Sunday, February 05, 2023

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Indian Law is a reflection of a national policy of profound importance. At its heart lie political and ethical questions of the nation's proper treatment of tribes that it overcame, displaced and yet engaged in a reciprocal relationship of the most solemn obligation. The kind of policy we choose has much to do with the national soul, or ought to.

Judge Canby's words have proven to be quite prophetic. This past summer, the U.S. Supreme Court released its historic opinion in McGirt v. Oklahoma, holding that the Muscogee Creek Reservation in Oklahoma had never been disestablished by Congress and exists today, along with the relevant jurisdictional rules governing crimes within Indian Country. Justice Gorsuch rejected the notion that treaty promises could be disregarded merely because it had become “convenient to do so” a century later. In the nineteenth century, the Muscogee Creek Nation was removed from its traditional territory to Oklahoma, a painful and violent experience, which Justice Gorsuch acknowledged in his opinion, writing:

On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever. In exchange for ceding 'all their land, east of the Mississippi River,’ the U.S. government agreed by treaty that 'the Creek country west of the Mississippi shall be solemnly guaranteed to the Creek Indians.

By the year 2020, that nineteenth century treaty was a distant memory for most citizens of Oklahoma. McGirt changed that. “We hold the government to its word,” Gorsuch wrote at the outset of his opinion, and in the concluding paragraph, he wrote that to hold otherwise “would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.” McGirt made the past present in a way that is rarely seen within the field of Federal Indian law. After Oklahoma achieved statehood in 1907, it behaved as though the Creek Treaty was no longer in effect, rendering the reservation boundaries “invisible” as a matter of state policy. Yet, the people of the Muscogee Creek Nation knew otherwise. Joy Harjo, a Muscogee Creek tribal member and the United States' Poet Laureate, says: “When you understand history as 'linked stories, as the Muscogee Creek people do, there is no 'misty past.”’ Harjo is the descendant of the Creek leaders who fought Andrew Jackson, and she recalls:

The elders, the Old Ones, always believed that in the end, there would be justice for those who cared for and who had not forgotten the original teachings, rooted in a relationship with the land ... Justice is sometimes seven generations away, or even more. And it is inevitable.

Joy Harjo also noted that this history and set of experiences links Native peoples with the United States and its citizens: “The Old Ones understood the truth that 'we are all related,’ and now, as a nation reckoning with racism, maybe more of us are beginning to understand it, too.” The decision in McGirt was long overdue, but “at last, on the far end of the Trail of Tears, a promise has been kept.”

In this lecture, I will build on these insights to construct “justice” as “healing.” We have never needed this lesson as much as we do today. In a nation “reckoning” with racism, a pandemic, and the most extreme disparities we have ever experienced, measured in terms of access to basic necessities, such as food, water, healthcare and housing, we must focus on how we will heal all that is broken. Building on Judge Canby's words, I will first ask: Does our Nation have a “soul” and if so, who is the custodian?

[. . .]

“We have a duty to remember what our fellow citizens cannot be expected to forget.”

Inclusion is not a “one size fits all” proposition. Inclusion for Native Nations requires attention to political and cultural sovereignty as well as the intergenerational connections between Indigenous peoples and the land. It also requires remembering problematic histories and making a sincere effort to reconcile historic and contemporary harms and injustices.

Within many Indigenous Justice traditions, “reconciliation” between parties that have been engaged in conflict requires a process of healing that restores a sense of well-being, balance, hope, and peace after a painful experience of conflict and trauma. This is true for individuals, communities, and peoples. The process of reconciliation works on an “inner level,” which is tied to emotional and spiritual states, and it works at an outer level in social, economic, and political relationships.

Within many Indigenous justice systems, “law” is a mechanism to achieve healing, and it corresponds to the cultural view that there is a central set of principles which ought to govern human interactions with one another and with the natural world.

We need to think of what people need in times like these:

1. The need to feel safe

2. The need to feel connected

3. The need for hope

4. The need to heal from traumatic loss of land, lives, and ways of life

Look at the way that landscapes have been altered by histories of coal and uranium mining. The Four Corners Area, for example, was designated as a “National Sacrifice Area” when the coal-fired power plants were created that allowed the growth and expansion of cities in California, Arizona, and Nevada. Today, we must look at the impacts of that decision; decades later, we see the harm to the land, the change in water flow due to climate change, the increased levels of salinity and toxicity. Look at the tremendous costs associated with reclaiming and restoring those lands or purifying the water. Who bears those costs?

The ethics of reconciliation must be directed to “restore” what was wrongfully taken from Indigenous peoples. Healing takes place at the level of mind and spirit first, and then at the level of the material world. We must imagine a better future in order to realize that future. These are the lessons of Indigenous justice traditions, and they are useful as we contemplate a world that can sustain itself through climate change, a society that can sustain itself through acknowledging the relationships that are fundamental to its well-being and economies that are based on regenerative practices rather than extractive and exploitive practices.

As Justice Murray Sinclair of Canada's Supreme Court stated: “Reconciliation is about forging and maintaining respectful relationships. There are no shortcuts.”

Thank you for allowing me to share these thoughts with you today.

Regents Professor of Law, University of Arizona.