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NCAI President Jefferson Keel Falls Into Traps

Peter d'Errico
2/21/13

When President Jefferson Keel referred to the "trust relationship" in his State of Indian Nations address to the National Congress of American Indians (NCAI), he fell into a common trap: he presumed several things that are not true.

The first and biggest presumption is that the so-called "trust relationship" is a two-way street. President Keel said the "unique nation-to-nation relationship tribes enjoy with the United States" is "a relationship of mutual respect, mutual obligation and mutual trust." Unfortunately, both history and law show that this statement is false.

The "unique" aspect of the relationship between Indians and the U.S. is that the U.S. considers itself inherently superior to Indian nations. Inherently—by definition—according to the U.S. Supreme Court, Indian nations cannot be equal to the U.S. because the U.S. assumes the role of the Christian "discoverer," empowered by the Popes to take and subdue all non-Christian lands and peoples.

That principle—if you can call religious supremacy a "principle"—was laid down in 1823, in the case of Johnson v. McIntosh. The court ruled that the U.S. had "a right to take possession" of Indian lands "notwithstanding the occupancy of the natives, who were heathens"!

When the Cherokee Nation went to the U.S. Supreme Court in 1831 to challenge the state of Georgia for its assault on Cherokee people and lands, the court referred to the uniqueness of the relationship between the U.S. and the Indians. It said, "The condition of the Indians in relation to the United States is perhaps unlike that of any other two people in existence." How so? "They occupy a territory to which we assert a title independent of their will…."

So much for the "unique relationship." It's not something an NCAI president ought to celebrate. And now for the "trust" trap.

After the court in Cherokee Nation v. Georgia admitted that the unique aspect of the U.S. relationship with Indians is that the U.S. "asserts a title" to Indian lands "independent of their will," it went a step further. The court said the Indians "are in a state of pupilage. Their relations to the United States resemble that of a ward to his guardian." Here is the origin of the notion of a "trust relationship"—a ward/guardian relationship—between the U.S. and Indian nations. It's convenient for the U.S. It's not "mutual."

It's clear that President Keel is carrying out the role that the U.S. Supreme Court envisioned for Indian leaders. In the court's own words, Indians "look to our Government for protection, rely upon its kindness and its power, appeal to it for relief to their wants, and address the President as their Great Father." Fortunately, that particular custom of addressing the U.S. President has faded away, but Keel's speech fits the rest of the script.

The third trap Keel fell into is the "Constitutional" trap. He referred to the "constitution" three times: first, to assert that Indians have a "rightful place" in the "American family of governments"; next to tell the U.S. Congress to "acknowledge their constitutional responsibility to honor our sacred trust"; and finally, to assert that the " Constitution acknowledges tribes as equal, sovereign governments."

We have already seen from Johnson v. McIntosh that the U.S. Supreme Court does not uphold the notion of "equal, sovereign governments," and, in fact, upholds exactly the opposite, that the U.S. is superior to Indian nations. The "trust" is a religious idea of domination; how can it be "sacred" to those who are dominated because they don't share the dominator's religion? If there is a "family" of governments in America, it is a dysfunctional family, marked by a continuing history of abuse.

So what might a president of NCAI have said? S/he might have focused on the basic incongruity of a modern, Western, industrialized nation basing any of its power claims on a doctrine of religious supremacy. S/he might have pointed out how especially strange it is that such a doctrine is being enforced by a government that says it has a separation of church and state.

An NCAI president would have made sure the audience understands that U.S. courts enforce the doctrine of religious supremacy—the Right of Christian Discovery— to this day. It is not just a historical relic. S/he would have pointed to the 1955 U.S. Supreme Court decision in Tee-Hit-Ton Indians v. U.S. to show the modern precedent carrying forward the doctrine of "Christian Discovery" as a basis for the U.S. to "assert a title independent of the will" of the Tee-Hit-Ton nation, from whom the U.S. took timber without compensation.

An NCAI president might have referred to the U.S. as a "partner," but would have been careful to point out that "partners" sometimes are guilty of abuse, not only at the domestic household level, but also at the national and international level. That would be a speech to remember.

Peter d’Errico graduated from Yale Law School in 1968. Staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services, 1968-1970. Taught Legal Studies at University of Massachusetts, Amherst, 1970-2002. Consulting attorney on indigenous issues

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Anonymous's picture
I like how you coined, If there is a "family" of Gov'ts in America it is a dysfuncthional family, marked by a continuing history of Abuse.......Great Read by the way...
Anonymous
Anonymous's picture
Lord knows speaking on behalf of the First Nations is not easy, and Lt. Gov. Keel did his best, but it behooves us all to carefully consider the point of this editorial. The Doctrine of Discovery is false and ugly and should never be given any hint of credibility whatsoever. We owe it to our ancestors and those following us.
Anonymous
Anonymous's picture
Agree with all points and have for many years as have others before me. The issue is, what shall be done about all this?
Anonymous