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I’m So Bored with the CSA

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

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

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

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

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

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

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

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

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

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

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

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

History and Historians, Uncategorized

I Say 1622! You Say…

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

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

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

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

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

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

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

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

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

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

 

 

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We Cannot Forget What We Do Not Remember

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

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

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

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

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

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

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

History and Historians, TDIH, Uncategorized

Thinking of Gnadenhutten, 8 March 1782

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

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

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

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

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

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

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

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

 

Liberal Arts, Uncategorized

Betsy DeVos Needs to go to School

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

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

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

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

TDIH, Uncategorized

Oliphant v. Suquamish: Forty Years Ago Today

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

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

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

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

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

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

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

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

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

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

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

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

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

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Donald Trump’s Pocahontas Problem

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It is difficult to keep up with the sheer quantity of daily news generated by the new administration, but I wrote the following piece after Donald Trump, once again, referred to his principal critic, Senator Elizabeth Warren of Massachusetts, as Pocahontas.  The day after this news broke, I asked my students what they thought of it.  These are bright kids, engaged, and they believed quite strongly that Trump’s behavior was inappropriate, and juvenile.  Many of them volunteered that this sort of name-calling was racist.  When I asked them why, however, I felt that they struggled to provide an answer. They knew it was wrong, but had difficulty pin-pointing why.  This essay summarizes my explanation.

 

While Massachusetts Senator Elizabeth Warren’s claims to Native American identity certainly can be called into question, President Trump’s choice to deride her as “Pocahontas,” during the campaign and in a meeting  with Democratic lawmakers, goes too far.  Warren said she learned of her Cherokee ancestry through “family stories,” but she has not produced any evidence.  Still, Al Franken, Warren’s colleague in the Senate and a member of the Indian Affairs Committee, called Trump’s actions racist. He’s right. Here’s why.

            Trump’s recent name-calling is of a piece with his testimony before Congress in 1993, when he cast aspersions on the Connecticut tribes who then were opening up casinos that could compete with his own. “They don’t look like Indians to me,” Trump said.

            For President Trump, it seems, Native American identity can be determined by a quick glance.  He looked for certain characteristics and did not see them in the Pequots, or in Senator Warren. Centuries of intermarriage, enslavement, and the complex, messy, and tangled history of native peoples mattered in his determination not a bit.  For him, native peoples were individuals with certain easily distinguished racial features, and not members of political entities that possessed an inherent but limited sovereignty that predated the creation of the United States.

            But here’s the thing. Too many Americans share Trump’s views about who Indians are and what they ought to be.  Too many Americans view Indians as part of the past.  Think about the most commonly held stereotypes about Native Americans:  What images enter your mind? Ask your friends what they think. Chances are a lot of those images come from the past.

            And when we speak of Native Americans as being part of the past, we are aiding in an ongoing colonial project which erases native peoples in the present.  And if they are viewed as part of the past, or inauthentic, it becomes easier to dismiss the legitimacy of Native Americans, as individuals and as members of semi-sovereign nations, as being out of time and place and, as a consequence, irrelevant.  It becomes easier to ignore the very real problems of inequality and injustice in Indian Country; it becomes permissible to cheer for a football team with a racist name; or to silently assent to a President’s decision to authorize a pipeline through lands that a Native American community deems sacred. It also makes it possible to call into question the sovereign right of native nations to develop their economies, protect their lands, and against immense odds preserve their cultures.   When the President casts Indians as part of the past, he makes it more difficult for many Americans to recognize the importance of native peoples’ calls for justice today.

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#NoDAPL: Easement Approved

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The news is not surprising, but disappointing nonetheless.  Douglas Lamont, the “Senior Official Preforming (sic) the Duties of the Assistant Secretary of the Army” announced that he had called upon the Army Corps of Engineers to end its Environmental Impact Review.  He has asked that his intentions be published in the Federal Register.  The process will move quickly if the Trump Administration has its way, for Lamont told congressional leaders that the Army will “waive its policy to wait 14 days after Congressional notification before granting an easement.”

The legal battle may continue.  There are, of course, the legal fights involving the many people arrested by the army of police protecting the assets of Energy Transfer Partners.  but there is also hope of an injunction. The message here is clear.  If you did not see it before, you can see it now.  The administration of Donald Trump has no interest in consultation with Native American communities as required under the entirely uncontroversial Executive Order 13175 issued by President Bill Clinton in early 2000.  Corporate well-being, a slowly dying fossil fuel industry, and not real people and the lands upon which they live and the water they need to survive, are what is most important to Donald Trump, our Creon, in his morally desiccated vision of the American republic.

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The Indian Child Welfare Act Remains Under Attack

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Today comes news that South Dakota is going to appeal a federal court decision that found the state guilty of violating the rights of Native Americans under the terms of the 1978 Indian Child Welfare Act.  The problems in South Dakota have been well documented.  NPR did an in-depth investigation, and the story has been covered widely in the Native American press.  It is devastating to learn about.

What has been missing has been historical context.  If you or your students want to learn more about the problems the Indian Child Welfare Act was intended to resolve, you need look no further than Margaret Jacobs’ “Remembering the ‘Forgotten Child’: The American Indian Child Welfare Crisis of the 1960s and 1970s,” which appeared in the American Indian Quarterly, 37 (Winter/Spring 2013, 136-159.

In Jacobs’ view, the termination was not merely an effort to get the United States out of the “Indian Business” through HCR 108 and PL280, the various termination statutes, and the establishment of the Indian Claims Commission, but as well an assault on Native American families and children.

BIA officials established in 1958 the Indian Adoption Project, a program, the Bureau argued, to shield Native American children from the poverty in Indian country brought about by too many single mothers having too many children.

Even though the evidence that unwed motherhood had reached epidemic proportions in Indian Country was largely unsubstantiated, and that the BIA ignored entirely the importance of extended families in child-rearing, and that policies aimed at attacking poverty and economic inequality might have been better suited for remedying the problems native peoples faced, the Bureau of Indian Affairs and the Indian Adoption Project looked to dismantle these families by pressuring mothers to give up their children for adoption. The benefits for the Bureau were substantial. It cost $750 per year, Jacobs shows, to support a native child at Minnesota’s Pipestone Boarding School, but only $470 to support that child in the state’s foster care system. Both the Bureau and the states could save even more money if these children were adopted. Thus, according to Jacobs, “the BIA and state agencies looked to the ultimate ‘private’ sector—in this case, white families—to take over the expense of raising Indian children.” Viewing Indian families as drunken and degraded, state officials deceived and coerced Indian mothers, took their children from them against their will, and then denied them due process when they tried to fight back. The BIA Adoption Program was perhaps the most brutal example of the termination policy in action.

The Indian Child Welfare Act was designed to halt the removal of Indian children from Indian families. The problem was severe.  Only a fool would disagree. Dakota Sioux at the Spirit Lake reservation, for example, asked the Association of American Indian Affairs to conduct an investigation. 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 at least once. In states with large Native American populations, the AAIA found that between 25 and 35% of children had been removed from their homes.

Native peoples organized to halt this highly destructive practice, and the battle for the passage of the Indian Child Welfare Act, according to Jacobs, “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.”

There is much at stake in South Dakota.  The state has to do much with a small budget, but it cannot violate federal law.  The South Dakota case may reach the Supreme Court, and in an environment where conservatives are eager to shift the balance of power in many areas back to the states, this crucial case bears close watching.

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American Indian Law and Public Policy

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Welcome Back!

It is the first week of classes at Geneseo, and as part of my spring cycle of courses, I am teaching once again my course entitled “American Indian Law and Public Policy.”  The course is required for the minor in Native American Studies, fulfills the college’s Social Sciences and “Other World Cultures” general education requirements, and is an optional course for students minoring in Public Administration. Of course, it is also an elective open to history majors.  The syllabus necessarily changes a bit each semester.  The course is a blast to teach, and I have what looks like a good batch of students this semester.  Here is the syllabus:

 

HIST 262      American Indian Law and Public Policy                    Spring 2017

Instructor: Michael Oberg

Meetings:   MWF, 12:30-1:20, Milne Library, 105

Office Hours:  Monday and Wednesday, 2:30-3:30, Sturges 15 A/B

Contact:           oberg@geneseo.edu

245-5730

Twitter: @NativeAmText

Website: MichaelLeroyOberg.com

 

Required Readings:

 

Stuart Banner, How the Indians Lost Their Land: Law and Power on the Frontier (2007)

Luke Lassiter, Clyde Ellis, Ralph Kotay, The Jesus Road: Kiowas, Christianity and Indian Hymns, (2002)

Steven Pevar, The Rights of Indians and Tribes, 4th edition, (2012).

Paul Chaat Smith, Everything You Know About Indians is Wrong, (2009)

Circe Sturm, Becoming Indian: The Struggle over Cherokee Identity in the Twenty-First Century, (2011).

Readings on Canvas, and

Additional Readings, for Current Events discussions and assignments:

News Articles on www.indianz.com

News Articles in Indian Country Today.

News Articles on Pechanga.net

 

Course Description:         This course will provide you with an overview of the concept of American Indian tribal sovereignty, nationhood, and the many ways in which discussions of sovereignty and right influence the status of American Indian nations.  We will look at the historical development and evolution of the concept of sovereignty, the understandings of sovereignty held by native peoples, and how non-Indians have confronted assertions of sovereignty from native peoples.  We will also examine current conditions in Native America, and look at the historical development of the challenges facing native peoples and native nations in the 21st century.  This course is required for the Native American Studies Minor, and counts for both the S/core and M/core general education headings.  As a result, it is intended to meet the following learning outcomes:

 

Students Will Demonstrate:

  • an understanding of knowledge held outside the Western tradition;
  • an understanding of history, ideas, and critical issues pertaining to Non-western societies;
  • an understanding of significant social and economic issues pertaining to Non-western societies;
  • an understanding of the symbolic world coded by and manifest in Non-western societies;
  • an understanding of traditional and/or contemporary cultures of Latin America, Africa, and/or Asia and the relationship of these to the modern world system;
  • an ability to think globally.

And

  • understanding of social scientific methods of hypothesis development;
  • understanding of social scientific methods of document analysis, observation, or experiment;
  • understanding of social scientific methods of measurement and data collection;
  • understanding of social scientific methods of statistical or interpretive analysis;
  • knowledge of some major social science concepts;
  • knowledge of some major social science models;
  • knowledge of some major social science concerns;
  • knowledge of some social issues of concern to social scientists;
  • knowledge of some political issues of concern to social scientists;
  • knowledge of some economic issues of concern to social scientists;
  • knowledge of some moral issues of concern to social scientists.

Your grade will be based on a number of components.  Participation, an important part of your grade, is much more than attendance. I view my courses fundamentally as extended conversations and these conversations can only succeed when each person pulls his or her share of the load.  You should plan to show up for class each week with the reading not just “done” but assimilated; you should plan not just to “talk” but to engage critically and constructively with your classmates.  Our conversations will depend on your thoughtful inquiry and respectful exchange.  Remember, as well, that conversations are most fruitful when they involve a mix of well-thought out hypotheses and tentative, partially-formed ideas.  Because this course requires of you an extensive amount of reading, I am basing a large portion of your grade on your participation.  This course will reward both preparation and experimentation.  We are all here to learn, and I encourage you to join in the discussion with this in mind.  Obviously, you must be present to participate, and once you miss more than three classes you will no longer be able to receive any credit for participation.

The individual assignments will be discussed below.  The grading scale is as follows:

Participation:                                                                       100 points

Response Papers 2 papers at 25 points each                 50 points

Current Events Papers  2 papers at 50 points each    100 points

Final Project                                                                        150 points

 

A          400-380                     A-  379-360

B+       359-350                      B    349-330

B-        329-320                      C+  319-310

C          309-290                      C-   289-280

D         279-240                      E  239 and below.

 

With any of these assignments, I encourage you to visit with me during office hours if you have any questions.  You should be clear on what I expect of you before you complete an assignment.  The door is open.  If you cannot make it to my office hours, please feel free to contact me by email, which I check several times a day. The assignments are described in detail, below.

Discussion Schedule

18 January      Introduction to the Course

The United Nations Declaration of the Rights of Indigenous Peoples

Reading: Banner, How, Introduction; Pevar, Rights, Ch. 1-2; UNDRIP (http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf)

 

20 January     Native Nations in the United States

Reading: Banner, How, Introduction, Chapter 1; Articles of  Confederation, Article IX; United States Constitution; Northwest Ordinance (1787); Federal Trade and Intercourse Act (1790); Treaty of Canandaigua (1794).

 

23 January     The Marshall Court and the Definition of Native Nations

Reading:  Banner, How, Chapters 2-5; Johnson v. McIntosh (1823).

https://supreme.justia.com/cases/federal/us/21/543/case.html

 

25 January     The Removal Era

Reading: Banner, How, Ch. 6 ; Cherokee Nation v. Georgia (1831); Samuel A.  Worcester v. State of Georgia, (1832).

https://www.law.cornell.edu/supremecourt/text/30/1

https://www.law.cornell.edu/supremecourt/text/31/515

 

27 January     Current Events Discussion

The Reservation System

Reading: Banner, How, Ch. 7; Treaty of Medicine Lodge Creek (1867); Ex Parte Crow Dog (1883).

https://supreme.justia.com/cases/federal/us/109/556/case.html

http://digital.library.okstate.edu/kappler/vol2/treaties/kio0977.htm

 

30 January     Policing the Reservations

Reading: Major Crimes Act (1885); US v. Kagama (1886).

https://www.law.cornell.edu/uscode/text/18/1153

https://supreme.justia.com/cases/federal/us/118/375/case.html

 

1 February      The Policy of Allotment

Reading: Banner, How, Ch. 8; Talton v. Mayes (1896); Lone Wolf v. Hitchcock (1903); United States v. Celestine (1909).

https://supreme.justia.com/cases/federal/us/163/376/

https://supreme.justia.com/cases/federal/us/187/553/case.html

https://supreme.justia.com/cases/federal/us/215/278/

 

3 February      Current Events Discussion

Water Rights in the Arid West

Reading: Pevar, Rights, Ch 12; Winters v. United States (1908).

https://supreme.justia.com/cases/federal/us/207/564/

First Current Events Paper Due.

 

6 February      The Meriam Commission Report

Reading: The Problem of Indian Administration, Chapter 1 and any one chapter from Chapter 8-14.

http://www.narf.org/nill/resources/meriam.html

 

8 February      Current Events Discussion

The Indian New Deal

Reading: Banner, How, Epilogue; Indian Reorganization Act, 1934.

https://tm112.community.uaf.edu/files/2010/09/The-Indian-Reorganization-Act.pdf

 

10 February    The Termination Era

Reading: HCR 108; Pevar, Rights, 333-337; Tee-Hit-Ton Indians v. United States (1955).

http://digital.library.okstate.edu/kappler/vol6/html_files/v6p0614.html

https://supreme.justia.com/cases/federal/us/348/272/

 

13 February    Williams v. Lee and the Modern Era of American Indian Tribal Sovereignty

Reading: Williams v. Lee (1959); Native American Church v. Navajo Tribal Council (1959); Pevar, Rights, Chapter 14 and pp. 329-332

https://supreme.justia.com/cases/federal/us/358/217/

http://openjurist.org/272/f2d/131/native-american-church-of-north-america-v-navajo-tribal-council

 

15 February   The Era of Self-Determination

Current Events Discussion

Reading: McClanahan v. Arizona Tax Commission, (1973); Morton v. Mancari  (1974).

https://supreme.justia.com/cases/federal/us/411/164/case.html

https://supreme.justia.com/cases/federal/us/417/535/case.html

 

17 February    The Supreme Court’s 1978 Term and Tribal Sovereignty

Reading: US. v. Wheeler (1978); Santa Clara Pueblo v. Martinez (1978); Oliphant v. Suquamish Indian Tribe (1978).

https://supreme.justia.com/cases/federal/us/435/313/

https://supreme.justia.com/cases/federal/us/436/49/

https://supreme.justia.com/cases/federal/us/435/191/case.html

 

20 February    Red Power

Reading: Smith, Everything (Entire Book)

 

22 February    Congress, the Executive, and the Revolution of 1978

Reading: AIRFA; Indian Child Welfare Act; Pevar, Rights, Ch. 17

Adoptive Couple v. Baby Girl (2013)

https://www.oyez.org/cases/2012/12-399

https://www.law.cornell.edu/uscode/text/42/1996

http://www.nicwa.org/Indian_Child_Welfare_Act/ICWA.pdf

 

24 February  Tribal Regulation of Non-Indian Activities on Tribal Land

Current Events Discussion

Reading: Montana v. United States (1981).

https://supreme.justia.com/cases/federal/us/450/544/

 

27 February    The Powers of Tribal Governments

Reading: Pevar, Rights, Chapters 3-9

Reading: Merrion v. Jicarilla Apache Tribe (1982)

https://supreme.justia.com/cases/federal/us/455/130/case.html

 

1 March          The Power of Tribal Governments, Continued

Current Events Discussion

Reading: Duro v. Reina (1990); Fergus Bordewich, Killing the White Man’s  Indian, (CANVAS).

https://supreme.justia.com/cases/federal/us/495/676/

 

3 March          The Power of Tribal Governments, continued

Reading: Atkinson Trading Company v. Shirley (2001); US v. Lara (2004)

https://supreme.justia.com/cases/federal/us/532/645/

https://supreme.justia.com/cases/federal/us/541/193/

 

6 March          The Violence Against Women Act in Indian Country

Reading:  NCAI Materials on VAWA (watch videos and read documents); Denver Post series, “Promises, Justice, Broken” (some of you may find this very disturbing to read)

 

8 March          Issues in American Indian Education: Boarding Schools and their Legacy

Reading:  Read any two of the papers included in Reyhner, Lockard and Gilbert,  eds., Honoring Our Elders: Culturally Appropriate Approaches for Teaching Indigenous Students, (Flagstaff: Northern Arizona University Press, 2015).

http://jan.ucc.nau.edu/~jar/HOE/

 

10 March       Issues in American Indian Education, Continued

Current Events Discussion

Reading: Continued discussion of papers in Reyhner, et. al.

Second Current Events Paper Due!
Spring Break

 

20 March        Issues in American Indian Religion

Reading: Lassiter, Ellis and Kotay, The Jesus Road, (entire book).

 

22 March        Issues in American Indian Religion

Reading: Pevar, Rights, Chapters 11, 13; Employment Division, Department of Human Resources of Oregon v. Smith (1990); Lyng v. Northwest Cemetery Protective Association (1988).

https://supreme.justia.com/cases/federal/us/494/872/case.html

https://supreme.justia.com/cases/federal/us/485/439/case.html

 

24 March       Issues in American Indian Identity: The Mascot Issue

Reading: Do a Google News Search, and read about the Mascot Issue in the news  sources listed above.

 

27 March        Issues in American Indian Identity: Acknowledgment

Reading: Den Ouden and O’Brien,  (Canvas)

 

29 March        Issues in American Indian Identity

Reading: Sturm, Becoming Indian (entire book).

 

31 March         Economic Development in Indian Country

Reading: Harvard Project on American Indian Economic Development, The State of Native Nations: Conditions under US Policies of Self-Determination, (New York: Oxford University Press, 2008), Chapter 11. (On Canvas)

 

3 April            Public Health in Indian Country

Reading:  IHS, Trends in Indian Health, 2014 Edition, (Browse); Donald Warne, “The State of Indigenous America Series: Ten Indian Health Policy Challenges for the New Administration in 2009,” Wicazo Sa Review, 24 (Spring 2009), 7-23.  (All on Canvas)

 

5 April             Gaming

Reading: California v. Cabazon Band of Mission Indians (1987); Randal K. Q. Akee, Katherine A. Spilde and Jonathan B. Taylor, “The Indian Gaming  Regulatory Act and its Effect on American Indian Economic Development” Journal of Economic Perspectives, 29 (Summer 2015), 185—208 (Canvas);   Pevar, Rights, Ch. 16.

https://supreme.justia.com/cases/federal/us/480/202/case.html

 

7 April          Thee Land: The Iroquois in Western New York

Reading: Oneida Indian Nation v. County of Oneida (1974); Anne F. Boxberger Flaherty, ““American Indian Land Rights, Rich Indian Racism, and Newspaper  Coverage in New York State, 1988-2008,” American Indian Culture and  Research Journal, 37 (no. 4, 2013) (Canvas)

https://supreme.justia.com/cases/federal/us/414/661/case.html

 

10 April           The Land, Continued.

Reading: City of Sherrill v. Oneida Indian Nation (2005).

https://supreme.justia.com/cases/federal/us/544/197/dissent.html

 

12 April            The Land: Buy Back and the Cobell Settlement

Reading:   2016 Status Report, Land Buyback Program.
14 April         Taxation

Reading:  Pevar, Rights, Ch. 10

 

19 April           Resistance:  “You Are On Indian Land.”

Film Discussion.  Watch Film in Class:

https://www.isuma.tv/the-national-film-board-of-canada/you-are-on-indian-land

 

21 April            Resistance, Continued.

Reading: Taiaiake Alfred, Wasase, (Excerpts).

 

24  April         What Is to Be Done?

What Is To Be Done?

Reading: Harold Napoleon, Yuuyaraq: The Way of the Human Being (1996),

 

26 April           Catch Up

28 April           Catch Up

1 May              Catch Up

4 May              Final Examination Period

The Assignments, Described in Detail:

Current Events Reports:  A quick glance at the large number of news articles at www.indianz.com and at Indian Country Today should make it clear to you that there are constant new developments affecting the lives of native peoples and their neighbors across the nation and in Canada.  You should also be able to see something of the force of history that still shapes these communities and their relationships to the United States and individual state and local governments. I expect you to try to keep up with some of this, to inform yourselves about what is going on in Native America. To that end, I expect you on two occasions during the semester to write a current event report of no more than 1200 words based on no fewer than five related news articles that you found of interest.  We will discuss current events at the opening of nearly every Friday class meeting. In your brief paper you should describe the basic issues concisely and accurately, and describe the significance of the events or developments you describe in terms of what you have read and what we have discussed in class. The five papers need not be closely connected in time, nor do they need to all come from the same paper, in that you may feel free to follow a story that has developed over an extended period of time.

For your paper, you should use 11 or 12 point type, double spaced, with one-inch margins all around. You should cite accurately at the top of the paper the five or more articles you looked at. The best papers will develop an argument supported by evidence in the form of quotes from the articles you read.

Response Papers: You also will write two response papers, each worth twenty-five points, over the course of the semester.  These papers will be brief meditations (approximately 1000 words) on one of the assigned readings:

 

Smith, Everything You Know About Indians Is Wrong, due 20 February

Lassiter, et. al., Jesus Road, due 20 March

Sturm, Becoming Indian, due 29 March

Napoleon, Yuuyaraq, due 24 April

Again, double-spaced, 11 or 12 point type. What do you see as the critical issues these books raise?

Research Project:  You will complete a final project that consists of a paper of 10 to 15 pages in length, endnotes and bibliography not counted, formatted according to the guidelines spelled out in the Turabian Manual. You will play the role of an adviser to a new president (Republican or Democrat—your choice) on American Indian policy.  Your paper should answer three questions: 1). What are the principal problems facing Native American communities today?  2).What are the sources of those problems?  In other words, why do these problems still exist? And 3).  What can and should be done about these problems within the confines of the American constitutional system?

You should have at least 20 sources for your paper.