Come Over and Help Us: ‘New Trail of Tears’ Follows Old Script

Peter d'Errico

Don't look for an understanding of Indian Peoples in Naomi Schaefer Riley's book, The New Trail of Tears, despite its subtitle, "How Washington is Destroying American Indians." Riley separates Indian people—individuals—from Indian Peoples. The title of her concluding chapter says it all: "Native Americans as Americans."

If you're looking for a recitation of economic and political dysfunction on Indian reservations, you'll find it in this book. If you're looking for stories of individual Native people who have somehow escaped those dysfunctions, you'll find them, too.

But if you're looking for a sustained analysis of what it means to be an individual in a communal, non-state, "tribal" society, you'll be disappointed. In fact, as the title to another chapter puts it, Riley's worldview sees "The Tribe vs. the Individual."

The political-economic and philosophical underpinning of Riley's book reflects a belief in capitalism and what has been called "possessive individualism." That view explicitly denigrates communal ways of living. It harks back to the missionary effort to "convert the heathens" (and take their lands).

Riley limits her concern to two factors: property and law. Indeed, these two collapse into one: property law, with a sub-heading for contracts about property. In her view, Native Peoples lack these factors and therefore fail in a capitalist economy.

So far, these themes break no new ground. From the early colonists and missionaries, through the 1887 Dawes Allotment Act, to current "free market" theorists like Riley, Indigenous Peoples have been seen as lacking property, law, and contracts.

To be fair, one of Riley's arguments focuses on the erroneous but common belief that Indians don't have a concept of property. She makes an important point: the United States reservation system, with its "trust" laws, violates Indigenous property rights. But her call to end the "trust" system parallels the Dawes Act. It has no concern for the preservation of Indian Nations; in fact, Riley praises the Dawes Act effort to destroy Native Nations.

Riley also fails to point out that the violation of Indigenous property was done in the name of protecting property rights—the colonizers' rights. She does not call for reclaiming Indigenous property rights, but for a further imposition of the colonizers' system of property.

The U.S. Supreme Court enshrined the violation of Native property in its earliest federal Indian law decision, Johnson v. McIntosh (1823). Chief Justice Marshall wrote, "the right of society, to prescribe those rules by which property may be acquired and preserved is not, and cannot be drawn into question."

If Marshall had meant that as a fundamental principle, he would have had to recognize the ways Indigenous societies prescribed rules for property. Indigenous Peoples' property would have remained unimpaired. There would have been no "trail of tears," nor a "new trail of tears."

But Marshall didn't stop there. He refused to acknowledge Indigenous Peoples' property rules. Instead, in a whirlwind of verbiage, he adopted the doctrine of Christian Discovery—the notion that Christian colonizers held title to lands they "discovered." He called this "the pretension of converting the discovery of an inhabited country into conquest." On that pretension, the U.S. built an entire edifice—federal Indian law—with its "trust," "wardship," and "plenary power" rules.

Riley refers tangentially to this legal foundation. But she says efforts to overturn the doctrine of Christian Discovery won't "help the average American Indian." I don't know who the "average American Indian" may be, but it seems obvious that if we want to strengthen property rights for individual Indians, we had better start with affirming property rights for American Indians at the most fundamental level: their original free and independent existence as the Indigenous Nations of the continent.

Riley criticizes the so-called "trust doctrine," but her criticism never amounts to an analysis. For this reason, she remains at a loss as to how to undo the damage done by U.S. law. She says, "solutions to the problems of Indian reservations might require rethinking reservations altogether." If she were versed in the legal history, she would be confident: solutions do require rethinking. They require the reclamation of Indigenous property and the affirmation of Indigenous sovereignty.

The absence of fundamental analysis in Riley's book parallels that of many of her sources, such as the work of the Property and Environment Research Center (PERC), where writers promote the idea that individual Indians need to be "freed" of the "trust" rules to achieve economic success.

The history of the so-called "termination" acts of the 1950s demonstrates the inadequacy of this approach. To eliminate the "trust" by declaring individual Indians "equal citizens" of the U.S. only compounds the initial violation of Indigenous property rights. It destroys Native communal land holdings, parcels out individual and family homesteads, and "opens" the "surplus" land to non-Indians.

Riley repeatedly points to allegations of reservation government malfeasance to make her argument that individual Indians should be "free" to participate in the "market economy," to raise capital by mortgaging their land.

Riley says that ending the "trust" system would make Indian reservations just like cities. But here—as throughout the book—she betrays an inability to comprehend the meaning of community from a Native perspective. Native conceptions of community—the People as a whole—transcend the idea of an association of individuals. Riley and her colleagues at PERC don't understand this.

Vine Deloria, Jr., described the "two concepts of community" presented by Indian and Christian nation-state civilizations: "Very few political subdivisions [towns, cities] are in fact communities. They are rather transitory locations for the temporary existence of wage earners." [God is Red]

Deloria saw reservation government dysfunction as a result of "tribal governments severed from the tribal religious life." The "trust" system imposed "federally recognized tribal councils" to displace traditional Indian self-government, and thus severed American Indian people from their Peoplehood.

Deloria expressed doubt that American Indian Peoples will survive the onslaught of economic and political forces that "break down traditional living groups and…cause severe strains in the old clan structure." He called for "new social, political, and religious forms…to enable the tribal religions to exist…in spite of modern life."

Riley's book nowhere reaches Deloria's level of inquiry. Albeit her book aims at "helping" American Indians as individuals, in the end her diagnoses and prescriptions sound very much like prior efforts by non-Indians to "help the Indian." In fact, the parallels are quite startling.

Riley commends the Dawes Allotment Act. Her only criticism: it didn't go far enough in imposing a "private property" regime on the Indians.

Riley also channels the earliest Christian European stereotypes about Natives. She defines the problems on reservations as "laziness, an indifference toward work, [and] an antipathy toward education." Unlike the stereotypers, she says these characteristics are not a result of being Indian, but "are really the results of economic and political circumstances that have been foisted upon Indians."

Richard Henry Pratt—founder of the Carlisle Indian Industrial School—didn't say it any clearer: "The Indians need the chances of participation [other Americans] have had and they will just as easily become useful citizens."

To anyone familiar with history, it will seem disingenuous—even outrageous—to preach that Indians need "rule of law, property, and contracts." The history of every U.S. treaty, agreement, or "trust"—with individual Indians and Indian Nations—demonstrates that federal Indian law violates the rule of law, property, and contracts.

It seems especially odd to celebrate "free markets" as a path to success for American Indians, when nations around the world are rejecting the inequalities spawned by that system. Regardless of how those other contests play out, however, the suggestion that "free markets" will avoid, rather than repeat, the Trail of Tears appears highly doubtful, if not deluded.

Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinébe’iiná Náhiiłna be Agha’diit’ahii Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on indigenous issues.

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azpark's picture
Mr. d'Errico If Riley's thinking is at a far end of the spectrum then your thinking is just as far at the other end. You state "They require the reclamation of Indigenous property and the affirmation of Indigenous sovereignty." When are people going to start talking about realistic solutions?
derrico's picture
azpark: Good question. When people begin to negotiate, there will be realistic talk. At this point, it is necessary to define the starting points. When the Western Shoshone National Council intervened in a case between Nye County, NV, and the US—about land title—both the county and the feds changed their tune and said they weren't fighting about title any more. The WS title would have derailed both county and US claims. The WS were aiming at getting to negotiations. By backing off from their title claims, the US and NV avoided confronting and negotiating with the WS. That's just one example of outstanding land issues that the US doesn't want to negotiate.