Eighty years ago last month, President Franklin D. Roosevelt signed into law the Wheeler-Howard Act aka the Indian Reorganization Act (IRA), devised and championed by then-Commissioner of Indian Affairs John Collier.
When my health condition pushed me into taking time off to obtain care, a long-time BIA friend offered good luck in my future.
In 1947, construction on the Garrison Dam began. A part of the Missouri River Basin Project, the dam would result in the creation of Lake Sakakawea and the taking of communities, farms, and businesses through eminent domain.
To say that the Black Hills (Kȟe Sapa) hold special significance for the Oceti Sakowin (The Great Sioux Nation) is an understatement. They’re not only our traditional homelands, where our ancestors once lived, they’re sacred.
The Department of the Interior recently proposed to amend the Department’s land-into-trust regulations, found at 25 C.F.R. Part 151, that currently exclude from the scope of the regulations, with one exception (Metlakatla), land acquisitions in trust in the State of Alaska.
Every now and then, somebody asks me why I share space in my weekly column, "How Did I Miss That?," with my Republican cousin Ray Sixkiller. I’ll give the answer I always give before moving into the subject of this column, which is pretty much the same thing. I am an Oklahoma Cherokee, and that means I have lots of cousins who are Republicans. I am also old enough to remember when Republicans played a constructive role in government.
Oklahoma has a complicated history that even many Indians do not understand. It became a state in 1907, cobbled together from Indian Territory (consisting of the Five Tribes plus the Osage) and Oklahoma Territory, which contained the reservations of numerous other tribes, including virtually all of the surviving Indians from the Republic of Texas, which had been the state of Texas since 1845. Texas has another colorful and little known history, having been part of other US states (New Mexico, Oklahoma, Kansas, Colorado, and Wyoming) and Mexican states (Chihuahua, Coahuila, Nuevo León, and Tamaulipas).
For a Cherokee, even outside of Oklahoma, the Trail Where They Cried is part of our blood memory. Those who did not walk it still lived through the upheaval, the disruption of the clans, the frantic efforts to protect the sacred fire. I did not know as a child that all of the Five Tribes (and many others) walked their own trails of tears with greater or lessor degrees of coercion.
The major compensation for the Trail of Tears was ironclad assurance in the removal treaties that land forcibly “traded” to the Five Tribes would never become part of a US state without the consent of those tribes. Relying on that ironclad assurance, the Five Tribes all functioned as republics defined by geography. Anybody who committed a federal crime on Indian land was shipped off to Ft. Smith, Arkansas, to answer in federal court. Indian law governed Indian land, and the forms were quite similar to US states.
When statehood was in the air, the leaders of the Five Tribes called a constitutional convention, and drafted the Constitution of the State of Sequoyah, a map of which appears on the cover of my first book, Sequoyah Rising. It would have been almost all of Indian Territory—the Five Tribes lands but not the Osage lands.
The politics of Sequoyah were not doable, and only part of the reason was racism. The eastern states were not happy with power shifting westward, and the Sequoyah/Oklahoma issue came up at the same time as New Mexico and Arizona. Admitting Sequoyah would have meant at least two new western states, because Oklahoma Territory was not going away, and a political tussle about the Osage Nation, where the BIA had allowed oil exploration since 1896.
When the Oklahoma constitutional convention was held, there was substantial overlap with the delegates to the Sequoyah convention, and the resulting document was pretty similar. The point of this short history lesson is that the men (in those days, always men) who led the Five Tribes led the proposed state of Sequoyah and led the eastern half of what became the actual state of Oklahoma.
Naturally, there was tension between the settlers and the Indians, but in much of the state in 1907, the Indians were part of the establishment. That’s ancient history, and everybody’s colorblind now, right?
Well, Cousin Ray Sixkiller and I have been observing the race to succeed Oklahoma Sen. Tom Coburn. One of the leading contenders is T.W. Shannon, who goes by his initials because his first name is Tahrohon. His father is Chickasaw and his mother is African-American, and he is a citizen of the Chickasaw Nation. If elected, he’ll be the first Indian in the Senate since Ben Nighthorse Campbell, and part of a short list of Indians who ever served in that body in addition to Campbell: Robert Owen (Cherokee, who also ran for president) and Charles Curtis (Kaw, who was also elected vice president).
Cliven Bundy’s dispute with the Bureau of Land Management has brought the Western Shoshone Nation and the 1863 Treaty of Ruby Valley back into focus.
Decolonizing essentially means to start thinking like an Indian.
“What's your team's name?” asked Betty, the cultural director of the tribe, as she collected $10 from each player.
In mid-March the Department of the Interior’s Land Buy-Back Program for Tribal Nations (Buy-Back Program) sent purchase offers to approximately 16,000 landowners with fractionated interests at the Pine Ridge Reservation.
“I think of this Western Hemisphere, all of it, as the domain of…Western Christendom” — U.S. Congressman Steve King (R-Iowa), in his speech in the House of Representatives, February 25, 2014.
President Obama recently renewed his commitment to protecting our “air, our water, and our communities.” This is an important message for American Indians, as the health of our environment and communities are linked.
Professor Joshua Jeffers, a History Ph.D. candidate and instructor at Purdue University, authored an important study of the Doctrine of Christian Discovery, published in the Maryland Historical Magazine (Spring 2013). Jeffers began his scholarly review with a discussion of the 1823 U.S. Supreme Court decision in Johnson v. M'Intosh, which made the Doctrine "the fundamental legal principle on which United States land title was based…with devastating consequences for Native Americans."
After a thorough analysis of the trajectory of the Doctrine of Christian Discovery from its origins in 15th century papal decrees, Jeffers explores the ways in which this once-obscure religious-legal doctrine has emerged into open discussion in our time. He describes the current situation as "increasing ferment over this issue." Readers of Indian Country Today are witnesses to this ferment, as columnists and news articles report the growing movement to focus United Nations attention on Christian Discovery as a colonial and imperial doctrine.
In a provocative conclusion, Jeffers suggests that Native Peoples' 21st century challenge to the doctrine are as significant as the 16th century debates that examined theological and legal underpinnings of Spanish colonialism. He points out that the current reexamination of Johnson v. McIntosh, calling into question its legitimacy as a precedent, also echoes arguments among 17th century British land speculators and 18th and 19th century American legal theorists.
Jeffers's conclusion about the historical significance of the present moment seems amply supported by the facts. As he notes, "in the past two decades more than 750 articles and several books, from scholars as varied as political scientists, legal theorists, and colonial historians, have critically evaluated the Johnson ruling."
Not only has there been an explosion of scholarship and commentary, the critique has broken out of the academic arena and into the regular press and the international political arena.
The 11th session (2012) of the United Nations Permanent Forum on Indigenous Issues examined the Doctrine of Christian Discovery as a "special theme." The session involved a panel of international experts, preparation of a conference paper, and statements from indigenous peoples around the globe. The Report of the session recommended that a formal study be undertaken on behalf of the Permanent Forum itself.
The study recommended by the special session was prepared by Mr. Edward John, a member of the Forum, and is now in final editing stage. It will be presented at the 13th session of the Forum, scheduled for 12-23 May 2014. Mr. John investigates not only the "impacts" of the Doctrine of Christian Discovery, but also "mechanisms, processes and instruments of redress."
The Study will indeed reach the level of historical significance suggested by Prof. Jeffers: it portends a worldwide examination of the notion of Christian Discovery, with implications for law, politics, and economics, as well as for the proper place of religion in the activities of government. The question is whether the discussion will focus on "redress" as the verb meaning "put on new clothes," or "redress" as the noun and verb meaning "put back into a stable, upright position."
For starters, it is significant to refer to the doctrine by its full and proper name—Doctrine of Christian Discovery—and not by the common phrase used by most writers, even those who are critical—Doctrine of Discovery. This emphasizes that the doctrine is rooted in religion. It is not a secular rule, but a rule of religious discrimination.
We owe it to Steven Newcomb for laying the scholarly groundwork demonstrating the historical and documentary record of "discovery" as a religious doctrine. It was Newcomb who hammered on "Christian Discovery," at a time when most writers were simply referring to "European Discovery."
The historical record that "European Discovery" is "Christian Discovery" is clear all the way back to the initial colonial intrusion, when Christopher Columbus planted the Spanish flag in the "New World" in 1492.
In the 1493 Bull "Inter Caetera," Pope Alexander VI praised "our beloved son, Christopher Columbus"; and, for the Spanish Crown that financed Columbus, the Pope did "give, grant, and assign to you and your heirs and successors, kings of Castile and Leon, forever, …all rights, jurisdictions, and appurtenances, all islands and mainlands found and to be found, discovered and to be discovered." The only limit to the Pope's grant was if the lands were already "in the actual possession of any Christian king or prince." Columbus' name bears witness to the doctrine: As the Oxford English Dictionary states, "Christopher" means "Christ-bearing."
On December 16, 2010, President Barack Obama endorsed the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) with great fanfare. The U.S. State Department then proclaimed that the declaration expresses “aspirations that this country seeks to achieve within the structure of the U.S. Constitution, laws, and international obligations, while also seeking, where appropriate, to improve our laws and policies.”
Five days later, the U.S. District Court for the District of Columbia approved a settlement of Cobell v. Norton, which resulted in a $3.4 billion payout to a class of tribal members – $1.9 billion of which would eventually fund what is today the U.S. Department of the Interior’s Indian Land Buy Back Program. Unfortunately, the Buy Back Program does not mark any improvement in federal Indian law or policy. To the contrary, that program runs counter to UNDRIP and other international human rights laws.
The most troublesome part of the program is that it will facilitate the forced sale of tribal members’ allotted or restricted fee lands, and, in turn, forcibly and permanently remove individual Indians from their ancestral lands. This was not the result of Interior oversight — Interior has spoken in code about this reality from day one. In 2012, the department articulated a strategy to “identify tracts with relatively low fractionation and a few ‘large’ interest owners, the acquisition of whose interests could bring a tribe to a controlling level of interest in that tract with a minimal number of acquisitions.” As is now clear, “controlling level of interest” referred to a mechanism in the federal Indian Land Consolidation Act (ILCA) that permits tribes that acquire a simple 51 percent majority interest in allotted or restricted fee lands to obtain the minority owners’ land interests by forced sale. 25 U.S.C. § 2204(a).
A year later, after folks began to crack Interior’s code, the agency proclaimed: “There will be NO forced sales.” But when pressed for a more honest answer during consultations with tribal governments in early 2013 — roughly an entire year after the Buy Back strategy was pronounced (hardly “meaningful collaboration with tribal officials” promised by the Obama administration — agency top brass were forced to admit that once Interior brings a tribe into a controlling 51 percent interest, the controlling tribe is empowered by federal law to force the sale of the remaining minority interest(s). In other words, the Buy Back Program equates to forced sales of individual Indian landholdings.
Still, even in late 2013, Interior continued to pretend that “the Buy Back Program is strictly voluntary.” Most recently, Interior buried the following statement in an appendix to its Updated Buy Back Implementation Plan: “Under the March 2011 terms of the Settlement and the Claims Resolution Act of 2010, all sales are voluntary.” But, “The Department has no control over the prerogatives of sovereign tribal nations to exercise whatever rights they may have regarding the purchase of land outside of the confines of the Buy Back Program.” Again, Interior is misleading when discussing the forced sale provision of 25 U.S.C. § 2204(a).
Interior’s continued sleight of hand is appalling. But more importantly, the fundamental underpinning of the federal Buy Back strategy — catalyzing forced sales of individual Indian owned lands — violates international human rights.
Article I of UNDRIP makes clear that indigenous individuals “have the right to full enjoyment . . . of all human rights and fundamental freedoms as recognized in . . . international human rights law.” Article 17 of the Declaration of the Rights of Man and of the Citizen guarantees that “[p]roperty being an inviolable and sacred right, no one can be deprived of it, unless demanded by public necessity, legally constituted, explicitly demands it, and under the condition of a just and prior indemnity.” Article 17, of course, reads very similar to the Fifth Amendment of the U.S. Constitution, which prevents takings of private property for public use without just compensation (and incidentally, served as the basis for the U.S. Supreme Court’s smack down of the ILCA’s escheat provision in Irving v. Hodel, 481 U.S. 704 (1987)).