Thursday, February 09, 2023

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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 à.” 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 æa pattern of purposeful action.”Æ 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.