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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.

Current Events

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

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

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from Syracuse and just off the New York State Thruway, this reader asserted that “the ‘sovereign nation’ concept is obsolete and unfair to taxpaying citizens.”

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

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

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

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

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

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

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

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

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

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

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

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

 

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.

Uncategorized

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.

#NoDAPL, Current Events

The Winters Doctrine and Dakota Access

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After class a couple of weeks ago, one of my students asked me why the Winters decision had not played a larger role in the Water Protectors’ efforts to defeat the Dakota Access Pipeline. The students had read Winters v. US (1908) and they had been following closely developments at Standing Rock in their current events reading.

I have been teaching college history for a long time, but I am still reminded quite often how much there is that I do not know. My very best students frequently drive me back to the piles of books in my office, or to the library, or to the wonderful world of resources available online.  Sometimes their questions force me to ask my friends—historians, anthropologists, and, in this instance, lawyers—for guidance.  I learn a lot through teaching.  It is why I am so happy and feel myself so fortunate to be at Geneseo.

Winters, as Charles Carvell noted in an extremely useful article that appeared in the North Dakota Law Review, is quite simply a phenomenal ruling. “It occurred at a time,” Carvell writes, “when Indians wars were not distant memories and when federal Indian policy was      not to promote or even protect Indian interests but to break apart tribal communities and assimilate Indians into white society.” This was, Carvell continues, the era of Allotment, and of boarding schools—a full court press against native peoples and their cultures.   “The decision occurred at a time when the disappearance of ‘the Indian’ and Indian tribes was thought to be at hand.  It was issued a few years after Lone Wolf v. Hitchcock,” the 1903 decision that recognized the plenary power of Congress over Indian affairs and the ability of Congress, unilaterally and regardless of context, to abrogate an Indian treaty.  Winters was litigated as settlers crossed the Plains in droves. Still, “despite the milieu in which it was litigated, the Winters decision protected tribal interests.”

How did it do that? The Court held that when Congress established an Indian reservation, it established as well a right to the water necessary for that reservation to achieve its purposes.  Since one of the stated goals of the reservation policy involved leading native peoples towards what the federal government and many reformers considered a civilized way of life—and in this instance the native peoples in question were the Gros Ventre and Assiniboine communities residing near the Milk River on the Fort Belknap Reservation—that meant guaranteeing them the water they needed to undertake stock-raising and agriculture.  Thus the Winters Doctrine. Settlers upriver had diverted waters from the Milk River and this, the Court held, was unlawful.

So at the very time that Congress was seeking to dispossess native peoples and eradicate their culture, the Court, in this quirky case, recognized that these reservations had a claim to water superior to that of the settlers who coveted this vital resource.

Water is essential on the plains.  As the Water Protectors have asserted, “water is life,” and in their view, the Dakota Access Pipeline jeopardized waters flowing through the reservation.  As early as 1976, according to Carvell, the Standing Rock Sioux Tribe asserted that it controlled water and other natural resources on its reservation. The Standing Rock Sioux that year began demanding that all users of water obtain the approval of the tribal government.

And the Standing Rock Sioux have not only stated that they have control over their waters, but they have acted on their words. “They have developed on-reservation water resources, and reject any notion that in doing so they are subject to state regulatory authority. They have developed,” Carvell continues, “irrigation projects and water for domestic, municipal, and government purposes.”

Standing Rock, in other words, has asserted that its reservation was established as a permanent homeland and, as a result, that it “is entitled to use all water necessary to make itself economically self-sufficient, and because what is necessary to ensure self-sufficiency is never stated the tribe’s water right is ‘inherently unquantifiable.’” The scope of their claim is immense, extending to “the full spectrum of uses necessary to the ‘arts of civilization.’”

It is not difficult to imagine that an oil spill or a pipeline break upriver would threaten these water resources. Pipelines break. They leak. Oil spills.  It has happened in the vicinity of the Dakota Access in recent months. It is obvious that these accidents would threaten tribal water resources.  But North Dakota is unique in terms of western water law. The amount of water to which tribes in North Dakota are entitled has never been quantified, and as a result, one might argue that the Winters doctrine has, strictly speaking, never been applied to Standing Rock and other reservations in the state.

The efforts of the Water Protectors and their lawyers to obtain restraining orders to prevent the completion of the Dakota Access pipeline did not address these issues.  Nor have treaty guarantees and other matters received a full airing in court.  Needless to say, if the Dakota Access Pipeline is completed, and it is beginning to look like that is what is going to happen, many of the most pressing historical and legal question will not have received a full hearing.  And that, along with President Trump’s determination to undermine the Environmental Impact review, makes this episode even more disappointing and unfortunate than it otherwise might have been.

Current Events, History and Historians, Liberal Arts

The Case for Civic Engagement

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I published an opinion piece in the Rochester Democrat and Chronicle today, “The Case for Civic Education.”  I argued that one possible explanation as to why so many of Donald Trump’s supporters have accepted his trampling upon the Constitution is because too many Americans are unfamiliar with the country’s basic institutions, its history, and what the Constitution says.

I believe strongly that historians, and other academics, should engage the public.  We should write in defense of our disciplines.  We should advocate for our disciplines.  We should preach from the highest hills that history education, and education in the liberal arts and humanities generally, is vital to the functioning of a democratic republic because it equips citizens to participate in a mature, reasoned, and constructive manner.

The essay has drawn a bit of fire, but not nearly as much as I would have liked. I want to argue about these issues, and I want to have a debate.  So I will write.  It is the best way I know to engage with a broader public, to at least provoke some thought.

Alas, the D&C wants its opinion pieces short, 450 words, so there is not a lot of room to elaborate.  And for inexplicable reasons, the editorial staff decided to cut out the opening paragraph to the essay, despite the fact that I submitted a piece that came in below their word limit.  Maybe that opening was a bit inflammatory, but I do not think so.  The actual essay reads as follows:

 

A large minority of the voters who cast ballots last November chose Donald Trump to be their president, a choice endorsed and approved by the Electoral College, that antidemocratic anachronism designed to ensure that slaveholders controlled the national government.

            You have read in these pages many explanations for Trump’s unexpected victory. I would like to add another.  A significant number of voters cast their ballots for a bullying narcissist with little knowledge and less respect for American constitutionalism because they simply do not know enough about the Constitution, America’s political institutions, and the nation’s long struggle, in the Founders’ words, to “form a more perfect union.”  They can excuse Trump trampling over the Constitution because they do not know what the Constitution says.

            Let’s face it: despite a nationwide commitment to standardized testing, the social sciences, humanities, and liberal arts have been under attack.  We need “more plumbers and less philosophers,” said Marco Rubio during his brief quixotic run for the presidency.  The Lieutenant-Governor of Kentucky urged students not to study history but, instead, to focus upon something useful. Even Governor Cuomo, in his otherwise laudable proposal to provide tuition-free access to SUNY schools, promoted the program as a way for the state to produce more skilled workers, not informed citizens equipped to participate in American democracy in a meaningful and constructive manner.

            Education in history and the liberal arts, however, produces citizens capable of asking the tough questions and looking for answers in all their complexity.  They do not settle for simple solutions and pat answers. They know how to question assumptions, and demand evidence.  Civic education leads to responsible and mature civic engagement. Little wonder, then, that these fields of study are devalued and dismissed.

            Less than a third of Americans last year could identify all three branches of the federal government.  Another third could not name a single branch.  Many times more Americans can identify all five members of the Simpsons family than the five freedoms protected by the First Amendment. 

            The Founding Fathers argued that a flourishing republic needs citizens capable of displaying the virtue to set aside their narrow self-interest and petty fears and jealousies in order to pursue the common good.  They argued that citizens must be independent, informed, and active. An ignorant and quiescent populace, they feared, made fit tools for a tyrant.

            I cannot predict what will happen over the next several months and years. But I have watched the protests. We must do more, I believe, to engage the public, explain how our institutions are supposed to work, and protect them from a presidential administration that threatens the country’s fundamental aspiration of liberty and justice for all.

 

The evidence to support my assertions is not hard to find, and we should consider this evidence closely.  We have our work cut out for us.  Rick Shenkman, for one example, summarized some of the findings of his Just How Stupid Are We at Alternet.  The Annenberg Center for Public Policy in 2014 released a study in 2014 warning about Americans’ lack of basic civic knowledge.  Jason Brennan’s analysis from 2016 in Foreign Policy raises some points worth considering.  And the American Council of Trustees and Alumni found that American college graduates are “alarmingly ignorant of America’s history and heritage.”

This should disturb us all, regardless of the political party which claims our allegiance, regardless of who we voted for in the primaries or the general elections.  These results are a call to action. The challenge will be mustering the courage to answer that call.

I like to write opinion pieces. It is important for us all to bring our expertise to bear on public debates, and to make our voices heard.  Doing so requires a willingness to take some heat, some criticism that can be really, really vicious at times.  In my view, it comes with the territory. I could fume to my friends on Facebook.  I could bitch and whine or yell at the television set.  Better it seems to me is the effort to engage with as large a public as possible, to challenge assumptions, to offer explanations, and to provoke discussions.

 

 

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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.

A Discussion Forum for Teaching and Writing Native American History

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