Category Archives: Legal Studies

Gorsuch Pushes the US Federal Indian Law Envelope…Up to a Point

Neil Gorsuch’s adherence to a judicial philosophy of “strict interpretation” was lauded by conservatives in the run-up to his confirmation as a Justice of the US Supreme Court. Ed Whelan, in the National Review (February 1, 2017), called Gorsuch “a brilliant jurist and dedicated originalist and textualist,” and said he would be “A Supreme Successor to Justice Scalia.” David Savage, in the Los Angeles Times (March 24, 2017), said “Gorsuch…appears to be a strict ‘textualist’ who believes in following the exact words of a law, even if doing so leads to a seemingly unfair or undesired result.” Most observers shared the view that Gorsuch would embrace the rightward tilt of the court fostered by Antonin Scalia, the justice he would replace. 

Notwithstanding these expectations, Justice Gorsuch’s authorship of US Supreme Court opinions in two major federal Indian law decisions shows that the conservative “strict interpretation, originalist” approach to legal reasoning can have consequences surprisingly pleasing to those who have fought for the rights of Native Americans for centuries. 

In Washington State Department of Licensing v. Cougar Den, Inc. (2019), Gorsuch upheld Yakama Nation Treaty rights to use Washington state highways, in the face of strong objections by both state and the federal governments. In his concurring opinion, he pointed out that the Yakama Treaty explicitly reserves “the right, in common with citizens of the United States, to travel upon all public highways.” He rejected Washington and US arguments that the phrase “in common with” means the Yakama are in the same position as state citizens and must pay state road taxes. To the contrary, Gorsuch wrote, “In the Yakama language, the term ‘in common with’ . . . suggest[ed] public use or general use without restriction.” Relying on a strict reading of the Treaty language, Gorsuch brushed aside objections from supposedly stricter colleagues (Roberts, Thomas, Alito, and Kavanaugh) who warned of “dire consequences” if the Yakama could freely use state roads. 

In McGirt v. Oklahoma (2020), Gorsuch upheld the terms of Creek Nation Treaties that “solemnly guarantied” a “permanent home to the whole Creek nation…[where no] State or Territory [shall] ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves.” Oklahoma and the federal government strongly opposed any reliance on the terms of the Treaties. They argued that Creek government had been “terminated” by a series of state and federal actions. Gorsuch said their arguments were based on “extratextual sources” concocted from “some stray language from a statute that does not control here, a piece of congressional testimony there, and the scattered opinions of agency officials everywhere in between.” He rejected them all as efforts “to sow doubt around express treaty promises.” 

Gorsuch’s opinions in Cougar Den and McGirt stand for the proposition that the philosophy of “strict interpretation” requires close adherence to all texts, not simply US constitutional texts. Moreover, Gorsuch emphasized that the principle of strictly interpreting the text of a Treaty also means affirming the treaty process. As he put it in Cougar Den, “If the State and federal governments do not like that result [of the 1855 Treaty], they are free to bargain for more, but they do not get to rewrite the existing bargain in this Court.” Similarly in McGirt, Gorsuch responded to the dissenters’ worry about “drastic consequences” of affirming the Creek Treaties by saying Oklahoma “has negotiated … intergovernmental agreements… with the Creek” and “the spirit of good faith, ‘comity and cooperative sovereignty’ behind these agreements” will sustain future negotiations.

Gorsuch has changed the climate in the US Supreme Court’s federal Indian law jurisprudence in ways not imaginable in recent years. At the National Congress of American Indians 70th Annual Convention in Tulsa, Oklahoma, in October 2013, Richard Guest, the Native American Rights Fund’s lead staff attorney in Washington, sounded an alarm. Gale Toensing reported in Indian Country Today (28 October 2013) that Guest said, “We’ve had one win and nine losses in front of the Roberts court. And our message … is …: Stay out of the courts!” Guest added, “the majority of judges” on the Supreme Court are “very conservative, have no understanding of Indian country at all. No interest in your issues.” Four years later, a ray of optimism appeared in a NARF “Indian Law Perspective” (16 March 2017) on the nomination of Neil Gorsuch, concluding, “Judge Gorsuch has significant experience with federal Indian law, appears to be attentive to detail, and respectful to the fundamental principles of tribal sovereignty and the federal trust responsibility.”

The fact that Justice Gorsuch has emerged as a serious scholar of Treaties and Treaty history is important. But it is not sufficient to remake US federal Indian law in the way it needs to be remade. His opinions in Cougar Den and McGirt, and his joining the four “liberal” justices to affirm Crow Nation hunting rights in Herrera v. Wyoming (2019) are indeed significant legal victories for the Yakama, Creek, and Crow nations. But none of those decisions reached and overturned the fundamental federal Indian law doctrine of US domination over Indigenous lands and peoples—the doctrine of “Christian discovery.” 

In a nutshell, Christian discovery doctrine says the US has “title” to all Indigenous lands and “plenary power” over Indigenous nations and peoples. The US Supreme Court adopted Christian discovery in 1823 in Johnson v. McIntosh, where it relied on this relic of 15th century colonialism to declare that Indigenous nations are “mere occupants” of their lands, not owners. The doctrine of domination persists in US law to this day. In fact, it is the unstated basis for the McGirtand Herrera opinions, each of which focuses on whether the US Congress has “clearly expressed” an intention to breach the terms of a Treaty. The presumption that Congress has the right to unilaterally breach US Treaty obligations rests on the doctrinal platform of Christian discovery. 

Gorsuch stated the Christian discovery presumption this way in McGirt: “This Court long ago held that the Legislature wields significant constitutional authority when it comes to tribal relations, possessing even the authority to breach its own promises and treaties. Lone Wolf v. Hitchcock (1903). But that power, this Court has cautioned, belongs to Congress alone. Nor will this Court lightly infer such a breach….” By citing Lone Wolf, Gorsuch avoided having to cite the original case, Johnson v. McIntosh, but his focus on “Congressional intent” derives from that root.

McGirt invoked Christian discovery in another cryptic citation purporting to explain why the US can “allow non-Indian settlers to own land on [a] reservation.” Gorsuch wrote, “It isn’t so hard to see why.” He explained that federal homesteader patents “transferred legal title” to Creek land, but “no one thinks … this diminished the United States’s claim to sovereignty. To accomplish that would require an act of cession, the transfer of a sovereign claim from one nation to another.” He then cited “3 E. Washburn, American Law of Real Property *521–*524.” This reference is to a chapter in Emory Washburn’s 1868 A Treatise on the American Law of Real Property discussing “title by public grant.” The chapter begins with a discussion of “the discovery and settlement of this country by Europeans” and says, “Nor has any title, beyond the right of occupation, been recognized in the native tribes by any of the European governments or their successors, the Colonies, the States, or the United States. The law in this respect seems to have been uniform with all the Christian nations that planted colonies here. They recognized no seisin [ownership] of lands on the part of Indian dwellers upon it.” Washburn then says, “The sovereignty and general property of the soil …were claimed …by right of discovery.” This sentence carries a footnote to Johnson v. McIntosh

Gorsuch is subtle, more subtle by far than Justice Ginsburg, whose opinion in City of Sherrill v. Oneida Indian Nation of N. Y. (2005) rejected Oneida land title by saying, “Under the ‘doctrine of discovery,’ fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign—first the discovering European nation and later the original States and the United States.” (Ginsburg didn’t have the nerve to say “Christian discovery.”)

The fact that McGirt ruled in favor of the Creek Nation provides an excuse of sorts for not looking into the doctrinal basis of the decision. Many commentators, like Amy Goodman on Democracy Now! (10 July 2020), have gushingly described the decision as “a major victory for Indigenous sovereignty.” But make no mistake; McGirt rests on the old doctrine of US domination. First, the decision actually upheld US sovereignty, saying the Creek Nation continues to exist only because the US Congress has not (yet) “clearly terminated” it. Second, on the criminal jurisdiction issue, it upheld application of the federal Major Crimes Act, an assertion of US domination over Indigenous nations’ own criminal jurisdiction. 

Gorsuch has pushed the envelope of federal Indian law, but he and the court are still entirely within that envelope. In Cougar Den, the Yakama Nation stepped entirely outside the envelope and challenged the doctrine of Christian discovery in its September 2018 amicus brief . The Yakama brief said Christian discovery doctrine is “the legal fiction that Christian Europeans immediately and automatically acquired legally recognized property rights in our lands upon reaching the Americas.” The Yakama called on the court “to repudiate the doctrine of Christian discovery and its racist foundations as the basis for federal Indian law.” The Yakama strategy was effective: The court majority, faced with a choice between the Yakama Treaty and the doctrine of religious domination, chose the Treaty. In fact, even the dissenting justices avoided arguments based on Christian discovery and focused only on Treaty language.

It’s possible Gorsuch believes that adhering to treaties is the most that can be done; perhaps he also believes that if enough treaties are adhered to the way would open for a true acknowledgment of Indigenous nationhood and self-government. In any event, the court will only reach the root doctrine if the doctrine is challenged. It remains to be seen how many other Indigenous nations follow the Yakama Nation and call for abandonment of the federal Indian law claim of domination. That would be an historic turning point in US law.

Seven Comments on The Economist Article: “The rise of Native American politicians”

A major international publication reports the significance of Native candidates / politicians in U.S. elections: The Economist, “The rise of Native American politicians” (November 29th, 2018) https://www.economist.com/united-states/2018/12/01/the-rise-of-native-american-politicians?frsc=dg|e >

Although the article is likely to be well-received by many people, it displays an immense knowledge gap and educational task facing those who work, live, and study Native Nations. A few statements jumped out at me; here they are, with my comments:

1 — 

Deb Haaland, who last month became one of the first native-American women elected to Congress… says… “Representation matters. And if you disagree, try not being represented for over 200 years and then see how it feels to have someone who looks like you in Congress!”

COMMENT: Notice “native-Americans” — lower case “native” positioned as an adjective for uppercase “American,” framing Natives as a sub-category of the dominant identity. This is consistent throughout the article, except where “Native” begins a sentence. Notice also that Haaland sees “representation” in the colonial master’s house as the major significance of her election, presuming that the lack of such “representation” is the root problem; moreover, her key identifier is “looks.” 

2 —

Indians are doggedly beset by poverty, ill health and other social problems. Yet the picture of wretchedness on the reservation this conjures is misleading. Over 70% live in cities, where an educated Indian middle class has emerged. 

COMMENT: Natives may be so far beyond the immediacy of a bond with land that land and nationhood are no longer root issues.

3 — 

Native Americans still represent less than 2% of the population. So none of the candidates for national or statewide office made much of their Indianness on the trail.

COMMENT: Native candidates’ politically necessary submersion of Native issues into a range of ordinary issues undercuts the presumed significance for Natives of their election.

 

4 — 

There were also signs of a long-standing ambivalence towards national politics. … most expressed little enthusiasm for either party.

COMMENT: The article does not dig into this ambivalence; had it done so, it might have found people with an awareness that Native concerns require independence from the US political system, that Native rights are broader, deeper, and other than civil rights.

 

5 — 

Indians are starting to behave politically more like other groups. Yet they remain heterodox and distinct. Mental health, land rights and criminal justice are among the problems that affect Indians differently, because of their history and because of provisions such as the Indian health service. …  Yet by providing a stronger, subtler voice for native Americans they have an opportunity to accelerate their engagement with national politics.

COMMENT: Having not investigated (or comprehended) land and self-determination as the core of Native rights, the article conflates Native rights and civil rights issues. “Land rights” are bracketed by “mental health” and “criminal justice,” with only superficial allusions to “difference” and “history.”  The conclusion follows that “engagement with national politics” is the solution.

6 — 

 “Native America provides a touchstone of identity: about who we westerners are and particularly who we are not,” wrote the anthropologist J.C.H. King.

COMMENT: To the extent that “Native America” helps non-Natives figure out their identity, the same subsumption of “Native” within “America” obscures Native identity.

7 — 

A decision by the interior department in September to deny a reservation to the landless Mashpee Wampanoag tribe of Massachusetts ….

COMMENT: The article perpetuates the all too common — even among Natives — trope that “tribes” are “within” states and the US, rather than understanding that Native Nations were here before those map lines were drawn.

Ten Comments on Robert Kuttner’s Review of “Crashed: How a Decade of Financial Crises Changed the World,” by Adam Tooze

Robert Kuttner’s review of Adam Tooze’s book, Crashed: How a Decade of Financial Crises Changed the World — “The Crash That Failed,” in the November 22, 2018, The New York Review of Books https://www.nybooks.com/articles/2018/11/22/financial-crash-that-failed/ — provides a useful example of the critical limitations of America’s liberal commentariat.

In the guise of criticizing the emperor’s neoliberal clothes, liberal intelligentsia repeatedly fail to see the emperor’s nakedness. Indeed, while seeming to critique, liberals embrace the boundaries of the emperor’s hegemony! The result is superficiality and —worse — intensification of the hegemony. The Broadway extravaganza “Hamilton” illustrates this: actors “of color” celebrate the architect of the foundational U.S. alliance with capitalism — an alliance incorporating both Black slavery and confiscation of Native lands!

The following ten comments on Kuttner’s review of Tooze aim at demonstrating liberal complicity with neoliberalism. I conclude with a suggestion about the focus of a deep critique — “radical” — going to the roots.

1) 

KUTTNER: “The crash …should have led to the disgrace of neoliberalism…. Instead, the old  order reasserted itself…”

COMMENT: The fact that the reassertion of the old order occurred under the banner of ‘change we can believe in’ produced widespread disillusionment, especially among young voters who were so enamored of identity politics as to be blind to structural critiques of political-economic “order.” Rather than the disgrace of neoliberalism, we saw the disgrace of Obama, the hoped-for transformative leader, whose liberalism turned out to be neoliberalism. Without a deep critique, that difference is invisible. 

2)

KUTTNER: “Parties such as the German Social Democratic Party, the British Labour Party, and the French Socialists disgraced themselves as co-sponsors of the neoliberal formula that brought down the economy.”

COMMENT: Why doesn’t Kuttner also say the U.S. Democratic party disgraced itself? That is in fact the case, notwithstanding his assertion that “Progressives have been gaining influence in the Democratic Party.”

3)

KUTTER: “…the collapse came, it was ‘a financial crisis triggered by the humdrum market for American real estate.'”

COMMENT: But in Kuttner’s next sentence, the real estate market appears not so “humdrum”: “The US housing bubble was pumped up by subprime mortgage derivatives that allowed lenders to sell off high-risk loans homeowners were unlikely to pay back. These were invented on Wall Street beginning in the 1980s, accepted by US regulators, and disseminated like financial toxins….”

4)

KUTTNER: “Had the authorities just stood by….”

COMMENT: Why does Kuttner pose doing nothing — “standing by” —  as the alternative to the global banks bailout described in his next paragraph? As a rhetorical move, Kuttner’s phrase plays right into the notion that economic chaos is the only alternative to private ownership of the state (what he refers to as “The state had been hijacked by private finance”)

 
5)

KUTTNER: “Using deposit guarantees, loans to banks, outright capital transfers, and purchases of nearly worthless securities, the Fed and the Treasury recapitalized the banking system.”

COMMENT:This is not new! In fact, as Colin Woodard explains in American Nations (2011): “[Banker Robert] Morris and his protege Alexander Hamilton took control of federal financial policy, rigging it so as to literally turn their friends’ worthless paper into silver and gold. Under Morris and Hamilton, the federal government would buy back the bonds for face value, plus 6 percent interest, paid in precious metals raised by assessing new federal excise taxes designed to fall most heavily on the poor people who’d been forced to take the worthless congressional scrip in the first place.” [pp. 158-159] 

A radical critique of U.S. political-economy will at every juncture remind the reader that the “hijacking” of the federal state was accomplished at its inception! Instead, Kuttner follows his description of federal machinations to support banks with this statement: “The crisis, Tooze writes, ‘was a devastating blow to the complacent belief in the great moderation, a shocking overturning of the prevailing laissez-faire ideology.’ And yet the ideology prevailed. Homeowners, both those defrauded by subprime mortgages and millions of others whose houses were suddenly worth less than their debt, were the real victims of the collapse.” Kuttner (and, apparently, Tooze) writes as if the “the great moderation” and the “prevailing laissez-faire ideology” were not only and always new clothes for the emperor. 

6)

KUTTNER: “Tooze reminds us of the Hamilton Project, a small unit at the Brookings Institution created in 2006 by Robert Rubin, former co-chairman of Goldman Sachs and Clinton’s treasury secretary, and his protégés.”

COMMENT: But Kuttner (and apparently also Tooze) fails to discuss the deep roots and significance of the “Hamilton Project”! 

7)

KUTTNER: “Greece, a nation hit by severe recession and loss of private investor confidence, had no choice but to pursue austerity to reassure creditors. A central bank with the prerogatives of the Federal Reserve might have prevented this outcome.” 

COMMENT: Yet again, Kuttner writes as if the “prerogatives” of the U.S. central bank are the only alternative to “doing nothing” —”no choice.”

8)

KUTTNER: “…there are some aspects of the story that are omitted or glossed over. For example, the ideal of liberalized trade, and the use of trade treaties to promote deregulation or privatized regulation of finance, is a major element of the story of how neoliberal hegemony promoted the eventual collapse. But except for a passing reference, trade and globalized deregulation get little mention….”

COMMENT: Kuttner shares these omissions and glosses! Thus, to say, “Neoliberal hegemony promoted the eventual collapse,” is to ignore the fact that the ingredients of economic collapse are built into neoliberal political economy.  

9)

KUTTNER: “Yellen, a left-liberal economist specializing in labor markets, was the only left-of-center Fed chair other then FDR’s chairman Marriner Eccles. She also believed in tough regulation of banks. The extension of quantitative easing well beyond its intended end was substantially due to Yellen’s concern about wages and employment, and not just price stability, since low interest rates can also help promote recovery.” 

COMMENT: Kuttner offers Yellen as an example of something Tooze glosses over; but Kuttner’s description of Yellen and her actions as “left-of-center” is wholly bounded by the hegemonic assumption that neoliberalism is compatible with helping workers — in short, that neoliberalism can save itself. Or, as he puts it, government oversight of capitalism prevented the disasters of laissez-faire policies.”

10)

KUTTNER:  “The political in ‘political economy’ demands to be taken seriously.”

COMMENT: Indeed! And this final line of Kuttner / Tooze deserves to be the first line of a deep critique, focused on Hamilton’s original project for linking the federal state to capitalism. A deep critique includes an analysis of how Hamilton’s project was linked to federally controlled land speculation under a legal regime based on the doctrine of “Christian discovery” (i.e., the notion that Native Peoples could not own their own lands because they were heathens, and therefore their lands were subject to unilateral confiscation by the U.S.). Federalist Chief Justice John Marshall [born the same year as Hamilton] announced the doctrine in an 1823 Supreme Court case, Johnson v. McIntosh

Native Political Delegates: Guerillas or Collaborators?

When colonized people participate in the politics of their colonizer, does that signify the end of colonialism or its culmination?

When Native Americans act as delegates at Republican or Democratic Party conventions, do their efforts amount to an assertion of Native self-determination… or an acceptance of “domestic, dependent” status?

When John Marshall wrote the opinion in Johnson v. McIntosh (1823)—the original U.S. Supreme Court federal Indian law decision—he said the relations between the “discoverers” and the Indigenous peoples were “regulated” by the “discoverers.”
He wrote, “In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired… by the original fundamental principle, that discovery gave exclusive title to those who made it.”

Federal Indian law thus provides a mechanism for “regulating” relations between the Original Peoples and their “discoverers” in such a way as to preserve the superior legal position of the latter. No matter how often an Indian lawyer or politician embraces the “special” relationship established by federal Indian law, that “specialness” consists of a structure of colonial subjugation of “the original inhabitants.”

So long as federal Indian law maintains this “special relationship,” Native peoples will be in a position of not being “entirely disregarded,” but with their rights of self-government considerably “impaired.”

So, to repeat the question, what does it mean when Native people participate in American political processes?
John Marshall discussed the possibility that colonizers and Natives might one day “mingle with each other; the distinction between them … gradually lost, and they make one people.” But, he wrote, such “incorporation” of American Indians and the colonizers was not “practicable,” because “the tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest.”

In other words, the U.S. Supreme Court provided a system by which self-governing, independent Native Peoples could be constrained, subjugated, neutralized by law—the “Doctrine of Christian Discovery.” The ruling in Johnson v. McIntosh still stands. It has been cited in more than 300 cases since 1823.

Despite the fact that federal Indian law subjugates Native sovereignty, many Native people hail the “protection” the law offers—protection from states and third parties.

Set aside for the moment the fact that the U.S. Supreme Court continues to whittle down this “protection”—allowing states to exercise sovereignty over Indians and Indian lands in a variety of cases. Focus on the primary point: federal Indian law offers Native Peoples no “protection” from the federal government—the U.S. itself.

U.S. courts have ruled that the Indian “right of occupancy”—”aboriginal title”—does not involve a treaty relationship. Therefore, the courts say, the U.S. can deny Indian title as it sees fit. “Indian removal” and “termination” are watchwords for U.S. destruction of Indian Nations.

The courts have repeatedly emphasized what they call the “plenary power” of the U.S. Congress to do as it wishes with Indians and Indian lands. In this way, the “protection” of federal Indian law operates like a “protection racket”: the racketeers will protect you from everyone except themselves.

So, to return again to the question: what does the participation of Native people in American political processes mean?
Are Native participants providing a useful service to Indians, by restraining the exercise of federal power to destroy Indian Nations? Or are they acquiescing in that power? Are they guerrilla fighters, working behind enemy lines to quell the power of their adversary? Or collaborators with the enemy?

One way to answer these questions involves checking out the rhetoric of the parties. The 2016 Republican Platform says, “Our approach is to empower American Indians, through tribal self-determination and self-governance policies, to develop their greatest assets, human resources and the rich natural resources on their lands, without undue federal interference.”

The Democratic Platform says, “We will strengthen tribal sovereignty and tribal jurisdiction by enacting laws and policies that enhance the ability of Indian nations to govern their territories, keep their communities safe, and prosecute crimes committed on tribal lands.”

The party platforms sound good… until you remember that the key words—”tribal sovereignty” and “tribal self-determination”—are also code words for “domestic, dependent nations,” whose “rights to complete sovereignty, as independent nations, were necessarily diminished” by the Doctrine of Christian Discovery.

No political party in America has called for an end to the Doctrine that says the U.S. holds title to Native lands. No party platform calls for acknowledging that the “original inhabitants of the continent” still hold title to the lands.
Perhaps you will say this can never happen, because of the economic dependence of American Indians on the U.S. To that response, consider this: The U.S. itself—through its claim to ownership of Indian lands, aka “public lands,” remains dependent on the resources of those lands—directly and through arrangements with private developers.

The latest big example: “The Southeast Arizona Land Exchange and Conservation Act,” which mandates a “swap” of Native lands from the San Carlos Apache and other Indigenous Nations to Resolution Copper Company. U.S. Congressman Paul Gosar says this taking of Native lands “facilitates the development of an underground copper mine that will create thousands of American jobs, will reduce our dependence on foreign sources of energy and minerals, and will generate significant revenues for federal and state treasuries.”

The alleged “dependence” of Native Nations on the U.S. government thus actually involves “interdependence,” albeit an uncompensated U.S. dependence on Native lands through a “taking” of Indigenous resources, “protected” by the U.S. claim to be the “trustee” of the Indians.

The principles of George Orwell’s “double-think” and “Newspeak” operate at the core of political thinking about American Indians and lands.

Despite the absence of any American political party platform statements calling into question the fundamentals of federal Indian law, there are nevertheless some aspects of Native delegates’ efforts that may justify their roles at the conventions.

Consider the remarks of Minnesota State Representative Peggy Flanagan (White Earth) at the Democratic convention. For better or worse, Rep. Flanagan’s role as a state political figure already indicates a willingness to participate in governments descended from the colonizers. Her remarks included the following: “Your name [referring to her daughter] is not Pocahontas. It is Siobhan Ma’iingan, and you should never let anyone make you feel anything less than proud of who you are.”

Brave words, but how does the mother explain her participation in the political processes of governments whose powers are rooted in subjugation for which the U.S. Supreme Court found “excuse, if not justification, in the character and habits of the people whose rights have been wrested from them”—the “fierce savages”?

Rep. Flanagan added, “We are still here.” But which “we”? The “we” of Native Nations asserting independent sovereignty, or the “we” of Native individuals asserting personal dignity?

Does the participation of Native delegates signify reconciliation with the fact of colonization, dispossession, degradation, and plenary power? How can we “honor… our elders, show… gratitude to our warriors, [and] cherish… our children as gifts from the Creator,” and at the same time fail to challenge the fundamental Doctrine that dishonors the elders, exploits the warriors, and exposes the children to the ravages of a colonized life?

I single out Rep. Flanagan only because her words and her appearance at the Democratic convention were so widely celebrated. Her remarks call for analysis precisely because she said, “It means so much that we were invited to be here on the last night of the convention.”

To return to the question, “What does it mean?”

Plains Indian Art: A Living Legacy

“The Plains Indians: Artists of Earth and Sky” is in its final stage at the Metropolitan Museum of Art in New York City (through 10 May 2015). An amazing and profound exhibit of American Indian art, it deserves all the raves it gets. The reviewer for Indian Country Today called it “a rare and important showcasing of the art and creativity of some of the original inhabitants of Turtle Island.” The New York Times reviewer described it as “one of the most completely beautiful sights in New York right now.” A reviewer in the New Yorker magazine said the show is “the most comprehensive of its kind...exactingly selected and elegantly installed.”

I visited the exhibition in late March. My word for the experience: overwhelming. I was not alone. Hundreds of people, many visibly moved—some even shaken—by the power of the art and artifacts, made their way through the gallery. As I moved from one piece to another, thoughts and emotions swirled through me, pushing me to contemplate what this exhibit means.

The impact of the exhibition hits immediately. Two pipes displayed at the entrance bring home the significance of prayer and tobacco, reminding us that smoking encompasses a ceremony of breath. The sculptural forms of the pipes are mythic figures, intercessors and companions in making breath visible. Visible prayer. Far cry from today’s public health campaigns against tobacco adulterated with chemicals.

A Quapaw tanned leather robe is complexly painted to tell a battle story and show how the Quapaw cooperated with French traders. Its center holds images of celestial powers—sun and moon. The robe carries so much content so vividly portrayed that I could feel the lives of the villagers and warriors, the traders, the lands on which they lived. Even after three centuries (the curators date the robe c. 1740), the energies of cultures meeting, cooperating, conflicting are palpable. The robe, like the pipes, is alive.

Another robe, thought to be Illinois, depicts a mythic bird, with sharp geometric shapes and lines that seemed to me to foreshadow the rise of modern art. The museum catalog, which I bought as a record of the exhibit, confirmed this, stating that the robe displays “all the tenets of the finest geometric painting…: intricately balanced composition, precisely controlled and sharply delineated forms, elongated tapering lines, small unpainted elements, and shifting focal points and rhythmic movements.”   
The displays of clothing—women’s dresses, men’s shirts—pushed me to an emotional edge. They are stunning works of art, but, more significantly, they carry intense energies of those who made and wore them. I felt their presence. If you think that’s strange, consider these remarks in a recent New Yorker magazine article by NYU Professor Jessamyn Hatcher, an expert in textile and fiber art: “Clothing is different from most other kinds of objects in museums. Garments never lose the imprint of the body that was once inside them; indeed, the chemical reactions between the materials of the garments and the wearer’s body are ongoing.”

In a move of great significance, the texts on the walls of the exhibit and in the catalog speak in the present tense, unlike so many discussions of Indians that deploy past tense verbs, as if Indians no longer exist. The exhibition, though it presents primarily old works, makes clear that Indians exist, here and now; that Indians have survived centuries of invasive colonialism and domination. 

This point is emphasized by the inclusion of contemporary works by Native artists, which, in the words of Gaylord Torrence in the Introduction to the catalog, “reveal lasting forms along with evolving concepts.” The exhibit and catalog, he writes, “present a view of Plains Indian aesthetic traditions over the long history…and as they are being redefined today.” 

There is a past tense to the exhibition, simply because the older objects represent an era that no longer exists: the era defined by horses and buffalo. But even this, as Colin Calloway explains in an opening essay in the catalog, “was a phase in a story of perpetual change.” Horses and buffalo still live, but they are not the defining elements of contemporary Plain cultures.

The catalog authors are forthright in naming the historical factors that disrupted Plains Indians and their art. Torrence: “Artistic expression from this period…reflects the efforts of missionaries, forced educational policies, effects of Wild West shows, and perceptions of popular American culture.” Calloway: “The United States demanded the destruction of their way of life as well as their military subjugation.”

Part way through the exhibit, I recalled the epithet about Indian trade beads—that Indians are so simple they valued  “trinkets.” It dawned on me that the pervasive integration of trinkets—beads, buttons, small metal objects—with such native ornamentation as porcupine quills and feathers marks a sophisticated aesthetic consciousness of daily life. Indian art is integral to everyday objects, not a separate category of performance.

Arthur Amiotte (Oglala Lakota) addresses this in an opening essay in the catalog. He writes, “art is where the underpinnings of tribal thought and values are encrypted.” He adds, the adornment of clothing and other items to signify “successful encounter[s] with spiritual powers” and “success in the hunt or battle” amount to “message systems advocating collective tribal pride.” 

Amiotte discusses how these practices and materials changed in response to U.S. government prohibition of Indian ceremonial and social occasions: “Some…pieces were exchanged for food and household necessities at the newly established trading posts.” Ornamented clothing also became “decorative outfits for show performers” in “Wild West tours.”

“Today,” Amiotte continues, tribal arts and ancient beliefs “are once again conjoined…imparting a clear message: ‘We have survived, we are here today, well-adorned, in joyous celebration of our heritage as Native Americans.'”

“The Plains Indians: Artists of Earth and Sky” opened in Paris, at the Musée du quai Branly, traveled to the Nelson-Atkins Museum of Art in Kansas City, and completes its journey at the Metropolitan Museum in New York. It draws on the strengths of each of these institutions, in a collaborative effort to recognize and promote “masterpieces of non-Western art”; in this case, the “sophistication and power of Plains Indian art.”

The exhibition catalog is a work of art in itself, containing images and detailed descriptions of every item, together with a series of informative and scholarly introductions. The Met has placed digital images, videos, and an audio guide online, so those who cannot visit in person may yet experience the power and beauty of the work.

The U.S. and Israel: Mirrors of Religious Colonialism

The governments of the United States and Israel share a common religious-political tradition, rooted in the story of the Family of Abraham. It undergirds their relations with the peoples who were there first. In the U.S., the Indians; in Israel, the Palestinians. We can explore how one government echoes the other.

A recent article by David Shulman in the New York Review of Books reviews what he calls “the finest Israeli documentary ever made about the occupation, ‘The Law in These Parts.'” Shulman holds the Renee Lang Professorship of Humanistic Studies at the Hebrew University of Jerusalem and participates in Ta’ayush, an activist Arab-Jewish Partnership organization. Ta’ayush works with Palestinian farmers and landowners to defend their homes, fields, and grazing grounds.

The documentary focuses on a group of jurists, legal advisers, and judges who sat in the military courts in the occupied Palestinian territories. In Shulman’s words, the film shows that “the legality of torture, mass arrests, prolonged administrative detention without trial, the violent suppression of civilian demonstrations, punitive house demolitions, severe restrictions on freedom of movement, and other practices … have become commonplace under Israeli rule.”

These themes and events—”the general, remorseless processes of dispossession and expulsion”— echo the history of violent dispossession of Native Peoples in the Americas, where destruction of Native communities were the hallmark of colonial invasion and ‘westward expansion.’

As Shulman explains, the appropriation of Palestinian land for Israeli “settlements” started with “ideologically motivated, religious settlers, who fairly quickly won government backing.” He points out, “Initially, when the question of the legality of this procedure came up before the Israeli Supreme Court [in 1979], the court … declared [it] illegal and forced the government to move the projected settlement to a nearby hill.”

The court’s ruling, however, was short-lived. As recounted by Eyal Press in another review of the Israeli documentary, “Just hours after the ruling was handed down,” the government began plotting how to get around the law.

The plot provided another echo of American colonialism. Where the American colonizers relied on 15th century Christian imperialism—the “doctrine of Christian discovery”—the Israelis borrowed a doctrine from the 19th century Ottoman Empire.
Ottoman law identified a category called “mawat”—”dead” land. It applied to lands outside a village that had not been cultivated for a period of years. The Israeli government argued that this law was still in force in Palestinian territories, and that such “dead” land could be appropriated by Israel.

The terminology of “dead land” again echoes Christian colonialism against Native Peoples in America, where the invaders who wanted to ‘legally’ appropriate land declared it “terra nullius”—Latin for “no one’s land.”

As soon as the Israeli government determined to use this old Ottoman doctrine, the military began flying helicopters over Palestinian lands, looking for areas that could be labeled “mawat” and seized by the state. Israeli occupiers streamed into these areas, building a string of new “settlements.”

When the new occupations were challenged by lawsuits, the Israeli Supreme Court changed its tune. It ruled that the Israeli state, as an occupying power, had discretion to dispose of the lands as it saw fit. Under this rule, the court regarded the Israeli state as the “custodian of enemy property,” with the implication—however far-fetched—that the Israelis were taking care of the land until it could be restored to its owners.

Here again, we find an echo of the American colonial invasion: the notion that the United States government is the “guardian” of the property of the Native Peoples. This doctrine supports the power of the government to do what it decides is best with the property, even where the original Peoples are still living on the land.

As Shulman says, “In the end, the law is only one delimited dimension of a pervasive political program.” But one important political consideration distinguishes the Israeli from the American colonial program: the question of citizenship. Whereas the United States government has frequently attempted to “assimilate” Native Peoples and has unilaterally declared them to be “citizens” of the U.S., the Israeli government has resisted citizenship status for Palestinians.

As Daniel J. Elazar explains, in his essay at the Jerusalem Center for Public Affairs, “Israel as a Jewish State,” “Formally, Israel is built on the modern European model of centralized, reified statehood. In contrast, the weight of the Jewish political tradition, while emphasizing the importance of political independence for Jewish survival and fulfillment, is directed against that conception of statehood.”

This means that the nature of Israeli citizenship presents serious obstacles to the “assimilation” of Palestinians. The issue boiled up in early May 2014, at an Israeli government cabinet meeting: Prime Minister Binyamin Netanyahu pushed for a change to Israel’s constitution—to affirm that Israel is “the nation state of one people only – the Jewish people – and of no other people.”

As reported in The Guardian, Netanyahu added that the civil rights of minorities, including Arabs, would be guaranteed. Civil rights are also recognized in the U.S., but, unlike Israel, the U.S. Constitution mandates a separation of state and religion. Despite this major difference between Israeli and American colonial programs, the fact remains that the foundations of the two systems are mirror images: state power rooted in religious and imperial colonial doctrines.

To add one more echo: In January 2012, Israel’s High Court rejected a challenge to Israeli mines in Palestinian territory, ruling that the occupation has gone on for so long that its legal status has “unique characteristics.” Compare this to the 2005 U.S. Supreme Court decision in City of Sherrill v. Oneida Indian Nation of N.Y., which held that the “longstanding, distinctly non-Indian character of central New York” made it impossible to enforce Oneida ownership of the lands.

In Israel as in the U.S., a colonial occupation of lands belonging to others has developed its own special rules to justify itself. This “justification,” however, is not the same as “justice.”

“In the Spirit of Crazy Horse”: Peter Matthiessen Leaves a Legacy

Peter Matthiessen left this life on April 5, 2014. His obituary appeared in the Arts section of the New York Times, a fitting tribute to the only writer to win the National Book Award in both fiction and nonfiction.

Indian Country remembers Matthiessen for his book, “In the Spirit of Crazy Horse,” an indictment of the U.S. government’s prosecution and conviction of Leonard Peltier in the killing of two FBI agents at Pine Ridge in 1975. The book became a lightning rod for non-Indian attacks. Two lawsuits delayed distribution of the book at a crucial time in Leonard’s legal appeals, when an FBI agent and a former South Dakota governor each sued Matthiessen and his publisher for libel. Courts eventually dismissed the suits, but the costs to defend the book amounted to two million dollars.

Matthiessen wrote with breadth and depth about subjects around the globe. The New York Times obituary listed a sample: “‘Under the Mountain Wall: A Chronicle of Two Seasons of Stone Age New Guinea’ (1962); ‘Oomingmak: The Expedition to the Musk Ox Island in the Bering Sea’ (1967); ‘The Shorebirds of North America’ (1967, revised as ‘The Wind Birds’ in 1973); ‘Blue Meridian: The Search for the Great White Shark’ (1971); ‘The Tree Where Man Was Born’ (1972), a contemplative account of East Africa; and ‘Sand Rivers’ (1981), about a safari in the Selous Game Preserve in Tanzania.”

“In the Spirit of Crazy Horse”—like other exposés of the government’s efforts to imprison leaders of the American Indian Movement (AIM)—riled not only the FBI and a governor, but also some reviewers. Two negative reviews of particular significance were in Newsweek magazine (March 28, 1983) and The New York Times Book Review (March 6, 1983).

The Newsweek reviewer, Peter Prescott, found the book “bloated” with interviews and documents, but nevertheless said, “Matthiessen argues convincingly that…Peltier…was railroaded into an illegal conviction…. The accounts he gives of federal lawlessness…become in time stupefying.”

In an astonishing turnabout, however, Prescott concluded that Peltier did not deserve further attention because his case is “not particularly interesting. Its manifold injustices are in no way unique or even uncommon.”

In other words, the Newsweek reviewer dismissed the significance of Leonard’s case on the ground that the same injustices are happening to other people all the time! This perspective contradicts human rights and the bill of rights, but it passed the editors of a national magazine.

The New York Times reviewer was Harvard Law Professor Alan Dershowitz. Despite his reputation as a constitutional and criminal law scholar, Dershowitz did not regard the evidence of an FBI frame-up as very significant. He wrote, “Matthiessen…fails to convince.” Dershowitz’s review was replete with white guilt clichés, like the comment that it will be “impossible for any sensitive reader ever again to enjoy Mount Rushmore.”

Dershowitz waxed romantic about the historical Crazy Horse—”a noble 19th-century leader of Indian resistance”—but as for Leonard Peltier and AIM, they were “violent…self-destructive…self-appointed…radical(s)” who “exploited their…heritage for their own personal ends.”

Dershowitz concluded, like Prescott, with the suggestion that Peltier “ended where (he belongs)—in jail.” Dershowitz’s book review prompted a protest in his office by Harvard students and members of the Massachusetts Indian community, who accused him of “insult” and “slander” of Indians.

Without Matthiessen’s understanding of Indian people and culture, the book never could have been written. No amount of “objective interest” would have been enough to gain admittance to the homes, hearts, minds, and memories of the numerous Indian people whom Matthiessen interviewed. Too many Indians have been affronted by too many well-intentioned whites—from authors to missionaries to lawyers—for any Indian person to easily share information with a writer or reporter, especially on a topic of potentially lethal significance.

Matthiessen’s ability to enter people’s lives gave him access not only to Indians present at the shoot-out and involved in previous and subsequent events, but also to crucial informants on the other side—most notably David Price, the FBI Special Agent whose aggressive surveillance of AIM leaders made him a key figure in the prosecution of Leonard Peltier.

Matthiessen didn’t idealize anything to conclude that Leonard Peltier’s conviction and imprisonment amount to an injustice. Matthiessen’s interviews—revealing fabricated testimony, intimidated witnesses, suppressed evidence, and other prosecutorial wrongs—were confirmed in 12,000 pages of documents obtained from the FBI under the Freedom of Information Act (FOIA) by Peltier’s attorneys. These documents eventually led Matthiessen to conclude that “Leonard Peltier deserved a new trial, not only because of dishonest proceedings…but because of accumulating evidence that the authorities had wanted him out of the way whether he was guilty or not.”

“In the Spirit of Crazy Horse” includes chapters about the American Indian Movement (AIM) in the late 1960s and early 1970s, providing a valuable addition to that period of American history. Despite the enormous publicity focused on AIM during its periods of high conflict, no comprehensive account of the movement and its organization occurred until Matthiessen’s book. His interviews with most of the key figures and many observers offer a definitive history of AIM.

Matthiessen also includes a very useful chapter on the Wounded Knee trials, showing the misconduct and political aspects of those prosecutions. Still other chapters discuss the impact on AIM of COINTELPRO, the FBI secret counter-intelligence project directed against domestic protest groups—including a discussion of the activities of then South Dakota Assistant Attorney General William Janklow cooperating with the FBI’s program to “neutralize” AIM.

The bulk of “In the Spirit of Crazy Horse” consists of a very detailed presentation of the 1975 Pine Ridge shoot-out and its aftermath in criminal prosecutions. Separate chapters present the shoot-out itself from the viewpoints of the Indians and the FBI. Matthiessen provided extensive documentation and interview material, and carefully reviewed every aspect of each event in an attempt to come as close as possible to what may be said to be the truth. In the course of several chapters, a full, moving history emerges.

Ultimately, the central thread of “In the Spirit of Crazy Horse” becomes an exploration of the long conflict between whites and Indians, showing it as attempted cultural genocide. Matthiessen helped us understand that the Indian wars have not ended. Today, rangeland is less important than the minerals beneath it, and the forces of giant energy corporations have supplemented the cowboys.

The overall coordination of the Indian wars is still in the hands people whose vision of the world is dominated by the quest for ever-greater accumulation of material wealth. In this context, “In the Spirit of Crazy Horse” demonstrates that a shoot-out between Indians and FBI agents at Pine Ridge reservation in 1975 was a battle and not simply a crime.

Annenberg Rescue of Hopi Sacred Objects: Cautions and Lessons

Congratulations to the Hopi, the Annenberg foundation, the French lawyer who represented the Hopi pro bono, and U.S. embassy officers in Paris. This team brought about the rescue of a number of Hopi sacred objects that were on the auction block in Paris.

When the New York Times reported the rescue, one reader offered a critical comment: “If I were Hopi, and objected to the sale of these artifacts on religious grounds, arguing that it is inappropriate to sell these sacred items for money, I don’t think my concerns would be met by having a foundation buy the artifacts and give them to some particular Hopis or a foundation or something. Doesn’t the foundation’s purchase of these items simply confirm and help create a market for the artifacts? In other words, if it were me, I would object to the sale itself, not to the fact that I can’t afford to buy the artifacts back myself.”

The Hopi did object to the sale and tried every effort to stop the auction, but they were grateful for the result: “We thank the Annenberg Foundation for their good hearts in bringing our Katsinas home to our people where they will be cared for.”

Nevertheless, the critical comment bears some attention. It was repeated by a Bloomberg columnist, who said Annenberg “has legitimized the very situation it means to criticize, making the sacred objects seem fair game.” The columnist added, “The best bet for indigenous people to secure their cultural property is through the legal system, … taking a principled stand….”

The legal framework for protecting cultural property includes most notably the 1970 United Nations Convention on Import, Export and Transfer of Ownership of Cultural Property and the U.N. Declaration on the Rights of Indigenous Peoples, which refers explicitly to “the right to maintain, control, protect and develop … cultural heritage.” As the Bloomberg column argues, Annenberg could have “worked with the tribes to acquire the objects through legal mechanisms, [and] created a model that other tribes could follow.”

The problem is that the law is a tricky path. What looks like protection may turn out to be just another form of domination, as with the “trust doctrine” in U.S. federal Indian law, which turns trust law upside down by giving the “trustee” the power to take property from the “beneficiaries.” The Tee-Hit-Ton case in 1955 still stands as the precedent for that outcome.

Perhaps the best thing to say about the Annenberg intervention is that it shows how a combination of cultural pride, political action, legal threat, and money may succeed in changing the climate and context in which art collectors work. It is true that the auction house and sellers gained by the Annenberg purchases, but it is also true that the intervention increased awareness among art buyers and sellers.

Blouin ArtInfo, which bills itself as “the premier global online destination for art and culture,” carried an extensive interview with Sam Tenakhongva, a Hopi cultural leader who was the driving force behind legal action to stop the auction. Tenakhongva did not know of the Annenberg effort until afterwards, but he said it assists in getting people “to discuss and to think.” He added, “The work isn’t over.”

Similar views were expressed in ThinkProgress, another cultural forum, which saw the Annenberg Hopi effort as prelude to “a more difficult and sophisticated conversation about what art should enter the international market, and which, if any, should stay out of it.”

Thus, despite important cautions about participating in auctions to protect cultural property, it seems clear that the extraordinary event of an international foundation moving secretly to restore Hopi sacred objects is a significant marker in the ongoing struggle of Native Nations to guard their cultures. As Tenakhongva put it in the Annenberg press release, “This is a great day for not only the Hopi people but for the international community as a whole.”

For those critics who still say it would have been better for the Hopi to lose the objects and challenge the auction in court, there is a strange bit of history behind at least one of the objects that should give them pause about the efficacy of the law (in addition to the fact that the Hopi did try the legal route on this and a prior auction, without success).

It turns out that one of the items at the auction was a Zuni altar from the collection of Vincent Price, the late Hollywood horror film star who, as it turns out, was also a member and chairman of the Indian Arts and Crafts Board of the U.S. Department of the Interior. The auction catalog says the altar includes depictions of historical incidents when Spanish gold-seekers and missionaries invaded Zuni lands. It says the altar “makes a strong impression and causes troubling emotions.”

How could such a significant sacred object become part of an “art” collection by a well-known member of a United States agency supposedly devoted to American Indian interests? The answer may be in the Board’s “mission” to “promote … the expansion of the Indian arts and crafts market.”

The U.S. Congress created the Indian Arts and Crafts Board in 1935. Its function and duty is the “promotion of economic welfare of Indian people through the development of their arts and crafts and the expansion of the market for such products.” In other words, from the perspective of the Arts and Crafts Board—and perhaps Price himself—anything that expands the “market” is good for Indians. The auction of Zuni and Hopi objects was a market function. Presumably, under this law, the more Indian “art” that is bought and sold, the better things are.

One may say this is an outmoded perspective, and that a more nuanced approach is needed, to distinguish between “art” and sacred objects. This, in fact, is a key point in the strengthening debate that the Hopi and Annenberg are fostering. It is also a reminder that the legal route recommended by some critics of Annenberg is filled with perils, not least of which is outmoded doctrines and concepts.

The Zuni altar made its way from its homeland to a Paris auction house through the efforts of a person who was proud of his role as a benefactor of American Indian art. In a 1992 oral history interview conducted by the Smithsonian Institution Archives of American Art, Price said he was interested in bringing attention to “what injustices have been done to American Indians through the lack of interest [in] their art, through the lack of interest in their lives and their problems.”

When the interviewer asked about the “essential connection between art …and an understanding of culture and its identity,” Price answered in the affirmative, but did not engage the issue. We can’t know whether, if Price were here today, he would take a different tack. But we do know that a different tack is necessary, and that the Hopi and their partners are leading the way.

Writing Elsewhere

I’ve been writing elsewhere than this blog in recent months, much of it appearing in Indian Country Today. The focus is on sharpening and heightening the critique of federal Indian law in the face of increasing anti-Indian uses of that body of law by the US Supreme Court.

For example, here’s a three column series in Indian Country Today analyzing federal Indian ‘trust doctrine’ in the wake of the U.S. Supreme Court decision denying compensation to the Navajo Nation for decades of underpaid coal extraction pursuant to federally approved leases [United States v. Navajo Nation, (2009)]:

“Navajo Nation, known as an ‘Indian tribe'” – ICT, April 15, 2009
“Can federal Indian ‘trust’ be trusted?” – ICT, April 22, 2009
“The sands of federal ‘trust'” – ICT, April 29, 2009

The columns have garnered a variety of comments and have been reprinted and linked to by other writers. I am happy to be part of a rethinking of these matters.