Thursday, September 24, 2020

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We Live on Their Land

Anthony Peirson Xavier Bothwell

Excerpted from: Anthony Peirson Xavier Bothwell, We Live on Their Land: Implications of Long-ago Takings of Native American Indian Property , 6 Annual Survey of International & Comparative Law 175 - 209 (Spring, 2000)

At the dawn of the white man's millenium, the drums of 15 million ghosts echo silently across fields and forests, mountains and deserts, lakes and rivers of once proud peoples. While American society aspires to realize more perfect justice in the twenty-first century, surviving members of great tribes, heirs of a continent, are the poorest of the poor. Iroquois. Cherokee. Choctaw. Seminole. Pueblo. Apache. Navajo. Five hundred nations. Nations that were betrayed, subjugated, plundered and forgotten. We cannot undo that which was done--the breaking of treaties, the trail of tears, all the sorrows of long-ago years. We cannot bring back to the world of the living those who perished in the American holocaust. We cannot take away homes and enterprises of present- day Americans to pay tribute to indigenous people who passed to their final hunting ground in that apocalypse of more than a century ago. But if justice on this earth can be imagined, so can a practical way to achieve it. Provided, that is, we are willing to reconcile ourselves to each other, and to historical truth.

 

Before the first Europeans landed in what to them was a New World, as many as 15 million indigenous people lived in the area now occupied by the 50 states of the Union. The white man took their land and, in the doing of it, took their lives. The Native Americans were almost exterminated. By 1910, only about 200,000 American Indians still lived. Thus it was "proportionately as if the population of the United States were to decrease from its present level to the population of Cleveland." The magnitude of mass death was even greater than that of the Holocaust, in which six million Jews perished. The loss of the land, more than two billion acres from the Atlantic to the Pacific, was so vast that it admits of no comparison in world history.

 

The taking of the continent occasioned untold deaths due to battles, massacres, forced marches, starvation, disease and broken hearts. The white settlers brought from Europe "a terrible collection of poxes and fluxes, flus and fevers for which the reds had little or no natural immunity." An 1855 Sacramento newspaper editorial said:

 

The accounts from the North indicate the commencement of a war of extermination against the Indians .... The intrusion of the white man upon the Indians' hunting grounds has driven off the game and destroyed their fisheries. The consequence is ... starvation ... stealing and killing. Had reasonable care been exercised to see that they were provided with something to eat ... no necessity would have presented itself for an indiscriminate slaughter of the race.

 

The destruction of Native American nations is all the more ironic in light of the contribution Indians made to the formation of our country. Our Founders had extensive and generally friendly interactions with the Native Americans, who consequently exerted formative influences on our art, food and culture, our appreciation of nature, and our ideas about democracy. Their disrespect for authority influenced our own revolutionaries. Their penchant for helping others set an example for us. So did their thirst for freedom, and their commitment to participative democracy. Franklin, Jefferson and others internalized Indian political and social concepts, and embraced ideas of personal liberty that went far beyond anything ever imagined in England, from which the framework of our law came. Iroquois federalism--with six nations (Mohawks, Oneidas, Onondagas, Cayugas, Tuscaroras and Senecas) in a league, having checks and balances, separation of civilian and military authority, limited government, protection of individual rights, and tolerance for all religious views--set a model for our federal system.

 

. . . .

 

A high-level, broad-based commission should be established to conduct a serious public study of the feasibility of restoring Indian nationhood within practical boundaries. The President of the United States should appoint Indians and non-Indians, lawyers and non-lawyers, lawmakers and citizens, historians and futurists to the commission. The members should be people of diverse philosophies and faiths who share a commitment to human rights, an understanding of international affairs, and an open-minded willingness to seek practical compromise.

 

The State Department should conduct a review of United States obligations with respect to Native Americans under international human rights law. In the meantime, responsible agencies should redouble efforts immediately to improve health, education and welfare standards for Indian people.

 

And let all Americans learn the history and treasure the culture of the Indians. Let us express our remorse for the betrayals of the past, and begin the millenium with a vow to honor the people of all nations.

 

Then we shall be reconciled with the descendants of those who welcomed our forebears to the land of the free.

 

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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