appear to be in a situation in which they are paying considerable sums of money to be advised by their own lobbyists that they themselves should be doing their own lobbying. If Indigenous nations genuinely seek to perpetuate their nationhood, then they should consider engaging with the outside world in a manner befitting the traditional diplomatic protocols common to the world community.

Third, Indigenous nations should press vigorously for changes in federal Indian control law to ensure that mutual consent, rather than federal plenary power, is the foundation principle of American-Indigenous relations. Since 1871, the United States has refused to enter into treaties with the Indian nations and in doing so has denied and disrespected Indigenous nationhood. Indian nations should press hard for changes in the federal government's current Self-Governance Policy to further expand the matters of mutual concern that are addressed by agreement rather than colonial edict.



In a very fundamental way, the genocidal actions taken by the United States throughout its history to eliminate the Indigenous peoples within its borders reflects one of the defining characteristics of what it means to be an American. America is an immigrant nation and its history is one of taking pieces of humanity from all over the world and reassembling them into a new and vibrant society. To achieve success in this process has required that American culture have as one of its critical components a cultural grinding mechanism that easily effectuates the transformation and assimilation of immigrant populations. Anthony Kronman, the Yale Law School Dean, has identified these "disintegrative forces" within American society as; privatization, "the tendency in a large free enterprise economy" for individuals "to concern themselves exclusively with their own welfare"; specialization, the "inexorable tendency to separate those in different lines of work and to reduce their fund of shared experiences;" alienation, "the sense of detachment from one's work, and secondarily from other human beings;" and forgetfulness, "the loss of a sense of historical depth, the consequent disconnection of the present moment ... from all that went before or is to follow."

Being subjected to these forces of cultural transformation and assimilation is only legitimate if one consciously and willingly consents to it. Unfortunately, Indigenous people in the United States never freely consented to being absorbed into American society. Immigrant peoples, by virtue of leaving their home nations, obviously did so. The fact that most Indigenous people today may not even comprehend the magnitude of how much they have been assimilated into American society by these disintegrative forces does not obviate the underlying injustice of the genocidal act that have been taken to bring it about.

Thus, if Indigenous peoples in the United States are to remain a distinct part of humankind, then much of that distinctness--including the distinctness of political loyalty--must be consciously preserved and recognized. While this will require action on the part of the United States as well as the Indigenous nations, there should be no doubt that eliminating the forces that continue to threaten a distinct Indigenous existence rests primarily with the party that created them in the first place--the United States. Unfortunately, in an era when too many Indigenous people support the current American president's efforts to ensure that "we become one America in the twenty-first century," it may no longer be possible to mount the collective effort necessary to induce such corrective action.

Thomas Jefferson accurately predicted how these uniquely American influences would affect Indigenous people. In a speech to the Delawares, Mohiccons and Munries, he advocated that Indians should abandon the traditional way of life and choose to live like Americans. He reasoned that

once you have property, you will want laws and magistrates to protect your property and persons, and to punish those among you who commit crimes. You will find that our laws are good for this purpose; you will wish to live under them, you will unite yourselves with us, join in our great councils and form one people with us, and we shall all be Americans; you will mix with us by marriage, your blood will run in our veins, and will spread with us over this great island.

Against the backdrop of what has transpired during the last 200 years, it is hard to deny that Jefferson accurately predicted what would become of the Indigenous population.

*Associate Professor of Law and Director of the Tribal Law and Government Center, University of Kansas. Chief Justice, Sac & Fox Nation of Missouri. Member (Heron Clan) and former Attorney General of the Seneca Nation of Indians. A.B., Syracuse University; J.D., Harvard Law School.


**Meaning "real people" in the Seneca language.

Native Sense - Marshall Triology

NATIVE SENSE - MARSHALL TRILOGY - U.S. SUPREME COURT

http://nativesense.com
This email address is being protected from spambots. You need JavaScript enabled to view it.



 The following are brief synopsis' of the foundational cases that established the field of federal Indian Law. These cases arose against a backdrop of a growing federal government that was finding itself in increasing conflict with state governments over the extent of its powers. The states were attempting to assert governmental authority over tribal governments. This was particularly true with states in the South. This assertion was opposed by the federal government. In direct response to state assertion of power over tribes, Chief Justice Marshall crafted opinions, usually through consensus building with other justices, that gave rise to the concept of Indian nations retaining their inherent "nations" status, such that all relations with these "nations" were solely within federal power. These cases heralded the introduction of the unique trustee/ward relationship between the tribes and the federal government.

 WORCESTER V. GEORGIA, 31 U.S. 515, 8 L.Ed. 483 (1832). The State of Georgia attempted to force whites to register and pledge allegiance to Georgia law before entry onto the reservation was allowed. Worcester was a postmaster for the mail service and refused to register and pledge his allegiance. The State of Georgia charged him with a crime. The Supreme Court held that Indian tribes, as separate nations, had defined territorial boundaries within which state law was inoperative and ordered Worcester charges dismissed.

 CHEROKEE NATION V. GEORGIA, 30 U.S. (5 Pet.) 1 (1831). The Cherokee Nation sought review with the Supreme Court to impose an injunction on the State of Georgia prohibiting implentation of certain laws of that state on the Cherokee Nation reservation. Pursuant to the Constitution, all regulations concerning commerce with Indian nations were within the sole power of the federal government. In what is known as the Commerce Clause, the Founding Fathers empowered Congress to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes." The Supreme Court was authorized to hear only matters of "original jurisdiction", that is, matters expressly provided for in the Constitution. The Supreme Court held that the Cherokee Nation was not a foreign nation, rather a "domestic dependent nation" subject to the sovereignty of the United States federal government. Since the tribe was not a "state" nor a "foreign nation", the Supreme Court's held that the motion for an injunction was not a matter of original jurisdiction and refused to grant the injunction.

 JOHNSON v. M'INTOSH, 21 U.S (8 Wheat) 543 (1823). This case involved a dispute between two white men who held conflicting titles to land sold within the reservation to them. Johnson held a title sold him by the Tribe within the reservation. Chief Justice Marshall, examined the history of how land was acquired during the European invasion and ultimately held that the tribe did not have an enforceable title to the land it sold. The Indians enjoyed a right of "occupancy" only. The ultimate title to land had passed to the United States government under a principle called "discovery."

The "discovery doctrine" was developed by the Spanish philosopher, Vittorio, in an attempt to justify and explain the taking of land from aboriginal people. In its essence, Vittorio opined that it was the manner in which the civilized nations dealt with each other as it pertained to the land, that governed who had title. A European nation that discovered land occupied by aboriginal people, assumed certain rights over that land that were recognized by the other European nations. It was these "recognized" rights that were passed on to the United States when it won the War of Independence. I will not attempt to go on a further dissertation on the doctrine, except to say that, in it, Marshall found the rationale for asserting federal title power over the land versus state power. As a result, with the adoption of the "discovery doctrine," the Court held the title to land passed to the plaintiff by the Illinois and Piankeshaw tribes was invalid because Indians held only a title of occupancy, and not full title.

Contested Meanings: Native American Grave Protection Laws

Suzianne D. Painter-Thorne


Excerpted from: Suzianne D. Painter-Thorne, Contested Objects, Contested Meanings: Native American Grave Protection Laws and the Interpretation of Culture , 35 University of California Davis Law Review 1261- 1303, 1262-1264 (June, 2002) (299 Footnotes Omitted)



At the close of King Philip's War in 1676, Pilgrims in the town of Plymouth beheaded the Wampanoag Chief, Metacom. The colonists placed Metacom's severed head on a spike, where it remained on display for nearly twenty years. The Colony's religious leaders described their action as the proper way to deal with Native Americans, whom many of these leaders considered servants of the devil. The display served as a reminder--to both the Pilgrims and the Wampanoag--of the colonists' dominance over the native people. Thus, this first exhibit of Native American remains served both a political and religious purpose for the European exhibitors.


In the nineteenth century, museums provided more extensive displays of Native American remains and cultural objects. Museum curators determined which cultural objects in their possession would represent Native American culture. More importantly, these curators also determined how to display those objects and influenced the meanings attached to them. Without property rights over their ancestral remains, the tribes were unable to control the representation of those objects. Like the Pilgrims' display of Metacom's head, these subsequent exhibits of native remains failed to incorporate the views of those they purported to represent.


Since the early excavations of their burial sites, Native Americans sought recognition of their rights over their ancestors' remains and funerary objects. However, for much of the period after initial contact with Europeans, Native Americans lacked sufficient political influence to bring about any change. This condition of political powerlessness began to shift in the 1980s, when Native American activists focused on the theft of their tribes' ancestral remains and sacred objects. These activists raised concerns about the desecration of their ancestors' burial sites and the removal and collection of their ancestors' remains and sacred objects by museum curators and archaeologists. Further, the activists sought the return of Native American remains so that the tribes could rebury their ancestors according to their cultural traditions. Native Americans, however, lacked any legal claim to the remains and sacred objects.


Congress addressed the activists' demands by passing two laws granting Native Americans greater control over their tribes' ancestral remains and cultural objects.1 The first is the National Museum of the American Indian Act (Museum Act), passed in 1989.2 The second is the Native American Graves Protection and Repatriation Act (NAGPRA), passed in 1990.3 These laws provide Native Americans the right to control their ancestral remains and funerary objects. Control over the physical objects of their culture is vital to the ability of these tribes to communicate their own cultural image.


While the Museum Act and NAGPRA grant Native American tribes the right to control the physical objects of their cultures, many Native Americans continue to seek control over nonmaterial aspects of their cultures, including control over the meaning ascribed to their history and culture. Although it is important to remember that there is not one unified view of native culture held by all--or even most--Native Americans, such control is nevertheless essential to a tribe's ability to construct and debate its own cultural identity. The extent to which physical control of objects provides for the control of cultural identity is the focus of this paper

This Comment argues that the Museum Act and NAGPRA recognize a property right that extends beyond the ownership of cultural objects.

Part I of this paper provides an historical, social, and legal context to the issue of control of Native American culture.

Part II discusses the Museum Act and NAGPRA in detail.

Part III argues that these laws supplement traditional notions of property by granting control over not only objects, but also the meaning attached to those objects. Even if not exclusive, this grant of control ensures that Native American voices are considered in the representation of native culture.

Indian Redress

 William Bradford

excerpted from: William Bradford, With a Very Great Blame on Our Hearts": Reparations, Reconciliation, and an American Indian Plea for Peace with Justice, 27 American Indian Law Review 1-174, 19-75 (2002-2003) (811 Footnotes)

II. The Claim for Indian Redress: How the West Was Stolen

Concealed behind the benevolent facade of the American mission civilisatrice is the brutal reality of invasion, slavery, forced relocation, genocide, land theft, ethnocide, and forcible denial of the right to self-determination wholly incompatible with contemporary understandings of U.S.-Indian history and with the notions of justice informing the human rights regime. It is perhaps impossible to overstate the magnitude of the human injustice perpetrated against Indian people in denial of their right to exist, on their aboriginal landbase, as self-determining peoples: indeed, the severity and duration of the harms endured by the original inhabitants of the United States may well exceed those suffered by all other groups domestic and international.

A. Genocide: "The Metaphysics of Indian Hating"

1. Conquest

On May 3rd, 1493, Pope Clement called upon Spanish conquistadores to discover and conquer new lands in the Americas in order to draw "barbarous nations" to the Christian faith. The subsequent invasion of the Western Hemisphere, predicated upon a jurisprudential assumption that the indigenous inhabitants were a distinctly inferior species, was governed by the legal principles of discovery and conquest. The latter provided as a matter of international law that a nation became the sovereign of territory its agents "discovered" provided it subjugated the population and annexed its lands. Although prudence restrained pre-eighteenth century aggression in lands that became the United States, conquest was eventually applied in all the Americas, and the period subsequent to first contact is notorious as the "Age of Genocide."

2. Slavery

In the aftermath of conquests, colonizers offered financial incentives to corporate slavers to create bounties between tribes, thereby facilitating a divide and conquer strategy that served territorial objectives while providing free labor to developing economies. The abomination of the Indian slave trade

played a significant role in both colonial trade and in the extermination of most of the southeastern tribes ... [T]he Indian slave trade involved all the colonies and ... involved all the horrors long associated with the worst images of slavery, including beatings, killings, and tribal and family separation. It became routine policy to separate families, sending the Indian men off to the northern colonies while keeping the women and children in the south .... In the east, Indian slaves became a viable component of trade, along with deer skins and furs; in the west, American Indians were enslaved by the Catholic Church in order to build and maintain its missions ... Indian slavery was ... an integral part of the colonial economy.

Although Indian slavery had largely discontinued in favor of African American slavery by the early nineteenth century, Californian Indians, as late as the mid nineteenth century, were regularly raided by slave-hunters looking for men to work in mines and women to work in brothels, and extermination befell many who resisted.

3. Transcontinental Ethnic Cleansing

The precise number of Indian victims of the genocide committed by Euro-American colonizers over the past half-millennium evades quantification. Estimates of the pre-Columbian indigenous population in what later became the United States range from five to ninety four million, yet by 1880 disease, slaughter,slavery, and aggressive wars reduced their number to as few as 300,000 -- and declining. Although luminaries such as President Thomas Jefferson denounced the genocide as it unfolded, the prevailing racial ideology reassured the public that the disappearance of an inferior people before the United States' continental advance was a "historical and scientific inevitability." Initially, a legislative approach effected physical removal of Indian people from ancestral lands; however, when this proved politically inefficient, measures more clearly within the inherent powers of the executive and therefore less susceptible to judicial review were devised: Indian genocide became official policy of the United States and its political subdivisions.

In the aftermath of the Civil War, the might of the U.S. Army was directed toward Indian eradication. Military and civilian contractors induced deliberate starvation by destroying primary food sources such as the buffalo, yet Indian tenacity necessitated more direct applications of force. One by one, the Seminole, Nez Perce, Lakota, Shoshone, Comanche, Apache, and other tribes were hunted, pursued, cornered, and murdered. A series of "massacres" were written in Indian blood on the pages of American history: Blue River (1854), Bear River (1863), Sand Creek (1864), Washita River (1868), Sappa Creek (1875), Camp Robinson (1878), Wounded Knee (1890), and about forty others. Gruesome, shocking, deliberate exterminations of defenseless women and children, were perfectly legal exercises of State and federal authority as the law then stood. By the conclusion of the "Indian Wars" in 1890, the pre- Columbian Indian population was reduced as much 98%, and an Indianrein United States was not beyond possibility. Although radical depopulation of Indian land may have been merely an efficient means to capture and annex territory, the United States nonetheless committed genocide in overtly manifesting a clear intent to kill, and killing, Indians as such.

B. Land Theft

The relationship between the land and Indian people is fundamental to their physical and cultural survival as distinct, autonomous groups. Indian land is constitutive of the Indian cultural identity and designative of the boundaries of the Indian cultural universe. Indian land transmits knowledge about history, links people to their ancestors, and provides a code of appropriate moral behavior. From the moment of first contact with European "discoverers," Indians proclaimed a sacred responsibility to preserve and transmit Indian land, and with it, identity, religion, and culture, to successive generations. The discharge of that responsibility was compromised by federal policies of land acquisition ranging from fraud and deceit to expropriation and outright theft.

Throughout the seventeenth and early eighteenth centuries, prudence directed Euro-Americans to formally recognize militarily potent Indian tribes as independent societies and accord them diplomatic recognition as sovereigns. Even subsequent to the defeats of France in the Seven Years' War in 1763 and Britain in the War of Independence in 1781, the Euro-American foothold in North America remained tenuous, and ongoing military insecurity stymied territorial ambitions while stifling any notions of conquest. Moreover, the United States' land hunger was largely sated by available space within the original thirteen colonies, and land acquisitions from Indian tribes were of necessity accomplished by treaties of cession after peaceful negotiations. Still, if during its first several decades of existence the fledgling government was obliged to recognize the sovereignty of Indian nations and to respect Indian land titles as a matter of international and domestic law, from the moment of its creation the United States was crafting legal solutions to the "problems caused by the ... fact that the Indians were here when the white man arrived[.]"

1. Fraud and Firewater

The Indian conception of land as utterly incapable of reduction to ownership as property by human beings -- an essential element of pan-Indian cosmology -- crippled tribes in their early negotiations with U.S. representatives operating within an imported common law tradition commodifying land. While Indian tribes generally understood treaties to create sacred kinship ties entitling the United States to share and settle the lands in question, the goverment, disinterested in kinship but desirous of no less than fee simple title, manipulated Indian (mis)appreciations of Western property rights in treaty texts incomprehensible to Indian negotiators not proficient in the English language. Moreover, U.S. negotiators, notwithstanding their claims of moral ascendancy over Indian tribes as the philosophical basis for acquiring dominion over their lands, secured further fraudulent advantage by dulling Indian wits with alcohol. Deliberately faulty translations of treaty text and inaccurate explanations of treaty terms to Indian tribes possessed of limited language skills and a Weltanschauung in which land is a sacred living thing incapable of reduction to ownership exacerbated a fundamentally unequal bargaining position and erased the line between consent and coercion; worse, later treaties simply codified the results of more pronounced forms of coercion, including conquest and genocide. In sum, many, if not all, of the Indian treaties ceding land to the United States are physical embodiments of the fraud, unconscionability, and duress governing their drafting and as such are arguably subject to revisitation, reconstruction, and even renunciation as

2. Conquest by Fiction: Johnson v. M'Intosh

By the early nineteenth century the U.S. population was clamoring for more Indian land even as Indian tribes, increasingly convinced of the insatiability of white land hunger, began to resist. Original legal protections for Indian land grew incompatible with white notions of progress, and pressure mounted to annul the marriage of political convenience and legal principle effected by the discovery doctrine. However, even as the United States waxed ever more militarily potent, Indian tribes retained the capacity to defeat conquest, and thus it fell not to armed force but yet again to law to wrest away additional Indian lands. The seminal case Johnson v. M'Intosh provided the opportunity whereby to expand the Euro-American foothold.

Although he acknowledged both the "impossibility of undoing past events and the fact that the sovereign he represented was born in sin," and although he recognized that Indian tribes were as yet independent political communities in retention of original rights to property and self-governance, Chief Justice John Marshall accepted the extravagant arguments that European discovery, not Indian occupancy, constituted ultimate title to lands in the United States and that purchase or, in the alternative, conquest of territories by the discovering sovereign conferred good title to those lands. While Marshall conceded that such arguments "may be opposed to natural right, and to the usages of civilized nations," he drew from the doctrine of stare decisis, comparisons to the practice of other states, and ultimately a jurisprudential affirmation of the "inferiority" of Indian nations to find that "if [such arguments] be indispensable to that system under which the [U.S.] has been settled, and be adapted to the actual condition of the two people, it ... certainly cannot be rejected by Courts[.]" Although the progressive Marshall intended to impose legal limits on the future conduct of conquerors less charitably disposed toward Indian tribes than he, M'Intosh fueled subsequent claims that "Indians were conquered as soon as John Cabot set foot on American soil," "that it only required the inevitable march of history to carry out this preordained outcome," and that "tribal property rights are not properly understood as rights at all, but merely as revocable licenses, or ... 'permission by the whites to occupy."'

3. Trust Doctrine: Cherokee Nation v. Georgia

Subsequent cases further diminished tribal sovereignty over Indian land. In the 1831 case, Cherokee Nation v. Georgia, the second in the Marshall Trilogy, Chief Justice Marshall determined that, despite their retention of a set of reserved rights and powers to include occupancy of their lands subject only to voluntary cession, Indian tribes were "domestic dependent nations" and "wards" under U.S. "pupilage," not sovereign foreign nations or states within the meaning of the Constitution, and that as a result the Court could not take original jurisdiction over a case wherein the Cherokee sought to enjoin enforcement of the laws of Georgia on land guaranteed by treaties. Although Marshall held that the United States owed a common-law trust duty to Indian tribes, not only was this duty specifically held to be judicially unenforceable, but an examination of the other justices' opinions, construing the U.S.-Cherokee relationship as that between a conqueror and a subject people, hinted that the "trust doctrine," true to its roots in medieval Christian xenophobism and scientific racism, would serve as yet another legal tool with which to diminish Indian sovereignty. In short order, the United States claimed trust title to all Indian lands within its borders.

Although U.S. federal Indian policy with respect to Indian land under the trust doctrine generated a host of express obligations to ceding Indian tribes undertaken in subsequent treaties, statutes, and executive orders to create and protect permanent land reservations as against States and private parties, popular political pressure ensured that these judicially unenforceable obligations were almost never discharged with "good faith and utter loyalty to the best interests" of the Indian tribes.

4. Plenary Power: Worcester v. Georgia

In Worcester v. Georgia, Marshall interpreted the Commerce Clause of the U.S. Constitution to hold that Congress had "plenary" power over Indian affairs. Although the precise meaning of the term "plenary" was not subject to ready determination, Worcester loosed Congressional plenary power upon Indian tribes, qualifying all remaining tribal powers by express congressional legislation by 1900. Moreover, by the late 1840s, with the military power calculus shifting and gold discovered out West, "whites c[ould] no longer be kept out of Indian country." By adding plenary power to the legal arsenal, Worcester and its progeny ushered in a violent phase of expansion, executed under the rubric "Manifest Destiny."

Over the next several decades the Army prosecuted a sequence of wars to perfect discovery by divesting Indians of their possessory interest and enabling the United States to claim trust title and exercise plenary power. Still other wars were fought to suppress Indian unrest after violations of Indian treaties. After each genocidal campaign, a dwindled, harried, and hungry Indian nation in extremis sued for a peace that surrendered vast tracts of lands and political freedom in exchange for dependence and "civilization." During the first decade after the Civil War, the United States acquired nearly one-fourth of the land within its modern contiguous boundaries entirely free of any legal obligation to pay more than token compensation. Yet despite distribution of millions of cheap acres to settlers, the national greed for space, fueled by an evolving inter-branch compact authorizing takings of Indian land, dictated confiscation of the remainder of Indian country.

5. Sunset of Indian Sovereignty: End of the Treatymaking Era

In 1871 Congress exercised plenary power to strip away the last formal vestiges of Indian juridical sovereignty by providing that "[n]o Indian nation or tribe shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty." No longer compelled as a matter of federal law to treat Indian nations as foreign sovereigns or to regulate Indian affairs by treaty, the government could now acquire Indian land without even the pretense of consent, and Congress, unwilling to allow "(a)n idle and thriftless race of savages ... to stand guard at the treasure vaults of the nation[,]" gave the Army free rein to employ genocide to crush the last obstacles to the orderly march to the Pacific.

6. Allotment to Present: "Mighty Pulverizing Engine"

By 1887 all two billion acres of the U.S. continental landmass had been discovered, conquered, and expropriated save for the 138 million acres apportioned to Indian reservations, which the General Allotment Act of 1887 (Allotment) targeted for further dismemberment and colonization. Allotment, an exercise of plenary power, subdivided large swaths of communally- owned tribal lands into parcels for the private use of individual Indian allottees under a twenty-five-year period of federal guardianship. Upon expiration of the trust period, the United States issued an unrestricted fee patent to allottees who proved "competence," assumed U.S. citizenship, and paid real estate taxes. For most tribes, Allotment was devastating: although tribal governments remained in situs on vestiges of reservations still under trust protection, by encouraging Indian individuals to formally withdraw from the tribe in exchange for a per capita share of tribal land and by meeting the failure of unemployed Indian allottees to pay property taxes with foreclosure, reversion of title, and sale to white speculators at prices far below market value, Allotment abolished Indian reservations as autonomous and integral sociopolitical entities.

Although several Indian tribes attempted to block Allotment, the Supreme Court ruled not only that Indian land was subject to the sovereign right to take for public use upon payment of just compensation, but that takings of Indian land, described as a "legitimate form of 'investing for thetribe"' that did not require either consent or notification, were precluded from judicial review. By 1934, Indian lands had been reduced by a further ninety million acres, with almost twenty-six million lost through fraudulent transfers, and of the two billion acres of formerly contiguous tribal land holdings all that remained was a fragmented, forty-seven million acre mosaic of reservation lands under trust, plots owned in fee simple by whites, and plots held by Indian individuals no longer members of any tribe. Moreover, 95,000 Indians were now landless. In sum, the synergy of discovery, the trust doctrine, and plenary power as manifested in Allotment perfected the legal theft of Indian land.

Despite infrequent restitution and compensation for Indian land, the Constitution affords no protection to Indian tribes, and what remains of their landbase continues under siege. In light of the progressive evolution of rights regimes it is surreal that the United States continues to wield:

[a]bsolute, unreviewable power to continue the conquest of Indian nations that have not yet been forced to sign a treaty ... [and to] take land held under original Indian title as it pleases, ... without any constitutionally mandated obligation to pay compensation for the taking of land possessed by Indian nations for thousands of years, and despite the fact that the members of such tribes are United States citizens otherwise protected by the Constitution.

C. Ethnocide

With its Manifest Destiny secured, the United States, heretofore oriented toward the physical separation and extermination of indigenous people, changed tacks to follow the prevailing political winds, and U.S. Indian policy adopted a treble action agenda for implementation in conjunction with private actors: liquidation of Indian culture, eradication of tribal self-government, and forced assimilation of "civilized" Indians, shorn of cultural and social attachments, into the body politic. These interrelated policies, along with the specific laws, regulations, practices, and customs developed throughout the late nineteenth and much of the twentith centuries to deny Indians the right to maintain separate and autonomous polities and preserve their culture from interference, painted Indian tribes as targets for a sinister "genocide-at-law." Promising to free "backward" Indians from an "outmoded past" and endow them with "civilization," "education," and "prosperity" whether they desired these "blessings" or not, the BIA, along with religious missionaries, set about dissolving the "glue" of Indian society.

1. Cultural Liquidation

a) "Kill the Indian to Save the Man"

Of all the processes engineered to strip away the Indian sense of self, world view, and tribal identity, perhaps the most nefarious was Congressional funding of religious schools geared toward eradication of Indian culture and the substitution of Euro-American, Christian culture in its stead. Beginning in the late nineteenth century, Indian children were taken, often without parental or tribal consent, to boarding schools where their hair was cut, their tribal clothing exchanged for Western garb, forced manual labor was required, and harsh abuses of a physical and sexual nature were meted out for speaking tribal languages or engaging in customary religious practices. During their residence, Indian children were prohibited from visiting their relatives, who, as a result, they often did not see for years. Removed Indian children, and their descendants down through the generations, have typically lost the use of their languages, been denied cultural knowledge and inclusion, and been deprived of opportunities to take on tribal responsibilities.

b) American Crusade: Eradication of Indian Religion

While Indian children were spirited off to forced conversions at distant boarding schools, the United States, exercising its plenary power, posted Christian missionaries to the reservations as Indian agents with orders to ban tribal religions, initiate Christianization of tribal populations, and pacify political and cultural discourse. At the behest of the Indian agents, Congress launched a broad-based assault upon Indian religion with laws that weakened "marriage, family and clan relationships, the distribution of property, and social and political organization." Courts of Indian Offenses ("CIO") enforced these stringent social control mechanisms. In arguing before Congress for the suppression of tribal dancing and feasting, the Secretary of the Interior proclaimed that "[i]f it is the purpose of the [U.S.] to civilize the Indians, they must be compelled to desist from ... savage rites and heathenish customs." For most of the twentieth century, non-Indians played "cultural game warden," circumscribing the legal exercise of Indian religion. Despite passage of the American Indian Religious Freedom Act (AIRFA) establishing the federal policy to "protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise ... traditional religions," in practice Indian religions have proven too enigmatic for non-Indian jurists to admit them within the meaning of "religion" as enunciated in the Bill of Rights. For Indian claimants, who have not won a single case of religious freedom since AIRFA was signed in 1978 and who may not celebrate the sacraments of their faith without threat of prosecution for violation of controlled-substance or species- protection legislation, the American tradition of religious freedom has been a "cruel hoax." With AIRFA ineffectual in the courts and Congress unwilling to strengthen statutory protection, a new millennium reveals only that Indians' freedom to preserve their religious beliefs "amounts to nothing more than the right to believe that their religion will be destroyed." Even as Indians continue to assert that denial of their religious freedom is a deprivation of the highest magnitude, the preservation of teachings, values, objects, and places for which they bear sacred inter generational responsibility is yet diminished by federal law.

2. Suppression of Indian Self-Government

The United States' Indian policy has long disabled autonomous determination of the political organization, economic development, and legal regulation of Indian tribes and people, principally by disintegrating tribal institutions and supplanting them with Euro-American forms of governance. From the dark ages of the Allotment Era to the present, Indian legal institutions have presented an attractive point-of-entry to agents of forced "social evolution" whose labors have wrought the domination and physical assimilation of Indian tribes and people.

a) Legal Imperialism

Although no Indian tribe had codified a body of written law as of 1776, many tribes had "rules of conduct and attitudes of the mind concerning their kinship system." Tribal legal systems conditioned members to adhere to a sacred system of well-elaborated tribal values of order, harmony, interdependence, and peace. Consequently, disputes within the tribe were typically resolved not in formal institutions using adjudicative procedures, but rather with the aid of respected elders who would guide disputants to a restorative compromise. "[T]hough it appeared to the casual white observer that anarchy reigned," spiritual consensus produced a coherent jurisprudence that served Indian tribes well despite the absence of the "paraphernalia of European civilization." In contrast, the Anglo-European model imported by discovering nations focused on individual rights, the placement of the burden of proof on accusers, and the punishment and removal of offenders from the community by imprisonment. Despite retention of nearly exclusive subject matter and personal jurisdiction to the territorial limits of their reservations even as of the late nineteenth century, Indian tribes, with no easily identifiable legal institutions, procedures, or records, were beset by a constellation of religious proselytizers, "friends of the Indian," and BIA agents who, concluding Indians were without law or justice, imposed legal "civilization."

The 1883 case of Ex parte Crow Dog, in which the U.S. Supreme Court overturned, for lack of jurisdiction, the federal conviction of an Indian charged with the murder of another Indian, induced Congress to extend the complete coercive power of federal criminal law to thereservations. Determined to rectify the barbarous, "savage quality" of tribal law and mollify public fervor, Congress applied "white man's morality" with the Major Crimes Act of 1885 to expressly establish concurrent federal jurisdiction over major felonies committed by Indians on reservations regardless of the status of their victims. Legal challenges to the Major Crimes Act failed to reestablish tribal legal self-determination but provided the judiciary occasion to further undergird the trust doctrine and plenary power.

The paternalistic assault upon Indian legal sovereignty, joined on the religious front with the adoption of the CIO/CFR courts, intensified during the Great Depression with the passage of the Indian Reorganization Act of 1934 ("IRA" or "Dawes Act"). Although the IRA expressly recognized that tribes might create their own courts and enact their own laws, the legislation imposed BIA-drafted boilerplate constitutions that created strange new substantive and procedural obligations. Moreover, after the passage of Public Law 280 in 1954, providing that specified states could unilaterally accept concurrent jurisdiction over Indian territory within their borders, the entire body of state civil and criminal law was extended to classes of cases involving Indians. Fearing that failure to create acceptable tribal courts would result in states taking jurisdiction over all cases occurring on reservations, and understanding that review of plenary power in the exercise of regulatory jurisdiction over Indian affairs was an exercise in futility, the tribes begrudgingly implemented constitutions and adversarial justice systems.

The penultimate blow fell in 1968 with the Indian Civil Rights Act ("ICRA"), which imposed many of the individualist strictures of the U.S. Constitution -- in particular the Bill of Rights and the Fourteenth Amendment -- on tribal governments and smoothed the way for what Indian activists branded "white-man's justice." Although the ICRA amended Public Law 280 to require tribal consent for the exercise of state civil and criminal jurisdiction and left interpretation of the legislation to the tribes themselves, by the early 1970s the centuries-long federal assault on tribal legal systems had displaced pre- Columbian methods of social control from tribal courts where an Anglo-American adversarial legal system had acquired tenure. BIA-drafted codes permitted tribal court judges to apply tribal statutes, yet federal and state laws were supreme, and federal judicial review steered tribal court jurisprudence into lockstep conformity with the U.S. legal system. Individual reliance on foreign legal concepts and advocacy removed Indian disputes from their natural contexts and compounded growing acrimoniousness in reservation communities. With tribal governments increasingly shackled by American legal hegemony, enforcement of judgments became far more difficult, further damaging tribal harmony. When a landmark 1978 case extended the United States' legal colonization of Indian tribes still further by denying them jurisdiction over the acts of non-Indians occurring on reservations, a new generation of critical legal jurisprudence, influenced by the Civil Rights Movement, began to question the foundations and institutions of federal Indian law.

Although tribal proactivity and federal interposition hold state law partly at bay, at present Indian tribes may exercise jurisdiction solely over consenting tribal members on fragmented remnants of former tribal holdings. Even this vestige of sovereignty is threatened by the plenary power to extend all federal, and, by inaction, state laws to the reservations. Rediscovery of tribal dispute resolution methods after a century of legal imperialism, and their reintroduction in Indian Country as an assertion of legal autonomy, are pressing concerns of Indian scholars and activists, yet reacquisition of Indian law is inadequate by itself to offset the crushing force of federal Indian law, a mechanism "genocidal in both its practice and intent."

b) Political Domination

Although Indian tribes are separate sovereigns in retention of all rights and powers not explicitly ceded to the United States by treaty or abrogated by explicit legislative intent, U.S. Indian policy has been generally hostile to the right of Indian tribes to self-govern as politically distinct communities. If the theme of the nineteenth century was eradication of Indians and the seizure of their land, the motif of the twentieth century was the destruction by law of tribal sovereignty. With the passage of the IRA, Indian tribes, traditionally hyper democratic and consensus-driven institutions, were reconstituted in the image of non-Indian society and subjected to the veto power of the Secretary of the Interior. Subsequent legislative and judicial action has stripped artificially reconstructed Indian tribes of most of their inherent sovereignty over their form, property, and powers. Relations with post-IRA Indian tribes, rather than proceed as if between mutual sovereigns, are conducted largely through a welter of executive agencies. As a result, the terms and conditions of Indian existence are frequently dictated from Washington, rather than debated on the reservations. Federal agencies to which Congress delegates power smother tribes under a blanket of regulation and programming that, although it provides the means of subsistence, suppresses traditional modes of social control and value allocation, and the Secretary of the Interior looms large over every aspect of tribal life.

Driven in part by the Civil Rights Movement, a "dawning recognition that [Indians] must be freed from federal dominance ... and that Indian[s] must have more control over ... their lives and institutions" spurs calls to end the fundamental asymmetry of U.S.-Indian relations. Nevertheless, several decades after official introduction of the federal policy of "Indian Self- Determination," many Indian tribes remain politically subordinate to and, consequently, economically dependent upon the United States Whether political subordination of Indian tribes is the translation of the majoritarian principle of democracy into action or a statist demonstration, by induction, of the inferiority of competing governance structures and philosophies, Indian Self-Determination, absent an ideological revolution spanning from the treetops of the international human rights regime to the roots of federal Indian law, will remain a chimera.

c) Ethnodevelopmental Suppression

Despite significant endowment with resources natural and human, many Indian tribes remain ensnared in a web of economic dependence deliberately fashioned by the United States over centuries from the strands of institutionalized domination, geographic dislocation, gross undercapitalization, and various legal disabilities. Although the non-legal obstacles to Indian economic independence, the first and foremost goal of tribal governments, are very real, the constraints imposed by federal Indian law are even more formidable.

The United States holds trust title to Indian lands and resources, and Indian property owners cannot sell, lease, or borrow against their property without the express approval of the Secretary of the Interior. As the very question of Secretarial approval introduces political uncertainty, trust- based land-tenure constraints diminish the relative output-values of land-intensive enterprises such as agriculture, ranching, and resource development. Moreover, federal management of Indian resources grants the government paternalistic control over Indian economic destiny. Although the United States is under amoral obligation to husband Indian resources, diligently advance Indian land claims against the states, secure adequate funding for Indian social services, and enhance the economic well-being of Indian people, federal agencies have withheld basic subsistence, mismanaged tribal resources, and violated the animating principles of the trust with near-impunity: only in very recent years has the trust doctrine charged the United States with judicially enforceable obligations apart from those incorporated in specific treaties, statutes, or executive orders. Although the protective dimensions of the trust doctrine have broadened, aggrieved Indian beneficiaries still lack effective legal recourse for its breach.

Plenary power, as well as judicial review of its exercise, further stifles Indian economic development by enabling Congress to terminate federal benefits and restrict or even abrogate Indian rights reserved under treaties. Domestic lobbying to induce Congress to allow non-Indian economic interests access to Indian resources threatens tribes with divestiture of sustenance, culture, religion, and income. Furthermore, although Indians, as prior sovereigns, reserved rights in treaties to, inter alia, use water, hunt and fish, and engage in traditional modes of production and worship on customary lands and waters, recent federal jurisprudence suggests that Indian reserved rights are "temporary and precarious" privileges subject to revocation even in the absence of explicit Congressional intent to abrogate them. The synergy of the trust doctrine, plenary power, and judicial review of Indian treaties in derogation of Indian rights are felt most acutely when tribes employ development methods that promote Indian culture, spirituality, and identity. As Indian "ethnodevelopment" threatens the regulatory jurisdiction, market power, and legal sovereignty of the states and the United States, federal Indian law has been carefully crafted to check its expression.

3. Forced Assimilation

Early U.S.-Indian treaties did not contemplate incorporation of Indians as United States citizens, and later treaties incorporated only those individuals who had been objectively "detribalized." Against the force of a clear general preference for a primary affiliation with tribal institutions, federal Indian policy, for more than a century, has subsumed individual Indians within the broader body politic, thereby facilitating seizure of tribal lands and resources, elimination of contending governmental entities, and eradication of a critical mass of practitioners of alien cultures and religions "stand(ing) in the way of progress." The first such assimilative measure, Allotment, divested many Indians of their lands and created great physical and social distance between them and their tribes. The imposition of U.S. citizenship in 1924 added legal momentum to forced assimilation by foisting an awkward dual allegiance upon Indians and pressuring them to transfer loyalties from their tribes to the United States

a) Termination

Although assimilationist pressure abated during the Depression and World War II, with the onset of the Cold War and mounting fears of enemies within, the preservation of distinct political communities within U.S. boundaries became too offensive for many non-Indians to tolerate. House Concurrent Resolution 108, known colloquially as Termination, exercised plenary power to "make the Indians ... subject to the same laws and ... responsibilities as are applicable to other citizens of the [U.S., and] to end their status as wards[.] Termination, under the direction of the former head of the War Relocation Authority, ended the U.S. trust relationship with over 100 selected tribes, curtailing federal benefits and services, forcing dissolution of tribal governments, and distributing former tribal lands and assets on a per capita basis. By legislatively disappearing Indian tribes, Termination stripped Indian people not only of primary sources of political allegiance and economic sustenance but of sacred sites and other fonts of cultural renewal. Assimilationist pressure mounted, and in 1954 Public Law 280, by according states extensive jurisdiction over Indian tribes and individuals, granted non-Indian institutions of social control the legal authority to adjudge and condemn Indian domestic relations and employment practices.

b) Relocation

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

By 1970 reservation populations had dwindled so far that a final solution to the "Indian problem" appeared to be at hand, and yet the "stubborn [Indian] refusal to ... become simply another American citizen" has sustained Indian tribalism against a malign tide of assimilationism unto the present day. Although Indian individuals currently possess both tribal and federal citizenship, federal Indian law treats Indian tribes as subordinate governments, and thus meaningful "dual citizenship" -- predicated upon the assumption that tribal and federal governments exercise separate, if overlapping, spheres of authority in "good faith" -- is a legal fiction. For many Indians, this forced "split identification of citizenship" was a genocidal act destructive of tribal political identities, and few believe that tribal and national political participation can coexist when Indian self-determination is construed to threaten U.S. territorial integrity.

D. Summary: The Claim for Indian Redress

More than two centuries of genocide, land theft, and ethnocide, implemented by the brutal instrument of federal Indian law, have depopulated and seized Indian land and eliminated rival polities within the colonial state constructed thereon. The historical review of U.S.-Indian relations has revised a mythical account in order to prepare the intellectual terrain for contemporary remediation. Although the role of the United States in the deliberate destruction of Indian populations, property rights, and cultural patrimonies is for most Americans a hidden history, it presents an archetype for the contemporary exposition, analysis, and redress of a gross human injustice. However, even if re-envisioning history instructs the non-Indian majority in its moral and legal obligations to redress Indian claims, unless two fundamental, transformative principles guide and inform redress, it is foreordained to fail.

First, because a set of institutionalized legal impediments runs through the domestic order and trammels Indian rights, it falls to a process of legal reform to make the nation safe for the peaceful coexistence of basic value-differences between people as well as between peoples. Necessary reforms will include legislation to strengthen protection of Indian religious, cultural, and property rights; create specific remedial programs; tighten judicial canons of construction to resolve ambiguities and construe treaty terms in favor of tribal reserved rights; and incorporate those principles of conventional and customary international law protective of the rights of indigenous peoples. A Constitutional amendment may be necessary to renounce plenary power and restore Indian tribes to a position superior to states in the federalist hierarchy. Proposed reforms will "portend changes in power and well-being for specific persons or groups" and may compromise the universalist approach to conceiving of, promoting, and protecting rights. Redress thus invites contestation over its form, pace, and scope.

Consequently, the second principle, a corollary to the first, is that the non-Indian majority must assist in the infusion of "Indian Self-Determination" with genuine meaning. The United States and Indian tribes are not only intertwined geographically and historically, they are interdependent. Indian autonomy and prosperity on the one hand, and U.S. legitimacy and global leadership on the other, are inseverable, with each a necessary condition for the full realization of the other. Enhancement of the positive externalities of reciprocal transactions will serve both Indian and non-Indian peoples. If U.S.-Indian relationships advance on the basis of a recognition of, and respect for, mutual sovereignties, with differences and disputes attended not by coercion and domination but by negotiation and harmonization, a new era of domestic peace with justice, more worthy of emulation and export than earlier periods of American history, will follow.

The next section defines and contrasts the theories, procedures, assumptions, and remedies that distinguish reparations and reconciliation, the dominant contending modes of redress available to group victims of human injustice; bring each mode to bear upon the Indian claim; and evaluate the relative utilities and disutilities of each.

[1]. The Lakota Indian, "American Horse," commented on the December 29, 1890, Massacre at Wounded Knee where U.S. Army troops of the 7th Cavalry slaughtered over 300 peaceful Indian women and children after a fruitless search for weapons in their encampment:

The women as they were fleeing with their babes were killed together, shot right through, and the women who were very heavy with child were also killed. All the Indians fled in these three directions, and after most all of them had been killed a cry was made that all those who were not killed or wounded should come forth and they would be safe. Little boys who were not wounded came out of their places of refuge, and as soon as they came in sight a number of soldiers surrounded them and butchered them there. Of course we all feel very sad about this affair. I stood very loyal to the government all through those troublesome days, and ... being so loyal to it, my disappointment was very strong, and I have come to Washington with a very great blame on my heart ....

WHEN SORRY ISN'T ENOUGH: THE CONTROVERSY OVER APOLOGIES AND REPARATIONS FOR HUMAN INJUSTICE 253 (Roy L. Brooks ed., 1999) [hereinafter BROOKS].

[a1]. Chiricahua Apache. LL.M., 2001, Harvard Law School; Ph.D., 1995, Northwestern University; J.D., 2000, University of Miami. Assistant Professor of Law, Indiana University, Indianapolis, Indiana.

The site is available without logging in. However, if you want to post a comment you must login. Your email address will only be use to provide updates on race, racism and the law.

 patreonblack02