Category Archives: Current Events

The Confidence Man

I find the story of New York Congressman George Santos endlessly fascinating. Seven years ago, I wrote a biography of an Indian Confidence Man, a professional liar named Eleazer Williams. Like Williams, Santos fabricated his backstory. Both, in their quest for ascendance, denied who and what they were. Both were reviled for their deceptions. Nearly everything Santos has said about his background is a lie. And reporters, smelling blood in the water, continue to reveal on a daily basis new deceptions. It will only get worse for Santos. The most recent revelations are that he stole from a fund dedicated to providing medical treatment for a veteran’s canine companion. Given the utter emptiness of his resume, and the brazenness of his lies, it is stunning how far Santos’s deceptions have carried him. In Republican politics, I suspect he will go far.

How will historians tell the story of George Santos? He has done a remarkable job of avoiding reporters who will ask him challenging questions. His handlers will not respond to journalists’ queries. They neither return calls nor respond to emails. Like many politicians, he insulates himself from ever having to answer directly a person who challenges him.

We historians dig like badgers to unearth the primary sources we need to tell our stories. That is going to be hard enough as letters and documents become more rare, and as politicians communicate more and more through texts and emails that, it is reasonable to believe, many of us will never, ever see. The record will be thin no matter what. And what about the massive problem posed by the fabulist and inveterate liar? How do you tell the story of a person you are almost certain never has told the truth? These were questions I struggled with when I wrote about Eleazer Williams.

*****

Williams was an Indian confidence man. He was a liar and a teller of tales.  There can be no denying this.  Born at the Canadian Mohawk town of Kahnawake in 1788, he died in Hogansburg, New York, on another tract of Mohawk land, the St.Regis or Akwesasne reserve, seventy years later.  He was a direct descendant of Eunice Williams, that unredeemed Puritan captive carried to Kahnawake from Deerfield, Massachusetts, as a child in 1704 by Mohawk raiders and their French allies.  That is a fact.  But he claimed to be other things at other times, and played and performed other roles during a long career. Some of them were true, others—not so much: A hero during the War of 1812, and commander of the “Corps of Observation” on the northern New York frontier, an Indian who fought on behalf of the United States in its second war for independence—all part of an elaborate and ultimately unsuccessful scheme to secure a pension for military record he could never corroborate; or the successful and admired Episcopalian catechist who against great odds brought Christianity to the so-called “Pagan Party” of the Oneidas in central New York, arguably the achievement he took the most pride in; or an expert on Indian affairs, a committed and early supporter of the policy known as “Indian removal,” and the leader of the relocation of the New York Indians to Green Bay. 

            There were other roles that Williams played, but he said less about these.   He was a bad debt, dogged by creditors for sums both small and large for much of his life.  He was a neglectful husband and absent father, who did little to care for his small family, and who effectively abandoned his wife and lone surviving son after losing all but a fragment of their lands in a botched real estate transaction in the 1840s. After his second child died in infancy, Williams disappeared. He had nothing to say to his wife.

            These are significant faults, but they did not prevent Williams from holding great influence in discussions of the place and future on native peoples in the northeastern United States in the 1820s and 1830s.  Williams was a professional Indian, advising officials in church and state on what ought to be done. He told them that their plans were sound, their hopes realistic, the support for their policies real, and he tried to make it so. This was how he made his living, put food on his plate, and a roof over his head.

            Like all people, Eleazer Williams made choices about his identity, about how he presented himself to others.  Like all people, as well, he confronted and contended with forces that in a variety of ways constrained and limited these choices.  Williams could be different things to different people.  Those who he met, and those who encouraged him or supported him or protected him or condemned him, carried expectations of who Eleazer Williams was and what he might do for them. 

            He thus played roles, and he served functions, some imposed upon him, some offered to him as opportunities, and others of his own choosing.  It was a treacherous game. When he presented himself to the famous painter George Catlin in 1833, Williams still possessed a great deal of influence among powerful Americans interested in the conduct of Indian policy.  He presented himself to Catlin in Wisconsin as a Christian and a clergyman, as a man comfortable both in Iroquois towns and at the centers of American power.  Williams seemed quietly confident in Catlin’s portrait.  He posed for Catlin wearing his ministerial attire, with his white lace collar standing out against his black coat and his dark skin. (Figure 1)

            To understand Williams’s rapid rise to a position of such influence, where he was called upon by congressmen and senators, the governor of New York, a number of secretaries of war and presidents of the United States, it is important to look at his relationship with four entities, or four significant groups of people: the Episcopal Diocese of New York; the Oneida Indians in Central New York; Federal and state officials who as early as the Madison Administration were trying to concentrate or remove the Iroquois, of which the Oneidas were one of six parts; and lastly a well-connected business syndicate known as the Ogden Land Company.

            First, there was the Episcopal diocese of New York, under the energetic leadership of its archbishop—and Williams’s great patron—John Henry Hobart.  Williams had been born into a Catholic community at Kahnwake, but he was taken to southern New England as a child to receive his education from the descendants of his Puritan forebears in the Connecticut River Valley, Eunice Williams’s family.  He spent a decade there before departing for New York City at the age of 21, where he met Hobart, became an Episcopalian—his third religion, in a sense– and began his career as a missionary.  After a pair of false starts, he began preaching to the Oneidas in central New York. 

            He enjoyed great success at Oneida.  The nation was divided over matters large and small.  A significant portion of the Oneidas, hostile to the teachings of the Presbyterian missionary Samuel Kirkland who had been active in the region from the 1760s into the early 1800s, had not accepted Christianity and was known as the Oneida “Pagan Party.”  In 1817, Williams successfully transformed the Pagan Party into the “Second Christian Party.”  There is little doubt that he was a patient catechist and a captivating preacher. His influence grew, especially among those who thought Christianizing the Indians a laudable goal.  His success as a missionary brought him considerable respect in religious circles. Williams, in the eyes of these white men, became a leader in the community.  This presented him with challenges and with opportunities. 

            He was not the only leader in the Oneida community to be sure, but nobody else at Oneida wrote English as fluently or spoke the language with his facility.   Thus when white people needed to speak to Oneidas they came to him before any Oneidas.  And most of those white people wanted the Oneidas’ lands.  Some were government officials from the state and the national government. Others came from the Ogden Land Company, a group of investors who had acquired a right of preemption to all the remaining Seneca lands in the western part of the state, which hoped along with government officials even this early to effect the removal of New York’s Indians to new homes somewhere in the west: the remote Allegany reservation in the far southwestern corner of New York State, or better yet, Arkansas, or Green Bay.  Even the Archbishop John Henry Hobart encouraged the Oneidas to seek out a new home in the west. Their best friends wanted them to leave. Williams could not easily have opposed removal without losing the support of the man who underwrote his mission. Williams had resided in the Oneida country long enough to understand that there were other white men with whom the Oneidas might have to deal if they chose to ignore these men—the rustlers and the grog-sellers, the land sharps and the thieves who infested the margins of the Indian estate in New York.  He was in a tough spot indeed. Removal often came to Indians as the least of a number of bad options.

            So the man who came to Oneida to save Indian souls became a man who helped sell Indian lands.  Williams explained in 1817 that though he initially opposed the idea of any “removal” of the New York Indians to the west, he came to believe that leaving the Oneida country ultimately was in the Indians’ best interest.  He knew better than the converts to whom he preached, apparently. He told them that he wanted what was best for them, while telling the promoters of removal that support for their program existed even where it did not. 

            In 1818 Williams began “to broach cautiously among his Indian people a proposition of removing all the Indians” to new homes in “the neighborhood of Green Bay.”  He was not alone in this. Other Indian leaders had reached the conclusion that native peoples might somehow outrun their problems by moving west. But Williams took his support a large step farther than other native advocates of removal.  He was on the payroll of the Ogden Company.  He signed deeds and receipts on behalf of the Mohawks at Akwesasne, even though they had not authorized him and he was paid by interested parties to do so. Federal authorities paid for Williams’s travel between New York and the capital and Green Bay. He established close connections with those white men, who for reasons that had little to do with what was best for native peoples, hoped to relocate New York’s Indians and exploit their former lands. This was how he made his living. These facts complicate Williams’s claim that he came to removal reluctantly, that he would have preferred to stay in New York if the Oneidas and their native neighbors could find some meaningful protection of their rights to person and property. Williams, like all who dance with the devil, found that many Oneidas opposed his efforts, and began to question his motives.   

            He persisted.  He led a small number of Oneidas to Wisconsin. Others, as the Oneida estate dwindled around them, felt they had no choice but to follow.  He helped to negotiate the treaties that purchased from the Menominees and Winnebagos of Wisconsin a homeland for the Oneidas. He preached on occasion.  He seems to have helped out where he could, but the Oneidas had surprisingly little to do with him.  He spent most of his time with the US garrison. But when he posed for this picture by Catlin, he still held great influence with church officials, with government agents interested in removal, and with the Ogden Company.  He was their Indian man.  But that influence would not endure.  The year after he sat for Catlin the tales he told caught up with him. The Oneidas with whom he had traveled to Wisconsin and those who remained behind in New York deemed him unwelcome and let officials in the state and federal governments know that. In response to Oneida complaints, the Episcopal Diocese of New York recalled him, effectively ending his career among them as a missionary.  He was useless to the church if his flock did not want him around. The Ogden land Company, which had paid Williams to help persuade more New York Indians to move west, cut him loose as well.  The Company felt that Williams had done about all he could for them, and they no longer were willing to throw money at the man they had hoped might help them relocate the New York Indians. Many of the Oneidas had moved west, but the rest of the New York Iroquois, and especially the Senecas, remained committed to their New York homelands.  Where Williams led, the Ogden Company’s leaders now believed, few Iroquois followed.

            He spent the years following living the “life of a misanthrope,” one of his most hostile biographers wrote, “spending but little of his time at Green Bay, but mostly traveling up and down the lakes, and between Buffalo and the Atlantic states and cities.” He did so on borrowed money, or on ill-gotten gains. He lived a life of disarticulation, divorced from any community, an acquaintance of many but a friend of few. Williams scraped by, but it was a rough decade and a half, filled with personal and financial setbacks. Desperate for an income, Williams re-invented himself in the 1840s. He assumed a new role, and played a new part. He invented a character.  He developed an elaborate backstory.  And, as he requested contributions for a mission he never established, he played his role.   He was now no longer an Indian at all, he claimed. 

            He was the Dauphin, the lost, star-crossed child of Louis XVI and Marie Antoinette, who had been squirreled out of France by Royalist supporters and raised in secret amongst the Iroquois along the St. Lawrence.  That is what he said. His fame—or his notoriety—growing, he sat for a portrait by Giuseppe Fagnani, an artist who had lived in Europe “in intimate acquaintance with the families of the Sicilian and Spanish Bourbons,” and a man known in America as “the portraitist of crowned heads and statesmen.”

                        Williams of course could not persuade everyone that he was the son of Louis XVI and Marie Antoinette, and for good reason, but he convinced Fagnani.  The “general Bourbonic outline” of Williams’s face and head impressed Fagnani, as did several other “physiognomical details which rendered the resemblance to the family more striking.”  The “upper part of his face,” Fagnani wrote, “is decidedly of a Bourbon cast, while the mouth and lower part resemble the House of Hapsburg.” Fagnani depicted a man with skin lighter than that shown by Catlin, with hazel eyes and light colored hair that had turned grey.  Williams, Fagnani believed, could well be the dauphin because he demonstrated so many of the physical markers of “the Bourbon Race.” (Figure 2)

            This is the story that Williams told.  François-Ferdinand-Philippe-Louis-Marie d’Orléans, Prince de Joinville, a member of the French royal family, left Buffalo on 13 October 1841 aboard the steamboat Columbus bound for Green Bay.  According to Williams, Joinville sought him out.  Joinville told Williams that the son of Louis XVI, to avoid the terrible fate that befell his parents during the French Revolution, had been secretly carried across the Atlantic by Royalist sympathizers and deposited among the Iroquois in Canada. Thereafter he disappeared, and had not been heard from since.  Sizing up Williams, Joinville believed that at long last he had found the Dauphin.

            Williams claimed that this startling news left him devastated, that “it filled my inward soul with poignant grief and sorrow.” He continued,

                        Is it so? Is it true, that I am among the number who are thus destined to such degradation? From palace to a prison and dungeon–to be exiled from one of the finest empires in Europe and to be a wanderer in the wilds of America–from the society of the most polite and accomplished countries to be associate with the ignorant and degraded Indians?

If it was God’s will that Williams be cast from his seat at Versailles to live with savages, Joinville had something very different in mind.  After finding the Dauphin at long last, he wanted Williams to disappear once again, but only after he signed a document formally abdicating any claims to the throne of France.  Williams, with a dramatic flourish, refused. Oddly, he failed to keep the copy of this document.

            The Joinville story was little more than a fiction embossed upon a chance meeting between the two men.  It was not true, but that did not keep Williams from telling the story.  He began to do so in 1848, after the death of his “reputed father,” and in 1853 the story took off, when the Reverend John Holloway Hanson published an essay in Putnam’s entitled “Have We a Bourbon Among Us.”  A book followed the next year.  Hanson produced a list of more than two dozen “facts” that he felt helped make his case that Williams and the Dauphin were one.  Hanson told the stories of Joinville and other French émigrés who believed that the Dauphin had been secreted out of France and carried to America.  Hanson pointed out that Williams’s name did not appear in the baptismal register at Kahnawake, suggesting that his actual birthplace was someplace else…..like France.  Hanson said that Williams had in his possession an ornate gown that once had belonged to Marie Antoinette and that he carried with him, as well, “the varied marks on his body”– scars on his knees, and scars on his face–that “correspond exactly with those known to have been on the body of the Dauphin.”

            Hanson asserted as well that Williams’s “reputed mother” did not acknowledge him to be her child,” that Williams closely resembled Louis XVIII, and “that he has none of the characteristics of an Indian.”  Hanson, moreover, repeated a story often recited by Williams’s observers, one that gives us a sense of how Williams played the dauphin. One night an elderly man was showing to Williams a collection of engravings and lithographs of characters from the Revolution.  Williams leafed through the collection, but at the sight of one, he seemed disoriented, confused, frightened all at once. He staggered backward, said something to the effect of “God God…That face….It haunts me still,” and then asked to be excused and staggered from the room.  The guests ran to the book, looked at the engraving.  It was Simon, the sadistic tormentor of the imprisoned Dauphin.        

            Hanson attempted to make his case. He believed that the evidence he presented showed “1st. That Louis XVII did not die in 1795.” Second, that a cabal of French royalists secretly carried the Dauphin to America and to a spot near where Eleazer Williams grew up.  Hanson believed that the evidence showed clearly that Williams was not an Indian and, therefore, “that Mr. Williams is Louis XVII.” Hanson, according to the New York Times, asserted that his evidence was “irresistible,” and he said he stood willing to stake “his reputation as a man of common sense and common discernment on the issue.”[i]

            A number of critics were willing to take that bet. Putnam’s, one pointed out, frequently published sensational stories, though few of them seemed as absurd as Hanson’s.  Williams, another pointed out, was several years too young to be the Dauphin and, besides, his mother, who certainly ought to have known, gave a deposition in which she stated that Eleazer Williams was her fourth child.  A critic in the Christian Enquirer pointed out how “Mr. Williams has been very unfortunate in losing all the documents on which his story is grounded.” 

            Now here is where the debate began to turn.  Hanson responded to his critics not so much with documents, but with “scientific” evidence, at least as it stood at the time.  Hanson took Williams for examination by an impartial panel of medical experts in New York City.  One physician concluded that Williams had “a lofty aspect, strongly marked outline of figure, obviously European complexion.”  Another found that

the physical development of Mr. Eleazer Williams is that of a robust European, accustomed to exercise, exposure to open air, and indicative of the benefit of a generous diet, and a healthy state of the digestive organs. He might readily be pronounced of French blood. His general appearance and bearing are of a superior order; his countenance in repose is calm and benignant; his eyes hazel, expressive and brilliant, and his whole contour, when animated, indicates a sensitive and improvable organization . . . There are no traces of the aboriginal or Indian in him.

Eleazer Williams took advantage of the fame.  He spoke frequently, and found more pulpits open to him, and larger audiences willing to listen to him than ever before. He used his notoriety to raise money to support himself and his missionary enterprise, to pay for the construction of a church that would never be built, a mission that would never be constructed. He collected as much as sixty dollars in one night.  Skeptics, intent on exposing “the ridiculous humbug lately published by Putnam,” attended his talks.  But the faithful and the curious came out to see the Dauphin on tour as well.  They responded with enthusiasm, according to most accounts, to Williams’s call for donations.  Indeed, Williams reported to one of his old antagonists, that “my appeal to the churches in your Atlantic cities has been responded well to my satisfaction.” Williams, it seems, was making a living as the Dauphin.

He preached all over.  Troy and Albany in New York.  In the Conneticut River Valley towns.  He spoke in Hoboken, and in Brooklyn.  He preached in Washington, DC. In March of 1854 he preached at churches in Baltimore, sometimes three times a day.  At each, large audiences gathered to hear him speak “of his mission among the Indians, and the words he uttered fell from his lips with increased effect from the convictions many had that the representative of a long line of French kings spoke to them.”  He made short trips that spring to New York City, and to Camden, New Jersey, but he spent most of his time in Philadelphia where according to one newspaper he preached at nearly every church in the city. At each stop, he spoke about the condition of the Indians, “and the duty which the American people owe to the Aboriginals of the land.” Williams raised “a handsome amount towards the object of ameliorating the condition of the red men of the forest,” while creating “a profound sensation in the minds of those who have investigated the facts in relation to his own most remarkable history.”

            Many of those who attended his presentations and dropped their coins in the collection plate were drawn in more by Williams’s claim to be the dauphin than by a desire to support missionary activity among the Mohawks at Akwesasne. 

            Some in those audiences found the notion that Williams was the Dauphin entirely unbelievable.  But they did not base their skepticism on the obvious problems with the story.  Instead, they focused on a variety of “racial” characteristics that to them seemed to demonstrate that Williams was an Indian or, at best, a “half-breed,” both of which of course disqualified any claim that he might be the Dauphin.

            Williams engaged in his performance at the tail end of a period where science had come to define native peoples of the “American Race” as inferior to “Caucasians.” Charles Caldwell, for instance, one of the most important of these scientists of race, after examining the heads of members of an Indian delegation visiting Washington, D.C., asserted that the “native bent” of white people led them towards civilization, while with Indians, the reverse was true.  “Savagism, a roaming life, and a home in the forest, are as natural to them, and as essential to their existence, as to the buffalo or the bear.  Civilization is destined to exterminate them in common with the wild animals among which they have lived, and on which they have subsisted.”  The only hope for their survival, Caldwell thought, was cross-breeding with white people

            These pseudo-scientific inquiries led rather mechanically to lists of characteristics that defined the different races.  Often these were little more than stereotypes, and they could not account with much ease for those native people who had managed to “improve,” but those interested in this science acted on its assumptions.  Samuel George Morton, so enthusiastic a collector of human skulls that his friends jokingly called his Philadelphia study an “American Golgotha,” believed that in their measurement lay the key to understanding racial difference.  He cleaned the skulls, coated them with varnish, measured their angles, and their volume by filling the cranium with pepper seed or buckshot or liquid mercury.

            From his studies, Morton deduced the intellectual and physical inferiority of American Indians relative to Caucasians.  If Caucasians, for instance, possessed “naturally fair skin,” hair that was “fine, long and curling and of various colors,” with a skull “large and oval” and a face “small in proportion to the head, of an oval form, with well-proportioned features,” a “brown complexion, long, black, lank hair, and deficient beard” marked “the American race.”  In Indians, Morton wrote, “the cheek bones are large and prominent, and incline rapidly toward the lower jaw, giving the face an angular conformation.”   The Indians’ “upper jaw is often elongated and much inclined outwards, but the teeth are for the most part vertical. The lower jaw is broad and ponderous, and truncated in front.”  The teeth are also very large, and seldom decayed,” Morton continued, “for among the many that remain in the skulls in my possession, very few present any marks of disease, although they are often much worn down by attrition in the mastication of hard substances.”  Their hair was always straight and black, and among the Indians, “no trace of the frizzled locks of the Polynesian, or the wooly texture of the negro, has ever been observed.”

            Morton could read the skulls and deduce more than mere physical characteristics.  “The bold physical development of the American savage,” he wrote, “is accompanied by a corresponding acuteness in the organs of sense.”  Indians were “vigilant,” a product of “the constant state of suspicion and alarm in which the Indian lives.”  They spoke “in a slow and studied manner, and to avoid committing himself he often resorts to metaphorical phrases which have no precise meaning.”  They employed subterfuge against their enemies, who they pursued relentlessly. The Iroquois especially, Morton said, “possessed all the other Indian characteristics in strong relief.” They “paid little respect to old age; they were not much affected by the passion of love, and singularly regardless of the connubial obligations; and they unhesitatingly resorted to suicide as a remedy for domestic or other evils.”  The Iroquois, he said, “were proud, audacious, and vindictive, untiring in the pursuit of the enemy, and remorseless in the gratification of their revenge.”

            Morton died in 1851, but the ideas he and his cohort of fellow race scientists advanced provided a vocabulary and a widely disseminated and understood set of conceptual categories.  Few doubted “the intellectual and moral superiority over all other races of men” of white Americans, and they knew that differences in physical traits could determine racial difference.  Williams confronted these conceptual categories when he presented himself to audiences as the Dauphin.

            His critics thus dismissed his claims not on the basis of their implausibility, or because they thought that Williams was deluded or insane or nuts, but because in racial terms, he did not seem to evidence any of the characteristics they associated with noble European birth.  The author of a piece that appeared in the New York Herald, for instance, who claimed to have met Williams several years before, argued that “no man acquainted with our aboriginal race, and who has seen Mr. Williams, can for a moment doubt his descent from that stock.”  Of Williams, he wrote, “his color, his features, and the conformation of his face, testify to his origin.  He looked like a “half-blood Indian,” and not at all like a Bourbon. A. G. Ellis, who had known him since the 1820s, said that Williams was “unquestionably a half-breed Mohawk Indian, having all the distinctive features of the race: the black straight hair, the black eyes, the copper color and high cheek bone; and all who knew him when young remarked this.” Years later, Ellis described Williams as “dark enough for ¾ Indian,” and he clearly believed that color did not lie.  C. C. Trowbridge, who knew Williams in Wisconsin, laughed at the Dauphin story.  Williams “had all the peculiarities of a half-breed Indian, as undoubtedly he was . . .If he had been otherwise, mentally or morally, his hair and complexion would  have stamped him as of mixed savage and civilized blood.”

            Science came readily to the assistance of those who doubted Williams’s clams to be the Dauphin.  Peter A. Browne, for instance, a race expert in Philadelphia who could “ascertain the race of an individual by the hair upon his head, with as inevitable certainty as a phrenologist can determine character by bumps,” concluded from his examination of Williams that “there is a difference in the diameter of the hairs of Mr. Williams,” and that “some are oval, some cylindrical,” and that “therefore he is a cross of Indian and white” and “consequently he is not the Dauphin.”

            And so it went.  Williams had his supporters, and they trotted out race science as well. One New York reporter found that Williams did not look like an Indian and that with him, “the forehead and the lower part of the face show a great analogy to certain physiognomies of” the Bourbons.  Another New Yorker reported that although Williams’s complexion was “rather dark,” having “become somewhat bronzed by exposure,” his features were “heavily moulded, with the full Austrian lip, eyes dark hazle, and hair, dark, fine, and curling, somewhat sprinkled with gray.”  A correspondent from a Troy, New York, newspaper concluded that in Williams’s features “we could trace no works of the Indian.  They are decidedly European.”

            While in Philadelphia in the spring of 1854, Williams subjected himself to medical examination once again.  The doctors—this time from the Pennsylvania College of Physicians, the Jefferson Medical College, and the United States Navy—found that Williams possessed scars consistent with those received by the Dauphin, as Hanson had claimed.  Further, they found that

his skin, where it has not been exposed to the weather, is that of a pure white man. His hair is of a silken fineness and curls freely. his hands and feet, his wrists and ankles are very small, indicating an ancestry unaccustomed to any hard use of their bodily organs. His countenance and reception are peculiarly benign and gracious–totally free form the reserve and austerity of the Indians.

                      

            This was another point that some of Williams’s audiences raised.  Not only did he look like a European and unlike an Indian, but he did not act in ways that Indians were believed to act.  In Williams’s “mental likeness,” one newspaper reported, “there is something closely allied to the best Bourbon traits,” though the paper gave its readers no sense of what those traits were.  In Camden, New Jersey, Williams impressed the group who had gathered to meet with him after his missionary appeal.  “Much to our surprise,” one observer wrote, “we found him easy in manners, free and agreeable in conversation, with the polished bearing of a gentleman accustomed to refined and cultivated society.” 

            As Williams traveled through the Northeast, preaching in several cities, newspapers reported on his progress.  Church-goers and the curious assembled to hear him speak. Many of them asked themselves the same question: was he or wasn’t he? Was Eleazer Williams the son of the King of France or an Indian from the Northern wilds? Was he white or red, civilized or savage? As those in the audience contemplated these questions, they looked closely at Williams. They watched his behavior, studied his comportment. They measured his color, his features, his hair, against what they believed to be the identifiers of “white” and “red.”  They considered and calculated the fraction of Indian blood that flowed through his veins.  But still, he seemed to be losing this one, and though interest in the Dauphin was strong, Williams began to look elsewhere for a livelihood, trying to extract money from the government for a range of alleged and unmet obligations

            Williams traveled frequently and spoke often as the Dauphin.  His journeys took him back through Longmeadow, Massachusetts, where he spent his adolescence receiving an education in Calvinism from the descendants of his Puritan forebears, and nearby Springfield.  He returned, now four decades later, not as the descendant of Eunice Williams, but as the son of a French king and his queen.  He sat for a daguerreotype in Springfield.  He might have faced the camera. That was, after all, the purpose of the daguerreotype, to reveal the subject’s true likeness. (Figure 3)

            But the man who captured Williams’s image in his Springfield studio evidently had something else in mind.  He took a profile, a side view, with the light coming from above.  The image highlighted Williams’s “Indian” features, his high cheekbones, for instance.  Poses such as this were relatively rare. The image, in this sense, constituted a racialist text, a commentary on Williams’s chosen identity as the dauphin. Williams could not possibly be the dauphin, his critics pointed out, because he possessed the racial features they associated with American Indians.  Williams’s ability to define who he was, in this sense, ran into assumptions strengthened by the emerging American science of racial difference.  And Williams, according to that standard, simply could not measure up. 

            We who write history try to understand the people about whom we write, to see the world as they saw it.  We dig through the records, asking questions, searching for insights, and asking more questions. We take a crack at leaving a final word, and a fitting assessment.  Excavating the documents necessary to tell the story of an individual’s life can be difficult enough, as we sift the knowable from what is unknowable, as we determine what is plausible, what is impossible, and what makes for a persuasive educated guess. We can tell where Williams went, with whom he met, and other things that he did.  But this information, these data, can only take us so far. We are more than what we do, and the people we write about are the sum of all the stories they feel compelled to tell about themselves or that others might feel driven to tell about them.  These tales—stories of creation, and stories of vindication, self-discovery, denial, deception and defeat—are the matter historians must shape and examine as they work not only to understand a life, but to fit that life in a meaningful way into some broader context. When the subject of the study is a liar, the task obviously becomes much more difficult.                

The liar Williams I believe told his tales to play for sympathy and to craft his own image, but most of all, it seems, to make ends meet.  He did not tell lies primarily to defend a community or to promote a grand cause, although one might claim that in a quixotic way he tried. He lied when it was convenient and useful for him to do so to pursue what he thought was in his best interest, or to advocate or support a policy he thought right and correct. And he lied to place food on his table and a roof over his head. It was not easy for a native person living in white America to earn an honest living, and Williams told many of his tales to keep the support of his patrons in church and state.  Lying, in a sense, became Williams’s occupation. Some of these lies he told clearly with the intent to deceive.  Some of his tales involved exaggeration, or evasion, or puffery.  We can see, if we look, evidence that Williams used gestures, and behaviors, and silence, to convince those with whom he interacted that what was false actually was true. Williams told many tales at many points in his life: that those who worshiped with him wanted to leave their homes; that he was a hero whose efforts on the field of battle received no reward or that he was the Dauphin .

            He chose to lie.  It is important to remember that. Resourceful native people, a number of historians have pointed out, eked out their livings in communities that rested uneasily on the margins of white America, encircled or pressed upon by settlers and the citizens of the republic who felt little respect or appreciation for Indians as Indians. When traditional economies collapsed, native peoples adapted their old skills to new economic realities. They hunted and fished and trapped where they could.  They raised livestock and grew crops. They learned trades and sold their wares.  But these remained communities on the edge. 

            But Williams maintained few ties to the native communities in which he lived and worked.  Always highly mobile, traveling by canal boat and steamboat and rail, place meant little to him.  Connections to kin in the end seem to have mattered not at all. He was a man apart. He worked with the church and the state and put those interests, and his own, ahead of the native communities he claimed to serve. And as he did so, never in one place for long, exploiting the opportunities the Antebellum republic provided him for finding an audience, he performed—as soldier, broker, missionary, and king, testing and running up against the boundaries and categories that at different times and in different ways defined who he was and the limits of what he might become.

*****

I suspect that George Santos knows well the difference between truth and lies. He lives in a world that makes invention easy. He has, to a greater degree than the rest of us, curated a self-image. He has consistently appeared before audiences that accepted him because he shared values they held so deeply that nothing else mattered. He will soon begin playing the victim, another role he will accept consciously and clearly, because it will help him pursue his interests.

The Republican party in Washington understands the type of person George Santos is. They simply do not care, because he will vote the way they want him to vote on the issues Republicans care about most. Like Williams, Santos has mastered the art of telling powerful people what they want or need to hear. I suspect that he is, like Williams, a compelling teller of tales. Like Williams, I suspect that Santos is hard-wired to detect both those who are gullible enough to believe his lies and those who in power who see through his stories but just do not care. In this sense, I suspect he is as adept at kissing ass as he is at telling lies. If New Yorkers do not get to him first, he can probably expect to have a long career in national politics, so long as he convinces those he serves of his enduring utility.


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Do You Need to Worry about AI?

The 9000 series is the most reliable computer ever made. No 9000 computer has ever made a mistake or distorted information. We are all, by any practical definition of the words, foolproof and incapable of error.”

I do not think we need to freak out about Chat GPT, not yet anyways. I write these words as one who can not explain how this particular artificial intelligence system operates. I also do so as a teacher who long has been critical of those of my historian sisters and brothers who give to their students the same rote assignments year after year. If you are one of those unimaginative teachers, well, you may in fact be toast. A student who uses Chat GPT to respond to an essay prompt asking her to explain the meaning of Plato’s “Allegory of the Cave,” for instance, will be able to produce a very nice essay that I expect will easily surpass your very low standards.

I have been reading about Chat GPT for the past several weeks. I listened to an hour-long radio show on the local NPR affiliate that explored the question of how menacing this technology might be for educators. I understand that experts in information technology who know more about these systems than I ever will are deeply concerned. So let me tell you where I am coming from, so you can decide if you want to read any further.

The vast, vast, majority of students, I believe, are honest. The vast majority of students want to have a positive experience in the classroom. They want to learn, even in those classes they are compelled to take to fulfill a requirement that may have nothing to do with their major. I believe, as well, that the small number of students who cheat do so when they are bored and uninspired, because they lack confidence in their ability to do the coursework well, or because they are so stressed out that they do something dumb out of desperation. In each of these instances, I believe, the instructor bears some significant responsibility for the student’s cheating:

  • she or he failed to engage the students, to convince them that the subject he or she taught was worth learning about and that the students had thoughts and ideas worth sharing, even when the work was extremely challenging;
  • she or he failed to convince the students that they had the ability to do the assigned work, whatever self-doubts that student felt, or to offer the student the sort of assistance needed to successfully complete the assignment;
  • or because she or he failed to pick up the vibes in the room, which are not at all difficult to discern for instructors who teach with their eyes, ears, and hearts open.

So I played around with Chat GPT. I understand that the technology learns and improves over time. That may be so. I fed into the system three different assignments that students in my classes might complete. In the first, I asked it to write a short reaction to the Supreme Court case of Oliphant v. Suquamish (1978). This is a topic students enrolled in my Indigenous Law and Public Policy course might choose for their journals. I next asked Chat GPT to write an essay explaining the disappearance of the Lost Colonists at Roanoke, a topic about which I have some strong feelings that you can read about in The Head in Edward Nugent’s Hand. Finally, I asked it to write an essay on the historical significance of the 1794 Treaty of Canandaigua, the subject of a book I published in 2015.

Chat GPT produced answers that were competently written. The grammar, word use, sentence structure, and paragraph coherence all are better than what many of my students are capable of producing. I suspect that the gap between a student’s conversational and written English would be readily apparent as a “tell” that a student has used an AI program, just as it is for older, more low-tech, types of plagiarism.

The entry for Oliphant was factually correct and covered most of the major points in the case. But it was also devoid of analysis and so absent of feeling about this destructive case that the essay felt flat. It did not quote the decision, nor did it provide any citations.

I felt the same way about the essay on the fate of the Lost Colonists. One possible explanation is this, the essay reads. Another explanation is that. A third explanation posits something different, and yet another says something else entirely. Each of the four explanation has been advanced by a scholar. Each of the explanation is plausible. What Chat GPT failed to do, however, was provide compelling analysis and argument. There is no stewing over difficult documents here, or wrestling with ambiguous evidence. When I make assignments, I do not ask students to come up with a list of likely explanations derived from secondary sources. If you are like me, you ask them to wade into the documents, to ask questions, and offer an explanation supported by primary sources. Good historians will quote those sources as they attempt to make their case successfully. We make arguments, not lists. We also expect students to cite fully and frequently. Chat GPT does none of these things.

The essay on Canandaigua was surprisingly bad. Significant factual errors occurred. Redundant paragraphs made the same point over and over with slightly different wording. No quotes from primary sources, and no citations were present. A student using Chat GPT to write a historical research paper will be caught by all but the most inattentive instructor.

Perhaps I am too sanguine. Chat GPT, as I understand it, will learn and become more proficient. Perhaps students will use it as a crutch, as an outline generator, to which they will add bits and pieces of appropriate material to allow the papers they generate to look and sound like student work connected to a specific classroom context. There is nothing to stop a student from throwing in a couple of quotes from other readings to give the paper a veneer of having been researched. All of these things could happen. If you ask students to do work in stages, to submit outlines and drafts, I still expect that you will make it very difficult for students to use Chat GPT.

Look, I find what I teach very interesting. I like to share it with students. I am interested in all sorts of questions about the past. If I cannot inspire my students to take an interest in the subjects that I am teaching and that I have devoted much of my life to studying, or if I fail to convince them that it is important, that is my failure alone. I am failing as a teacher. Almost all students–and I truly believe this–want to learn. They want to be turned on by an idea. They want to benefit from the classes they take. Even the quietest student in class has something of value to say.

Please, teachers, do not look at your students as potential cheats who you must constantly surveil. Will some students attempt to cheat? Will some of them engage in plagiarism? Yes, I suppose some might, if you let them. Good teachers, who are interested in their students, who engage with them in the process of learning, and convince them of the importance of what they teach, have little to worry about.

What Can an Apology Do?

Specifically, of what value is the Pope’s “heartfelt” apology to Canada’s First Nations about the treatment they received in residential schools across much of the twentieth century?

At one level, it is not a question for me to answer. I write from the privileged position of a scholar who never had to experience that which generations of Indigenous Canadians have had to live through, and continue to live with. The legacies of Canada’s system of residential schools, supported and enforced by the Catholic Church and other major Protestant denominations is clearly visible. The resources for learning this history are increasing in number and becoming more accessible to non-Indigenous audiences every day. Connie Walker’s fantastic journalism is just one of many examples.

I do not think there is any doubt about the significance of what the Pope did yesterday. Hobbled by sciatica and other ailments that have limited his mobility, the Pope visited the site of a residential school at Maskwacis, Alberta, yesterday, and issued a formal apology to the members of the commuity. (A full video of the gathering is available here.)

Pope Francis spoke of his visit as the first stop on what he called a “penitential pilgrimage.” He traveled, he said, to the community “to tell you in person of my sorrow, to implore God’s forgiveness, healing and reconciliation.” He acknowledged their long-standing ties to the land, their stewardship of the land. He acknowledged the trauma the community had experienced, and that his words might cause individual members of the community great pain. He quoted Elie Wiesel: “The opposite of love is not hatred, it’s indifference.” He hoped that the world would watch and learn from his apology, and that this was the first step in an effort to make the world a better place for all who have suffered.

“I am here because the fist step of my penitential pilgrimage among you is that of again asking forgiveness, of telling you once more that I am deeply sorry. Sorry for the ways in which, regrettably, many Christians supported the colonizing mentality of the powers that oppressed the Indigenous peoples. I am sorry. I ask forgiveness, in particular, for the ways in which many members of the Church and of religions communities co-operated, not least through their indifference, in projects of cultural destruction and forced assimilation promoted by the governments of that time, which culminated in the system of residential schools”

“Although Christian charity was not absent, and there were many outstanding instances of devotion and care for children, the overall effects of the policies linked to the residential schools were catastrophic.” He knew, he said, that these policies were a mistake, one incompatible with the Gospel. It was a “great evil.”

The Pope wished to reaffirm this point, “with shame and unambiguously. I humbly beg forgiveness for the evil committed by so many Christians against the Indigenous peoples.” But begging pardon, he said, was only a first step. The Catholic Church must “conduct a serious investigation into the facts of what took place in the past and to assist the survivors of the residential schools to experience healing from the traumas they suffered.”

It was a good statement. It was far superior to the legalistic apologies the United States has enacted from time to time. It is difficult to imagine what more the Pope might have said. Some members of the audience were visibly moved by the Pope’s apology. They had waited a long time, but at long last, the Pope had made the journey to their homelands to apologize in person. Francis said that he could not visit all the communities that had invited him. Still, some clearly appreciated his visit.

Others expressed some skepticism. An apology without action was meaningless, and they wanted to see what action followed before they passed further judgment. Some wished that the Pope would have renounced the discovery doctrine, by which the Catholic powers claimed in the late fifteenth century their lands in the Americas. Deeds, they argued, were more important than the colonizers’ words.

That is entirely fair. Indigenous peoples have listened to those who speak for government agencies and missionary organizations talk a good game, but they have reason to be suspicious. Look on Twitter, and you could detect the clenched reception to news that the missionary Will Graham, one of Billy’s grandsons, was going to preach on reservation’s across South Dakota. So much damage has been done by those who carried the Bible into Indian Country.

There is in the United States a substantial number of people who do not like to hear about the negative parts of US history. I am willing to bet that the same is true in Canada, as well. I have heard this sentiment a lot over the years, and it takes different forms: discussion of the negative parts of history is unpatriotic, or demoralizing, or depressing; telling these stories might come at the expense of telling more positive and uplifting stories that could bring young people to respect and revere American institutions; or, occasionally, telling the stories of those individuals and groups who have fallen by the wayside or who suffered as a result of American progress somehow diminishes the dominant narrative and those white people who populate and benefit from it.  These reactionary forces are powerful.  Those who bring these stories up can expect to be criticized severely, to have their integrity and their objectivity as scholars questioned, or to be dismissed with that empty-headed epithet that their work is “politically correct.”  I saw this first hand when I taught in Montana at the beginning of my career in the 1990s.  Speaking out on these issues, it turned out, nearly cost me my job.

The Pope’s apology is a limited response. His words can be seen as those of the Church he leads, but also as an expression of sorrow from a single man who has learned from this blighted hellscape of a story and wishes in some small way to try to set things right, to assuage the grief, to comfort those injured. The Pope’s apology, I hope, will open up dialogue and discussion. That discussion is needed badly in Canada, and even more so in the United States.

Both nations continue to deal with the unaddressed problem of missing and murdered indigenous women, and the deep structural problems that gave rise to the Idle No More movement, has undertaken efforts to talk about its painful past.  I have mentioned on this blog the National Centre for Truth and Reconciliation housed in Manitoba: it is a marvelous project that might equip Canadians to tell the story of Canada’s residential schools, the young people taken by law and by the authorities from their families to be educated, and the consequences and legacies of these wrong-headed and evil policies.

In the United States, in places, there are efforts to begin an accounting for the nation’s past misdeeds. Confederate memorials are coming down.  Some buildings, on some college campuses, named after racist and cruel figures from the American past, are being renamed, though not without controversy.  Some universities with ties to the slave trade, like Brown and Georgetown, have undertaken programs to atone for their sins. President Biden’s Secretary of the Interior Deb Haaland is looking into the legacy of boarding schools in the United States.

But when it comes to native peoples, we are way behind Canada and Australia.  Small gestures, no doubt, are taking place: some members of some religious congregations have pushed their churches to renounce the so-called “doctrine of discovery,” a symbolic gesture that in the end would cost these churches little.  More real, perhaps, was the decision by the Society of Jesus several years ago to return land given to it by the United States on the Rosebud Reservation to the community. But a larger accounting has not occurred.

And without such an accounting, young people can only with great difficulty arrive at an understanding of the moral complexities of their nation’s past.  We need more than an apology, couched in legalese, that nobody knows about. I have mentioned the congressional apology on this blog. You can read it here, and see how truly deficient a document it is.  It is as if a Senate staffer went through an American history textbook, found the points where bad things happened to native peoples, and cobbled them together into a tepid and half-baked statement of regret.  We are sorry, but want it understood that nothing in this apology opens us up to suit.

The resources to write and teach this history are out there, and contrary to what you might have been taught, native voices are not hard to find in the historical record.  In the Agency records housed at the National Archives, for instance, hundreds and hundreds of reels of microfilm, each containing hundreds of pages of documents, allow committed researchers to reconstruct the government’s systematic programs to incarcerate native peoples on reservations, Christianize and civilize them, and take their land, all in the name of “Progress.”  Scattered around the country in state, local, and organizational archives are the historical documents that reveal the herculean efforts of native peoples to survive these policies. In these records are the stories of native peoples who lived their lives under this oppressive regime.  Their stories are worth talking about.  Obviously if I did not believe this very strongly I never would have written Native America.  We need to know these stories, for without comprehending the damage done we can hardly understand that for which we apologize. And without apologies, we cannot even begin to show repentance for the crimes of the past. The Pope has apologized in Canada. I hope it is followed by action, both in Canada and the United States.

Uncle Jim

As many of you who follow me on social media know, about two weeks ago my uncle passed away. With the help of my cousins and my sister, I wrote an obituary. It was too long for us to be able to afford to post it in the Los Angeles Times (an abbreviated version will appear there in Sunday’s paper), but I wanted to share the whole thing here. It’s been a rough couple of months, people. Stay safe and take care of one another.

James Sayre Sexton was born on November 11, 1944, in Scarsdale, New York, but he lived most of his life in Southern California, where he made many friends and touched many lives.

    Jim taught school in Huntington Beach for thirty-five years, at Wintersburg and Valley Vista. He taught English to some of the most damaged children and hard luck cases this country can produce. His colleagues described him as a teacher dedicated and kind, a skilled listener and a committed and creative member of the school community, a perfect colleague and a devoted friend. He was “the quirky teacher who all the kids loved,” “ahead of his time” in the way that he presented new material to his students.  He was both colleague and friend to his fellow teachers and was respected and loved by them for those qualities.  If you ever told Jim about your family, your life, or your children, he would remember and ask you about them and how they were doing.  He was an excellent teacher and was named Huntington Beach’s “Teacher of the Year” in 2004.

    Jim taught classes at Los Angeles Harbor College as well–English as a Second Language, basic paragraph writing, composition.  Over the course of his long career as an educator, he taught narcotics offenders attempting to turn their lives around, single mothers striving to continue their education, and drop-outs hoping to get past mistakes they made earlier in their lives.  He could have chosen an easier path as an educator, but he wanted to help those who needed help the most.  He did so with compassion and without judgment. He never doubted the ability of the immigrants, the poor, the cast-offs and those facing enormous challenges to learn and grow as human beings.

    Jim collected cars, some of which went very fast but he drove very slow. He designed and built a chrome downhill racing bike, super heavy but  super fast. He may have traveled faster on that bike than he ever did in a car he drove. He received a $3000 grant from the Schwinn Corporation to design, develop, and build a bicycle intended to set a land speed record, and in 1978 won the New Mexico State Cycling championship. He loved to tinker, to repair, to replace, and to innovate. 

He played with frisbees and yo-yos, and when he was off from work he could sleep until noon. He never cooked, and was a regular at several local restaurants.  The staff always looked forward to his visits. He was a good uncle.

    He collected animal friends as well.  He cared for and fed neighborhood strays, and squirrels and jays, and one really lucky skunk who he must have known was crashing the stray cat party. As in his teaching, he cared for those who, it seemed, so few cared about.

One of these things is not like the other.

    Most of all, he collected friends and colleagues who respected him immensely.  When Jim wrote the name of a business down in his address book, he made note of the people who waited on or served him, and many of these people came to know him quite well.  He was unfailingly generous, curious and kind.

    Jim is survived by his sister, Patricia Sexton Oberg, his brother John Sexton, and his nieces and nephew Noreen Ippolito, Christy De Lange, Caron Laird and Michael Oberg, as well as their combined ten children, including his godson Adam Ontiveros-Oberg.  

The family requests in lieu of flowers that donations be made in JIm’s name to the CSULB Foundation, the Wounded Warriors Project, the ASPCA, the Planetary Society, and the National Cat Protection Society.

I Read the Federal Indian Boarding School Initiative Investigative Report So You Don’t Have To

And, like many things one looks forward to from Democratic administrations, it’s a bit of a letdown. If you are a historian who has worked with these sources, and if you have even a passing familiarity with the published scholarship on American Indian Boarding schools, you are unlikely to be surprised by anything that appears in the report’s 100-plus pages. It is a brief document, no more than an a cursory introduction into a vast, complex and important subject. But it’s a start.

Bryan Newland, Principal Deputy Assistant Secretary, Indian Affairs
Assistant Secretary of the Interior–Indian Affairs Bryan Newland

Produced by Assistant Secretary–Indian Affairs Bryan Newland, the bulk of the report is an institutional overview of American Indian boarding schools and the government policies and programs that implemented, supported, and funded these institutions. The report is divided into nineteen very-brief chapters. The penultimate one includes the “Federal Indian Boarding School Initiative Findings and Conclusions.”

The list consists of the following:

  • The Federal Indian boarding system was expansive, consisting of 408 Federal Indian boarding schools, comprised of 431 specific sites, across 37 states or then-territories, including 21 schools in Alaska and 7 schools in Hawaii.
  • Multiple generations of American Indian, Alaska Native, and Native Hawaiian children were induced or compelled by the Federal Government to experience the Federal Indian boarding school system, given their political and legal status as Indians and Native Hawaiians.
  • The twin Federal policy of Indian territorial dispossession and Indian assimilation through Indian education extended beyond the Federal Indian boarding school system, including an identified 1,000+ other Federal and non-Federal institutions including Indian day schools, sanitariums, asylums, orphanages, and stand-alone dormitories that involved education of Indian people, mainly Indian children.
  • Funding for the Federal Indian boarding school system included both Federal funds through congressional appropriations and funds obtained from Tribal trust accounts for the benefit of Indians and maintained by the United States.
  • The Federal Indian boarding school system deployed militarized and identity-alteration methodologies to assimilate American Indian, Alaska Native, and Native Hawaiian people—primarily children—through education.
  • The Federal Indian boarding school system predominately utilized manual labor of American Indian, Alaska Native, and Native Hawaiian children to compensate for the poor conditions of school facilities and lack of financial support from the Federal Government.
  • The Federal Indian boarding school system discouraged or prevented the use of American Indian, Alaska Native, and Native Hawaiian languages or cultural or religious practices through punishment, including corporal punishment.
  • Tribal preferences for the possible disinterment or repatriation of remains of children discovered in marked or unmarked burial sites across the Federal Indian boarding school system vary widely. Depending on the religious and cultural practices of an Indian Tribe, Alaska Native Village, or the Native Hawaiian Community, it may prefer to disinter or repatriate any remains of a child discovered across the Federal Indian boarding school system for return to the child’s home territory or to leave the child’s remains undisturbed in its current burial site. Moreover, some burial sites contain human remains or parts of remains of multiple individuals or human remains that were relocated from other burial sites, thereby preventing Tribal and individual identification.
  • The Federal Government has not provided a forum or opportunity for survivors or descendants of survivors of Federal Indian boarding schools, or their families, to voluntarily detail their experiences in the Federal Indian boarding school system.

Based on that list of conclusions, Secretary Newland recommended that research continue through the “approximately 98.4 million sheets of paper” housed in boxes at the National Archives and other federal agencies. It is an enormous undertaking. The following questions, he suggested, would guide the research:

  • Approximate the total number of American Indian, Alaska Native, and Native Hawaiian children that attended Federal Indian boarding schools;
  • Approximate the total number of marked and unmarked burial sites associated with Federal Indian boarding schools;
  • Locate marked and unmarked burial sites associated with a particular Indian boarding school facility or site, which may later be used to assist in locating unidentified remains of Indian children, Indian Prisoners of War, and Freedmen from the Five Civilized Tribes;
  • Expand the summary profiles of individual Federal Indian boarding schools;
  • Detail the health and mortality of Indian children who experienced the Federal Indian boarding school system, which may later be used to develop dataset(s) for analysis of health impacts of Indian boarding school attendance, including an approximate mortality rate for attendees, as the Department was responsible for the health care of American Indians and Alaska Natives until 1954;
  • Identify documented methodologies and practices used in the Federal Indian boarding school system that discouraged or prevented the use of American Indian, Alaska Native, and Native Hawaiian languages or cultural or religious practices;
  • Approximate the amount of Federal support, including financial, property, livestock and animals, equipment, and personnel for the Federal Indian boarding school system, recognizing that some records are no longer available;
  • Approximate the amount of Tribal or individual Indian trust funds held by the United States in trust that were used to support the Federal Indian boarding school system, including to non-Federal entities and, or individuals, recognizing that some records are no longer available;
  • Identify religious institutions and organizations that have ever received Federal funding in support of the Federal Indian boarding school system;
  • Identify States that may have ever received Federal funding in support of the Federal Indian boarding school system;
  • Identify nonprofits, associations, academic institutions, philanthropies, and other organizations that may have received Federal funding in support of the Federal Indian boarding school system;
  • Confirm additional sites within the Federal Indian boarding school system;
  • Examine the connection between the use of Federal Indian boarding schools and subsequent systematic foster care and adoption programs to remove Indian children, including the Indian Adoption Project established by the Bureau of Indian Affairs and Child Welfare League of America, that were not repudiated by Congress until the enactment of the Indian Child Welfare Act of 1978

The shadow of recent discoveries of unmarked graves in Canada hangs over Newland’s report. He wants to produce a second, much larger report, that determines the locations for all unmarked and marked burial sites connected to federal boarding schools, identify the children buried in these sites, and approximates “a full accounting of Federal support for the Federal Indian boarding school system.”

In addition, Newland recommends that the government undertake efforts to identify living survivors of the boarding schools, document the students’ experiences, “support protection, preservation, reclamation, and co-management of sites across the Federal Indian boarding school system where the Federal Government has jurisdiction over a location.” Newlands wants to see a systematic effort to collect documents and house them at the Department of Interior Library “to preserve centralized Federal expertise on the Federal Indian boarding school system.” Interior should solicit help from other federal agencies which have information on boarding schools, and support non-federal entities that house information as well. Newland recommends congressional action as well: to support or strengthen NAGPRA to prevent sensitive and specific tribal information that may be uncovered as a result of the investigation; to advance legislation encouraging Indigenous language revitalization; to promote public health research on the consequences of the boarding school system; and finally to erect a federal memorial to the children who experienced the federal boarding school system.

There are some laudable goals here. Indian Boarding Schools were institutions that affected many thousands and thousands of Native American people over many generations, over many decades. The subject is vast, the documentary record so enormous as to make a complete accounting of the sort envisioned by Newland in his recommendations a mammoth, generational task. I would encourage this effort. We all should encourage this effort. This report is nothing but a start.

But I would encourage the investigators to remember that there is no more uninteresting and unimportant way to write about educational institutions than to focus on bureaucrats and leaders, policies, proposals and laws. What we need is a history of the students, with proper protections in place to guard privacy. The evidence suggests that the physical and emotional consequences of attending boarding school could be substantial and the damage could be transmitted across the generations.

This is a more difficult story to tell than to write about a “system.” It takes so much more work. It is exhausting to be exhaustive. Doing this work well, I know, can take a toll on the researchers. But we must keep in mind that the federal boarding school system was a haphazard and large network of loosely connected and poorly supervised institutions that acted with little effective federal oversight. The institutions that were part of this system began with a commitment to assimilation and erasure, to incorporating Indigenous young people into the American body politic by eliminating their Indigenous culture, language and religion. One can write a history of schools. One can write about curricula, educators, and federal policy makers. What we need, however, is a history of the Boarding schools from the bottom-up. We must never forget that this is a history that involves thousands of young people placed in an educational system that claimed as its goal cultural genocide.

I have tried to write some of these stories on this blog: I wrote about the lonely death of Carlos Pico, a Mission Indian from California. I have written about some Onondaga and Oneida Carlisle alums who traveled to Europe in 1914 as part of a circus, performing in a variant of a “Wild West” type show before the first World War broke out. Reflecting on Arlette Farge’s wonderful essay, The Allure of the Archives, I wrote about the challenge of reconstructing the lives of ordinary Onondagas who attended Carlisle and other boarding schools. And late last year I wrote a series of posts following all the Carlisle students who passed through one “outing” placement for Native American girls. The first of those posts is right here.

Schools are people. They are teachers (and for those who worked in Boarding Schools we need to learn more) and students.

I have found through my own work that descendants of boarding school students do not often know the entirety of their ancestors’ experience. I have had the opportunity to share with families the stories of their grandparents’ time at Carlisle, for instance, or lesser-studied schools like the Lincoln Institution in Philadelphia. Ten thousand students attended Carlisle, and that is only one of many schools. We need to know about the history of these institutions, but more than that, we need to recover the stories of the young people who attended them. What I am willing to bet is that the results of so enormous a historical undertaking and accounting will show that Indigenous peoples were so much more powerful, as individuals and as members of native nations, than the forces the federal government aimed at their destruction.

On Futility

Last week I attended the final public hearing regarding the Horseshoe Solar Development, a proposed solar farm that will be built on lands along the Genesee River that the Seneca Indians consider sacred.  The Senecas’ story runs through the pages of Native America. A brief rally preceded the meeting, and at five in the afternoon the meeting began, overseen by an administrative law judge from the State of New York.

            I have made my case on this blog as to why I think this development is a bad idea.  It will almost certainly destroy archaeological and cultural source material at sites along the Genesee that the Senecas and their ancestors have used for more than two thousand years.

            I spoke at the meeting, basically summarizing arguments that I included in an op-ed I published two years ago in a local Livingston County newspaper. I know my words were appreciated by the opponents of the solar development. I listened to the other speakers.  Joan Scanlon favored the project.  She gave a rambling talk that blew through the five-minute time limit, arguing that “we” need solar “for our children.”  Absolutely nobody in the room was arguing that solar was bad.  Nobody in the room supported a continued reliance on fossil fuels.  Ms. Scanlon was attempting to refute an argument that nobody was making.  The Senecas objected not to solar power, but to this particular development because of the damage it might do to lands they deemed sacred.

            There were Senecas in the room old enough to remember when the United States constructed the Kinzua Dam over the objections of the Senecas.  Before the reservoir flooded a good chunk of the Seneca Nation’s Allegany Reservation, bodies from graveyards were exhumed, and stacked like cordwood in the school yard.  Senecas today remember watching this desecration of the dead from their classroom windows. It was a painful thing to experience. They see the Horseshoe project at the site of the Seneca town of Canawaugus in similar terms.  Paul Winnie, from Tonawanda, saw the project as genocidal in intent, a destruction of what his people consider sacred.  Melissa Smith, also from Tonawanda, was angry. “When you do this to our ancestors,” she said, “I hope it happens to you.”  I noticed Ms. Scanlon smirking through five-minute talks that I found powerful and moving. Because destroying Native American graves and looting their burials is as American as apple pie, and white people’s graves are seldom destroyed in the name of progress.

            Most of the speakers assumed that the state will approve the project.  This hearing was not meaningful consultation, and it was not “a seat at the table.”  Nor was it the “informed consent” required by the United Nations Declaration of the Rights of Indigenous Peoples. It was, the Mohawk journalist John Kane said, nothing more than “checking a box.”  The corporations will get what they want.  The sites at Canawaugus will be destroyed.  Money always wins.  The speeches, in that sense, did not matter much.  Many of the opponents of the project assumed that the state had already made up its mind.

I share their views. They are probably right. I am pessimistic, I know, but I fully expect the state agency responsible for authorizing projects such as these to approve the Horseshoe solar project. The State of New York, and the corporate and business interests so incestuously connected to it, have never put the interests of Indigenous peoples first.  One of the lessons of history, it seems to me, is to make sure you never get your hopes up. I hate to break it to you, kids, but I call them like I see them. Do not expect right to prevail, because quite often it does not. At least at the outset.

            There are a lot of big questions we could talk about about the Horseshoe solar project.  The debate over the fate of Canawaugus raises questions, seldom explored closely, about what it is that makes a site “sacred” and who gets to decide.  Are all historic sites sacred? If some are and some are not, how ought that determination to be made? It is a big question, worth discussing.  We can also talk about the flawed language of 19th and early 20th century anthropology and archaeology that crept into the energy company’s own reports.  History, this report assumed, begins when Europeans arrive. Everything before that point is “prehistoric.”  Horseshoe Solar’s experts described the sites excavated in the project area as “camps” and “seasonal sites.”  Little did they seem to know that Senecas had lived and used the lands at Canawaugus for two millennia, that thousands of Senecas lived their lives, rich and full of meaning there, and that they were more than the sum of these camps and foraging sites.  This was an Indigenous town, straddling the routes that moved from east to west and north to south through the Iroquois longhouse.  Two of the most important leaders in Seneca history, Red Jacket and Cornplanter, were born at Canawaugus, as well as thousands of other Senecas.  There they lived, and there they died.  Into the twentieth century amateur pot-hunters were scooping up the remains from Seneca burials.

            And then there is this even more painful question.  If we cannot win, why play the game? I know.  We have to protest.  I understand there is a joy in mixing it up with the bad guys.  But I am a historian, an employee of the State of New York.  I have a book to write.  I have classes to teach. I have loads of demands on my time.  There is always something else I might be doing. I have never been bored.  So this: I could have made the best speech in the history of the world, and I believe it probably would not matter one bit. These folks want a solar development, and they simply do not care what anyone else says.

            So why do I bother? Advocating for the rights of Indigenous peoples in the State of New York is like playing tennis against an opponent who can raise and lower the net at will, widen or compress the lines while the ball is in the air. They write the rules, interpret them, and enforce them.  I think about this a lot. I have been in this fight for a long time.  In precisely one case involving one minor question in twenty-seven years have I been on the winning side.  Indigenous peoples and their allies, in the American system, it seems are bound to lose.

I ask my students sometimes why they became interested in history.  For some, it’s a simple attraction to the stories. They may have had a high school teacher who moved them with the power of his or her lessons in the classroom. This is a perfectly fine way to get into history.  But for others, the stories that interest them connect to a sense that all is not well. They notice that there is a gap between the way things are and the way things ought to be, and they realize that to understand that sometimes yawning chasm requires the disciplinary skills of the historian.  These students tend to me more critical in their questions, more skeptical of the stories they are told, better able to read sources with an eye towards bias, self-dealing, and veracity. We historians, after all, learn how to find the bodies.  Our training teaches us where to find the receipts. We become adept at smelling rats and we will dig like badgers to find answers to the questions we began with. We act on the assumption that there always is an answer.  It might take us a while to find it, and you might try to hide the answers from us.  But everything we do is based on the premise that there is, somewhere, an answer and we will find it.

            It is true, of course, that the Court system is built on a system of winning and losing.  But historians, perhaps, never lose because the game never really ends.  We did not find what we needed to find in time to help you with your case, but we can keep digging. And when we retire, die, or walk away, you can bet your bottom dollar that another historian will be bothered by the same question that bothered us, and they will pick up right where we left of.  You will never get away from us.  That is what I tell myself.  Eventually, we will run the bastards down.

            And if we never truly lose, that means you will never truly win.  You might take a few rounds. Some people I know say that the “winners write history.”  But the simple truth is that they don’t, not exclusively.  More often than you think, history is written by those bothered by the fact that the winner cheated, or stacked the deck, or brought unfair advantages to the game.  Some history is written by students who feel that the winner was a murder, a liar, or a thug.  They will revise the story, and cast the winner’s deeds in a new light, one that is disorienting, unflattering, and jarring (I suspect this is why so many Republicans are in a full-blown freak-out about the teaching of history: now, perhaps more than ever, those who speak for the “losers” are calling the winners to account). Someone, someday, will expose the fallacies in these winners’ tales, or challenge their use of evidence, and question the assumptions and biases that informed their work. There may be decades where you feel your story is strong and it will stand, but the historians I know will find you.

An article from a Caledonia Newspaper, July 1894. Thanks to Brandon Burger for bringing this to my attention

            So why do we keep at it? It is asking a bird why it flies. Asking questions about the way things are and the way things ought to be—it is what we do.  So when you say that this tract of land once belonged to Indians who are no longer there, we may ask how that came to be. Why do Indians no longer own that land? And when you explain it was acquired through treaties, we will dig through those records and show that the proceedings through which the state acquired the lands at Canawaugus were rife with corruption and fraud.  We will find out that the treaty was never ratified by the Senate as required under federal law.  Our research will show that you are on land that was never legally acquired from the Senecas.  And when you say there is nothing of significance at that site, we will show you that this is a racist lie.  That white people have ample and abundant evidence of the many burials along the flats of the Genesee.  They have been looting them for years. We will challenge all your assumptions.  It is in our DNA. We cannot turn it off (If you are not a historian and have watched a movie on a historic topic with a historian, you know how unbearable we can be).  Of course we cannot short-circuit this wiring to allow the bastards to win.  But there is even more to it than that.  We need to go to the records.  We need to explore and explain why something bad is happening.  We need to make our case. We will become experts. And know, even if we fail to persuade the unpersuadable and close-minded whose interest is in going forward with this destructive project, we will lay the groundwork for those who will follow and expose you for what you are.  It would be nice to know that we can do that before the damage they do is too great. 

Angus Laborgne’s Walleye: How Two Dozen Speared Fish Can Offer Lesson in History to New York State

On April 2, Angus Laborgne, a resident of the Haudenosaunee reservation at Akwesasne, was cited by New York Department of Environmental Conservation officers for spearing walleyes in Scriba Creek, near a state fish hatchery.  The officers cited Laborgne for taking fish out of season, by “means other than angling,” and from what the state considered “closed waters.” Laborgne had speared twenty-three walleyes, all of which the DEC officers confiscated.

71 acres Scriba Creek Waterfront Constantia NY | NY Outdoor Realty

            Steve Featherstone’s great reporting on NewYorkUpstate.com, and a friend who regularly keeps abreast of the news in Central New York, brought this story to my attention.

            Laborgne’s action, according to John Harmon, the President of the Oneida Lake Association, was a “deliberate provocation.”

            Three days later, Laborgne returned, accompanied by fourteen other Haudenosaunee fishermen, “from every single reservation.” They speared even more fish from the same waters.  The DEC this time decided to stand down, hoping to deescalate what Featherstone described as “a conflict over a complicated legal gray area involving Native American fishing rights under state law—a long simmering fight that made it as far as the governor’s desk last year.”

Native anglers spear walleye near Oneida Lake spawn site, launching fight  over indigenous fishing rights - newyorkupstate.com

            Featherstone is referring to a bill vetoed by Governor Kathy Hochul that would have recognized Native Americans’ treaty-guaranteed right to be free from state and local fishing laws except for those cases in which the survival of the species was in question.  The DEC implied that Laborgne’s fishing did just that. In a statement the DEC noted that “walleyes are concentrating in certain streams,” and are “vulnerable to over harvest” during spawning season.  The DEC claim that it “recognized the importance of walleye as a subsistence and cultural resource for Indigenous nations, and is actively consulting with the leadership of the nine State-Recognized Indigenous Nations to advance our shared conservation objectives.”

            Fair enough, but it is worth looking at Laborgne’s argument about his rights to fish, and whether the issue really is as complicated as Featherstone’s reporting suggests.

Walleye | EEK Wisconsin

            Mr. Laborgne told Featherstone that “according to what I understand, we have the right to all creeks, and all lakes, and all rivers.”  The Haudenosaunee, he continued, are born with this right.  He said that he planned to return to Scriba Creek, and he would continue to do so until the State of New York recognized “that this is our inherited right…and we have the right.  They didn’t give it to us.”

            Laborgne is right.

            In order for me to show you how, I will have to persuade you to accept some principles that have long been fundamental to the entire field of American Indian law. First, Native American tribes can do whatever they want unless that activity is specifically prohibited by a treaty or an act of Congress. Second, in 1978, Supreme Court Justice William Rehnquist started messing around with this, adding to the principle of “explicit divestiture,” described above, the idea of “implicit divestiture”:  Tribes could not exercise those powers that were somehow inconsistent with their status as “domestic dependent nations,” a concept coined by Chief Justice John Marshal 147 years earlier in the case of Cherokee Nation v. Georgia. Tribes, the logic goes, do not give up their sovereign rights as nations that predated the United States unless they do so explicitly.  If they did not give away the right or power in question, and if it is not inconsistent with their status as domestic dependent nations, then that power they still possess.

            There are a couple of more assumptions I need you to agree to before we move on.  Before Europeans arrived in North America, Native American communities had the absolute right to hunt and fish wherever they chose.  Thus, unless they specifically gave up that right, through some treaty or some act of Congress, they are still permitted to fish wherever they want. 

So let’s talk about the treaties the state and the federal government entered into with the Oneida Indians in New York. The 1784 Treaty of Fort Stanwix protected Oneida land from encroachment, an acknowledgment by the United States of the Oneidas’ assistance in the Patriots’ cause during the American Revolution. In 1785 the state of New York coerced the Oneidas into giving up some of their reserved lands, and in 1788 the state came back for more.  The 1788 Treaty is the most important one for our purposes, and we need to talk about it.

            First, it is worth exploring how the state went about planning for and negotiating this treaty. I am going to spend some time on this because it is so important.  I hope you will bear with me.

            It seems reasonably fair to conclude that by 1788, the year in which he met with the Onondagas and Oneidas in New York’s Indian territory, Governor Clinton must have recognized that he presided over a state only nominally under his control.  British troops continued to garrison forts at Oswego and Niagara, despite the provisions of the Treaty of Paris that had formally ended the Revolutionary War in 1783.  These soldiers would not leave New York until 1795, after Jay’s Treaty had been approved.  During the war, two of the eastern counties of the state and part of a third seceded, becoming in the process the independent republic of Vermont.  Talk of other parts of the state breaking away occurred commonly enough for James Duane to fear that west of the Hudson “a second Vermont may spring up.” Though the punitive Treaty of Fort Stanwix extinguished Iroquois claims to lands largely to the west of New York, much of the territory in the Empire State remained firmly in Indian hands.  Clinton needed those lands for his state. As historian Barbara Graymont pointed, Clinton and his colleagues pursued a three-fold program: They hoped to eliminate “any claim of the United States Congress to sovereignty over Indian affairs in the State of New York”; they wanted to extinguish “the title of the Indians to the soil”; and they were determined to eradicate the sovereign status of the Six Nations.

            Doing so would not be an easy task, for New York State was not alone in trying to acquire the lands of the Six Nations.  Massachusetts claimed much of the land in what is now New York owing to its colonial charter, which specified no western boundary to its territorial limits.  The two states had worked out a compromise at Hartford late in 1786, with the result that New York exercised legal jurisdiction over the lands in question, but the Bay State retained the right of preemption, or first purchase, to Indian lands in upstate New York.  Massachusetts promptly sold these preemption rights to two speculators, Oliver Phelps and Nathaniel Gorham who, in July of 1788, concluded a treaty with the refugee Mohawks, Oneidas, Onondagas, Cayugas and Senecas at Buffalo Creek.  Phelps and Gorham acquired nearly 2.6 million acres of Iroquois land in western New York for five thousand dollars and the payment of an annuity to the Indians of five hundred dollars.

            In addition to the problems posed by the Phelps-Gorham purchase, Clinton and his associates worried about the activities of the New York Genesee Company of Adventurers, a wealthy and influential group of land barons led by John Livingston.  On the 13th of November, 1787, the Livingston Company negotiated a lease with “the Chiefs and Sachems of the Six Nations of Indians.”  The sachems “leased” to the Livingston Company, for a term of 999 years, “all that certain Tract or Parcel of Land, commonly called and known by the Name of the Lands of the six Nations of Indians, situate, lying and being in the State of New York, and now in the actual possession of the said Chiefs and Sachems of the Six Nations.” Livingston and his associates agreed to pay to the sachems “the yearly Rent or Sum of Two Thousand Spanish Milled Dollars, in and upon the fourth Day of July.” Two months later, the Company negotiated an additional lease with the Oneidas, “for the said term of nine hundred and ninety-nine years, on a rent reserved for the first year of twelve hundred dollars per annum, until it shall amount to fifteen hundred dollars, of all those lands in the said writing described, as the Tract of Land commonly called and known by the Territory of the Oneida Indians.”

            Early in 1788, Governor Clinton and his associates in the State Assembly and Senate undertook a concerted campaign to consolidate their control over the conduct of Indian policy in New York and the disposition of those lands the Iroquois could be persuaded to part with.  Clinton and other New Yorkers wanted to acquire Iroquois lands for the settlement of the state’s obligations to its revolutionary war veterans.  Without question paying off the state’s obligations to its soldiers was important to Clinton, but as historian Laurence Hauptman has shown, other factors were important as well.  The consolidation of state control over its western lands, the development of the state’s economy, and the construction of a state wide transportation system all relied upon New Yorkers first acquiring title to Iroquois lands.  The Six Nations were in the way.

            Early in 1788 the New York State Assembly invalidated the Genesee Company of Adventurers’ “leases” of Six Nations land.  According to a joint resolution approved by the State Senate and Assembly, the leases, by their terms, were for all intents and purposes “purchases of lands, and . . . by the constitution of this State, the said leases are not binding on the said Indians, and are not valid.”  They determined that “the force of the State, shall from time to time, as occasion may require, be exerted to prevent intrusions on and for preserving to the people of this state, their rights to the lands and territories comprehended within the boundaries specified in the said leases.”

To prevent problems like that presented by the Genesee Company of Adventurers for the future, the Assembly and Senate on the 26th of February enacted a law “for directing the manner of proving deeds and conveyances to be recorded.”  For a purchase of lands to be valid under New York state law, that purchase must be witnessed and recorded and proved “by one or more of the subscribing witnesses to the same, before one of the justices of the supreme court, or a master in chancery, or one of the judges of the court of common pleas in and for the county where such lands and real estate are situated.”  Through this enactment, the state tightened its control over the procedures through which land changed hands. Furthermore, the Legislature on the 18th of March approved a law “to punish infractions of that article of the Constitution of this State, prohibiting purchases of lands from the Indians, without the authority and consent of the legislature; and more effectually to provide against intrusions on the unappropriated lands of this State.”  No purchases of land from Indians, “within the limits of this State, shall be binding on the said Indians, or deemed valid, unless made under the authority, and with the consent of the Legislature of this State.”  Any person who acted without the permission of the Legislature would pay a fine of 100 pounds to the people of New York, “and shall be further punished by fine and imprisonment in the discretion of the court.”

            After taking these steps to ensure that no unauthorized parties acquired Indian lands within the state, and after depriving the New York Genesee Company of its ill-gotten gains, Clinton and his allies in the Legislature appointed commissioners to negotiate treaties with the Six Nations.  There is, contrary to the claims of the defendants’ experts, no evidence they present that demonstrates that the Iroquois knew that the New York State Legislature had invalidated the Livingston Leases and nothing Clinton or the state commissioners told the Onondagas and Oneidas in the summer of 1788 could have led them to that conclusion.

http://savagesandscoundrels.org/media/2638/Pickering%20Treaty.jpg
Map showing the Oneida cession of 1788. Under Article II of the agreement, the Oneidas retained the right to hunt and fish in the entire shaded area. No subsequent treaty every deprived them of that right.

At Fort Schuyler, the governor and the state’s Indian commissioners continuously warned the Indians that their lands remained in jeopardy unless they negotiated with the state.  The governor accompanied the state commissioners to Fort Schuyler, formerly Fort Stanwix, where they would meet with as many Indians as could be gathered.  The Six Nations, the governor hoped, would “open their ears to the voice of the Great Council of the State of New York,” and meet them to “brighten the Chain and renew the Covenant which had so long bound us together.” Clinton and the commissioners informed the Iroquois that they intended to protect the Indians from the many outside forces that clamored for their land.  Deceptively, the governor and the commissioners hoped to exploit the confusion then reigning in Iroquoia, and obtain from the Six Nations an enormous cession of Indian lands.

            Governor Clinton appears to have wanted to move quickly. He attempted to rush the proceedings.  He informed the Onondaga sachems, for instance, that “the other public business of the State will not permit me to remain long from home and it will therefore be necessary for such of your people as propose to bee at the Treaty to come on with all possible haste or they may be too late.”  Though there is no evidence that the Iroquois sachems clearly recognized, understood, or cared about the nature of that “public business,” Clinton indeed had plenty to worry about.  New Yorkers overwhelmingly had opposed the new Federal Constitution drawn up at the convention held in Philadelphia in the summer of 1787, and the governor (albeit quietly) led the “Antifederalist” forces within his state.  Advocates of a stronger national government felt the need to replace the Articles of Confederation for a number of reasons, but the “father of the Constitution,” James Madison, listed high on his list of  “Vices of the Political System of the United States” the aggressive Indian policies pursued by several of the states, including New York.  Article I, Section 8, of the new Constitution replaced the vague and ambiguous language of Article IX of the Articles of Confederation, with an assertive statement of federal authority over the conduct of Indian affairs: once the Constitution became the “supreme law of the land,” Congress would possess the exclusive authority “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”

            New Yorkers had ratified the new constitution, reluctantly, in July, only a few short months before the gathering at Fort Schuyler.  When word of the Constitution’s ratification in New Hampshire and Virginia arrived earlier that month, the Antifederalists of New York realized that they no longer could safely oppose the Constitution: the United States would exist under a new and more powerful frame of government.  The question posed to the delegates at Poughkeepsie was now no longer whether or not New Yorkers would approve the Constitution, but whether or not they would become a member of the Union now that the requisite number of states had ratified.  Complete independence was never considered by New York’s Antifederalists, who recognized that they would soon have to work within the new federal system.  Governor Clinton must have felt the need to acquire for New York as much of the Iroquois estate as he could before the new government went into effect, and the rules of Indian diplomacy changed.

            New York’s urgent appeal to the Six Nations was received by a people still recovering from the ravages of the Revolutionary War. Although the Oneidas suffered comparatively less than their brothers in the Confederacy, they may have been confused or concerned about Governor Clinton’s intentions.  Certainly representatives of the Genesee Company of Adventurers tried to disrupt the proceedings at Fort Schuyler.  A Seneca named Onyegat told New York’s Indian commissioners that men from the Genesee Company had told him that “the Governor’s Business at this proposed Treaty is to purchase your Lands, but you have leased them to us.  He means to pay you all at once for them, and then in a few Years to drive you off and tell you that you have no Property here.”  A Frenchman named Dominique Debarges, a fur trader from Montreal and a Genesee Company agent, along with an Indian named “the Infant,” told sachems on their way to Fort Schuyler that “it will be your Destruction if you go down to the Treaty called by the Governor of New York.  I know his intentions,” Debarges continued, and “when you return you’ll have no Place to set your Foot on.  You will be like wild beasts which are hunted.” Debarges also told the Indians that “the Governor had his troops collected at German Flatts, ready to fall upon them as soon as they returned.” The Oneidas, as well as the Onondagas, likely heard these rumors; the evidence suggests that the constituent members of the Confederacy regularly shared information and intelligence. That the missionary Samuel Kirkland served as an interpreter at Fort Schuyler could only have further confused the Indians attending the council. The minister and missionary had served as an interpreter at the federal Fort Stanwix Treaty in 1784, and his presence at Fort Schuyler may have done much to grant a veneer of legitimacy to Clinton’s efforts and supported the Governor’s contested claim to represent the only jurisdiction with a legitimate right to negotiate with the Six Nations.

            The state commissioners chose to treat with the Onondagas first. The Oneidas returned home, and would not return to Fort Schuyler until the meeting with the Onondagas had been completed.  By the middle of September, that business was finished, and the Oneidas returned to the fort. 

            Speaking through Kirkland, the Oneida spokesman Good Peter responded to the Commissioners’ invitation. He expressed to the Governor and the state’s men his understanding of the purpose of the gathering. Good Peter wanted to protect the Oneidas’ lands.  He made clear to Governor Clinton that “in whatever Land we should cede to you, our Warriors should have the Privilege of Hunting and Fishing, and that a Line should be drawn round the Part we should reserve to ourselves to secure it to us and our Posterity.” In essence, Good Peter, like the Onondaga sachem Black Cap, offered to share the bulk of the Oneidas’ lands with the citizens of the state of New York in return for an annual payment. The remainder of their lands the tribe would keep for their own exclusive use.

            Governor Clinton told the Oneidas that he desired to protect their lands from the Livingston Adventurers, who “had without any Authority from us, obtained from you a Lease of your Lands.”  He had, he said, no interest in buying lands from the Oneidas, for “we have already more lands than we have People to settle on them.”  His hope was to set things right, “to meet you at this Council Fire, and by a new agreement place Matters on such a footing as to prevent these Things for the future.” This pleased Good Peter, who responded to the Governor’s speech on the 20th of September.  He was happy to hear that the state did not want the Oneidas’ land, and that New York would protect his people from the Livingston Company.  “The Wind,” he told Clinton, “seems always to blow and shake this beloved Tree, this Tree of Peace.” Good Peter recalled that in 1784 “the United States” had “Planted the Tree of Peace with four Roots, spreading branches, and beautiful leaves, whose top reached the Heavens.” He feared “that by and by some Twig of this beautiful Tree will be broken off. I Love this Tree of Peace as my Life, and my Protection. I know you love it.” To preserve this peace, Good Peter concluded, the Governor must “punish these disorderly People.”

            The point is simple. Throughout his speeches at Fort Schuyler that September, and consistently in his recollections of the treaty four years later, Good Peter believed whole-heartedly that the Oneidas had met with the governor and the state’s Indian commissioners to protect his people from dispossession by the Livingston Company.  Indeed, at the close of the council, Good Peter proudly announced to Governor Clinton that “My Nation are now restored to a possession of their Property which they were in danger of having lost.” The 1788 Oneida treaty, Good Peter continued, secured to the Oneidas “so much of our Property which would otherwise have been lost.” Clearly Good Peter would have had no reason to make this statement if he knew, prior to the meeting at Fort Schuyler, that the Livingston leases had been invalidated by the State Legislature. 

Here’s something else that treaty did.  Even though the deceptive treaty read that the “Oneidas do cede and grant all their lands to the people of the State of New York forever,” with the exception of a small reservation, they reserved for themselves “and their posterity forever…the free right of hunting in every part of the said ceded lands, and of fishing in all the waters within the same.”  The Oneidas reserved the right to hunt and fish in all the lands they ostensibly had ceded to the state of New York.

            The 1794 Federal treaty of Canandaigua guaranteed the Oneidas and their longhouse kin the right to the “free use and enjoyment” of all their lands.  Nothing in that federal treaty deprived them of the reserved fishing rights laid out at the 1788 Fort Schuyler treaty.  Nor did any of the numerous land cessions signed by Oneidas in the decades that followed 1788. Not one of these agreements deprived the Oneidas of the right to fish in streams and lakes they ceded to the state in 1788.  Those rights remain active still. 

            Of course the DEC has an interest in preserving walleye, and it is good that the Department recognizes that Haudenosaunee people do.  There is reason to hope that this issue might be compromised.  But until that compromise takes place—and Governor Hochul’s hostility to the state’s Indigenous peoples leaves me feeling uncertain that it ever will take place—Native Americans are free to exercise the rights guaranteed in their treaties.  They are not asking for special privileges. Rather, they are asking that the State of New York honor its word.  When it comes to Native Americans, perhaps the time for the state to finally start doing that is now.

An Old and Steady Enemy

Governor Kathy Hochul evidently believes that New York is able to lecture the state’s Indigenous peoples about the sanctity of contracts. She recently used the massive coercive power of the state to enforce an agreement that New York had first violated under her disgraced predecessor.  It was a reprehensible display of raw power by the leader of a state government that has, from its inception, viewed the slightest trace of prosperity in Indian Country as a resource ripe for seizure and exploitation.

            Governor Hochul recently froze the assets of the Seneca Nation of Indians, extorted from them a sum of several hundred million dollars, and proudly announced that those funds would cover the bulk of the state’s contribution to build a new football stadium for the Buffalo Bills. The Hochul family, because of her husband’s employment, stands to benefit enormously from the new stadium. She froze the Seneca Nation’s accounts because, in her view, they had not paid what they owed to the state and to several counties surrounding Seneca gaming enterprises in western New York.  What neither she nor her supporters told you was that the Seneca Nation started withholding its payments when New York State violated its federally required compact with the Nation by allowing a competing gaming operation within the Senecas’ “exclusivity” zone.

            I love the Buffalo Bills, but this stinks to high hell.

            Let’s be clear. Neither the state nor the federal governments “gave” the Senecas the right to engage in casino gaming.  According to the Supreme Court, gaming is a right encompassed within the inherent sovereignty of Native American Nations.  What does that mean? Basically, under American law, Native American tribes can exercise any power they choose to exercise, so long as that power is not explicitly prohibited by a treaty or an act of congress, or implicitly prohibited by being somehow inconsistent with their status as “domestic dependent nations.” (Implicit divestiture is a murky concept, that has allowed a lot of state intrusion into the internal affairs of Native American Nations). Late in the 1980s, Congress passed a piece of legislation known as the Indian Gaming Regulatory Act, to set the ground rules for Indian gaming.  For the most lucrative sorts of games—slots and the table games that most of us associate with casinos—Congress required that Indigenous nations enter a “compact” with the state in which they plan to do business.  Many states extract a share of the casino revenue as one part of the agreement. In the Seneca Nation’s case, the state also guaranteed that the Senecas would have an exclusive right to operate gaming facilities in the western part of the state.  When the state allowed competing enterprises to open, part of the Cuomo Administration’s ill-conceived plan to effectively tax people who are bad at math, the Senecas justly pointed out that the state violated the compact.  Negotiations had been on-going up until the point when Governor Hochul realized she needed a ton of cash to support the Pegulas’ bid to build a new stadium for the Bills. As journalist David Kay Johnston pointed out, that agreement is a loser for taxpayers because the Pegulas easily could afford to construct the stadium themselves.

            There is a long history here.

            New York became the Empire State through a systematic program of Iroquois dispossession. That’s a fact. Though the Supreme Court declined to do anything about the process, arguing disingenuously that the injuries occurred too long ago to offer a workable remedy, most of the so-called treaties the state negotiated clearly violated federal law.

            Not only were many of these transactions unambiguously illegal, but they were, as the kids say, as shady as hell. The Onondagas and Oneidas, for instance, entered into agreements in 1788 in which they were led to believe they would lease their lands to the State of New York.  Turns out that when the treaty was written by New York officials, those leases had magically been transformed into sales. Dispossession through literacy in English.  Other transactions took place with small

Federal Copy of the Treaty of Canandaigua, 1794

number of Indians present, few of whom were the proper people to sign treaties.  And the United States, especially with regard to the Senecas, hardly kept its hands clean.  The 1838 treaty of Buffalo Creek, a transaction designed to expel the Six Nations from New York State, is the most crooked treaty in the history of this country.  That is saying something. Signatories were coerced or threatened, signatures were forged, and alcohol flowed freely.  Meanwhile, both federal and state authorities in New York have ignored those provisions in treaties that protect Indigenous rights.  For example, clauses guaranteeing the Senecas and their Iroquois neighbors the right to the “free use and enjoyment of their lands” in the 1794 Treaty of Canandaigua have been consistently ignored.  They have ignored provisions in treaties guaranteeing Indigenous peoples the right to hunt and fish on the land they ceded to the state. The state has even tried to tax the “per capita” payments the Seneca Nation made to its members from the Nation’s gaming proceeds. It is just one assault after another.  It is worth keeping in mind that the Seneca Nation has never asked for special privileges.  It asked merely that the state of New York follow the rules to which it had agreed. Contracts are sacred, Governor Hochul suggested, unless they somehow limit her ability to funnel many millions of public dollars to private hands.

There is a principle that is very important to Iroquois people.  The People who made up the Iroquois League conducted their lives in accordance

Two Row Wampum – Gä•sweñta' – Onondaga Nation
The Two-Row Wampum.

with this principle over the centuries. It is called “Guswenta,” and today it is represented by a very specific wampum belt known as the Two-Row, which depicted two parallel lines on a field of white.  The lines represented the Iroquois and their non-native neighbors. They shared the same land, they occupied the same country, but they remained independent and autonomous.  The lines did not cross, and neither natives nor newcomers should interfere in the affairs of the other. Indigenous peoples in this state have kept their part of the bargain.  They have had little choice.  The state, and its colonial predecessors, have not.  The Indigenous people of this state have faced epidemic diseases, military invasions, the carrying away of their children to boarding schools, and systematic and deliberate attempts to wipe out their culture and take their land. Yet here they remain, developing their communities, looking forward, in a state that has been a steady and relentless adversary.  They hoped the state would play by its own rules.  Governor Hochul said no.

It is worth reading the statement from Seneca Nation president Matthew Pagels:

“New York’s hostile and shameless greed was laid bare for the world to see yesterday. After intentionally and unnecessarily holding the Seneca people and thousands of Western New Yorkers and families hostage for several days by strangling various bank accounts held by the Seneca Nation and our businesses, Governor Hochul couldn’t contain her excitement to boast about using her Seneca ransom money for a new stadium.

I’m sure that was welcome news to the Governor’s husband, whose company not only operates Video Lottery Terminals within the Seneca Nation’s supposed gaming exclusivity zone with the State’s blessing, but the company will also make millions of dollars in concession business inside the State-owned stadium. And it’s being paid for on the backs of the Seneca Nation. Quite a sweetheart deal.

We see, and we hope the world sees, the Governor’s announcement for what it is — the latest chapter in New York’s long history of mistreatment and taking advantage of Native people. Governor Hochul happily tried to strangle Western New York in order to squeeze every drop of blood she could get from the Seneca Nation.

It is not surprising to the Seneca Nation that the Governor thinks her actions should be applauded as progress. That’s the Albany way. The claims that a new day had dawned in Albany have turned into Groundhog Day — more of the same, just as it’s always been.

The Governor’s new stadium won’t be a product of progress. It will be a monument to Albany’s vindictive desire to punish the Seneca people. Ultimately, it’s something we’re all too familiar with.”

He’s right.

Joe Manchin’s Poison Pill

When asked about the expansion of Medicaid that his party hoped to include in the giant reconciliation bill, West Virginia Senator Joe Manchin said that it must include the Hyde Amendment to earn his support. The Hyde Amendment needed to be included he said, or the bill is “dead on arrival if that’s gone.” According to the Guttmacher Institute, the Hyde Amendment “prohibits federal funding for abortion, preventing people enrolled in Medicaid and other public programs in most states from using their health insurance to cover abortion care.” Because of this, the Hyde Amendment “disproportionately impacts people already facing systemic barriers to care, particularly Black, Indigenous and other people of color.”

Manchin may be looking for a way to kill a bill he feels empowered to oppose. I am not certain about his motivations. Manchin has claimed, after all, that he is proudly “Pro-Life.” But taking this position on a bill designed to help the American Nation “build back better” after the economic and other devastation caused by COVID is truly unfortunate. As Shaye Arnold demonstrated in an article that appeared in the American Journal of Public Health, the Hyde Amendment ensures that Native American women who receive care at Indian Health Service facilities have far more limited access to abortion services than non-Indigenous women. And when Native American women face “disproportionately high rates of sexual assault and unintended pregnancy,” Manchin’s policies are a threat to public health in Indian Country and a significant injustice.

Texas is Making Me Crazy:The Lone Star State’s Assault on the Indian Child Welfare Act

            The Brackeen case, a legal battle in which the fate of the Indian Child Welfare Act of 1978 hangs in the balance, I fear is precisely the sort of Indian law case for which Justice Clarence Thomas has been waiting. I have thought about this issue a lot lately as I have been listening to Rebecca Nagel’s excellent podcast This Land, which focuses in its second season on the Brackeen case, and reading the petition for a writ of certiorari submitted by the Texas Attorney General in an effort to help get that case before the Supreme Court.

            The Supreme Court’s conservative majority has done an immense amount of damage to its own legitimacy owing to its recent voting-rights and abortion decisions. I worry that the Court will take the Brackeen case and deliver a fatal blow not only to ICWA, as the Indian Child Welfare Act is called, but the entire foundations of American Indian Law. That will hurt the Court, but it will hurt Indigenous peoples even more.

            Before I explain why that is, we need some background on both ICWA and the so-called “plenary power doctrine” in American Indian law. Both are central to the Texas petition.

From the New York Times, the Brackeen family.

            By nearly every objective measure, ICWA has been a great success.  Congress enacted the ICWA in 1978, an important piece of legislation designed to halt the traumatic removal of native children from their homes through fostering and adoption.  The problem was severe. 

Dakota Sioux at Spirit Lake, about whom I write in Native America, asked the Association of American Indian Affairs to investigate, and the AAIA reported that of the 1100 Dakotas under the age of 21 who lived at Spirit Lake in 1968, 275 had been removed from their families.  In states with large Native American populations, the AAIA found that “child welfare” agencies had removed between 25 and 35 percent of children from their homes. Native peoples organized to halt this highly destructive practice, and the battle for the passage of the ICWA, according to its best historian, “represented one of the most fierce and successful battles for Indian self-determination of the 1970s.” The legislation committed the United States “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture.”  Native American children, under the legislation, must be placed with family members, with members of their tribe, or with members of another native nation, before they are placed in the care of non-Native American foster parents.      

Texas Attorney-General Ken Paxton and that other guy.

Texas Attorney General Ken Paxton, and a growing number of conservatives, argue that the law has gone too far. “In practice, the ICWA compels states to disregard the ordinary approach of determining a child’s best interest and to treat Native American foster children differently based on nothing more than their race,” Paxton wrote in an editorial that appeared in the Washington Post early in 2019. “The law gives Indian tribes a trump card to play in any state child-welfare proceeding, allowing them to dictate outcomes whenever a child is or even could be a member of a tribe.” For Paxton, it’s a states rights issue. “If no biological family members can be found, the law requires state courts and agencies to make a priority of adoption by other ethnically Native American families.”

Native American children, strictly because of their race, thus can be kept apart from foster families eager to adopt them. If federal law treated any other class of people this way, it would be roundly condemned, and rightly so. According to the Department of Health and Human Services, 10,529 American Indian/Alaska Native children were in foster care in fiscal 2017.

Some claim that the ICWA relies on a political designation, rather than a racial one, because a tribe is a political entity. But no political or cultural link to a tribe must exist for the Indian Child Welfare Act to apply to a given child. Tribal eligibility — determined in virtually every case by genetic ancestry — is sufficient. The idea that the ICWA relies on a political designation rather than a racial one is further undermined by the fact that if no family from the child’s tribe volunteers to adopt, any Native American from any tribe, anywhere, takes automatic precedence over a non-Native American couple. This requirement relies on racist and reductionist assumptions about the supposed interchangeability of drastically different tribal cultures.

You would not know it from Paxton’s piece, but his opinions are those of a distinct minority. Twenty-one state attorneys-general, along with thirty child welfare organizations, 325 tribal governments and fifty-seven tribal organizations have expressed their support for the Indian Child Welfare Act. The law, they write, “was designed to reverse decades of cultural insensitivity and political bias that had resulted in one-third of all Indian children being forcibly removed by the government from their families, their tribes and their cultural heritage.” The law was a signal achievement, and it has done its job. The ICWA ensures the “stability and cohesion of Tribal families, Tribal communities and Tribal cultures,” in the face or organizations and entities that have sought their destruction.

The Plenary Power Doctrine has emerged over many decades, a product of decisions issued by the United States Supreme Court.  It rests at heart upon a long-enduring interpretation of the “Indian Commerce Clause,” Section I, Article 8, which states that Congress has the power to “regulate commerce” with the Indian tribes. 

What does that mean? A few words that have been asked to carry a lot of weight. In 1831, Supreme Court Justice John Marshall ruled that Indians were members of “domestic dependent nations” whose relationship to the United States resembled that of a “ward to its guardian.” Congress, he ruled in a related case the next year, had exclusive jurisdiction over Indian affairs, an area of law into which the several states could not intrude.  Over time, and over many decisions, the scope of federal power expanded. In 1903, the Court ruled that Congress had plenary power, a power so great that Congress could unilaterally abandon or ignore treaties it had ratified with Native nations. Congress could do whatever it wanted.

Beginning in the second half of the twentieth century, the Court opened the door to increasing state power over native peoples and their lands. Conservatives on the Court have worked consistently to reduce the power of tribal governments. Justice Thomas, it seems to me, has led the way, making the case in a number of decisions over his long tenure on the Court that the plenary power doctrine is unconstitutional.

Why do I feel that way? First, Thomas believes that much of the Court’s jurisprudence on Native American questions lacks constitutional grounding. Indeed, Thomas on more than one occasion has questioned the constitutionality of the “Plenary Power” doctrine.

In the 2004 case of US v. Lara, for instance, Thomas said that he was troubled by the “premises and logic of our tribal sovereignty cases.” Thomas felt that the court had not attempted to remove the important tensions between two assumptions that struck him as contradictory.  “First, Congress (rather than some other part of the Federal Government) can regulate virtually every aspect of the tribes without rendering tribal sovereignty a nullity.” It did so, however, while it maintained that “the Indian tribes retain inherent sovereignty to enforce their criminal laws against their own members.”

Thomas could not accept the Court’s assertion “that the Constitution grants Congress plenary power to calibrate the ‘metes and bounds of tribal sovereignty.’” He had read the Constitution and in it, he wrote, “I cannot locate such congressional authority in the Treaty Clause. . . or the Indian Commerce Clause.” The phrase– “commerce”–had been defined too broadly.

Furthermore, Thomas questioned the constitutionality of the 1871 enactment through which Congress put an end to treaty-making, because “the making of treaties, after all, is the one mechanism that the Constitution clearly provides for the Federal Government to interact with sovereigns other than the States.”

Thomas reviewed the Lara reasoning, and that used by the Court in its antecedents: Oliphant, US v. Wheeler (1978), and Duro.  He was skeptical.  In his conclusion, Thomas wrote,

The Court should admit that it has failed in its quest to find a source of congressional power to adjust tribal sovereignty. Such an acknowledgment might allow the Court to argue the logically antecedent question whether Congress (as opposed to the President) has that power.  A cogent answer would serve as the foundation for the analysis of sovereignty issues posed by this case. We might find that the Federal Government cannot regulate the tribes through ordinary domestic legislation and simultaneously maintain that the tribes are sovereigns in any meaningful sense.

In Adoptive Couple v. Baby Girl (2013), Thomas again considered the constitutional basis for plenary power, in another case involving the 1978 Indian Child Welfare Act.  “Although the Court has said,” he wrote, “that the central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs,” neither the text nor the original understandings of the Clause “supports Congress’ claim to ‘plenary’ power.”  The contested adoption proceedings at the heart of the Baby Girl case involved neither commerce nor tribes, and Thomas believed that “there is simply no basis for Congress’ assertion of authority over such proceedings.”

Three years later, in the case of US v. Bryant, Thomas once again returned to these questions. Thomas’s Bryant opinion is heavily cited in the Texas petition. Congress’s “purported plenary power over Indian tribes,” Thomas wrote, rests on shaky foundations.  “No enumerated power–not Congress’ power to ‘regulate commerce…with Indian tribes,’ not the Senate’s role in approving treaties, nor anything else, gives Congress such sweeping authority.”  Thomas found the origins of this claim to power in the 1886 Kagama decision, which upheld the constitutionality of the previous year’s Major Crimes Act.  Native American weakness, in that case, justified the extension of federal power.  The government’s power, the Kagama court wrote, “over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection… It must exist in that government, because it has never existed anywhere else.” That seemed like a claim to power that was not supported by the Constitution and it was time, in Thomas’s view, to review these decisions.

And in an 2017 dissent in a case involving the Secretary of the Interior’s decision to take 13,000 acres of Oneida land in New York into trust, Thomas again criticized the Court’s Indian Commerce Clause rulings.  Allowing the federal government to take land within a state into trust on behalf of an Indian tribe, Thomas argued, could not be supported by any language in the Constitution, and it would have shocked the “Founding Fathers” to “find such a power lurking in a clause they understood to give Congress the limited authority to ‘regulate trade with Indian tribes living beyond state boundaries.”

So in his petition to the Supreme Court, the Texas Attorney General has built upon a foundation ready-made by Justice Thomas. “Relying on the Indian Commerce Clause,” the petition reads, “the Indian Child Welfare Act of 1978 creates a race-based federal child-custody system and requires the states to implement it for all Indian children who appear before their courts.” Relying on a district court ruling that found ICWA unconstitutional, Texas argued that “no provision of the Constitution gives Congress `plenary power’ over Indian affairs.”

Texas wants clarity, it says. It wants to do what’s best for the “most vulnerable among us—children residing in dangerous circumstances.” Rebecca Nagel argues that this case is about far more than children. It’s about an assault on the entire apparatus of federal control over Indian affairs. I think she is right.

Read colonial laws.  Read the writings of the royal commissioners who visited Virginia in the wake of Bacon’s race war against all Indians, or the writings of Henry Knox, or the annual reports of the commissioners of Indian Affairs during the second half of the nineteenth century.  In all you see an effort by authorities representing the state to control the activities of frontier residents, both Native and newcomer. They blamed frontier whites for frontier violence. The goal of imperial control and then federal control over the conduct of Indian policy always was contested by provincials, by the inhabitants of the territories, and the citizens of the sovereign states. If the Supreme Court chooses to hear the Brackeen case, it could strike down the important Indian Child Welfare Act. It also could, in the process, decide that the plenary power doctrine is unconstitutional.  In terms of Indian law, the consequences of this would be earth-shattering.

Think about it this way:  what if the Constitution does not give Congress plenary power over Indian affairs?  Article I, Section 8 of the Constitution says that “Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes.”  According to constitutional scholar Gregory Ablavsky, the Founding Fathers used the word “intercourse” far more often than they did the word “commerce,” and that this word has a wider range of meanings.  There is a lot of truth to that.  The first federal Congress, in order to flesh out the sparse language of the Constitution, enacted in the summer of 1790 the first of a series of “Indian Trade and Intercourse Acts.”  But look at the legislation. Seriously. Read it. The Indian Trade and Intercourse Act regulated those instances where native peoples and newcomers came into contact by limiting the actions of non-Indians: Americans could not trade with Indians without a license, for instance, and purchases of Indian land could be made only by the national government.  In the Indian Trade and Intercourse Act, one could argue that Congress asserted no power to regulate the internal affairs of any native nation.

Maybe plenary power is a lie, a fiction, or a fraud.  Maybe Thomas is right, in that the Court, over many years, has just sort of made stuff up to suit its purposes.

I have many friends who spend a great deal of time decrying the so-called “Doctrine of Discovery,” the notion that somehow the Europeans’ discovery of America gave them title to land on this continent.  Many of them are calling for a repeal of the doctrine, and for its repudiation by the churches who originally espoused it.   Is the notion of “plenary power” any less a fiction?  Can it be justified in any way from the sparse language in the Constitution which, Justice Thomas has asserted consistently throughout his career (whatever you think of him), truly matters?  Justice Thomas has asserted that the Court’s Indian Commerce Clause rulings are built on a fiction, that they stand without justification in the Constitution’s language. 

Perhaps, rather than placing that power in the hands of state governments, as Justice Thomas seems to suggest, it more accurately could be asserted that the Constitution recognized native nations as separate polities, over which it exercised no control and no authority, save for an authority superior to the states to regulate interactions between these native nations and the American people.  Congress, rather than the states, could regulate commerce and intercourse by regulating the activities of American citizens, but it could claim no power to do anything within and over native nations themselves, because no such power is stated in the Constitution.  If the Doctrine of Discovery is a racist sham, as its critics assert, then perhaps the Congressional plenary power doctrine is a falsehood, too, a misinterpretation of framers’ intent and a complete fiction that the United States ought to address if it wants honor its endorsement several years ago of the UNDRIP.  And if it is a fiction, we are left with one conclusion about the federal government’s claim to exercise absolute authority in the realm of Indian affairs:  that its claim to plenary power rests on nothing more, at the end of the day, than brute force.  Colonialism is alive and well.

These questions will not be addressed in the way I would like if the Court decides to hear the Brackeen’s appeal.  And we must keep in mind why Texas is devoting so much energy to combating ICWA.  What is in it for Texas? If the court hears the case, and Thomas persuades his colleagues on the Court to follow the logic of his rulings over the years, the Supreme Court  could hold that the entire plenary power doctrine is unconstitutional, that under the 10th Amendment, ” powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people” and throw the regulation of Native nations over to the states.  Their lands, and the mineral wealth that lies beneath, would be subject to state legislatures who seek to skim the cream off of any prosperity that could conceivably come to Indian country.  These states could rush to place Native peoples on the same plane as the rest of their citizens, not as members of Indigenous Nations whose existence predates the establishment of the United States, but as individuals untethered and unprotected from tribal governments.  And that could be catastrophic for native nations. I hope I am wrong.