Governor Kathy Hochul evidently believes that New York is able to lecture the state’s Indigenous peoples about the sanctity of contracts. She recently used the massive coercive power of the state to enforce an agreement that New York had first violated under her disgraced predecessor. It was a reprehensible display of raw power by the leader of a state government that has, from its inception, viewed the slightest trace of prosperity in Indian Country as a resource ripe for seizure and exploitation.
Governor Hochul recently froze the assets of the Seneca Nation of Indians, extorted from them a sum of several hundred million dollars, and proudly announced that those funds would cover the bulk of the state’s contribution to build a new football stadium for the Buffalo Bills. The Hochul family, because of her husband’s employment, stands to benefit enormously from the new stadium. She froze the Seneca Nation’s accounts because, in her view, they had not paid what they owed to the state and to several counties surrounding Seneca gaming enterprises in western New York. What neither she nor her supporters told you was that the Seneca Nation started withholding its payments when New York State violated its federally required compact with the Nation by allowing a competing gaming operation within the Senecas’ “exclusivity” zone.
I love the Buffalo Bills, but this stinks to high hell.
Let’s be clear. Neither the state nor the federal governments “gave” the Senecas the right to engage in casino gaming. According to the Supreme Court, gaming is a right encompassed within the inherent sovereignty of Native American Nations. What does that mean? Basically, under American law, Native American tribes can exercise any power they choose to exercise, so long as that power is not explicitly prohibited by a treaty or an act of congress, or implicitly prohibited by being somehow inconsistent with their status as “domestic dependent nations.” (Implicit divestiture is a murky concept, that has allowed a lot of state intrusion into the internal affairs of Native American Nations). Late in the 1980s, Congress passed a piece of legislation known as the Indian Gaming Regulatory Act, to set the ground rules for Indian gaming. For the most lucrative sorts of games—slots and the table games that most of us associate with casinos—Congress required that Indigenous nations enter a “compact” with the state in which they plan to do business. Many states extract a share of the casino revenue as one part of the agreement. In the Seneca Nation’s case, the state also guaranteed that the Senecas would have an exclusive right to operate gaming facilities in the western part of the state. When the state allowed competing enterprises to open, part of the Cuomo Administration’s ill-conceived plan to effectively tax people who are bad at math, the Senecas justly pointed out that the state violated the compact. Negotiations had been on-going up until the point when Governor Hochul realized she needed a ton of cash to support the Pegulas’ bid to build a new stadium for the Bills. As journalist David Kay Johnston pointed out, that agreement is a loser for taxpayers because the Pegulas easily could afford to construct the stadium themselves.
There is a long history here.
New York became the Empire State through a systematic program of Iroquois dispossession. That’s a fact. Though the Supreme Court declined to do anything about the process, arguing disingenuously that the injuries occurred too long ago to offer a workable remedy, most of the so-called treaties the state negotiated clearly violated federal law.
Not only were many of these transactions unambiguously illegal, but they were, as the kids say, as shady as hell. The Onondagas and Oneidas, for instance, entered into agreements in 1788 in which they were led to believe they would lease their lands to the State of New York. Turns out that when the treaty was written by New York officials, those leases had magically been transformed into sales. Dispossession through literacy in English. Other transactions took place with small
Federal Copy of the Treaty of Canandaigua, 1794
number of Indians present, few of whom were the proper people to sign treaties. And the United States, especially with regard to the Senecas, hardly kept its hands clean. The 1838 treaty of Buffalo Creek, a transaction designed to expel the Six Nations from New York State, is the most crooked treaty in the history of this country. That is saying something. Signatories were coerced or threatened, signatures were forged, and alcohol flowed freely. Meanwhile, both federal and state authorities in New York have ignored those provisions in treaties that protect Indigenous rights. For example, clauses guaranteeing the Senecas and their Iroquois neighbors the right to the “free use and enjoyment of their lands” in the 1794 Treaty of Canandaigua have been consistently ignored. They have ignored provisions in treaties guaranteeing Indigenous peoples the right to hunt and fish on the land they ceded to the state. The state has even tried to tax the “per capita” payments the Seneca Nation made to its members from the Nation’s gaming proceeds. It is just one assault after another. It is worth keeping in mind that the Seneca Nation has never asked for special privileges. It asked merely that the state of New York follow the rules to which it had agreed. Contracts are sacred, Governor Hochul suggested, unless they somehow limit her ability to funnel many millions of public dollars to private hands.
There is a principle that is very important to Iroquois people. The People who made up the Iroquois League conducted their lives in accordance
The Two-Row Wampum.
with this principle over the centuries. It is called “Guswenta,” and today it is represented by a very specific wampum belt known as the Two-Row, which depicted two parallel lines on a field of white. The lines represented the Iroquois and their non-native neighbors. They shared the same land, they occupied the same country, but they remained independent and autonomous. The lines did not cross, and neither natives nor newcomers should interfere in the affairs of the other. Indigenous peoples in this state have kept their part of the bargain. They have had little choice. The state, and its colonial predecessors, have not. The Indigenous people of this state have faced epidemic diseases, military invasions, the carrying away of their children to boarding schools, and systematic and deliberate attempts to wipe out their culture and take their land. Yet here they remain, developing their communities, looking forward, in a state that has been a steady and relentless adversary. They hoped the state would play by its own rules. Governor Hochul said no.
It is worth reading the statement from Seneca Nation president Matthew Pagels:
“New York’s hostile and shameless greed was laid bare for the world to see yesterday. After intentionally and unnecessarily holding the Seneca people and thousands of Western New Yorkers and families hostage for several days by strangling various bank accounts held by the Seneca Nation and our businesses, Governor Hochul couldn’t contain her excitement to boast about using her Seneca ransom money for a new stadium.
I’m sure that was welcome news to the Governor’s husband, whose company not only operates Video Lottery Terminals within the Seneca Nation’s supposed gaming exclusivity zone with the State’s blessing, but the company will also make millions of dollars in concession business inside the State-owned stadium. And it’s being paid for on the backs of the Seneca Nation. Quite a sweetheart deal.
We see, and we hope the world sees, the Governor’s announcement for what it is — the latest chapter in New York’s long history of mistreatment and taking advantage of Native people. Governor Hochul happily tried to strangle Western New York in order to squeeze every drop of blood she could get from the Seneca Nation.
It is not surprising to the Seneca Nation that the Governor thinks her actions should be applauded as progress. That’s the Albany way. The claims that a new day had dawned in Albany have turned into Groundhog Day — more of the same, just as it’s always been.
The Governor’s new stadium won’t be a product of progress. It will be a monument to Albany’s vindictive desire to punish the Seneca people. Ultimately, it’s something we’re all too familiar with.”
When asked about the expansion of Medicaid that his party hoped to include in the giant reconciliation bill, West Virginia Senator Joe Manchin said that it must include the Hyde Amendment to earn his support. The Hyde Amendment needed to be included he said, or the bill is “dead on arrival if that’s gone.” According to the Guttmacher Institute, the Hyde Amendment “prohibits federal funding for abortion, preventing people enrolled in Medicaid and other public programs in most states from using their health insurance to cover abortion care.” Because of this, the Hyde Amendment “disproportionately impacts people already facing systemic barriers to care, particularly Black, Indigenous and other people of color.”
Manchin may be looking for a way to kill a bill he feels empowered to oppose. I am not certain about his motivations. Manchin has claimed, after all, that he is proudly “Pro-Life.” But taking this position on a bill designed to help the American Nation “build back better” after the economic and other devastation caused by COVID is truly unfortunate. As Shaye Arnold demonstrated in an article that appeared in the American Journal of Public Health, the Hyde Amendment ensures that Native American women who receive care at Indian Health Service facilities have far more limited access to abortion services than non-Indigenous women. And when Native American women face “disproportionately high rates of sexual assault and unintended pregnancy,” Manchin’s policies are a threat to public health in Indian Country and a significant injustice.
The Brackeen case, a legal battle in which the fate of the Indian Child Welfare Act of 1978 hangs in the balance, I fear is precisely the sort of Indian law case for which Justice Clarence Thomas has been waiting. I have thought about this issue a lot lately as I have been listening to Rebecca Nagel’s excellent podcast This Land, which focuses in its second season on the Brackeen case, and reading the petition for a writ of certiorari submitted by the Texas Attorney General in an effort to help get that case before the Supreme Court.
The Supreme Court’s conservative majority has done an immense amount of damage to its own legitimacy owing to its recent voting-rights and abortion decisions. I worry that the Court will take the Brackeen case and deliver a fatal blow not only to ICWA, as the Indian Child Welfare Act is called, but the entire foundations of American Indian Law. That will hurt the Court, but it will hurt Indigenous peoples even more.
Before I explain why that is, we need some background on both ICWA and the so-called “plenary power doctrine” in American Indian law. Both are central to the Texas petition.
From the New York Times, the Brackeen family.
By nearly every objective measure, ICWA has been a great success. Congress enacted the ICWA in 1978, an important piece of legislation designed to halt the traumatic removal of native children from their homes through fostering and adoption. The problem was severe.
Dakota Sioux at Spirit Lake, about whom I write in Native America, asked the Association of American Indian Affairs to investigate, and the AAIA reported that of the 1100 Dakotas under the age of 21 who lived at Spirit Lake in 1968, 275 had been removed from their families. In states with large Native American populations, the AAIA found that “child welfare” agencies had removed between 25 and 35 percent of children from their homes. Native peoples organized to halt this highly destructive practice, and the battle for the passage of the ICWA, according to its best historian, “represented one of the most fierce and successful battles for Indian self-determination of the 1970s.” The legislation committed the United States “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture.” Native American children, under the legislation, must be placed with family members, with members of their tribe, or with members of another native nation, before they are placed in the care of non-Native American foster parents.
Texas Attorney-General Ken Paxton and that other guy.
Texas Attorney General Ken Paxton, and a growing number of conservatives, argue that the law has gone too far. “In practice, the ICWA compels states to disregard the ordinary approach of determining a child’s best interest and to treat Native American foster children differently based on nothing more than their race,” Paxton wrote in an editorial that appeared in the Washington Post early in 2019. “The law gives Indian tribes a trump card to play in any state child-welfare proceeding, allowing them to dictate outcomes whenever a child is or even could be a member of a tribe.” For Paxton, it’s a states rights issue. “If no biological family members can be found, the law requires state courts and agencies to make a priority of adoption by other ethnically Native American families.”
“Native American children, strictly because of their race, thus can be kept apart from foster families eager to adopt them. If federal law treated any other class of people this way, it would be roundly condemned, and rightly so. According to the Department of Health and Human Services, 10,529 American Indian/Alaska Native children were in foster care in fiscal 2017.
Some claim that the ICWA relies on a political designation, rather than a racial one, because a tribe is a political entity. But no political or cultural link to a tribe must exist for the Indian Child Welfare Act to apply to a given child. Tribal eligibility — determined in virtually every case by genetic ancestry — is sufficient. The idea that the ICWA relies on a political designation rather than a racial one is further undermined by the fact that if no family from the child’s tribe volunteers to adopt, any Native American from any tribe, anywhere, takes automatic precedence over a non-Native American couple. This requirement relies on racist and reductionist assumptions about the supposed interchangeability of drastically different tribal cultures.
You would not know it from Paxton’s piece, but his opinions are those of a distinct minority. Twenty-one state attorneys-general, along with thirty child welfare organizations, 325 tribal governments and fifty-seven tribal organizations have expressed their support for the Indian Child Welfare Act. The law, they write, “was designed to reverse decades of cultural insensitivity and political bias that had resulted in one-third of all Indian children being forcibly removed by the government from their families, their tribes and their cultural heritage.” The law was a signal achievement, and it has done its job. The ICWA ensures the “stability and cohesion of Tribal families, Tribal communities and Tribal cultures,” in the face or organizations and entities that have sought their destruction.
The Plenary Power Doctrine has emerged over many decades, a product of decisions issued by the United States Supreme Court. It rests at heart upon a long-enduring interpretation of the “Indian Commerce Clause,” Section I, Article 8, which states that Congress has the power to “regulate commerce” with the Indian tribes.
What does that mean? A few words that have been asked to carry a lot of weight. In 1831, Supreme Court Justice John Marshall ruled that Indians were members of “domestic dependent nations” whose relationship to the United States resembled that of a “ward to its guardian.” Congress, he ruled in a related case the next year, had exclusive jurisdiction over Indian affairs, an area of law into which the several states could not intrude. Over time, and over many decisions, the scope of federal power expanded. In 1903, the Court ruled that Congress had plenary power, a power so great that Congress could unilaterally abandon or ignore treaties it had ratified with Native nations. Congress could do whatever it wanted.
Beginning in the second half of the twentieth century, the Court opened the door to increasing state power over native peoples and their lands. Conservatives on the Court have worked consistently to reduce the power of tribal governments. Justice Thomas, it seems to me, has led the way, making the case in a number of decisions over his long tenure on the Court that the plenary power doctrine is unconstitutional.
Why do I feel that way? First, Thomas believes that much of the Court’s jurisprudence on Native American questions lacks constitutional grounding. Indeed, Thomas on more than one occasion has questioned the constitutionality of the “Plenary Power” doctrine.
In the 2004 case of US v. Lara, for instance, Thomas said that he was troubled by the “premises and logic of our tribal sovereignty cases.” Thomas felt that the court had not attempted to remove the important tensions between two assumptions that struck him as contradictory. “First, Congress (rather than some other part of the Federal Government) can regulate virtually every aspect of the tribes without rendering tribal sovereignty a nullity.” It did so, however, while it maintained that “the Indian tribes retain inherent sovereignty to enforce their criminal laws against their own members.”
Thomas could not accept the Court’s assertion “that the Constitution grants Congress plenary power to calibrate the ‘metes and bounds of tribal sovereignty.’” He had read the Constitution and in it, he wrote, “I cannot locate such congressional authority in the Treaty Clause. . . or the Indian Commerce Clause.” The phrase– “commerce”–had been defined too broadly.
Furthermore, Thomas questioned the constitutionality of the 1871 enactment through which Congress put an end to treaty-making, because “the making of treaties, after all, is the one mechanism that the Constitution clearly provides for the Federal Government to interact with sovereigns other than the States.”
Thomas reviewed the Lara reasoning, and that used by the Court in its antecedents: Oliphant, US v. Wheeler (1978), and Duro. He was skeptical. In his conclusion, Thomas wrote,
The Court should admit that it has failed in its quest to find a source of congressional power to adjust tribal sovereignty. Such an acknowledgment might allow the Court to argue the logically antecedent question whether Congress (as opposed to the President) has that power. A cogent answer would serve as the foundation for the analysis of sovereignty issues posed by this case. We might find that the Federal Government cannot regulate the tribes through ordinary domestic legislation and simultaneously maintain that the tribes are sovereigns in any meaningful sense.
In Adoptive Couple v. Baby Girl(2013), Thomas again considered the constitutional basis for plenary power, in another case involving the 1978 Indian Child Welfare Act. “Although the Court has said,” he wrote, “that the central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs,” neither the text nor the original understandings of the Clause “supports Congress’ claim to ‘plenary’ power.” The contested adoption proceedings at the heart of the Baby Girl case involved neither commerce nor tribes, and Thomas believed that “there is simply no basis for Congress’ assertion of authority over such proceedings.”
Three years later, in the case of US v. Bryant, Thomas once again returned to these questions. Thomas’s Bryant opinion is heavily cited in the Texas petition. Congress’s “purported plenary power over Indian tribes,” Thomas wrote, rests on shaky foundations. “No enumerated power–not Congress’ power to ‘regulate commerce…with Indian tribes,’ not the Senate’s role in approving treaties, nor anything else, gives Congress such sweeping authority.” Thomas found the origins of this claim to power in the 1886 Kagama decision, which upheld the constitutionality of the previous year’s Major Crimes Act. Native American weakness, in that case, justified the extension of federal power. The government’s power, the Kagama court wrote, “over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection… It must exist in that government, because it has never existed anywhere else.” That seemed like a claim to power that was not supported by the Constitution and it was time, in Thomas’s view, to review these decisions.
And in an 2017 dissent in a case involving the Secretary of the Interior’s decision to take 13,000 acres of Oneida land in New York into trust, Thomas again criticized the Court’s Indian Commerce Clause rulings. Allowing the federal government to take land within a state into trust on behalf of an Indian tribe, Thomas argued, could not be supported by any language in the Constitution, and it would have shocked the “Founding Fathers” to “find such a power lurking in a clause they understood to give Congress the limited authority to ‘regulate trade with Indian tribes living beyond state boundaries.”
So in his petition to the Supreme Court, the Texas Attorney General has built upon a foundation ready-made by Justice Thomas. “Relying on the Indian Commerce Clause,” the petition reads, “the Indian Child Welfare Act of 1978 creates a race-based federal child-custody system and requires the states to implement it for all Indian children who appear before their courts.” Relying on a district court ruling that found ICWA unconstitutional, Texas argued that “no provision of the Constitution gives Congress `plenary power’ over Indian affairs.”
Texas wants clarity, it says. It wants to do what’s best for the “most vulnerable among us—children residing in dangerous circumstances.” Rebecca Nagel argues that this case is about far more than children. It’s about an assault on the entire apparatus of federal control over Indian affairs. I think she is right.
Read colonial laws. Read the writings of the royal commissioners who visited Virginia in the wake of Bacon’s race war against all Indians, or the writings of Henry Knox, or the annual reports of the commissioners of Indian Affairs during the second half of the nineteenth century. In all you see an effort by authorities representing the state to control the activities of frontier residents, both Native and newcomer. They blamed frontier whites for frontier violence. The goal of imperial control and then federal control over the conduct of Indian policy always was contested by provincials, by the inhabitants of the territories, and the citizens of the sovereign states. If the Supreme Court chooses to hear the Brackeen case, it could strike down the important Indian Child Welfare Act. It also could, in the process, decide that the plenary power doctrine is unconstitutional. In terms of Indian law, the consequences of this would be earth-shattering.
Think about it this way: what if the Constitution does not give Congress plenary power over Indian affairs? Article I, Section 8 of the Constitution says that “Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes.” According to constitutional scholar Gregory Ablavsky, the Founding Fathers used the word “intercourse” far more often than they did the word “commerce,” and that this word has a wider range of meanings. There is a lot of truth to that. The first federal Congress, in order to flesh out the sparse language of the Constitution, enacted in the summer of 1790 the first of a series of “Indian Trade and Intercourse Acts.” But look at the legislation. Seriously. Read it. The Indian Trade and Intercourse Act regulated those instances where native peoples and newcomers came into contact by limiting the actions of non-Indians: Americans could not trade with Indians without a license, for instance, and purchases of Indian land could be made only by the national government. In the Indian Trade and Intercourse Act, one could argue that Congress asserted no power to regulate the internal affairs of any native nation.
Maybe plenary power is a lie, a fiction, or a fraud. Maybe Thomas is right, in that the Court, over many years, has just sort of made stuff up to suit its purposes.
I have many friends who spend a great deal of time decrying the so-called “Doctrine of Discovery,” the notion that somehow the Europeans’ discovery of America gave them title to land on this continent. Many of them are calling for a repeal of the doctrine, and for its repudiation by the churches who originally espoused it. Is the notion of “plenary power” any less a fiction? Can it be justified in any way from the sparse language in the Constitution which, Justice Thomas has asserted consistently throughout his career (whatever you think of him), truly matters? Justice Thomas has asserted that the Court’s Indian Commerce Clause rulings are built on a fiction, that they stand without justification in the Constitution’s language.
Perhaps, rather than placing that power in the hands of state governments, as Justice Thomas seems to suggest, it more accurately could be asserted that the Constitution recognized native nations as separate polities, over which it exercised no control and no authority, save for an authority superior to the states to regulate interactions between these native nations and the American people. Congress, rather than the states, could regulate commerce and intercourse by regulating the activities of American citizens, but it could claim no power to do anything within and over native nations themselves, because no such power is stated in the Constitution. If the Doctrine of Discovery is a racist sham, as its critics assert, then perhaps the Congressional plenary power doctrine is a falsehood, too, a misinterpretation of framers’ intent and a complete fiction that the United States ought to address if it wants honor its endorsement several years ago of the UNDRIP. And if it is a fiction, we are left with one conclusion about the federal government’s claim to exercise absolute authority in the realm of Indian affairs: that its claim to plenary power rests on nothing more, at the end of the day, than brute force. Colonialism is alive and well.
These questions will not be addressed in the way I would like if the Court decides to hear the Brackeen’s appeal. And we must keep in mind why Texas is devoting so much energy to combating ICWA. What is in it for Texas? If the court hears the case, and Thomas persuades his colleagues on the Court to follow the logic of his rulings over the years, the Supreme Court could hold that the entire plenary power doctrine is unconstitutional, that under the 10th Amendment, ” powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people” and throw the regulation of Native nations over to the states. Their lands, and the mineral wealth that lies beneath, would be subject to state legislatures who seek to skim the cream off of any prosperity that could conceivably come to Indian country. These states could rush to place Native peoples on the same plane as the rest of their citizens, not as members of Indigenous Nations whose existence predates the establishment of the United States, but as individuals untethered and unprotected from tribal governments. And that could be catastrophic for native nations. I hope I am wrong.
I really admired the work of the historian Calvin Luther Martin. When I was only just beginning my career as a graduate student at Cal State Long Beach in the late 1980s, my adviser directed me to a piece he wrote in The History Teacher, a journal published in the CSULB History Department. It seemed to me an entirely different way of looking at Native American History, one that could free me from the focus on “Indian Policy” that governed much of the historical writing on the subject at the time. Instead of writing about what white people did or did not do to solve a series of “Indian Problems,” Martin focused on Native Peoples themselves, their ways of understanding human and other-than-human beings.At some point I read his Keepers of the Game, and I familiarized myself as well with some of the critiques this award-winning book generated, notably those from the anthropologist J. Shepherd Krech.
As my Master’s thesis neared completion, and I began to seek out Ph.D. programs to which I might apply, I wrote to many historians who were doing what I thought I wanted to do. Though my thesis on the Cherokee Cases bore little resemblance to the work that Martin had done, he responded generously and enthusiastically enough that I sought out an opportunity to meet with him while I visited my parents on the east coast. My folks lived in DC at the time, and Martin, I believe, lived in Baltimore. We met there, and he bought me a very nice lunch. We had a good, and a heavy conversation. I remember feeling out of my league, with a bit of what later might be called “imposter syndrome.” He was super smart. Maybe I was not ready for the big leagues. I cannot remember all that we talked about, but I know I left our conversation with my mind racing, contemplating questions that I had not contemplated before. That’s what we want, right?
I am not certain if I applied to Rutgers, where Martin taught. If I did, I was either admitted with funding inadequate to allow me to attend, or my application was rejected. I went to Syracuse instead, which paid for everything, and where I also met with a very warm reception. But I kept Martin’s work in mind. A couple of years later, after I started my teaching career at the Montana State University at Billings, and where I first taught significant numbers of Native American students, I wrote to thank him for that meeting, and to tell him how his work informed my courses. And for several years after I arrived in Geneseo, I used his The Way of the Human Being as the first reading in my Native American survey course.
For a time, I loved that book.
Students loved that book.
It moved them.
It moved me.
The Way of the Human Being expanded upon themes present in Martin’s earlier work, but also included an autobiographical tale, of Martin’s own disenchantment with academia and his decision, after spending time teaching in Indigenous communities in Alaska, to leave the college classroom and the historical profession altogether. We historians were, he asserted, asking wrong questions that failed to cut to the vibrant and real heart of Native America.
Somehow I came to know that Martin had moved with his wife to Malone, on the northern edge of the Adirondacks way up in New York’s north country. He may have mentioned that in the preface to The Way of the Human Being. One of my students, who found something in that book that spoke to him in a time of great need, called Martin on the phone, and talked with him for several hours. Some time later I wrote to Martin again. I am pretty sure I thanked him for the book. I know I invited him to come to Geneseo to talk with my students. He very politely declined, explained why he did not do that sort of work anymore, and I believe included a copy of his most recent book, a self-published brief work called The Great Forgetting. I read it in one sitting. I never thought of using it in class, but it did reiterate some of the fundamental ideas of The Way of the Human Being. It was simple, powerful, and showed a breadth of reading that I found invigorating. I appreciated what he had to say in this letter. I was still a fan.
I stopped using The Way of the Human Being several years ago. This saddens me, because I have not found a book that so gently clears the deck, so to speak, and opens the students’ eyes to new ways of thinking and knowing and understanding the relationship between human and other-than-human beings in Indigenous America. If you have read the opening chapter to Native America, you will see me trying to fill that void. I felt I had to abandon the book. Some of the people about whom Martin wrote were made-up. He admitted this in the preface, but still, it gave me pause. Indigenous women, who had served prison time in Alaska, were creatures of his imagination, tragic characters created by a non-native writer to describe the dysfunction and difficulty in a community suffering because it was so out of touch with its core beliefs. This made me deeply uncomfortable. There is a long history, after all, of white writers putting words in the mouths of the Indigenous people they write about. This seemed like too great a blurring of fact and fiction, and it raised for me troubling issues about veracity, accuracy and voice in teaching a class on Native American history to mostly first-year students who had learned virtually nothing accurate about Indigenous peoples at earlier points in their educational careers.
One of the people about whom Martin wrote who unquestionably was real was Sergeant Warren Tanner of the Alaska State Troopers. Martin described Tanner sympathetically, a non-Indian law enforcement officer who dealt with the wreckage that came to a community disconnected from the way of the human being. Tanner was compassionate and wise in Martin’s book. He could not have known that Tanner was not all he seemed to be. Tanner later plead guilty to two counts of sexual abuse committed on a minor. That abuse was taking place during the time that Martin lived in Alaska. I get it. People are complicated. But if some of the most important characters in the book are the fictional creations of the author, or a dangerous pedophile, this presented difficulties that rendered the book more trouble than it was worth. The problems with the book began to outweigh the benefits.
Nonetheless, I continued to read what Martin wrote. Some of the essays he posted on his website I found interesting, even when I did not find his arguments persuasive, and even when I dismissed them as existing on some sort of pseudo-scientific fringe. He wrote frequently, for instance, about the dangers of “Big Wind” and the health consequences that could follow from living close to wind turbines. He and his wife spoke and wrote about Wind Turbine Syndrome. I was not convinced, but I had bigger fish to fry. But recently, after I began subscribing to Martin’s blog posts, I found myself deeply troubled and repelled by Martin’s embrace of anti-vaccine arguments in the midst of a lethal pandemic had has killed more than 620,000 Americans.
IT HAS BEEN A ROUGH EIGHTEEN MONTHS FOR MANY OF US. I understand that millions of people have it worse than me. I have come to accept that I can say this and also say that it has been bad for me, too. My mom, in a rehab facility in March of 2020, suffered a serious stroke at the outset of all this suffering, and the isolation required to combat the virus doubtless limited her prospects for recovery. All of us got sick late last year, the disease likely brought home from one of our kids who worked on the medical front lines in a local hospital. We made it through, but I would not wish Covid on my worst enemy. The pandemic has not hurt us financially, as it has hurt so many others, but otherwise this has been, and remains, difficult. I so want this suffering and madness to end.
Just before I picked up a pencil to being drafting this post, I drove by a crowd of people outside a local strip mall protesting possible vaccine requirements. Vaccines should be a personal choice, the signs said, and these protestors said that they did not want to be unwilling subjects in a corporate medical trial. They were not terribly happy about masks, either. A couple of weeks ago, I was visiting a friend in Long Beach. One of his roommates was not vaccinated. Not putting any of that crap in his body, he said, as he ate shrink-wrapped, grocery store sushi.
I am not an expert on vaccines. I will not claim, as Martin does, to have any expertise in immunology. But I trust the family doctor I have seen for twenty years, and I do know that we live in a country with enough vaccines for everybody, that vaccination has been delayed by unreasoned and emotional opposition, and that this passage of time has allowed the virus to develop new “variants” that are especially contagious. I see no reason to doubt that additional variants are going to develop, and that they could do even more damage. Vaccines, in my view, are not a personal choice. They are an obligation placed on anyone who wants to live in community with others in a civil society. Like the cigarette smokers of the 1980s and 1990s who insisted on their right to smoke anywhere, and the slaveowners who insisted on the right to carry their human property wherever they wanted, Anti-Vaxxers care about nobody but themselves and the small circle of people who share their beliefs. They engage in science-talk and rights-talk to justify what is, in my view, their toxic selfishness. And there are just enough of these lethal fools in this country to ensure that nobody is safe.
I thought it would be chickenshit to write this post without reaching out to Martin. I posted a comment on his website, respecting the request to “please be polite.” I wrote that
“I have respected your work for a very long time. But I have no wish to engage with this turn towards ‘Anti-vax.’ The costs of the past 18 months have been too great, for myself, my family, my friends and neighbors. The decision by too many Americans to not vaccinate has had lethal consequences.”
I told Martin that I was done. I had no wish to read his newsletter any longer. Maybe I was not as polite as I might have been. I will take the blame for that.
Martin’s response came swiftly. He wrote that he refused to “countenance Covid and vaccine fascism, especially when I have graduate credentials (2.5 years at the Ph.D. level) in the subject and I’m married to an MD.” He told me to get as many jabs as I wanted, but said
“don’t lecture me in a subject you know nothing about: that’s offensive and frankly stupid. Call me an anti-vaxxer if you wish; that is, flatten this into epithets. Should I then call you a fascist fool? That gets us nowhere.”
No. It doesn’t.
Martin mentioned that he read the peer-reviewed literature. He asked, rhetorically, if I had read that scholarship and if I could understand it. He mentioned that he was going to delete me from his mailing list, which I appreciated, and said that “it’s time to stand up to people like you who think you’re being virtuous in forcing this insanity on the rest of us.” He closed with eight pointed words: “I find you frightening. Respectfully, we are done.”
Not virtuous, and not frightening. Afraid of getting sick again to be sure. And exhausted by eighteen months of suffering.
I thanked him for taking the time to respond. I acknowledged our disagreement. It was probably a mistake to have replied, for he wasn’t done. He urged me to read the scientific literature. And, he wrote, “don’t think for a moment that you can foist this on the rest of us.” He told me that I am ignorant, that I should keep my ignorance to myself and not “turn it into mandated genocide, which is what this is.”
Like a lot of historians, I like to argue. I like to debate. Like a lot of people, I do not like being insulted. How did I feel at the end of this exchange? Not angry. Not hurt. Just really, really disappointed.
THERE WAS A POINT IN TIME when Calvin Luther Martin wrote books and articles that I valued and from which I learned a great deal. For a time, I loved The Way of the Human Being. Now, he writes words that I find dangerous, hysterical, a little unhinged. I am not certain if I am the only historian who has grown really attached to a book, only to cast it aside after a long reconsideration. Those of you who are historians will remember the job we did in readings courses, where our professors carefully tossed a well-chosen book into the middle of the pit to watch us tear it to shreds. We were hardly sentimental about the work of others. The tone of Martin’s reply to my messages did not bother me. What bothered me was the trajectory he had followed over these many decades. This, as I said above, saddened me. The ideas he expresses now–and I base this on the advice of the medical professionals I know and trust—I believe have actively endangered me, my elderly parents, and my family, including my youngest child, too young still for the vaccine. People change. I know that. Some of us get cranky, forgetful, embittered, or embarrassing. Some of us after searching for so long find ourselves. We come to a place of contentment and calm, with quiet hearts. And some of us cast off the real world altogether. Let us not judge, I tell myself. Respect the burdens people carry, rather than criticize how they carry them. I tell myself this as well. I shake my head. Time to change the channel, I thought. Time to walk away. I am okay with that.
In 1968 the National Indian Youth Council served as one of the organizers of the Native American contingent for the Poor People’s Campaign. This multi-racial coalition marched on Washington and, in a document penned by the “Committee of 100,” presented its list of demands. With regard to Indigenous Peoples in the United States, they insisted on “the right to have a decent life in our own communities,” with “guaranteed jobs, guaranteed income, housing, schools, economic development, but most important–we want them on our own terms.”
These young protestors singled out for particular condemnation the United States Department of Interior, founded by act of Congress in 1849. “The Interior Department,” the list of demands read, “began failing because it was built upon and operates under a racist, immoral, paternalistic, and colonialistic system.” There was, they said, “no way to improve upon racism, immorality, and colonialism.” They argued that “the system and power structure serving Indian peoples is a sickness which has grown to epidemic proportions. The Indian system is sick, paternalism is the virus, and the Secretary of the Interior is the carrier.”
These sentiments reflect a long-standing distrust and suspicion of the Interior Department on the part of Native peoples. Indeed, it was a little over a decade ago when Congress passed legislation settling the Cobell case with the three hundred thousand Native American plaintiffs who had demonstrated that the Interior Department had lost hundreds of millions of dollars owed to Indian trust beneficiaries. The Secretary of the Interior at the time admitted that serious mistakes had been made, and the trial court found “a century-long reign of mismanagement.”
President Biden nominated Deb Haaland, a congressional representative from New Mexico, to be the first Native American to become a Cabinet secretary and head the United States Department of Interior. Interior oversees more than 480 million acres of public lands, or nearly one-fifth of total land in the United States, mostly in the West, and 11 federal agencies, including the Bureau of Land Management, the National Parks Service, and the US Fish and Wildlife Service. Interior also includes the Bureau of Indian Affairs, Bureau of Indian Education, and Bureau of Trust Funds, having the greatest impact on Indigenous lives and Tribes of any Executive-branch agency.
Haaland certainly is well qualified for the job. She is a lawyer, an entrepreneur, and a forward-thinking innovator. She is a good steward of funds, and is familiar with many of Interior’s responsibilities, including for Indian Gaming, having served as chairwoman of the Laguna Development Corporation, New Mexico’s second largest tribal gaming business. And she is knowledgeable about the management of public lands, having served as co-chair of the US House Committee on Natural Resources.
Though in many ways conditions in reservation communities have improved since the Committee of 100 issued its demands in 1968, satiating America’s appetite for energy and mineral wealth always has come through exploiting lands important to Indigenous peoples. That has not changed. This was evident in 2016 at Standing Rock, and now at Oak Flat. It is a long history with which Haaland will have to contend.
Coming to the agency after Trump appointees who aggressively sought access to the mineral wealth of Indian Country, Haaland’s appointment marks a significant break. One could feel the ground shifting during her painful confirmation hearing, as Republican Senators closely tied to the Energy lobby tried to drag her down. They failed.
Secretary Haaland handled their inane and insulting questions with patience and kindness. She is viewed as a threat by those who wish to develop the mineral and energy resources of Indian Country. Her confirmation was a signal event for those who value the environment and appreciate the 172-year long historic relationship between Interior and America’s Native Nations.
A new press release from Apache Stronghold provides an important update on the legal strategy to be used against a giant copper mine planned for the sacred site of Oak Flat. It reads as follows:
Phoenix, AZ – This afternoon Apache Stronghold filed an appeal of U.S. District Court Judge Steven Logan’s February 12, 2021, ruling refusing to prevent the giveaway of sacred Oak Flat to Rio Tinto/Resolution Copper before the completion of litigation. The U.S. Government agreed earlier not to proceed with the land transfer “any sooner than” March 11, 2021; however, Judge Logan refused to stop the giveaway even though a trial will last far beyond that date and the giveaway will happen during the trial without an injunction to stop it.
Apache Stronghold in the next several days will request an emergency injunction from the 9th Circuit Court of Appeals to stop the giveaway of Oak Flat. The appeal will challenge Judge Logan’s rulings that (1) the Apache Stronghold has no right to ask a Court for help because they are not an officially designated a “sovereign nation,” that (2) the U.S. Government has no Trust Responsibility to the Apache even though their Treaty of 1852 guarantees the Apache “prosperity and happiness,” and that (3) the Apache will not suffer a “substantial burden” in losing Oak Flat because they are not being “coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions” even though after Oak Flat becomes private property on March 11, Apaches praying there will be subject to arrest and prosecution for criminal trespass.
“We must appeal to stop the giveaway of Chi’chil Bildagoteel on March 11,” said Apache Stronghold leader and former San Carlos Apache Tribal Chairman Dr. Wendsler Nosie, Sr. “We disagree that destruction of our sacred land, stopping our ability to practice our religion and subjecting us to criminal trespass arrest for praying on our sacred grounds is not a ‘substantial burden’ on us.”
In his February 12 ruling, Judge Logan did find that “The evidence before this Court shows that the Apache peoples have been using Oak Flat as a sacred religious ceremonial ground for centuries…the spiritual importance of Oak Flat cannot be overstated…the Apache peoples believe that Usen, the Creator, has given life to the plants, to the animals, to the land, to the air, to the water…The Apaches view Oak Flat as a ‘direct corridor’ to the Creator’s spirit.” And, “[t]he Court does not dispute, nor can it, that the Government’s mining plans on Oak Flat will have a devastating effect on the Apache people’s religious practices.”
Nonetheless, Judge Logan denied the injunction, clearing the way for the land giveaway.
“I am a Veteran. I served in Desert Storm in the Persian Gulf,” said Cranston Hoffman Jr., an Apache Stronghold Member. “Just as I served to defend this Country as a soldier in the Army, I serve my People to defend our traditional Apache Way of Life as an Apache Medicine Man.”
Native Americans serve in the Armed Forces at a higher rate than any other ethnic group. Twenty-seven American Indians have been awarded the Medal of Honor. Hundreds of Native American soldiers have sacrificed their lives for this Country, leading many to wonder, “why is our religion not protected like all other religions?”
Apache Stronghold’s appeal will ask the 9th Circuit Court of Appeals to recognize that the U.S. Supreme Court ruled in McGirt v. Oklahoma (2020) that “we hold the government to its word” in a Treaty with the Creek Indians, and that the U.S. Supreme Court has stopped multiple government violations of religious rights in cases like Burwell v. Hobby Lobby (2014) and Little Sisters of the Poor v. Pennsylvania (2020).
Becket (https://www.becketlaw.org/) will be representing Apache Stronghold for the appeal. Recognized by the Associated Press as “a powerhouse law firm,” Becket is known for its success in defending the free expression of all faiths. It has won seven Supreme Court cases in the last nine years, including the famous cases of Hobby Lobby and Little Sisters of the Poor, and has broad experience defending Native American religious practices and sacred sites.
In addition, please note that the Apache Stronghold’s Lis Pendens, or lien, on the Pinal County Oak Flat property title in the Pinal County Courthouse in Florence is still in effect.
There are so many important issues connected to the Oak Flat story: the free exercise of First Amendment religious rights by Indigenous peoples; the corporate-sponsored exploitation of Native American lands; the close alliance between corporate interests and the Republican Party in the American West; and the environmental destruction of sites sacred to Indigenous peoples. I have no idea how the Oak Flat controversy will be resolved, but given the gravity of this case and the many deep, historical, issues it raises, I encourage you to keep your eyes open. I will do what I can here to keep you informed.
Writing a textbook has made it abundantly clear the many different ways one might write a narrative history of Indigenous America. There are so many strands we might pull to weave together stories of the Native American past. I have mentioned on this blog, for instance, the possibility of writing a narrative history of Native America focused on the treatment received by Indigenous children, from Columbus’s observation that the young girl he saw swimming might make a pliable slave, to George Percy allowing his men to murder Paspahegh children, to boarding schools and so on and so on to today’s crisis in foster care and the devastating reality posed by untold numbers of murdered and missing Indigenous women and girls.
The story from a couple of days ago in The Guardian shows that one could write a narrative history of Native peoples focused on health and wellness, and disease, medicine, and mortality, as well.
The first European explorers to this continent commented upon the healthfulness and fitness of the Native peoples they encountered. These early explorers also described the illnesses that commonly began to afflict them shortly after the newcomers arrived. Sometimes these observers, despite not always understanding what they saw before them, provided evidence on how Native peoples interpreted outbreaks of disease, and their efforts to counter the onslaught. So many really great historians–Elizabeth Fenn and Paul Kelton come readily to mind–have traced in extraordinary detail the cause and consequences of these lethal encounters.
Then there are the chronic diseases that began to loom large in the lives of Native peoples. The story of the boarding schools cannot be told apart from the waves of tuberculosis and trachoma that swept through the dormitories. The influenza epidemic of 1918 killed many Indigenous peoples. The government-sponsored Merriam Report of 1928 is in part a catalog of health crises suffered by the native wards of the nation.
You do not have to look far to see how significant disparities remain and that by nearly every measure of health Native peoples lag behind Non-Native Americans. Though tribes that run their own health programs have enjoyed considerable success in addressing the challenges they face, and have done so in a manner often consistent with their traditions, there remains much work to be done. According to the myriad figures released by the Indian Health Service, the Centers for Disease Control, the National Institutes of Health, and a number of Native American advocacy groups, native peoples are six times more likely to die from alcohol‐related causes, almost three times as likely to suffer from diabetes , and nearly 2.5 times as likely to die in a motor vehicle accident. Native peoples are twice as likely to be murdered as other Americans. At sixty‐eight years, Native Americans have the lowest life expectancy of any population in the United States. More Native Americans than any other group describe themselves as being in poor or fair health .
Mental health is a problem as well. More than four out of five Native American women experience the trauma of sexual violence during their lifetimes. For Native American youth, 40.9% are overweight or obese, compared to 30% for the population as a whole. Native American children between the ages of ten and nineteen suffer from diabetes at three times the rate for all other races. Rates of drug, cigarette, and alcohol abuse are very high . Suicide is the second leading cause of death among youth aged fifteen to twenty‐four, four times the national rate.
And now, thanks to The Guardian’s reporting, we know what all the evidence had led us to suspect. Covid has devastated Native American communities. “American Indians and Alaskan Natives are dying at almost twice the rate of White Americans.” What that means is that “nationwide one in every 475 Native Americans has died from Covid since the start of the pandemic, compared with one in every 825 White Americans and one in every 645 Black Americans.” And these figures are based on incomplete data: many cities do not report deaths fully, or misidentify Native Americans as belonging to other ethnic groups.
One out of every 160 Navajos has died. The Northern Cheyenne in Eastern Montana have lost 1% of their total population. About a quarter of those who died were native speakers of the Cheyenne language. Despite the Cherokee Nation’s excellent health care system for tribal members, 35 of the remaining 2000 fluent speakers of Cherokee have been killed.
It is worth having your students think about these figures. According to The Guardian, “tribal leaders and health experts agree that while the excessive death toll is shocking, it’s hardly surprising, given the chronic structural, economic, and health inequalities . . . resulting from the US Government’s failure to comply with treaty obligations promising adequate funding for basic services in exchange for vast amounts of tribal land.
Maybe the Biden administration will help confront these inequalities. One might argue that it already has done more than President Trump did in four years. The key point, I tell my students, is that none of this was inevitable. People make choices. All sorts of factors and interests may inform those choices. But at the end of the day, we have every right to do the research necessary to pass judgment on these choices and, where possible and necessary, to demand that those responsible be called to account.
Barack Obama’s presidency had been one of great consequence to the nation’s five and a half million Native Americans, and he left large shoes for the angry ogre with little hands to fill. Trump’s presidency, I wrote a couple of days after his inauguration, left me feeling depressed “because I am not sure what will happen next.” I said at the time that I was not optimistic, “and that I am not optimistic really bums me out, because there are a hell of a lot of problems out there that sane political leaders from our two major parties might be able to solve.”
Impeached twice, the considerable damage he has done limited by incompetence, laziness, and Covid 19, it is time to assess the consequences of the Trump Administration for Indigenous/Native American peoples.
After four demoralizing years, it appears that the Trump Administration will slink off into history as it began, with an assault on lands deemed sacred to Indigenous peoples. A couple of days ago, Apache Stronghold filed suit against the Trump Administration to stop the transfer of Oak Flat, or Chi’chil Bildagoteel, to a multinational mining operation. This transfer of lands sacred to the San Carlos and White Mountain Apache tribes, and many others, is being rushed through before the Trump Presidency comes to a close. The mine will create a crater two miles across and one thousand feet deep. And it is certainly not the only instance of the Trump Administration threatening lands sacred to Native American peoples. When Tohono O’Odham people peacefully protested last fall “the ongoing desecration of sacred and burial sites by the U. S. Customs and Border Protection’s construction of a border wall in their homelands,” federal agents attacked them with tear gas and violent removal.
None of this is surprising. One of Donald Trump’s first acts as President, after all, was to sign an executive order authorizing the completion of the Dakota Access Pipeline, cutting underneath burial grounds and lands sacred to the Oceti Sakowim at the Standing Rock Reservation . President Trump ignored the legitimate arguments raised in the stunning protest movement mounted by Water Protectors against DAPL, and did nothing to stop corporate thugs and state and local law enforcement officials from targeting them with extraordinary violence. (In all fairness, the Obama Administration did too little, too late, to stop DAPL, and Hillary Clinton was hardly an outspoken opponent).
Trump also showed at the outset of his administration that he had 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. You can complain all you want, Trump suggested, because he was not listening.
Trump’s interest in Indian Affairs picked up when it intersected with the concerns of his corporate allies. But there was as well the President’s strange fetish for Andrew Jackson, in whom some of Trump’s most servile advisers suggested he might see parallels. Trump’s affection for Jackson is clear–a portrait of Jackson hung in his Oval Office and, in a tweet, he thanked #POTUS7 for his service to the country.
What service was that? The Battle of 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. Perhaps the ruinous Bank War inspired him, where Jackson’s personal spite and lack of knowledge about how banking worked led him to destroy the economy. Or Jackson’s brutal embrace of majority rule whatever the consequences?
The sheer number of biographies he has inspired is evidence enough that for many people Jackson is a compelling figure, but Trump took his Hickory Crush a couple of steps farther. On the Ides of March, 2017, Trump visited Jackson’s plantation and stood silently in salute at Jackson’s grave. That same day, a federal court in Hawaii struck down the president’s second attempt to ban Muslim immigrants from a handful of countries. Mike Huckabee, the dad joke-telling Wormtongue 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. Trump embraced the image of a president inextricably tied to the suffering he caused Native Americans.
Obviously, President Obama’s decision to replace Andrew Jackson on the Twenty-Dollar Bill with Harriet Tubman could not be allowed to stand. One obvious reason was that for Trump, anything favored by Obama was automatically worth opposing. Second, Jackson was white, and Tubman black. Trump opposed Obama’s decision, and Jackson will stay on the bill until after Trump leaves office. 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 was not Donald Trump’s style. He showed over this term that he was not a deep thinker. Shortly before visiting Jackson’s “Hermitage,” after all, Trump had congratulated the long-dead Frederick Douglass for the good work he is doing, Trump showed no signs that he has any interest in or knowledge of America’s troubled past. And that was especially the case when it comes to the victims of American history.
Indeed, in his annual Columbus Day proclamations, Trump went out of his way to ignore the suffering caused by the arrival of Europeans in America. Columbus was a hero to Trump, and any criticism was to the President the despicable ranting of elites who hated America. In his final proclamation this past October, Trump broadened his defense of Columbus to embrace all historical figures subjected to the “Cancel culture” of people who “hate America.” The President said that
These extremists seek to replace discussion of his vast contributions with talk of failings, his discoveries with atrocities, and his achievements with transgressions. Rather than learn from our history, this radical ideology and its adherents seek to revise it, deprive it of any splendor, and mark it as inherently sinister. They seek to squash any dissent from their orthodoxy. We must not give in to these tactics or consent to such a bleak view of our history.
Therefore, the President said, we will squash the activists. We will punish you if you suggest that our history is something other than goodness and light. And Donald Trump emphasized that he will save the western heritage from the scholarly barbarians at the gates. He mentioned that earlier in 2020, for example, he signed Executive Orders punishing acts of vandalism against monuments on federal property, calling for the creation of a “National Garden of American Heroes,” and establishing the “1776 Commission,” which, he wrote, “will encourage our educators to teach our children about the miracle of American history and honor the founding.” What’s more, President Trump pointed out that in September of that year he signed an Executive Order intended “to root out the teaching of racially divisive concepts from the Federal workplace, many of which are grounded in the same type of revisionist history that is trying to erase Christopher Columbus from our national heritage.” Much was at stake, the President said. “Together, we must safeguard our history and stop this new wave of iconoclasm by standing against those who spread hate and division.” While states and municipalities around the country began taking steps to celebrate Indigenous Peoples’ Day in place of Columbus Day, the President said that “as long as I’m president,” the United States will never honor the heritage and contributions of Indigenous peoples.
Trump himself did all he could to stoke hatred and division through his treatment of one of his most articulate and powerful critics, Senator Elizabeth Warren of Massachusetts. Warren played right into Trump’s hands by claiming to possess a small fraction of Native American DNA, but she was right to call out the President for his racism. Trump, undeterred, mockingly called Warren “Pocahontas.” So what? I put it this way in February of 2017, when the slur first arose:
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.
The Pocahontas name-calling, in this sense, was inherently destructive, and not just to Senator Warren.
Trump did have some legislative accomplishments. In January of 2018, he signed into law the Thomasina E. Jordan Indian Tribes of Virginia Federal Recognition Act of 2017. The legislation granted federal recognition to six Virginia Indigenous nations: The Monacan, Chickahominy, Eastern Chickahominy, Nansemond, Upper Mattaponi, and the Rappahannock. This bill had widespread bipartisan support and would have become law no matter who was president. This was a long time coming. He also signed Savana’s Act and the Not Invisible Act in October 2020. This legislation was designed to counter violence against Native American women. It followed from the formation in November of 2019 by Executive Order the “Operation Lady Justice Task Force.” Trump declared that May 5th is “Missing and Murdered American Indians and Alaska Natives Awareness Day.“ During Trump’s years in office, Americans finally began to follow this issue, memorialized with the Twitter hashtags “#MMIW” and “#MMIWG.”
Little came of the effort. At a listening session last June, the Trump Administration unsurprisingly demonstrated that its real commitment to the issue of missing and murdered Indigenous women is shallow and so limited as to be effectively meaningless. As Native Americans who attended the session pointed out, the President’s approval of pipe lines and other projects brings large numbers of non-native “man camps” into areas close to Native American communities. Many observers have asserted that a relationship exists between such projects and reports of missing and murdered Native American women and girls. Indeed, Kristin Welch, a community organizer for Menikanaehkem, a Wisconsin group, asserted that cases of violence against Native American women are increased 70% by the presence of these man camps.
Task Force members repeatedly ignored these questions. When asked about the 1978 Oliphant decision, which held that non-Indians can not be held criminally liable for their actions on Indian land by tribal authorities, Task Force Member Marcia Good said that “Oliphant is currently beyond the scope of [Operation Lady Justice] at this time.” Indeed, the Trump Administration called for cuts in funding that have adversely affected policing on reservations, and limited the ability of tribal governments to combat domestic violence and substance abuse. He did nothing to reauthorize the Violence Against Women Act, which permitted tribes a sliver of protection by allowing them to prosecute non-Indians for intimate partner violence committed on reservations.
Without restoring power to Native nations to allow them to prosecute the crimes non-Indians commit against Native American women on reservation land, the Trump Administration has removed from the table what all experts assert is a vital part of any solution to this heart-wrenching problem. President Trump, in other words, supports policies that threaten to exacerbate the problem of missing and murdered Indigenous women while permitting no discussion of a critical part of the solution. The Trump Administration seemed interested only in the appearance of action, except when it chose to behave in a destructive manner.
Trump administration officials early in his term reawakened fears that he would bring back the long-discredited federal policy called “Termination” by working to privatize Indian land holding on reservations. He informed the Mashpee Wampanoag Tribe that its reservation will be disestablished. Federally-protected lands would be removed from trust status. He stated his opposition to federal programs for Native Americans on the grounds that they were “race-based,” rather than a recognition of Native American tribal sovereignty. Trump disestablished the White House Council on Native American Affairs created by President Obama, and never held a White House Conference for Native American leaders, as his predecessor had done.
In the Courts, the news was mostly bad. Lower court justices delivered an ominous blow to the Indian Child Welfare Act. In Brackeen v. Zinke, a federal district court in Texas found the ICWA unconstitutional. Texas Attorney General and staunch Trump loyalist Ken Paxton intervened in the case, and hoped that the Fifth Circuit would uphold the district court’s ruling. So far Paxton has been disappointed, but the case could eventually arrive at the Supreme Court, where the fortified conservative majority there may find Paxton’s arguments persuasive. They have shown themselves, after all, ready to toss federal laws because the legislation discriminates on the basis of race when white people feel themselves to be the victims.
Congress enacted the ICWA in 1978, an important piece of legislation designed to halt the traumatic removal of native children from their homes through fostering and adoption. The problem was severe. Dakota Sioux at Spirit Lake, about whom I write in Native America, asked the Association of American Indian Affairs to conduct an investigation, and the AAIA reported that of the 1100 Dakotas under the age of 21 who lived at Spirit Lake in 1968, 275 had been removed from their families. In states with large Native American populations, the AAIA found that “child welfare” agencies had removed between 25 and 35 percent of children from their homes. Native peoples organized to halt this highly destructive practice, and the battle for the passage of the ICWA, according to its best historian, “represented one of the most fierce and successful battles for Indian self-determination of the 1970s.” The legislation committed the United States “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture.” Native American children, under the legislation, must be placed with family members, with members of their tribe, or with members of another native nation, before they are placed in the care of non-Native American foster parents.
Paxton, and a growing number of conservatives, argue that the law has gone too far. “In practice, the ICWA compels states to disregard the ordinary approach of determining a child’s best interest and to treat Native American foster children differently based on nothing more than their race,” Paxton wrote. “The law gives Indian tribes a trump card to play in any state child-welfare proceeding, allowing them to dictate outcomes whenever a child is or even could be a member of a tribe.” For Paxton, it’s a states rights issue. “If no biological family members can be found, the law requires state courts and agencies to make a priority of adoption by other ethnically Native American families.”
“Native American children, strictly because of their race, thus can be kept apart from foster families eager to adopt them. If federal law treated any other class of people this way, it would be roundly condemned, and rightly so. According to the Department of Health and Human Services, 10,529 American Indian/Alaska Native children were in foster care in fiscal 2017.
Some claim that the ICWA relies on a political designation, rather than a racial one, because a tribe is a political entity. But no political or cultural link to a tribe must exist for the Indian Child Welfare Act to apply to a given child. Tribal eligibility — determined in virtually every case by genetic ancestry — is sufficient. The idea that the ICWA relies on a political designation rather than a racial one is further undermined by the fact that if no family from the child’s tribe volunteers to adopt, any Native American from any tribe, anywhere, takes automatic precedence over a non-Native American couple. This requirement relies on racist and reductionist assumptions about the supposed interchangeability of drastically different tribal cultures.
You would not know it from Paxton’s piece, but his opinions are those of a distinct minority. Twenty-one state attorneys-general, along with thirty child welfare organizations, 325 tribal governments and fifty-seven tribal organizations have expressed their support for the Indian Child Welfare Act. The law, they write, “was designed to reverse decades of cultural insensitivity and political bias that had resulted in one-third of all Indian children being forcibly removed by the government from their families, their tribes and their cultural heritage.” The law was a signal achievement, and it has done its job. The ICWA ensures the “stability and cohesion of Tribal families, Tribal communities and Tribal cultures,” in the face or organizations and entities that have sought their destruction.
Still, this is exactly the sort of case I fear the Supremes have been waiting for. Paxton’s arguments, though they rely more on the 10th Amendment to the Constitution than a strict construction of Article I’s “Indian Commerce” clause, dovetail nicely with the reasoning deployed by Justice Thomas, about which I have written here. And that is what makes this case so ominous for native peoples, who throughout much of their history have seen their children targeted in government efforts to extinguish their identities as members of native nations.
The solid conservative majority Trump placed on the Supreme Court will affect Native nations for decades to come. I fully expect in the coming months that court will blast tribal sovereignty in a case involving tribal police powers.
Early in 2016, tribal police officer James Saylor pulled up behind a pick-up truck parked along the side of a road on the Crow Reservation in Montana. It was 1:00AM, and Saylor stopped to see if anyone in the vehicle needed assistance. Inside the truck Saylor found Joshua James Cooley and his small child. Saylor could see that Cooley’s eyes were bloodshot and watery. He could see two weapons in the truck’s front seat. Saylor concluded that Cooley was non-Indian on the basis of his appearance but also that he could not be allowed to drive in his current condition. Saylor took Cooley into custody, placed him and his child in the backseat of his patrol car, and called in for the county sheriff to take the non-Indian suspect into custody. When Saylor went back to the truck to retrieve the keys, he saw in plain sight clear evidence of methamphetamine use and possession.
Cooley was indicted on federal drug charges, but the criminal court threw out all the evidence acquired through Officer Saylor’s search of the vehicle. The district court and the Ninth Circuit agreed that all evidence obtained by Officer Saylor when he entered the vehicle to get the keys was an illegal search and seizure and violation of the Fourth Amendment to the Constitution. Now the case is on its way to the Supreme Court, where Cooley’s attorney has argued that “the authority of a tribal officer on a state highway that passed through a reservation is limited.” A tribal officer may “initiate a traffic stop, but when doing so,” his authority is limited “to determining whether the violator is native or non-native. If the violator is native, the officer may proceed with his investigation. If the violator is non-native, the tribal officer’s authority is limited to detaining the violator for delivery to state or federal authorities.”
Think about this. You are a Native American police officer, patrolling your reservation in the middle of the night. You see a vehicle pulled off to the side. Though the driver is cooperative, and opens the window, you see cause for alarm. He seems impaired, to begin with, and then there are the guns. And the one-year-old child. It is not hard to imagine that Saylor felt it necessary to investigate further.
Yet every court has agreed thus far with Cooley. United States v. Cooley will provide new justice Amy Coney Barrett her first chance to rule on a Native American case.
The United States argued in its petition for a writ of certiorari that the Ninth Circuit decision to throw out all the evidence obtained by Saylor is an “unprecedented, unwarranted, and unworkable curtailment of the sovereignty of Indian tribes,” that “precludes tribal officers from routine law-enforcement activities necessary to protect both the public and the public at large from dangerous and criminal activity within the boundaries of the tribe’s reservation.”
What do you think? Do you agree with the US Solicitor General, or with Mr. Cooley? Both sides agree that Indian tribes have no criminal jurisdiction over non-natives, but is it possible to distinguish the ability to arrest and prosecute from the need to uphold public safety on already under-policed Indian reservations? The Court’s precedents show clearly that tribal law enforcement possesses the authority to detain suspects and hand them over to state or federal authorities, which Officer Saylor did. But what about the evidence uncovered in the interim before those state or federal authorities arrive? The exercise of police authority in this case, the United States argued, “does not subject non-Indians to tribal laws and regulations,” but, rather, “it simply facilitates the exercise of sovereign authority by state and federal governments which plainly do enjoy jurisdiction over non-Indians.” The evidence Officer Saylor uncovered helped United States authorities enforce the laws of the United States.
The United States argues that it is dangerous to permit a tribal officer “to ask only one question to determine whether a suspect is an Indian” and then require that officer to accept that answer. This would allow “serious criminals to escape law-enforcement through the expediency of a simple lie that officers will be powerless to expose through follow-up questioning or investigation.”
So there is a lot at stake in this case, much more than the fate of a suspected drug dealer who pulled his truck over along the side of a road late one night on the Crow Reservation. Think of the recent Violence Against Women Act, which gave to Native nations a limited right to arrest and prosecute non-natives for intimate partner violence committed in “Indian Country.” In an amicus brief written by the National Indigenous Women’s Resource Center and joined in by all the Indian Nations whose lands lie in the Ninth Circuit, Sarah Deer pointed out under VAWA, “many tribes across the United States now detain, arrest, investigate, and prosecute anyone who committed certain domestic violence crimes arising in Indian Country–regardless of whether the perpetrator is Indian or not.” The Circuit Court’s ruling, if allowed to stand, “will merely encourage criminals to lie about their identity, as a simple statement that an individual is non-Indian, regardless of whether it is the truth, will now strip law enforcement of any authority to detain them for suspected illegal conduct.”
If, for example, a “Pascua Yaqui law officer has a reasonable suspicion that the driver of a vehicle on the reservation is committing a crime of domestic violence, must the officer ascertain the citizenship of the suspect before effectuating a . . . stop, despite the fact that Congress has passed a law restoring that officer’s full authority to arrest non-Indians who commit domestic violence crimes on the Pascua Yaqui Reservation?”
Native American women face the highest rates of violence in the country, and the majority of those committing these crimes are non-Indian. Across the United States, many non-Indians live and own lands on Indian Reservations. With almost half of all Native American women experiencing intimate partner violence, and with Native American women more than two and a half times more likely than non-Native women to be victims of rape or sexual assault, the stakes in this case are enormous.
Justice Gorsuch wrote the majority opinion in McGirt
Earlier this year the Court issued what I considered a surprising decision in the McGirt case. McGirt involved treaty rights at congressional “plenary authority” over Indian affairs. Land which the State of Oklahoma thought was under its criminal jurisdiction was still legally “Indian Country” because no federal act had changed the status of the land. Cooley touches on what happens when white people living on or passing through Indian Country commit crimes. Originally, Indian tribes were thought to be able to do whatever they wanted, unless they were specifically prohibited from doing so by a treaty or an act of congress. In 1978, the Court modified that, ruling that tribes could do whatever they wanted, unless prohibited by treaty or act of congress, or if the practice in question was somehow inconsistent with their status as domestic dependent nations, like prosecuting non-Indians for crimes committed on reservations. The Supreme Court’s history toward Indian tribes can be understood in terms of the significant erosion of tribes’ ability to exercise sovereign authority. And these rulings, in terms of crimes uninvestigated, unprosecuted, and unpunished, have literally ruined the lives of too many Native peoples. The Cooley case could make it even more difficult for tribes to protect themselves from criminals who pass through their lands. I have no idea how the Court will rule, but I worry very much about its consequences.
The President’s mishandling of the COVID 19 pandemic–his denial of its seriousness; his refusal to encourage basic public health measures; his denigration of health experts who called upon him for action, his inattention and cruel incompetence–all intensified the suffering of millions of Americans who fell ill or who were left grieving, and nowhere was that more clear than in Native American communities. According to a CDC report released in December of last year, “American Indian and Alaskan Native people were nearly twice as likely to die from COVID-19 compared to non-Hispanic whites.” The age-adjusted mortality rate for Native peoples was 1.8 times higher than it was for whites, a measure that translates “to 55.8 deaths per 100,000 compared to 30.3 deaths per 100,000 in AI/ANs and whites, respectively.
Why was this so? The CDC Report said that “Long-standing inequities in public funding; infrastructure; and access to healthcare, education, stable housing, healthy foods and insurance coverage have contributed to health disparities that put indigenous peoples at higher risk for severe COVID-19-associated illness.”
The Trump Administration excluded small businesses on Indian reservations from the first round of applications from the Paycheck Protection Program, the first effort to address the economic devastation that followed the outbreak of the pandemic. His administration, even during the Covid-19 outbreak, repeatedly threatened the Affordable Care Act, jeopardizing health care on Indian Reservations and initially excluded tribes from the CARES Act before Senate and House leaders secured ten billion dollars in funding.
It turns out that if you elect an insensitive fool as President of the United States, that president will do insensitive and foolish things. And that foolishness, buttressed by racism and spite, is nothing to laugh about. IT is lethal. The Trump Administration, because of COVID-19, and its own incompetence, corruption, and cruelty, has ruined peoples’ lives. If you have grieved in the past year, or fell ill yourself, or felt the economic pains this administration has refused to meaningfully address, of course you know that. For Native peoples, everything you have felt has been many times worse. The Trump Administration caused massive and unnecessary suffering during an already difficult period. It has coarsened racial discourse in a country with deep and obvious problems with structural racism and inequality. It has led by encouraging the fear and anger and hatred of white people who feel any gain by people of color is a loss for them. And it has acted consistently as if any legitimate grievance by Indigenous peoples is unworthy of attention. It has been a brutal four years, and those who have supported this president have done enormous damage to the fabric of this tattered republic.
The Trump Administration is going out like it came in, eager to help its corporate allies dig up every bit of wealth they can find on land sacred to Indigenous peoples.
I wanted to share this just-released news release.
TUCSON, Ariz.— Apache Stronghold, on behalf of traditional Apache religious and cultural leaders, sued the Trump administration today in U.S. District Court in Phoenix to stop the transfer of Oak Flat, or Chi’chil Bildagoteel, to British-Australian corporate mining giant Rio Tinto and its subsidiary, Resolution Copper.
The lawsuit seeks to stop the U.S. Forest Service’s publication on January 15, 2021, of a final environmental impact statement that will trigger the transfer of Oak Flat to Resolution Copper.
The Forest Service is rushing publication to help Rio Tinto take possession of Oak Flat before the end of the Trump administration, despite opposition by Apache Stronghold, San Carlos Apache Tribe, White Mountain Apache Tribe and hundreds of other Native American tribes.
Today’s lawsuit against the U.S. government says the giveaway and destruction of Oak Flat violates the Religious Freedom Restoration Act and Apaches’ constitutional rights to religious freedom, due process, and petition and remedy. The giveaway also constitutes a breach of trust and fiduciary duties.
“Oak Flat is holy and sacred. Chi’chil Bildagoteel is central to our traditional religion and identity as Apache people,” said former San Carlos Apache tribal chairman and Apache Stronghold leader Dr. Wendsler Nosie, Sr. “Giving away our sacred land by the U.S. Government for destruction by a foreign mining company destroys our ability to practice our religion. It violates our First Amendment right to the free exercise of our religion protected by the Constitution.”
In December 2014, after being thwarted for nearly a decade, Arizona Republican Sen. John McCain, along with U.S. Reps. Ann Kirkpatrick (D-Ariz.) and Paul Gosar (R-Ariz.), attached a legislative rider to the 2015 Defense Department funding bill giving away Oak Flat to Resolution Copper.
Oak Flat is located about 70 miles east of Phoenix on the Tonto National Forest on lands historically shared by multiple tribes including the Apache, the Yavapai, the Pee-Posh and the O’odham. Prior to the rider, Oak Flat has been protected from mining since 1955, when President Eisenhower protected the area for its cultural and environmental value. Rio Tinto admits that their Oak Flat mining will create a crater almost two miles across and more than 1,000 feet deep. Oak Flat will be destroyed.
“Mining corporations from other countries want to destroy our holy land, destroy our religious beliefs and destroy our religious freedom,” says Apache Stronghold member Naelyn Pike. “Oak Flat, or Chi’chil Bildagoteel, is a God-given gift that our creator has given to us for sacred purposes and it must be protected for that reason.”
In November 2013 current San Carlos Apache Tribal Chairman Terry Rambler told Congress, “…mining on the Oak Flat area will adversely impact the integrity of the area as a holy and religious place. There is no possible mitigation for destroying Apache cultural resources… There are no human actions or steps that could make this place whole again or restore it once lost.”
This summer Rio Tinto destroyed the Juukan Gorge sacred site in Australia. Last month Rio Tinto Chairman Simon Thompson promised, “As a business, we are committed to learning from this event to ensure the destruction of heritage sites of such exceptional archaeological and cultural significance never occurs again.”
Despite Thompson’s promise, Rio Tinto seeks to repeat their Juukan Gorge travesty at Oak Flat.
“Oak Flat is sacred. Its where the Apache peoples’ religion began. Where the covenant between the divine and the human was established. It’s like Mount Sinai, where Christians and Jews believe Moses received a covenant,” Rev. Dr. William J. Barber, co-chair of the Poor People’s Campaign, said in December. “[T]his government in no way should be taking these lands and giving them to this multi-national Resolution Copper just for greed and power.”
“As a Christian minister who is committed to the freedom of religion for all people, I am appealing to all people of faith and urging them to stand with Wendsler Nosie and the Apache Stronghold before it is too late,” Rev. Dr. John Mendez of Emmanuel Baptist Church said at a Repairers of the Breach gathering in November 2019.
In the wake of the deadly attack on the Capitol building by a right-wing mob last week, I have found some of the rhetoric used by those who have condemned the attack as troubling as that used by those who provoked and encouraged it in the first place.
I was not surprised by what I witnessed last Wednesday. Many of our leaders, however, seemed absolutely shocked that a large group of violent imbeciles and cosplaying Punishers could assault this “beacon of liberty.”
Does anyone believe this anymore? While the Capitol dome certainly stands as a symbol of American power, that power has been deployed in the name of democracy far less often than many of our leaders seem to believe. The right-wing, racist violence we witnessed on Wednesday is as American as apple pie. Using violence to protect white power and white privilege is one of the things in which American lead the world, along side women’s basketball and incarcerating people of color.
The historian-turned-pundit Jill Lepore said in an interview on WBUR
Time to Go Off The Grid.
that the events in Washington that left her feeling “speechless” were the sorts of things that occurred in other countries, not the United States. It was unfamiliar. “We are,” she said, “off the grid of the trajectory of American history.”
That is a mess of a sentence, but if it means what I think it means, I have to most adamantly disagree. No, Professor Lepore. What we saw on Wednesday was entirely consistent with American history. And from that trajectory and that grid, I swear to God I want off. That the United States is a nation committed to liberty and equality is the biggest lie in American history. Until we face that fact and address it in a meaningful way there is little hope for change.
This country was founded by treasure-seeking storm-troopers who carried with them across the Atlantic guns, avarice, steel and European religious bigotry. They enslaved and subjugated Indigenous peoples. The settlers who followed them came not for freedom but to extract a living from the soil. Whatever wealth they acquired was almost always built
Americans Preparing for a Frank Discussion of Their History
upon the backs of millions of enslaved peoples who worked lands stripped away from their Indigenous occupiers at the point of a gun. There are many stories one might tell about Early America. Most of them are filled with exploitation, intolerance, violence, and greed.
It took a Civil War that killed more than 600,000 people to eradicate slavery, but in its aftermath Southerners and their conciliatory enablers rushed to reconstruct institutions that replicated the restrictions on African-Americans that stood before the war. Meanwhile, the armed forces of the United States continued to march against native peoples who refused to surrender their lives, liberties, and property to the United States.
Look around you. The United States, with less than five percent of the world’s population, is home to a quarter of its people who live their lives behind bars. When most Americans think about Indigenous peoples at all, they conjure images from the past. Few are willing to consider or are aware of the challenges these communities face today, and fewer still are willing to do anything to help.
On the same day that we learned that a stunning, multicultural coalition had elected the first Jew and the first African American to represent Georgia in the Senate, an armed white mob cried foul and stormed the United States Capitol, because they lost what all the evidence shows was a fair and free election. Those who stormed the capitol did not need to fear the inadequate police forces garrisoning the building. They knew, in their lizard brains, that law enforcement in this country too often and in too many ways acts to uphold white supremacy. They feared nothing. For that reason, among others, Wednesday’s violence was so depressing. Not because it was surprising or a new low, but because it was so familiar and so entirely predictable.
A Discussion Forum for Teaching and Writing Native American History
