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)).
Recently newspapers have trumpeted new scientific discoveries that lead some scientists to conclude that early American Indians lived in the area of the Bering Strait, known as Beringia, for more than 10,000 years before colonizing the Americas around about 15,000 years ago.
In A Legacy of Genocide: The San Salvador, (SanDiegoFreePress.org, February 14, 2014) Will Falk, an attorney and poet, precisely pinpoints what is wrong with the nearly
The U.S. Department of the Interior’s Indian Land Buy Back Program has been lauded as the “hallmark” of the $3.4 billion Cobell v. Salazar settlement. As the Buy Back Program now lifts off in hurried fashion at Makah and Pine Ridge, the program dishonors both the letter and spirit of Cobell.
Cobell settled more than 500,000 tribal members’ trust land and asset mismanagement claims, dating back to the 1890s. Not tribal government claims; tribal member claims. Now, $1.9 billion in tribal member settlement monies has been allocated to help tribes “buy back” those members’ allotted or restricted fee lands. In practice, these “buy backs” are accomplished through the forced sale of tribal members’ ancestral lands. Injustice to individual Cobell class members aside, assuming that financially supporting a tribe will benefit that tribe’s members, one would hope that the buy-back wealth would be spread throughout Indian Country. After all, those 500,000 members of the Cobell class surely represent the vast majority of the 566 federally recognized tribes.
But it has recently come to light that Interior has limited the lion’s share of the $1.9 billion in buy back funding to only 40 tribes. Interior’s outside appraisers recently let it slip that “the program will exclude reservations east of the Mississippi and in Alaska.” Interior was quick to retract that statement, but the genie was already out of the bottle. If that were not bad enough, other swaths of Indian Country with large Indian populations west of the Mississippi, like all of California Indian country (save the Washoe Tribe, which is headquartered in Nevada), are excluded from the program.
Cobell, for better or worse, was fought for all of Indian Country, not just 40 tribes. For the sake of the 500,000-plus Cobell class members whose land and related claims were extinguished for eternity, tribal communities west of the Mississippi, in Alaska and California, and elsewhere, all deserve to share in the Buy Back wealth.
The fact is that the Buy Back Program and its goal to consolidate fractionated Indian lands have little to do with what is right or fair. The program is not really about affording “benefits of those lands for the tribes and their members” as Interior Deputy Secretary David Hayes once professed; or “expand[ing] tribal economic development opportunities across Indian Country” as Assistant Secretary Kevin Washburn said more recently. The program is designed to serve the best interests of the United States; to resolve “enormous administrative difficulties for the government” – and related liability – caused by fractionation. Cobell v. Salazar, 573 F.3d 808 (D.C. Cir. 2009). To feign otherwise is dishonest.
As to the letter of the law that is Cobell, the Buy Back Program fares no better. In 2004, the U.S. District Court for the District Court of Columbia in Cobell v. Norton, affirmed that “Interior may acquire land from individual Indian owners to consolidate fractional ownership interests and thereby ‘lessen the number of owners.’” 225 F.R.D. 41 (D.D.C. 2004). However, the court went on to hold that the United States’ trust-fiduciary responsibility requires that the “individual Indian owner of trust lands . . . give truly informed consent to the sale of trust corpus” before any sale is approved by Interior.
The Cobell court made clear that any such sale requires clear “communication between individual Indian trust-land owners and agents of Interior” and that “trust beneficiaries ought not have to make the decision to sell trust assets without access to all the relevant information,” including answers to any questions or concerns they may have. More generally, legal scholar Derek Haskew explains that the United States’ fiduciary duties to tribal member landowners includes consultation, which “can roughly be understood as communication by Indian beneficiaries of their desires to the federal trustees who make ultimate determinations about what happens with the lands Indians occupy.” 24 AM. IND. L. REV. 21 (2000).
This slogan has stirred up a lot of controversy and one of the creators of this slogan, Jeff Menard, has been featured in the news several times because of the reactions it has received from mainstream society. But first, little background on what happened.
In mid-January 2014, 13-year-old Tenelle Starr, a First Nations student in Saskatchewan, was told not to wear the “Got Land? Thank An Indian” hoodie to school after some parents, students and school officials took offense.
Starr, a member of the nearby Star Blanket First Nation, goes to school in Balcarres about 90 kilometers northeast of Regina. “ I wear it proudly around the school,” she told CBC News, even though some students told her the message was “cheeky” and “rude."
The controversy was eventually resolved through meetings between the school and Star Blanket First Nations’ leaders, leading to greater understanding and acceptance about Star’s sweatshirt, and its message. I still find the whole situation infuriating on so many levels.
The first issue is the right to have the fundamental freedom to express oneself. According to Section 2 of the Canadian Charter of Rights and Freedoms, there fundamental freedoms we Canadian citizens are allowed, including: freedom of expression, freedom of religion, freedom of thought, freedom of belief, freedom of peaceful assembly, and lastly, freedom of association.
I believe that all Canadian citizens should have freedom of expression in a manner that is conducive to invoking discussion and proactive action. I don’t condone harmful words, but that’s another story. The key question I have is why was mainstream society so troubled by a 13-year-old girl wearing a hoodie? The slogan on her hoodie is not the only slogan on other merchandise that can be seen as “cheeky.” Just conjure up the infamous image of Geronimo on the T-shirts labeled “ Homeland Security, Fighting Terrorism since 1492.” No one has been getting up in arms over that slogan.
I find it most disturbing that the fiasco was created by the actions of Vancouver-based Michelle Tittler, 59, who runs End Race Based Laws (ERBL) that was created a year ago in reaction to the Idle No More Movement. Tittler had the nerve to go on a 13-year-old girl’s Facebook page and leave such harassing posts that the girl’s parents felt the need to shut down her account in order to protect her.
According to CBC, Tittler is known for aggressive online trolling, and for posting inflammatory comments about Aboriginal issues and people that led to at least two police probes.
An ongoing investigation of this woman found that Tittler has a history of harassing people. “In 2006, a criminal court judge in B.C. granted a peace bond against Tittler after a neighbor complained of harassment,” according to the CBC. Yet this hasn’t deterred Tittler from harassing people through BRBL, a not-for-profit organization.
ERBL’s Facebook page has 3,330 likes and Tittler told the CBC that “she is unemployed and spends most of her time online denouncing Aboriginal treaties, posting rants on YouTube, and engaging in caustic debates with vocal critics.”
The Cobell settlement, approved on November 24, 2011, provides for a $1.9 billion Trust Land Consolidation Fund (Fund). The Settlement charges the U.S.
Despite delays, shutdowns, underfunding and bureaucratic tangles, the bipartisan Indian Law and Order Commission has spent the past several years steadily gathering data on how to fix the dire public safety crisis that plagues tribal lands.
On December 17, the Poarch Band of Creek Indians celebrated the grand re-opening of its Wind Creek Casino in Wetumpka, Alabama. Normally, I would share the excitement of the Poarch over their new facility. As the former Chairman of the Resources Committee in the U.S.
This is report card on the manner in which the Bureau of Indian Affairs have managed the Cobell settlement since it was approved in November 2011. Case in point, the second round of the Cobell payments were scheduled for August or September 2013.
In the first part of this two-part series, we provided a short history of the upcoming U.S. Supreme Court case State of Michigan v.
This column is part one of a two-part series.