On the Notorious RBG and Sherrill

Many of my friends have a great deal of affection for United States Supreme Court Justice Ruth Bader Ginsburg.  My own enthusiasm for the “Notorious RBG,” however, is tempered by a consideration of the 8-1 opinion she wrote in the case of Sherrill v. Oneida Indian Nation in 2005.  Today is the anniversary of that momentous decision.

The Oneida Indian Nation had purchased on the free market lands within the small city of Sherrill, New York, in 1997 and 1998.  The lands in question were once part of the Oneidas’ 300,000 acre reservation. The State of New York had acquired the lands  early in the nineteenth century in a series transactions that clearly violated the terms of the Federal Indian Trade and Intercourse Acts, which stated that purchases of Indian land without a federal commissioner present and without subsequent ratification by the Senate were null and void and of no effect.

With cash from their gaming operations, the Oneidas purchased some of these lands back.  They considered the lands as part of their original reservation, and, exercising their rights as a sovereign nation, they refused to pay taxes to the City of Sherrill.  The town began foreclosure proceedings against the Oneidas.  The federal district court, and then the circuit court, ruled in the Oneidas’ favor.  These rulings, indeed, were entirely unsurprising.  But then came the Supreme Court, and the Notorious RBG.

Writing for the 8-1 majority, she shot the Oneidas down.  “Given the longstanding non-Indian character of the area and its inhabitants, the regulatory authority constantly exercised by New York State and its counties and towns, and the Oneidas’ long delay in seeking judicial relief against parties other than the United States, we hold that the tribe cannot unilaterally revive its ancient sovereignty, in whole or in part, over the parcels at issue.”

Wow.

Too much time had passed since the original wrong, Ginsburg wrote.  Any remedy now, after the passage of time, would be too disruptive.  It would not be fair to the non-Indian land owners in the region who bought their land, she suggested, in good faith.  Thus the Court must prevent “the Tribe from rekindling the embers of sovereignty that long ago grew cold.”

The Oneidas, it is true, own less than 2% of the land in the contested area and make up less than 1% of its population.  Because courts were closed to the Oneidas until 1974, they could not pursue their claims against parties other than the United States.  And the State of New York had exercised regulatory and legislative authority over the entire area even though its authority for doing so was murky at best.  The book by the Syracuse attorney George Shattuck, who helped get the Oneidas’ land claim cases into the court system, and the Syracuse University dissertation by Philip Geier do a nice job of telling much of this story.

I have strong feelings about the Sherrill decision.  We have to deal with the case.  It is law, and it has had consequences. We have to confront it.

Ginsburg’s opinion was based upon a long and flawed history. Much has been made about her decision to draw upon the so-called “discovery doctrine” and Chief Justice John Marshall’s opinion in the 1823 Johnson v. McIntosh case.  There is in this a legal and ideological critique of Ginsburg’s ruling that has some heft, though not as much as some people think.  I would rather challenge this ruling for its willful ignorance of the region’s history.  Upstate New York, and specifically the Oneidas’ aboriginal homeland, she wrote, now had few Indians who owned little land.  Of course.  But this was the result of a historical process through which New York became the Empire State, part of a systematic program of Iroquois dispossession.  The loss of Indian lands in New York State and the advance of white settlement was not the playing out of God’s manifest destiny. It was a crime against the laws of the United States.  The region lost its Native American character because of the actions of the state of New York.

Once an Indian tribe lost its lands, even if those lands were obtained illegally in a manner that violated federal law, and even when the tribe reacquired those lands from willing sellers on the open market, Ginsburg and her colleagues on the Court held that there was no longer any remedy open to the Indians.  The only way to revive sovereignty over lost lands was to have Congress take those lands into trust. The very existence of the Oneida Indian Nation was not enough to do this.  Tribal sovereignty, the Court implied, was a quaint and antiquated notion not worthy of its consideration. The passage of time had made history irrelevant. Let that one sink in for a minute.

And keep in mind, at issue in Sherrill was not an Indian nation’s exercise of criminal jurisdiction over non-Indians.  The tribes had lost that power in 1978.  Nor were we taking about the efforts of a native community to regulate or tax the activities of non-Indians on Indian lands. That, too, the Supreme Court had held was out of bounds.  No. In Sherrill, the issue was whether the Oneida Indian Nation would pay taxes to the City of Sherrill on lands the Nation owned, that stood within the bounds of its historic reservation, and that they originally had lost through illegal transactions.  Where is the disruption?  The Oneidas were dispossessing nobody.  They were imposing their authority over no one.  They were merely buying back lands that had been illegally acquired from them two centuries before.  And Ginsburg thought this was too disruptive.  That it was not fair.  The Oneidas sought not redress for waves of epidemic disease, or the military invasions of their homeland, or dispossession, or diaspora, but merely the chance to purchase the land and rebuild their nation.

Ginsburg accepted the premise that New York had acquired these lands in a manner that violated the law.  She refused to allow any remedy.  And with lower courts applying her ruling even more broadly to dismiss all Iroquois land claims, Ginsburg essentially validated illegal acts and excused the state’s misdeeds.

Ginsburg has written some helpful and valuable opinions in my view, but not in this case.  The Supreme Court is not a promising arena for native peoples to look to for the resolution of their claims.  And Sherrill, it was among the worst. It was a cowardly and cynical decision. Yeah, Justice Ginsburg seemed to say, your lands were taken from you illegally.  But even if the law says those sales are of no effect, there is nothing we can do for you now. It would not be fair.  Not to the white people who make up the majority of the population in the claim area.  History, and the law, are written by the winners.  You are out of luck.

What You Need to Read

One of the challenges of producing a textbook in Native American History is keeping up with the enormous volume of scholarship my colleagues in history, anthropology, and archaeology produce.  It is an exciting time to work in this field, precisely because of the high quality of so much of this work.  I regularly check the tables of contents in Ethnohistory, Southern Indian Studies, American Indian Quarterly, and a host of other journals.  But here is a list of some of the things that have made it on to my reading list, and that I will consider as I continue to teach my course in Native American history each fall at SUNY-Geneseo.

 

Angelbeck, Bill. “The Balance of Autonomy and Alliance in Anarchic Societies: The Organization of Defenses in the Coast Salish Past,” World Archaeology, 48 (March 2016), 51-69.

John Bowes, Land Too Good for Indians: Northern Indian Removal, (Norman: University of Oklahoma Press, 2017).

David A. Chang, The World and All the Things upon It: Native Hawaiian Geographies of Exploration,
(Minneapolis: University of Minnesota Press, 2016).

Olivia Chilcote, “Pow-wows at the Mission” Boletin: Journal of the California Mission Studies Association, 31 (March 2015), 79-87

Durwood Ball, “Beyond Traverse des Sioux: Captain Edwin V. Sumner’s Expedition to Devil’s Lake in 1845,” Annals of Iowa, &4 (Winter 2015), 1-28.

Arne Bialuschewski, Native American Slavery in the Seventeenth Century, (Durham: Duke University Press, 2017).

Celine Carayon, “`The Gesture Speech of Mankind’: Old and New Entanglements in the Histories of American Indian and European Sign Languages,” American Historical Review, 121 (April 2016), 461-491

Brian Carroll, “`A Mean Business’: Wartime Security, Sovereignty, and Southern New England Indians, 1689-1713,” Connecticut History, 54 (Fall 2015), 217-242

Linda M. Clemmons,  “We are Writing this Letter Seeking Your Help'” Dakotas, ABCFM Missionaries, and their Uses of Litearcy, 1863-1866,” Western Historical Quarterly, 47 (Summer 2016), 183-209.

Chip Colwell, Plundered Skulls and Stolen Spirits, (Chicago: University of Chicago Press, 2017)

Andrew Denson, Monuments to Absence: Cherokee Removal and the Contest over Southern Memory, (Chapel Hill: UNCP, 2017).

Kathy Dickson, “`All In’: The Rise of Tribal Gaming,” Chronicles of Oklahoma, 93 (no. 4, 2016), 3-12

Max Edelson, A New Map of Empire: How Britain Imagined America Before Independence, (Cambridge: Harvard University Press, 2017).

Katherine Ellinghaus, Blood Will Tell: Native AMericans and Assimilation Policy, (Lincoln: University of Nebraska Press, 2017).

John R. Gram, Education at the Edge of Empire: Negotiating Pueblo Identity in New Mexico’s Indian Boarding School,  (Seattle: University of Washington Press 2016).

Laurence M. Hauptman,  “Fighting a Two Front War: Dr. Albert Lake, Thomas Indian School Physician, 1880-1922,” New York History, 95 (Summer 2014), 408-431.

Yasuhide Kawashima, “Red Dreams, White Nightmares: Pan-Indian Alliances in the Anglo-American Mind, 1763-1815,” Journal of Military History, 80 (April 2016).

Paul Kelton, Cherokee Medicine, Colonial Germs: An Indigenous Nation’s Fight Against Smallpox, 1518-1824  (Norman: University of Oklahoma Press, 2015).

William S. Kiser, Borderlands of Slavery: The Struggle Over Captivity and Peonage in the American Southwest, (Philadelphia: University of Pennsylvania Press, 2017)

Benjamin Kracht, Kiowa Belief and Ritual, (Lincoln: University of Nebraska Press, 2017).

Brandon Layton, “Indian Country to Slave Country: The Transformation of Natchez During the American Revolution,” Journal of Southern History, 82 (February 2016), 27-58

Benjamin Madley, “Reexamining the American Genocide Debate: Meaning, Historiography, and New Methods,” American Historical Review, 120 (February 2015), 478-505

Jason Mancini, “`In Contempt and Oblivion’: Censuses, Ethnogeography, and Hidden Indian Historeis in Eighteenth-Century Southern New England,” Ethnohistory, 62 (January 2015), 61-94.

Michael Marker, “Borders and the Borderless Coast Salish: Decolonizing Historiographies of Indigenous Schooling,” History of Education, 44 (July 2015), 480-502.

Matthew McCoy, “Hidden Citizens: The COurts and Native American Voting Rights in the Southwest,” Journal of the Southwest, 58 (Summer 2016), 293-310.

Jane Mt. Pleasant, “A New Paradigm for Pre-Columbian Agriculture in North America,” Early American Studies, 13 (Spring 2015), 374-412

Raymond Orr, Reservation Politics: Historical Trauma, Economic Development, and Intratribal Conflict, (Norman: University of Oklahoma Press, 2017)

Dawn Peterson, Indians in the Family: Adoption and the Politics of Antebellum Expansion, (Cambridge: Harvard University Press, 2017)

James E. Potter, “`The Greatest Gathering of Indians Ever Assembled:’ The 1875 Black Hills Council at Red Cloud Agency, Nebraska,” Nebraska History 97 (Spring 2016), 16-31.

Joshua L. Reid, The Sea Is My Country: The Maritime World of the Makahs, (New Haven: Yale University Press, 2017). 

Judith Ridner,   “Unmasking the Paxton Boys,” Early American Studies, 14 (Spring 2016), 348-376

Paul Rosier, “Crossing New Boundaries: American Indians and Twentieth Century US Foreign Policy,” Diplomatic History, 39 (November 2015), 955-966.

Christina Snyder, Great Crossings: Indians, Settlers and Slaves in the Age of Jackson, (New York: Oxford University Press, 2017).

Ashley Riley Sousa, “`An Influential Squaw’: Intermarriage and Community in Central California, 1839-1851,” Ethnohistory, 62 (October 2015), 707-727

Benjamin Steere, The Archaeology of Houses and Households in the Native Southeast, (Tuscaloosa: University of Alabama Press, 2o17).

Coll Thrush, Indigenous London: Native Travelers at the Heart of Empire,  (New Haven: Yale University Press, 2017).

Daniel J. Tortora, Carolina in Crisis: Cherokees, Colonists, and Slaves in the American Southeast, 1756-1763,   (Chapel Hill: University of North Carolina Press, 2015).

E. J. Vance, “Classical Education and the Brothertown Nation of Indians,” American Indian Quarterly 40 (Spring 20160, 138-174.

Louis Warren, God’s Red Son: The Ghost Dance Religion and the Making of Modern America, (New York: Basic, 2017).

Alice Wright, “Center Places and Cherokee Towns,” American Anthropologist, 118 (June 2016).

Cynthia Wu, “A Comparative Analysis of Indigenous Displacement and the World War II Japanese-American Internment,” Amerasia Journal, 42 (April 2016), 1-15

I’m So Bored with the CSA

On Tuesday, Arkansas Governor Asa Hutchinson signed legislation stating that his state would no longer commemorate Confederate general Robert E. Lee on the federal Martin Luther King holiday.  It is a nice gesture, as far as it goes. Now only Alabama and Mississippi maintain this callous disrespect for the Reverend King by linking the commemoration of his career with that of a Confederate leader who fought against all that he stood for.

The Arkansas bill had wide support.  The signing ceremony included the expressions of all sorts of good feelings. Lawmakers patted themselves on the back for their courageous decision to separate the state’s commemoration of two men, one who fought for civil rights, and the other a civil war.  But not everybody was happy.  Republican State Representative Jana Della Rosa saw the separation as a demotion for Lee.  “We are taking Robert E. Lee and and are putting him in the basement and we are acting embarrassed that he ever existed,” she said during the debate.

No, Jana Della Rosa, you are not.  Robert E. Lee still has his own day, which will now be celebrated on the second Saturday in October.  But Representative Della Rosa could not be placated.  Speaking of the vote, she said, “it’s no different than if we took that statue of the Confederate soldier and put it down in the basement and said nobody is going to look at it again.”

I am not sure what it is with Representative Della Rosa and basements.  Governor Hutchinson acknowledged the concerns of lawmakers like her when he stated at the signing ceremony that Arkansans should not be ashamed of their Confederate history.

But here is the thing. The South, and southerners in general, should be ashamed.

Some of my students still are taught in high school that the Civil War was fought over States’ Rights.  Nonsense.  Slavery and White Supremacy.  These were causes Southerners thought worth dying for. These were causes for which they were killing to kill.  More than 600,000 people died as a result of the South’s determination to protect slavery.

As Charles R. Dew demonstrated in his fantastic book Apostles of Disunion, Southerners who advocated secession from the Union associated the presidency of Abraham Lincoln with three stark images that, Dew writes, “constituted the white South’s worst nightmare.”

The first, Dew writes, “was the looming specter of racial equality.” Second, was the fear of race war. The Republican party of Lincoln, wrote one secession commissioner from Mississippi, will not only destroy slavery but “will drench the country in blood, and extirpate one or other of the races.”  And, third, the southern secessionists  most dire fear, that of racial amalgamation.  Dew’s work is worth quoting at length:

Judge Harris of Mississippi sounded this note in Georgia in December 1860 when he spoke of Republican insistence on “equality in the rights of matrimony.”  Other commissioners repeated this warning in the weeks that followed.  In Virginia, Henry Benning insisted that under Republican-led abolition, “our women” would suffer “horrors…we cannot contemplate in imagination.” There was not an adult present who could not imagine exactly what Benning was talking about.  Leroy Pope Walker, Alabama’s commissioner to Tennessee and subsequently the first Confederate secretary of war, predicted that in the absence of secession, all would be lost–first, “our property,” and “then our liberties,” and finally the South’s greatest treasure, “the sacred purity of our daughters.”

Southern secessionists, Dew concluded, believed these things in the marrow of their bones.

Governor Hutchinson did the right thing in disconnecting the commemorations of Reverend King and General Lee.  But in keeping a day on the state’s calendar for honoring Lee, and asserting in his comments that Southerners should be proud of their Confederate heritage, he went too far.

We are too late in history for this sort of stuff.  The Confederacy stood for white supremacy.  That hundreds of thousands of men died in the struggle to preserve the Union and abolish slavery is sad. In an American nation where Southern states are moving to restrict access to the polls, and “Alt-Right”-inspired political leaders consistently blow racist dog whistles, we must study closely the causes and consequences of the Civil War and Reconstruction, as well as the history of race and racism in American society.  But, please, no more celebration of the Confederacy.  Take down the flags.  Put General Lee in the basement.

I Say 1622! You Say…

Sometimes, when the semester begins, I think of that scene in “Back to School” where Rodney Dangerfield’s character encounters an unhinged history professor played by the great Sam Kinison.  It never fails to make me laugh.  Totally inappropriate for use in the classroom but, in its way, it conveys quite well that historians (and others) can disagree at times sharply in their interpretation of historical events.

When I teach my own Native American History course, I try to insert as much as possible a good dose of historiography.  No more than half the students enrolled in the course in a given semester are history majors.  The rest, from disciplines across the campus, are taking my class to fulfill one or more of their general education requirements. But even the history majors, in my view, are too prone to view history as a static body of knowledge, a mass of facts that I am to impart to them through lecture and discussion and that I will expect them to regurgitate on periodic examinations, rather than a dynamic field where we study continuity and change measured across time and space in peoples, institutions and cultures, and in which historians debate intensely the events that they find significant.

Debates about the size and origins of the aboriginal population of North America, or the consequences following from Christopher Columbus and the”Columbian Encounter,” itself a label that students can benefit from unpacking, offer an opportunity to do this early in the semester, or the nature of the Puritans’ war against the Pequots.  These stories produce questions that can lead students to talk about the issues of agenda and bias, but also how evidence is used and what, indeed, constitutes reliable and valid evidence. Sharp debates among historians surround each of these issues.  The Powhatan uprising led by Opechancanough in 1622, offers a fourth alternative.  Today is the anniversary of that incredibly significant event.

The earliest Englishmen to write about the massacre, or uprising, or rebellion–the words themselves matter–was  Edward Waterhouse.  For him, the meaning of the 1622 attack was clear.  The Powhatans, he wrote, were “Savages” who, “though never a Nation used so kindly upon so small desert, have in stead of that Harvest which our paines merited, returned nothing but Bryers and thrones, pricking even to death many of their Benefactors.  They were, Waterhouse continued, “miscreants,” who “put off humanity” for a “worse and more than unnatural brutishness.

His countryman, Christopher Brooke, wrote of the Indians as “Errors of Nature, of inhumane Birth,/ The very dregs, garbage, and spawne of the Earth.”  (And, No, the attack did not occur on Good Friday–that legend began as a means of conveying the innocence of the 347 colonists who died, and their sacrifice for, well, something, whether that was civilization, which was in short supply at Jamestown, or tobacco, of which there was more than enough).

You can have your students read excerpts from these documents, if you wish.  Or you could have them look at how historians have made sense of the documentary record, and how they differ in their interpretations.  There is Edmund S. Morgan’s indelible depiction of early Virginia, in which the events of 1622 become part of his beautifully-written exploration of American Slavery, American Freedom. Or J. Frederick Fausz’s depiction of Opechancanough’s rising as part of a “revitalization movement” triggered by the cultural arrogance of the colony’s leaders and the murder of a messianic figure named Nemattanew, or Jack of the Feathers.  Fausz never published his William and Mary dissertation but there are few more influential and important works on the subject.

In the early 1990s, Frederic Gleach argued that the Powhatans reacted to English territorial expansion, and that the rising led by Opechancanough was a warning of sorts, not intended to eliminate the colonists entirely, but to teach the newcomers their place within the Paramount Chiefdom he inherited from Wahunsonacock.  The anthropologist Helen Rountree, who has spent her career writing about the Powhatans, was among the earliest of the anthropologists to really try to understand the uprising in terms of Powhatan culture, and the endnotes to her books are a gold mine.

My own account, now nearly twenty years old, looked at environmental conflict between natives and newcomers, and the genocidal violence that resulted from that rivalry. The Virginia Company’s promoters wanted originally peace and order along the early Anglo-American frontier, for hostile natives would not allow the English to profit, establish a secure foothold on American shores, or spread Christianity.  Colonial promoters tended to believe that native peoples could become more like them, but they could not control the environmental conflict. Out of this conflict came warfare, and out of that warfare came racist beliefs about native peoples like those expressed in the poetry of Christopher Brooke.  Articles by historians like Fred Fausz and Alden T. Vaughan, and the work of archaeologists like Martin Gallivan, can further enrich the discussion.

The historians, anthropologists, and archaeologists who write about this topic to a great extent rely upon the same sources, but we disagree at times intensely about what they mean and the stories that those sources tell.  (The bibliography in the back of Karen Ordahl Kupperman’s first book Settling with the Indians is still a tidy and convenient listing of all the published primary sources by Englishmen who observed the Powhatans at first hand).

And when our students come to us from high schools where the amount of time available for history and “Social Studies” has been reduced significantly, and the coverage of Early American history has been given especially short shrift, and Native American history is covered not at all, they cannot be faulted for arriving with little understanding of how history works, or does not work, as a discipline.  They know little about what historians do, how we do it, the relationship of our discipline with anthropology, geography, and archaeology, and why all of this matters to us as much as it does.

 

 

We Cannot Forget What We Do Not Remember

I have told  myself that I would not write about Donald Trump, but the guy is the gift that keeps on giving, if by gifts one means a series of outrages that forebode some national or global calamity.

This week, on the Ides of March, our Bronze Creon visited the grave of Old Hickory, Andrew Jackson, the seventh president of the United States. Trump’s affection for Jackson is clear–a portrait of Jackson hangs in the Oval Office and, in a tweet, our current president thanked #POTUS7 for his service to the country.  New Orleans? The slaughter of Creeks at Horseshoe Bend?  Perhaps.  Or was it Jackson’s distaste for the 1st Amendment in the form of his support for the congressional “Gag Rule,” or restricting abolitionist materials from the US Mail?  Did Trump like Jackson’s desire to go medieval on the Nullifiers in South Carolina? Maybe it was because Trump embraced the  myth that Jackson was an outsider, the people’s candidate, a kindred spirit of sorts, even if based on a flawed historical analogy.  Or the ruinous Bank War? Or Jackson’s brutal embrace of majority rule whatever the consequences?

For students of the Native American past, Andrew Jackson is identified with the policy of “Indian Removal.”  (God, I hate that euphemism.)  More than any of his predecessors, Jackson advocated removal as national policy toward native peoples.  His supporters included many southerners and westerners who wanted Indian land.  He called for removal in his first annual message.  He signed the Indian Removal Bill into law in 1830.  He argued that removal was not mandatory, but that native peoples who remained upon their lands must subject themselves to the laws of the states in which these lands were located. Those states offered no protection for the persons and property of native peoples. Earlier in his career, Jackson negotiated massive land cessions with southeastern Indian nations, and he appointed during his presidency the commissioners who used all means fair and foul to obtain signatures on removal treaties. During his presidency, thousands of native peoples left their homes in the east for new homes in the west.  There is no doubt that thousands of native peoples died as a direct result of the policies pursued by Andrew Jackson.

Our Bronze Creon told one interviewer that though he is very busy doing tremendous things to make America great again, he did find some time to begin reading a book about Andrew Jackson.  I doubt that he learned much.  The same day that Trump visited Jackson’s grave, a federal court in Hawaii struck down the president’s second attempt to ban Muslim immigrants from a handful of countries.  Mike Huckabee, the Le Fou of GOP politics, said that like Jackson when confronted by a Court that challenged a fundamental assumption of his Indian policy, Trump should resist the judicial branch of the federal government.   Huckabee became, in effect, the first person in the 21st century to see Jackson’s dismissal of the Court’s authority as admirable, and created the impression that this is a presidency run by men who have little knowledge of this nation’s past and less regard for the historic sufferings of its people of color.

I have written about all of this before. Jackson is a bad guy.  He ruled by anger.  He shot people in duels. He menaced his enemies.  He held grudges with such ferocity that he makes Nixon seem chill. He trashed the economy, and seems not to have understood banking. We should not shed a tear that he is slated for removal from the twenty-dollar bill.  He is rightly associated with America’s long history of ethnic-cleansing.

But here’s an unpopular point.  Removing Jackson from our currency, or denouncing him as the author of a genocide against Native Americans, does not absolve any of us of the sins of our nation.  Removal is a fact of life in Native American history. It began before Jackson took office, and continued long afterwards.  (If you have not seen it, take a look at Claudio Saunt’s interactive map illustrating Native American land loss). I teach, for instance, at a college called Geneseo.  I routinely drive through or visit places called Canandaigua or Irondequoit, and pass by on the highway places called Onondaga and Canajoharie and Nunda and Cohocton. The place names remain, after the people were removed, or consolidated on reservations in remote corners of New York state.  A half dozen archaeological sites, all previously Seneca towns, are within a half-hour’s drive of where I sit. I walk along the old path of the Erie Canal, that symbol of New York’s rise as the Empire State that could not have been constructed without Iroquois dispossession. Both its original path and its current path pass by within a half mile of my house.  In other words, look at the ground beneath your feet.  It was once Native American land, and if you live in the east, like me, you likely have benefited from the relocations and removes that turned native peoples into refugees and exiles.

A more astute politician, not to mention a more sensitive human being, might have acknowledged the costs of Jackson’s policies–policies that were popular at the time, and from which millions of non-Indian Americans continue to reap the benefits.  A more historically aware President might have talked about the complexities of the past. But that is not Donald Trump’s style.  He is not a deep thinker.  A man who recently congratulated the long-dead Frederick Douglass for the good work he is doing, Trump has shown no signs that he has any interest in or knowledge of America’s troubled past.  And that is especially the case when it comes to the victims of American history.

Yeah, About that Issue of What is Fair and What is Unfair

A number of disgruntled readers of my piece on Donald Trump have reached out to me with angry emails.  My essay appeared in the Syracuse newspapers a week or so ago.

One reader raised an argument with which may of us who teach Native American history are familiar, and with which we must contend.  Referring to the Oneidas of New York, who operate a lucrative casino and resort complex a short distance from Syracuse and just off the New York State Thruway, this reader asserted that “the ‘sovereign nation’ concept is obsolete and unfair to taxpaying citizens.”

“Last time I checked,” he continued, “most Oneida Indians live within the borders of the US, the County of Madison and the town of Vernon, They drive their cars on public highways, are protected by our military, so on and so on, just like me.”

Oneidas did everything this writer did, he argued, “except pay taxes.”  Asserting that Indians have unfair advantages, he declared that “it’s time to level the playing field.”

If you teach Native American history, you have likely encountered these sentiments before.  If you are a student in a Native American history class, it is a safe bet that some of your classmates share these views.  They are not uncommon.  I heard them when I lived in Montana.  They were for many years the lifeblood of the anti-Indian sovereignty group Upstate Citizens for Equality, which opposed Indian gaming and other commercial operations in New York state and Indian land claims.  Some of their signs still dot the roads coursing through New York’s Finger Lakes region.

We could, I suppose, dismiss these views as anti-Indian racism.  That, in my view, would be a mistake.  We need to engage.  We need to educate, and tackle views such as these head on. Our students, after all, learn nothing about concepts like tribal sovereignty and the place of native peoples in the American constitutional system and, at best, little about Native American history. At times, views like these are expressed with such vehemence that we might feel as if we are casting our pearls before swine, but I believe that these are teachable moments. And I would argue that we let these opportunities pass us by at considerable cost.

When I face views such as these, I try to concede a few points. In other words, if one sets aside the entire historical experience of the native community in question–which historians are always reluctant to do–it might seem that native peoples have certain “advantages.”  But these so-called advantages are often misunderstood, or based upon fallacies, or a lack of information about the constitution and American Indian history.

Sometimes I find this stuff difficult to explain.  Sometimes I think the people who write to me really do not want to hear a history lesson, or an explanation for how things came to be.

So I begin with the fact that native peoples belong to polities that predate the United States.  Under American constitutionalism, native nations retain by virtue of their inherent sovereignty the right to govern most of their own affairs, on their own lands, so long as they have not explicitly lost those rights by virtue of an act of Congress or a treaty, or implicitly because the practice in question is somehow inconsistent with their status as domestic dependent nations.  I will point out that to a great extent they have lost criminal and civil jurisdiction over non-native peoples who own land on their reservations, but that they retain considerable power still.  I point out that over the course of the last forty years the Supreme Court has weakened significantly the powers of tribal governments.

So much for the Constitution.  I also point out that the notion that “Indians pay no taxes” is an oversimplification.  Native Americans pay federal taxes, even when that income is earned entirely on a reservation. States and localities do not have the constitutional right to tax economic activity by native peoples on Indian land.  (The most useful discussion of this issue appears in Chapter 10 of Stephen L. Pevar’s The Rights of Indians and Tribes, (4th ed., 2012)).  I am willing to concede that this might pose a competitive disadvantage to non-native businesses located in the vicinity of Indian reservations, but that this is not simply a product of “special treatment” or an “uneven playing field,” but because of the language of the Constitution which places Indian affairs under the control of the federal government.  I point out that in a number of instances, Congress has allowed states to exercise its authority in Indian country.  This is the case in New York State.

I have been at this a long time. Racism towards Native Americans is a real thing.  The inequalities experienced by native communities are significant.  The statistics do not lie.  New York became the Empire State, as Laurence Hauptman has so ably shown, through a systematic program of Iroquois dispossession. You could not have one without the other.

The transactions through which New York acquired Iroquois land happened a long time ago, but these were transactions that violated federal laws the United States lacked the power and perhaps the willingness to enforce.  The Supreme Court has held that these transactions occurred so long ago that nothing can be done to right these wrongs, but that does not mean that the rights retained by native peoples should be ignored.

New York’s native peoples have seen, through a long history, their homelands invaded.  They experienced waves of epidemic disease.  They faced dispossession, and then the effort to “remove” them to new homes in Arkansas, or Wisconsin, or the Indian Territory, and then to re-educate their children, and disable their governments.  Disease, warfare, dispossession, diaspora: the injuries occurred a long time ago, but their legacies remain.  And now, when a community like the Oneidas manage to bring a measure of prosperity to their homelands, after the withering trauma of history, there are those non-Indians who cry out, “Wait! This isn’t fair!”

Give me a break.  Look at the ground underneath your feet.  If you believe that laws matter, that the Constitution matters, that the pledges in a treaty that guarantees to the Six Nations the right to “the free use and employment of their lands” matters, then drop the whining about what is or is not unfair. Please.  I was writing about something else, a president’s name-calling that I considered racist.  Stop sniveling about fairness.  It is not a good look.  It makes you sound racist.

 

Thinking of Gnadenhutten, 8 March 1782

I have thought a lot lately about the old charge that University faculty are all left-wingers who distort the minds of the tender children enrolled in their courses.   I have never believed this.  When I took my first job in Montana, my colleagues in the history department included a Missouri Synod Lutheran pastor who despised liberals and loved Rush Limbaugh, an Iraqi Seventh-Day Adventist who worried that African Americans would move to Billings because it was easier there to commit crimes, and an expert on lynching who saw nothing objectionable in the infamous Willie Horton ad run by the George HW Bush campaign against Michael Dukakis.  I was surrounded by historians on the political right.

More recently, a local radio show asked if my college would send a representative to discuss whether or not we were concerned about a lack of ideological diversity on campus, and just days before that, the recently installed Secretary of Education warned her audience at the Conservative Political Action Conference that “the faculty, from adjunct professors to deans, tell you want to do, what to say, and more ominously, what to think.”  I wrote about that here, yesterday.

I have little patience for charges such as these.  One thing I like to do as a historian when confronted with questions like these is to ask those who believe that left-wingers have taken over the academy how the teaching of a given subject might change if I were farther to the right or the left than I am at present.  Let’s talk about the history. Support your reasoning.  Explain to me how the political affiliation of, say, a history professor, affects the way he or she teaches a given subject.  We can talk about slavery, or the American Revolution, or I might ask them about events like the massacre at Gnadenhutten, which occurred on this date in 1782.

Because if we are to understand Native American history in all its complexity, I believe that we must confront the lacerating violence of events like Gnadenhutten. We must do so whether we are on the Right or the Left or in the middle.  I would contend that an honest rendering of this event would not differ widely on the basis of who taught it.

The frontier, we must remember, was a violent and at times a frightening place. No historian would dispute that, no matter what their politics, unless they chose to ignore the evidence completely. Many Anglo-American settlers living on war-ravaged frontiers simply could not trust their Indian neighbors. Settlers in the Ohio country, for example, experienced the horrors of warfare just as did Indians. Some of them witnessed the death of friends and neighbors in Indian attacks. More of them heard horrifying stories of Indian attack. These settlers had occasion to fear Indians. They acted, with violence and decision, to save themselves.  But settlers found in their fears justification for horrible acts of terror. They could, as did Ohio country settlers in 1782, conclude that the singing of psalms by Christian Indians at the Moravian mission at Gnadenhutten was not the pious expression of praise to the One God but the ranting and boasts of savages who had wet their hands in the settlers’ blood.

Native peoples had their own fears, of course. When Kentucky militiamen attacked a cluster of villages in northern Indiana where Potawatomis and many other native peoples lived, they threatened them with extermination. If native peoples refused to make peace, Brigadier General Charles Scott said, “your warriors will be slaughtered, your towns and villages ransacked and destroyed, your wives and children carried into captivity.”  Read Jeffrey Ostler’s excellent piece in the William and Mary Quarterly from 2015.   Indians feared genocidal violence from white Americans, and you cannot miss the expressions of that genocidal intent in the writings and statements of American officials. Words and deeds combined, a frightening mix. Many native peoples who lived in the Ohio country saw in the United States and its citizens, whatever its claims to desire peace, an existential threat to their existence. Gnadenhutten.  The soldiers from Pennsylvania held a vote on whether or not to kill the 100 Christian Indians they had taken captive. This was, for native peoples, American democracy at work.   As the Christians sang the last hymns they would sing, savage militiamen began to murder them, thirty men, three dozen women, and thirty-two children in all. Kids.  Almost three dozen.

I tell my students about these violent episodes.  I mess around with the words.  Murder becomes an expression of democracy.  Frontier settlers become savages.  I try to decenter things, upset expectations.  I want the students to think about events like these, so formative in my own thinking about the meaning of Native American History.

If you are a student, you will have to decide how to make sense of this stuff.  We can talk about it or not.  We can ignore it if we want to.  Maybe that dude in Texas, who I saw on a local television station when I lived down there defending that state’s crazy history curriculum, and who believed that a bad day in the United States was better than a good day anywhere else, would choose to dismiss Gnadenhutten as an exception.  More likely he would not have us talk about it at all. But Gnadenhutten cuts to the core of the American frontier experience, and we cannot confront that history without paying it heed.  Left, Right, or Center.

 

Betsy DeVos Needs to go to School

What a dark and frightening world it is that Secretary of Education Betsy DeVos sees awaiting the young people attending the nation’s colleges and universities. “The faculty,” DeVos warned an audience some time back at the Conservative Political Action Conference, “from adjunct professors to deans, tell you want to do, what to say, and more ominously, what to think.”
Oh, Secretary DeVos, you have it all so wrong.
I have attended colleges and universities, public and private, as a student in California and New York. I have taught at colleges and universities in Montana, Texas, and New York. I have spent more than three decades, as student and a professor of American history, on college campuses.
My colleagues and I have, I will admit, told students to do their assigned work. We have told them that they need to communicate clearly and effectively with evidence to support their reasoning. Sometimes we complain that they do not work hard enough or think with enough discipline. But we do not tell our students what to think. Indeed, there would be no better way to lose an audience of 18-22 year old young people.
I have no idea how much time Betsy DeVos spends in college classrooms, but I can say that higher education as it actually is practiced bears little resemblance to the dystopian vision she outlined last week and that is echoed so often in the right-wing media.
In history and the liberal arts, we pose big questions over which great minds around the world from many cultures have wrestled with for millennia. We study continuity and change, measured across time and space, in peoples, institutions and cultures. We urge students to be curious and hard-working, critical but kind. But we do not tell students what to think. We ask them to use their imagination and their reason. We expect them to argue—to investigate problems, gather evidence, consider the scholarship, and advance a thesis with confidence and clarity. We urge them to question everything, to challenge assumptions, to demand evidence, and to be intellectually fearless. We demand that they think.
Are there incompetent professors? Or ideologues in the university classroom? Sure, there are a few, and as many on the right as on the left in my experience. But they are a tiny minority, as they are in any line of work. There are, after all, incompetent and close-minded politicians, plumbers, and cabinet secretaries, as well, and “the faculty” is generally a group of fiercely independent and open-minded thinkers.
And that is what we want for our students. When I teach my college’s required course in the Western Humanities, my students read Sophocles and Thucydides, Plato and Cicero, the Bible and Augustine, Aquinas and Thomas More. That is a reading list that Conservatives a couple of decades ago would have loved. My students debate questions of immense importance: what are the components of human nature, what is the source of evil, how does one define

Yours Truly, Telling students that they should not kill the Melians

justice, and the relationship between law, power, and liberty, to name a few. The students’ opinions cross the ideological spectrum, but all understand that they must explain why they believe what they believe, and the evidence and experience that led them to those beliefs. And they must consider the ideas of great thinkers along the way, some of whom will challenge all that they believe to be true. Education can be an unsettling experience. Students who really want to be educated will be challenged.
Betsy DeVos seems to look on all of this with dread. She wants college students to join in “the fight against the education establishment,” to root out those phantoms “who say that if you voted for Donald Trump, you are a threat to the university community.” She believes that conservative students are under siege, assaulted by a college community that pays little heed to their First Amendment rights.
Nonsense. And the few exceptions she might trot prove no rule. Professors are as much a threat to free thought on college campuses as Grizzly Bears are a threat to children in elementary schools.

Education is essential for the functioning and survival of a republic. STEM education is important. We all know that. But a thriving democracy requires informed and questioning citizens, capable of thinking for themselves, assessing evidence, and dismantling the cant of demagogues and press secretaries. This is precisely what education in the liberal arts provides: students who can write, who can reason, and who can debate; students who can cut to the quick of an argument and insist on seeing the evidence and demand answers. These are the sorts of people, judging by Secretary DeVos’s demeanor at her confirmation hearing, that she worries about the most.
Spend some time on a college campus. Listen to what students talk about when they talk about their classes. Read what they write and what their professors write. Look at what they learn. Do so broadly, and with an open mind. You will see, then, that Secretary DeVos needs to go to school.

Oliphant v. Suquamish: Forty Years Ago Today

 

Today is the anniversary of the Supreme Court ruling in  Oliphant v. Suquamish, a case that involved a native community along the Salish Sea, a white interloper, and the evisceration of the power of native peoples to govern and preserve order in their communities.  The Court issued its ruling on this date in 1978.

When I revised Native America and completed the second edition, I wanted to include more discussion of the role played by the American judiciary in defining and limiting that slippery concept we call sovereignty, and to look closely at the practices of an activist court applied to  Native American tribal governments

I talk a lot about the law and the courts.  I like to have students in my American Indian law course begin at the beginning, or one of a number of possible beginnings, by reading the United States Constitution.  Indians are mentioned twice in that august document.  There is a reference to “Indians not taxed” as being excluded from the tally of population required to calculate representation.  And then there is Article I, Section 8, spelling out the powers of Congress.  Among the long list of things that the legislative branch can do is “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”

Commerce.  What does it mean?  The students in my class ponder that question.  They read the Indian Trade and Intercourse Act of 1790. Like a number of pieces of legislation enacted by the first federal congress, the Trade and Intercourse Act elaborated upon the sparse language in the constitution.  Under the Trade and Intercourse Act, trade was licensed and regulated.  Land purchases from Indians not overseen and approved by the United States government were declared invalid.  Congress claimed the power to regulate those instances when native peoples and American citizens interacted with each other.  Importantly,  Congress claimed no authority over the internal affairs of American Indian nations.

Native nations were autonomous nations.   But that autonomy gradually was defined away. Chief Justice John Marshall, in 1831 and 1832, defined native polities as “domestic dependent nations.”  They could not carry on diplomacy with powers outside of the United States, nor sell their lands to any party but the United States, but they were immune to any state interference.  The State of Georgia’s prosecution of an American missionary resident in the Cherokee Nation was thus deemed unconstitutional, even if Andrew Jackson refused to enforce the decision.

But a series of decisions beginning in the last quarter of the nineteenth century chipped away at the autonomy of native nations even farther. Congress could extend its criminal jurisdiction over Indian country because the very weakness of the Indians, caused by the actions of the American government, demanded protection.  If the relationship of native peoples to the United States resembled, as Chief Justice Marshall had said, that of a ward to its guardian, in the 1886 Kagama decision the Court held that the government had the power to legislate for those communities, to protect them by making native peoples subject to federal criminal jurisdiction for certain “Major Crimes.”

The rule that emerged over time, and through the law, came to be known by legal scholars as explicit divestiture.  Native American nations could do essentially whatever they wanted unless they had been explicitly forbidden from doing so by a treaty or an act of congress, both of which were the “supreme law of the land” according to the Constitution.

And this is where Oliphant comes in.  The facts of Oliphant, according to Judith Royster,  are straightforward. “Mark David Oliphant and his co-defendant were on the Port Madison Reservation during the Suquamish Tribe’s annual celebration. Tribal police arrested both men in separate incidents. Oliphant was charged with assaulting a tribal officer and resisting arrest. The other man was charged with reckless endangerment and injury to tribal property after he led tribal police on a high-speed chase that ended when he crashed into a tribal police car. Both men sought a writ of habeas corpus in federal district court. The district court denied the petitions, the Ninth Circuit affirmed in Oliphant’s case, and the Supreme Court took the cases on review.”

Oliphant asserted that because he was not a member of the Suquamish tribe, and despite his residence on their land, that tribal authorities lacked the authority to prosecute him.  The Supreme Court agreed.  In a devastating ruling, Justice William Rehnquist held that

an examination of our earlier precedents satisfies us that, even ignoring treaty  provisions and congressional policy, Indians do not have criminal jurisdiction over non-Indians absent affirmative delegation of such power by Congress.

Without citing any evidence, Rehnquist concluded that “by acknowledging their dependence on the United States, in the Treaty of Point Elliott, the Suquamish were, in all probability, recognizing that the United States would arrest and try non-Indian intruders who came within their Reservation.”  The treaty does not explicitly say that, nor did the Suquamish specifically give up that power, but Rehnquist did not seem to care.

Oliphant, in essence, produced a new principle for measuring the powers of tribal governments to police their communities.  Adding to the doctrine of explicit divestiture came Rehnquist’s elaboration: the doctrine of implicit divestiture.  Native nations could do anything they wanted, unless explicitly prohibited by the terms of a treaty or an act of Congress or, now, if the power in question were somehow inconsistent with their status as domestic dependent nations.  Defining what was and was not inconsistent with this status was murky at best.

It was, over the course of one hundred and forty years, quite a slide.  The Supreme Court in Oliphant cited little law. It did not cite the constitution.  It simply stated that the exercise of criminal jurisdiction over a non-member in this case was inconsistent with their status as a domestic dependent nation. And the consequences—of Oliphant and the doctrine of implicit divestiture, were significant. It limited significantly the ability of Native American nations to preserve order on their lands, and to police the activities of non-members within their boundaries.  The decision was, according to Royster, “a morass of bad reasoning,” and a ruling that affirmed that the Supreme Court, rather than the military or missionaries, was now the locus of imperial power over native nations in the United States.