Chapter Two

A Context for Understanding Native American Issues

EACH YEAR, THE US SUPREME COURT hears several Native American cases, and Congress passes numerous laws affecting vital Native American interests. Occasionally these struggles receive cursory attention in mainstream media, but more often they go largely unnoticed by the public and are not well understood. What are these issues about and how can they best be understood?

There is a serious information gap about Native Americans in the United States. Most Americans have never met or talked to an Indian, have never been on an Indian reservation, and know very little about Native Americans in general. Public schools teach us almost nothing about Native history and culture. Shortly after dining with the Pilgrims, the Indians often disappear from schoolbooks or become a sidebar when necessary to tell the story of popular American heroes, like Andrew Jackson or Lewis and Clark—a role not unlike that of the Lone Ranger’s sidekick, Tonto. Most information reflects racial stereotypes and cultural myths about Native Americans that are depicted in Hollywood films and dime Western novels or impersonated by Indian mascots at sporting events. Consequently, the attributes of real Native life are usually seen as strange aberrations with little place in modern society. And many people are left to ask questions like, Treaties grant special privileges to Indians, don’t they? Aren’t tribal governments unfair, race-based institutions? Are Indians segregated since they live on reservations reminiscent of apartheid South Africa? Shouldn’t Indians blend into the melting pot like other minorities, instead of stubbornly clinging to their outmoded cultures?

The aspects and aspirations of contemporary Native American communities can only be understood by a study of their history in the United States. Unfortunately, that history is not taught in school. It is often learned by government policy makers, lawmakers, and judges for the very first time, if at all, only after they begin addressing vital issues affecting Native Americans. This is a troubling state of affairs because, as is frequently seen in history, ignorance in human relations can spawn prejudice and other forms of discrimination and lead to human rights violations when it becomes embodied in the machinery of government. The widespread lack of reliable information about Native issues is the most pressing problem confronting Native Americans in the United States today. The following discussion, using an international frame of reference, will provide a context for better understanding indigenous issues in the United States.

As used here, the term Native American refers to members of the American Indian tribes, nations, and groups who inhabited North America before Europeans arrived. Contemporary Native American issues can be understood against the backdrop of colonialism and the closely related need to protect indigenous rights, because Native Americans share a common history, fate, and aspirations with indigenous peoples around the world. Anthropological distinctions aside, indigenous peoples are defined for purposes of this discussion as the non-European populations who resided in lands colonized by Europeans before the colonists arrived. In general, the human family can be divided into two groups: indigenous and nonindigenous. This division is a function of European colonialism, which is defined by law professor Robert Clinton as “the involuntary exploitation of or annexation of lands and resources previously belonging to another people, often of a different race or ethnicity, or the involuntary expansion of political hegemony over them, often displacing, partially or completely, their prior political organization.”1

During the colonial era (1492–1960), the nations of Europe competed to conquer, colonize, and Christianize the rest of the world. The indigenous nations of Africa, the Western Hemisphere, Australia, the Circumpolar World, Oceania, India, and most of Asia were colonized. The non-European populations of those lands are variously called “indigenous,” “tribal,” “native,” or “aboriginal” peoples.2 In the United States, the indigenous peoples are called Native Americans. They consist of 2.5 million American Indians, Native Alaskans, and Native Hawaiians, according to the 2000 Census.

Today, the world’s indigenous population is about 350 million people, or approximately 6.4 percent of the human family. They reside in seventy-two nations across the world as invisible nations within nations. Indigenous peoples are frequently minority groups in these nations, but are sometimes the dominant population in places like Guatemala, Bolivia, and New Guinea. Though not indicated on world maps, they live in diverse ancestral habitats ranging from the frozen tundra and seas of the Circumpolar World to tropical islands, from barren desert regions of Africa and the American Southwest to the lush rainforests and jungles of the world, and from the highest mountain regions in South America to the Great Plains of America and Russian steppes, and to the floor of the Grand Canyon. Their aboriginal homelands include some of the most sensitive natural places left on the planet. The cultures of indigenous peoples who continue to reside within their traditional aboriginal habitats are based upon close observations of the natural world, living among and talking to the animals and plants inhabiting what many westerners would call “wilderness.” These special relationships have produced some of the most profound and remarkable religious beliefs and practices in the world.3 A treasure of ancient wisdom and knowledge is stored in the world’s estimated fifteen thousand remaining tribal cultures. This indigenous knowledge has become the subject of growing appreciation in recent years, as concern for the survival of indigenous cultures has mounted and the sustainability of modern nonindigenous societies appears dubious.4 In short, indigenous peoples comprise a vast, worldwide presence; and they share a common historical experience of colonialism.

According to the late Vine Deloria Jr., the overarching question for Native peoples in the twenty-first century is: will we survive? The nineteenth and twentieth centuries were brutal. Ninety tribes completely disappeared in Brazil from 1900 to 1957. Most of the world’s wars documented in 1987 were domestic wars conducted by modern nations against their own indigenous peoples. During the nineteenth and twentieth centuries, many colonies and former colonies, including the United States, went through periods of warfare and forcible assimilation against Native peoples. They engaged in the appropriation of Native land and the removal of indigenous populations from aboriginal areas, and they implemented policies to stamp out indigenous cultures, prohibit Native languages, and suppress the practice of indigenous religions. As a result, many cultures have vanished along with the tribal knowledge and wisdom painstakingly assembled over millennia.

Colonialism and the Law of the Conqueror

For indigenous peoples, colonialism was a harsh, life-altering experience because it invariably meant invasion of their country, appropriation of their land and natural resources, destruction of indigenous habitats and ways of life, and sometimes genocide and ethnocide. The early conquest stage of colonialism in the New World was filled with acts of Spanish genocide. More than twelve million Indians died during the first forty years after Columbus landed as Spaniards infected, killed, tortured, terrorized, and destroyed each Native civilization they encountered. The depopulation of the Americas during this period was witnessed by Bartolomé de Las Casas (1474–1566), who arrived in Hispaniola in 1502 and spent more than forty years in Spanish colonies. He chronicled the death of millions and claimed that over forty million died at Spanish hands by 1560.5 Estimates vary, but according to demographer Russell Thornton, more than seventy-two million indigenous people could have inhabited the Western Hemisphere circa 1492, and this population declined to about four million in a few centuries in one of the largest population collapses ever recorded.6 In the North America of 1492, five million Indians inhabited the area now comprising the United States. By 1900, only 250,000 remained—a decline of over one million persons per century. Greed for gold and silver drove the brutal colonization efforts of the Spanish. In North America, it was all about huraaru (the Pawnee word for “land”)—even though gold had a great deal to do with the demise of Indians in California, Georgia, Colorado, and South Dakota. These harsh aspects of colonialism have left deep marks on the colonized and colonizers who endure today in the social structures of many nations with colonial histories.

A popular justification for colonialism among the colonizing nations was the white man’s burden. Originally coined by Rudyard Kipling, the term is a euphemism for imperialism based upon the presumed responsibility of white people to exercise hegemony over nonwhite people, to impart Christianity and European values, thereby uplifting the inferior and uncivilized peoples of the world. In this ethnocentric view, non-European cultures are seen as childlike, barbaric, or otherwise inferior and in need of European guidance for their own good. As thus viewed from European eyes, colonization became a noble undertaking done charitably for the benefit of peoples of color. As it turned out, however, the reverse was true: the white man became the burden of the black, brown, yellow, and red men and women.

In the United States, the alleged altruistic motives of the white man’s burden took on spiritual clothing under the hubris of Manifest Destiny. This doctrine invoked divine sanction for settling the frontier and justified the stupefying impacts on Native people. Under this view, American expansion was inevitable and Indians would simply vanish before oncoming pioneers. Manifest Destiny was not confined to white settlement on Indian lands in the United States, but also justified American colonization of the Philippines, Guam, Puerto Rico, Hawaii, and other places.

Was the conquest and colonization of the New World legal? Colonialism was legalized by the law of nations developed by the Europeans during the colonial era. That body of law was developed largely to facilitate the conquest and colonization of the New World. A brief examination of Spanish and English thought that gave rise to the Law of Nations is instructive.7

The roots of colonial thought originate in medieval times, when the Catholic Church espoused principles for dealing with non-Christian societies. The church asserted jurisdiction and supremacy over all of humanity. This extraordinary claim was predicated on the notion that there is only one true god (the Christian god) and one true religion (the Roman Catholic Church). Therefore, the church’s version of truth, religion, and reason are universal norms binding each society and culture across the world. This ethnocentric religious view accorded inferior legal status and rights to non-Christians, who were variously described as “pagans,” “infidels,” “barbarians,” and “nonbelievers,” and, eventually, to the indigenous peoples of the New World who were seen by Europeans as “uncivilized barbarians” and “heathen savages.” This thinking—which is based upon the supposed religious and cultural superiority of Europe over nonwhite races and cultures—provided the intellectual foundation for the law of conquest and colonization.

At the dawn of the colonial era, European kingdoms began to build on that foundation. Early principles sprang from the pope when the Spanish Crown petitioned the church to grant Spain legal title to the lands discovered by Columbus. Under his papal authority, Pope Alexander VI issued two papal bulls, or decrees, in 1493 that conveyed legal title to the Western Hemisphere to Ferdinand and Isabella.8 The first bull declared that Columbus discovered remote lands and peaceable people in the New World who could easily be made Catholic and proceeded to give the New World to Ferdinand and his wife, Isabella.

[I]n order that you may enter upon so great an undertaking [to convert the American Indians to the Catholic Faith and place their countries under the sway of Spain]…we…by the authority of Almighty God…do…give, grant, and forever assign to you and your heirs and successors, kings of Castile and Leon, all and singular the aforesaid countries and islands thus unknown and hitherto discovered by your envoys and to be discovered hereafter.

9

To clarify the boundaries of Alexander’s gift, the second bull drew a line west of the Azores Islands “from the Artic pole…to the Antarctic pole” and conveyed all of the islands and mainlands west of the line to Spain, with a sliver going to Portugal.10 Though Alexander’s authority for the world’s largest land transaction is implausible, his bull nonetheless gave birth to the doctrine of discovery. Under this doctrine, European explorers may claim title to Native land “discovered” in the name of the monarch who sponsored their journey—a title recognized by all of Europe. Pretty sweet, huh?

To legalize occupation of the New World, Spain enacted the Laws of Burgos in 1512. This legislation specified procedures and guidelines for invading the Americas by force of arms.

Should the natives attempt to oppose the settlement [of a colony], they shall be given to understand that the intention in forming it, is to teach them to know God and his holy law, by which they are to be saved; to preserve friendship with them, and teach them to live in a civilized state…They shall be convinced of this by mild means, through the interference of religion and priests,…and if, notwithstanding, they do not withhold their consent, the settlers…shall proceed to make their settlement…without doing them any greater damage than shall be necessary.11

Force of arms, however, must begin with the Requerimiento—a formal declaration of war that must be read aloud in Spanish to uncomprehending Indians before hostilities could commence. It demanded that they accept Spanish missionaries and domination, or face war. This procedure turned invasion and slaughter into a just and legal war.

The idea of a “just war” originated in medieval church doctrines about the rights and status of infidels. Franciscus de Victoria (1480–1546) secularized that body of law and developed legal principles to justify Spanish domination of the Americas. His influential work became a primary source of Spanish and English colonial law and a cornerstone of the law of nations. According to Victoria, the “natural law” of Europe imposed certain servitudes upon the Indians of the Western Hemisphere. If Indians prevented Europeans from enjoying their right to travel, sojourn, trade, or “share” in communal property belonging to the Natives, the Europeans may engage in a “just war” to conquer and colonize the barbarian infidels as punishment for violating the rules of civilized society. A “just war” includes “all the rights of war, despoiling [the Indians] of their goods, reducing them to captivity, deposing their former lords and setting up new ones.”12

Victoria also espoused a guardianship principle: a Christian nation’s duty is to civilize and Christianize the backward people of the New World. Under the rubric of the “Spaniard’s burden,” the self-appointed guardians could travel, sojourn, and trade in barbarous lands under natural law and enjoy broad rights to preach the gospel and to conquer and colonize Indians who refused to hear the word of the Christian god. Victoria’s guardianship principle, which granted enormous powers of intrusion, was based upon the assumption that the Indians had no laws or civilization and were incompetent beings. Spanish guardianship in the New World, then, was supposed to be good for the Indians.

It might, therefore, be maintained that in their own interests the sovereigns of Spain might undertake the administration of their country, providing them with prefects and governors for their towns, and might even give them new lords, so long as this was clearly for their benefit.13

Thus, under Victoria’s law of nations, religion and guardianship became potent instruments of colonialism, along with the cross, sword, and the law. As it turned out, the Spanish were the barbarians who were not qualified to be the guardians of anyone, according to most historical accounts. Victoria was wrong, but his guardianship principle remains alive and well in the United States, as will be seen in the ten worst Indian law cases ever decided.

Prior to the Pilgrim and Puritan incursions of North America, English legal thinkers developed a similar legal basis for colonization by England. Prominent theorists, like Sir Edward Coke and Oxford scholar Alberico Gentili, incorporated Victoria’s law of nations into English colonial theory. Coke also incorporated the Catholic Church’s medieval discourse on the rights and relationships with infidels in his work, including his famous decision in Calvin’s Case (1608).14 In that case, Coke argued that non-Christian infidels are “enemy aliens” of Christians with no rights in English courts, and Christian kings may wage war against infidels and upon conquest abrogate the laws of infidel nations. The Royal Charter for the Virginia Company (1606) transplanted Coke’s principles to the shores of America with the arrival of the Jamestown colonists.15 The charter grants the company the right to establish a colony in Virginia “not now actually possessed by any Christian Prince or people.” The colony was assigned several tasks. It was supposed to propagate Christianity among the “Infidels and Savages” who “live in Darkness and miserable Ignorance of the true Knowledge and Worship of God”; to bring “human Civility” and a “settled and quiet Government” to America; and, oh yes, “dig, mine and search for all Manner of Mines of Gold, Silver, and Copper” and yield a cut to the king.16

With bible in hand, then, Pilgrim miners would be busy founding the colony and searching for gold, while bringing about religion, civilization, good manners, and sound government to Native North America. Much of this book recounts the Pilgrims’ progress and their use of law to accomplish the tasks laid out by the king. But the underlying legal premise was that the Indians were infidels with no legal rights in Pilgrim courts, and it was perfectly legal under the law of England for the colonists to wage war to accomplish their goals.

The legal basis for just wars by England against the Indian infidels of North America was provided in Alberico Gentili’s writings on the law of war before 1600.17 Gentili’s law of war made it plain that if North American savages violate English notions of natural law or are without a European-style religion, they are like animals in the eyes of the law of war and a just war may be waged against them.18 Thus, religious intolerance and the Christian religion were placed into the service of England as legal bases for war, conquest, and colonization of America. Under these Eurocentric doctrines, Native lands can legally be invaded and colonized simply because Native Americans are different or enjoy the wrong religion. It’s for the Indians’ own good.

As you will see in the cases discussed in this book, the colonial doctrines of discovery, conquest, guardianship, and religious intolerance found their way into American law. These concepts, which are supported primarily by a set of foolish and unjust legal fictions, remain embedded as cornerstones of federal Indian law. Early on, the Supreme Court noted in Johnson v. M’Intosh (1823) that the “religion and character” of American Indians “afforded an apology for considering them as a people over which the superior genius of Europe might claim an ascendancy.”19 The white man’s burden emerged in Cherokee Nation v. Georgia (1831) when the Court explained that, “[Indians] are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.”20 This role is said to require federal hegemony over Indians, according to United States v. Kagama (1886), because “[t]he power of the general government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection.”21 The white man’s burden also provided the source for the plenary or absolute power of Congress over Indian people and their property. In confirming this absolute power over Indians, the court in Lone Wolf v. Hitchcock (1903) promised only that its exercise will be tempered “by such considerations of justice as would control a Christian people in their treatment of an ignorant and dependent race.”22 In short, whenever the Supreme Court wishes to expand state or federal power over Indians and their property or to trim the exercise of power by modern tribal governments, it need only resort to the legal mantra of colonialism. Oliphant v. Suquamish Indian Tribe (1978) is a good example. There, the Court refused to let tribal courts try whites for crimes committed on Indian reservations.23 Even though tribal courts are as sophisticated as any other court, Justice Rehnquist’s opinion severely restricted their reach. Tribal courts are not really a part of the American judicial system, because tribes lost their sovereignty and gave up “their power to try non-Indian citizens.”24 Under the colonial structure, only courts of the conqueror may judge a white man and tribal government tribunals cannot sit in judgment of white citizens.

As discussed previously, the Supreme Court’s continuing practice of relying upon the old doctrines of colonialism has led legal scholars to call for the decolonization of federal Indian law. The time is long overdue for reforming the dark side of the law if appropriate doctrines can be found to protect indigenous rights and to strengthen the foundational principles that shield the Indian tribes from harm. With the collapse and repudiation of colonialism, we no longer need American law to support and enforce a domestic colonial system that few would openly admit to, much less defend. In the present circumstances, it becomes increasingly unseemly for courts to wield such an outmoded, inherently unjust, and oppressive set of legal doctrines against a tiny minority of indigenous Americans—unless it remains the United States’ goal to subjugate Indian tribes and control Indians as colonial subjects with diminutive rights. Surely we can find a more appropriate legal basis to define indigenous relations than bald settler-state control.

Like racism in our society, the vestiges of colonialism in the law must go. They have become inconsistent with modern mainstream values and no longer enjoy a legitimate place in a land devoted to higher values. Now that we no longer consider Native Americans to be barbarians, infidels, or savages, or ourselves as colonial masters of an inferior and backward people, the legal doctrines built upon those classifications become legal fictions that are no longer tenable, logical, nor entitled to any effect. The same is true for legal principles built upon the discriminatory notion that Indians have the wrong, non-Christian religion. Such notions have no place in a nation that cherishes religious freedom and requires the separation of church and state. Religious discrimination against infidels is not even applicable to Christian Indians—they now have the “right” religion. Nor can principles of religious discrimination be applied to Indians with the “wrong” religion without running afoul of the First Amendment.

The time has come to bring domestic law more into line with international norms that reject colonialism and to find more appropriate legal principles for protecting the aspirations and survival of indigenous peoples in the United States. Because judges have not inherited a set of clear and viable theories of postcolonial power over Native Americans, we must develop a new analytical framework—a brand new set of rules. Can that be done in a nation with strong settler-state traditions?

The Fall of Colonialism and the Rise of the Settler State

The United States has the dubious distinction of being a settler state, along with several other former colonies. The modern settler state is a by-product of colonialism found in several present-day nations that are former colonies. Toward the close of the colonial era, during the twentieth century, most colonies achieved their independence from European nations. After independence, what happened to the settlers? Some simply left and returned to their homelands. In other former colonies, the settlers stayed and merged with the Native population or cast their lot with the Natives so that the newly independent nation reverted back to its aboriginal character. However, in still other instances the settlers stayed, but did not merge with the Natives. Instead, they retained the language, religion, and culture of their distant homelands and kept the preexisting colonial structure for dealing with the aboriginal peoples. Such former colonies can be described as settler states.

In settler states, the settlers achieved independence for themselves, but the lot of the Native people remained unchanged because the settlers simply replaced the colonial system of the motherland with their own, thus embedding colonial relations into the social structure of the newly independent nation. Those colonial relationships are often irreversible since the settlers now claim the land as their homeland. The American experience affords one example of a settler state and settlerism. Examples may be found in other countries, like Canada, Australia, New Zealand, apartheid South Africa, Rhodesia, Brazil, and other Latin American nations.

One challenge of settlers in settler states is to justify their dubious foundations of conquest and dispossession of indigenous peoples, which sometimes included genocide and enslavement. The glorification of that history is done through a set of justifying myths and rationalizations, which are reflected in the history books, mass media, institutions, legal doctrines, and laws of the nation. One collective story, popular among settlers in places like Australia and South Africa, goes something like, “We didn’t really conquer and dispossess other nations. We merely moved into vacant, uninhabited, or at least sparsely settled territory.” Other stories admit that we did conquer the natives, “but they either deserved it (as violent savages) or it was for their own good (since the backward infidels stand to benefit from our presence).” According to Theodore Roosevelt in 1900, “the settler and pioneer have at bottom had justice on their side; this great continent could not have been kept as nothing but a game preserve for squalid savages.”25 Of course, in no instance, however, does settler-state mythology concede that the state’s dubious origins are illegitimate. History is invariably kind to the conquerors—after all, they wrote it.

Another interesting aspect of settlerism is the tendency of the settlers to retain a cultural identity with homelands far away. This tendency hampers their adaptation to the land in the way that the Native people have adapted. In that respect, the settlers frequently remain, in an odd way, strangers to the land or visitors in their outlook, even though they have become the stewards of the land. The phenomenon of retaining cultural identity with land thousands of miles away, while at the same time ignoring or marginalizing the local indigenous cultures, has engendered much of the human suffering and conflict found in settler states. That alienation was aptly noted by Dakota Chief Luther Standing Bear in 1933:

The white man does not understand the Indian for the reason he does not understand America. He is too far removed from its formative processes. The roots of his tree of life have not yet grasped the rock and soil…The man from Europe is still a foreigner and an alien. And he still hates the man who questions his path across the continent. But in the Indian, the spirit of the land is still vested; and it will be until other men are able to divine and meet its rhythm. Men must be born and reborn to belong. Their bodies must be formed of the dust of their forefathers’ bones.26

The features of the settler state are familiar. The basic political relationship between indigenous and nonindigenous peoples remains one of colonialism. Under this unmistakable colonial pattern, basic legal relationships are still built on the trusteeship doctrine under which the government owns and manages all Native property as a “trustee” for the benefit of the Natives. In exchange, the government is obliged to look out for the best interests of Native “wards.” Under the trusteeship system, the Natives are usually the poorest of the poor, living life at the bottom of almost every socioeconomic indicator. The economic system features the familiar one-way transfer of property from indigenous to nonindigenous hands. Natural-resource extraction from Native lands and intrusive development of indigenous habitats primarily benefit non-Natives. Social relationships within the colonial structures are often harsh. The Native peoples are typically marginalized politically, legally, and socially. This treatment renders them strangers in the lands where they live, aliens in their homelands, and invisible nations. Finally, the ever-present problem of racism is often manifested in stereotypes, assimilation, and sometimes genocide.

The dual concepts of the settler state and settlerism provide tools for understanding indigenous issues. One can look both abroad and here at home to see where the pattern fits. Furthermore, contemporary Native American issues can be understood against the backdrop of colonialism and settlerism, which brings into focus the need to strengthen laws to protect indigenous rights. Cultural conflicts can be understood in this light. Colonists invariably retained close cultural ties to homelands across the sea and rarely assimilated indigenous values or ways of looking at Mother Earth. Instead, they imposed their European cultures, languages, and religions upon tribal people. Missionaries, schools, soldiers, and governments tried to assimilate Native Americans into the settlers’ culture. Today, Native Americans depend on domestic law to protect their remaining cultural integrity, but often that law is weak and ill-suited for the task, and sometimes it is nonexistent.

Struggles to protect indigenous property can also be understood against the backdrop of colonialism and settlerism. The central purpose of colonialism was to provide riches and land for European elites. To that end, a massive one-way transfer of property occurred in most colonies. In the United States, this included land, natural resources, and personal properties (some of which are called “artifacts” by anthropologists and art collectors). Even dead bodies (called “specimens” or “archaeological resources” by anthropologists) were dug up and carried away. The appropriation extended to intellectual property, such as animal and plant knowledge patented by corporations; tribal names, art, and symbols converted into trademarks; and religious beliefs borrowed by New Agers. Even tribal identities have been taken by wannabes masquerading as Native Americans for personal, professional, or commercial gain. In beleaguered Native eyes, little else is left to take and Native legal efforts attempt to stem and reverse that one-way transfer of property and cultural wealth and to protect what little remains. The challenge for settler states is to find a just balance of indigenous rights and relationships so that distinct Native cultures and their nations within nations can coexist and flourish—and not be doomed to extinction.

Examining the Social and Legal Challenges of Settler States

Can a settler state be made legitimate? This is not an easy task, but as settler states mature, they become subject to other influences and might ultimately replace tainted concepts of settlerism with a nonsettler culture that is more native to place. After all, there will come a time in each settler state when the descendants of settlers no longer wish to be culturally estranged from their adopted homeland. The threshold task in this transformation is one of critical self-evaluation by those with settler backgrounds to come to grips with the legacy of conquest and to discard the myths and justifications of settlerism. Some western families who have been on the land for several generations have already begun that process. In nations like Canada, this has been described as a healing process. If attempted on a superficial level, however, the process of adaptation can be socially challenging, even amusing. This is demonstrated by pilgrims in muumuus and flowered shirts who say “aloha” at Hawaiian-resort luaus, or by New Age “shamans” who chant while awkwardly dressed in “authentic” Indian attire. (Miss Manners should develop socially appropriate rules of etiquette so these good-hearted folks can avoid becoming objects of amusement.)

What will be the place of indigenous peoples in new nonsettler states? The paramount human rights question facing each nation that contains indigenous peoples, including the United States, is: to what extent should indigenous peoples be secure in their land, cultural integrity, human rights, and political rights as Native people? How this question is answered by each nation tells the world much about the national character, values, and principles of that nation. In fact, the actual domestic treatment of indigenous peoples tells the world far more about that nation than its announced policies and principles on the international stage. For that reason, Felix S. Cohen, the father of modern federal Indian law, observed in 1953 that America’s treatment of its Native peoples is a barometer of the United States’ commitment to fundamental liberties:

Like the Miner’s canary, the Indian marks the shift from fresh air to poison gas in our political atmosphere and our treatment of Indians, even more than our treatment of other minorities, marks the rise and fall of our democratic faith.27

There is an obvious lack of adequate legal protections in the nations that allow abuses against indigenous people. This can be attributed to many factors, such as the wardship or other second-class legal status of Native peoples, the lack of meaningful access to the courts, inadequate or nonexistent laws protective of indigenous rights, outright discrimination, and the nearly complete absence of legal protection under international law.

Without adequate legal protections, it is hardly a wonder that the survival of Native peoples is at stake, as seen in the massive slide toward extinction, homogenization, and culture loss that occurred during the twentieth century. To reverse these trends in new nonsettler states, it is critical to educate nonindigenous peoples about the inherent worth of Native peoples and the need to protect their cultural integrity and human rights as indigenous peoples. Then it becomes the task of the law and the judicial system to protect these values. As in all modern societies, social change in new nonsettler states does not germinate from policy changes or goodwill alone. It requires a regime of law that, in turn, must be enforced. For example, the black civil rights leaders could not rely on bare policy to eradicate centuries of ingrained discrimination. Some of their most courageous work confronted oppressive laws and forced their repeal, amendment, or judicial neutralization. Where existing law was useful but not enforced, they embarrassed, harassed, or otherwise prevailed on law enforcement authorities and on the courts to enforce these laws evenhandedly. And they obtained new remedial laws in areas necessary to protect their human rights and to afford them with equal protection of American laws.

The broad challenge as the young century unfolds is to develop and enforce a set of statutes and legal principles in the United States that provides a just balance in protecting the rights and relationships of its Native peoples. Congress has already laid a strong foundation during the twentieth century’s self-determination era.

Currently, the domestic law in many settler states fails to achieve that balance because the laws are weak, ineffectual, or nonexistent, and the courts in the postmodern era of federal Indian law (1985 to present) are not often up to the task of providing a bulwark against infringements of Native rights. In the land of Manifest Destiny, federal Indian law is the body of law designed to protect Native rights; and some grievous flaws in that body are revealed in the cases discussed in this book. The immediate challenge in the United States is to identify and root out vestiges of racism and colonialism. The courts that continue to rely upon legal principles infected with these doctrines have either forgotten, were never aware of, or accept their dark origins. Yet, dispossessed Native Americans have not forgotten. Does American law have sufficient vitality to protect and respect the totally different worldviews and aspirations of America’s indigenous peoples? If it cannot, those worldviews are doomed to extinction.

On the international level, the challenge is to bring indigenous peoples within the ambit of international law so that it may provide meaningful legal protection. Until recent times, the law of nations was not only used as an instrument of colonialism, it also completely excluded indigenous peoples from enforceable legal protections. During the development of international law by the nations of Europe in the colonial era, the scope of international law was limited to external relations between “civilized” nations. The indigenous nations that had been conquered, colonized, and annexed did not, of course, meet this definition. Since they were no longer “nations” with external attributes of sovereignty, the fate of indigenous peoples was relegated to the exclusive domain of domestic law—that is, the very law used to dispossess and oppress them in the first place. Thus, international law allows the fox to guard the henhouse. We can no longer tolerate being relegated to purely domestic law under those circumstances. However, virtually every member state of the United Nations with indigenous peoples refuses to allow any external scrutiny of its treatment of its Native people.

By what yardstick should these domestic and international legal reforms be measured? They should be measured against the aspirations of the world’s diverse indigenous peoples, ambitions that are remarkably similar around the world. Those aspirations are in large part embodied in the recent United Nations Declaration on the Rights of Indigenous Peoples, approved by the UN General Assembly on September 13, 2007.28 This historic international convention provides a benchmark. Though implementation of the declaration’s standards is only in the beginning stage, the law of each nation in the postcolonial world should ideally comport with the minimum standards contained in the declaration. Article 43 provides: “The rights recognized herein constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world.” Where the law of a particular nation, including the United States, does not pass muster under the UN’s minimum standards, human-rights violations are often found. A brief summary of some of those standards and issues shows remarkable similarity to the aspirations long cherished by Native Americans in the United States:

1. The survival and equality of indigenous peoples are expressed as freedom from genocide, discrimination, and assimilation, and from the forcible removal from Native lands. (Art. 2, 7, 8, 10, 21, 30)

2. Political autonomy is sought through “self-determination,” that is freedom of Native tribes, nations, and communities to choose their political status, and in the full participation in decisions affecting indigenous lives, property, and political status. (Art. 4, 5, 18–20, 32–34)

3. The right to exist as distinct peoples is a right to maintain and strengthen the distinct political, economical, social, and cultural characteristics of Native peoples, as well as their legal systems, while at the same time retaining their rights to participate fully if they so choose, in the political, economic, social, and cultural life of the nation state. (Art. 5, 9, 33)

4. “Cultural survival” is described as a freedom to (1) practice and revitalize cultural traditions and customs; (2) protect cultural, religious, and burial sites, as well as intellectual property; (3) perpetuate language, religion, and ceremonies; (4) provide education opportunity from the state through Native-controlled schools taught in the Native language with culturally appropriate teaching methods; and (5) reflect in public education, information, and the media Native cultures, traditions, histories, and aspirations. (Art. 11–16, 25, 31, 34)

5. Social standards seek improved social and economic conditions for indigenous peoples, including elders, women, youth, children, and the disabled. (Art. 21–22)

6. Health standards include access to and protection of traditional medicines and health practices and protection for medicinal plants, animals, and minerals. (Art. 23–24)

7. Environmental and subsistence standards would allow indigenous peoples to maintain and strengthen their distinctive spiritual and material relationship with the lands, territories, waters, coastal seas, and other resources that they have traditionally owned or otherwise occupied or used. (Art. 29)

8. Land-rights standards include legal rights to own, develop, control, and use the land and territory (including the total environment of the lands, air, waters, flora, and fauna) that Natives have traditionally owned, occupied, or used. (Art. 25–28)

From the times of Red Cloud, Seattle, Chief Joseph, and into the modern era of Vine Deloria Jr. and Clyde Warrior, Native American leaders have fought to achieve these freedoms for their people. These ideals, even today, motivate many Native Americans to wear the American uniform in distant places, like Iraq and Afghanistan, hoping that the principles fought for abroad will abide for relatives at home. US law should guarantee and safeguard the rights set forth in the UN declaration as minimal standards for protecting the human rights of Native Americans. As you will see, many of those standards contradict the holdings of American courts in the ten worst Indian law cases discussed in this book and call their legitimacy into question. It is not surprising that the United States opposed the declaration—the dark side of federal Indian law falls short of the UN benchmark and is exposed as rank law in need of reform.

As the United States matures, there is a need to discard worn-out attitudes of settlerism and to replace the outmoded settler state with a new, nonsettler society. This is part of the quest toward achieving a just culture. To achieve these goals, significant domestic law reforms will be required to decolonize federal Indian law, root out vestiges of racism, and eradicate unjust legal fictions embedded in that important body of law. After all, we are no longer an abject British colony. American courts should not be courts of the conqueror, harboring foolish and unjust legal fictions, and our legal system should no longer be used as an instrument of colonialism. The current and next generation should focus instead upon elevating federal Indian law to achieve all of the minimum standards of the United Nations Declaration on the Rights of Indigenous Peoples so that the survival, dignity, and well-being of Native America can be assured. We have already made a good start in that stride toward a more just culture.