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I aim to provide occasional reports and essays on Indigenous peoples’ legal issues and topics related to the US claim to own Native lands and have “plenary power” over Native peoples, the themes developed at length in my book, Federal Anti-Indian Law: The Legal Entrapment of Indigenous Peoples (2022)
Haaland v. Brackeen is a 2023 US Supreme Court decision rejecting several challenges to the Indian Child Welfare Act (ICWA), a federal law establishing a framework to control adoptions of any child who is “a member of an Indian tribe” or who is “eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.”
The challengers to ICWA raised three kinds of Constitutional challenges. They argued that it exceeds federal authority, infringes state sovereignty, and discriminates on the basis of race.
The Brackeen decision upheld ICWA as within the extent of federal authority, i.e., the US ‘plenary power’ over ‘Indians’. The decision also said the Act was so carefully drafted that it did not infringe state sovereignty.
The court did not rule on the ‘race’ challenge.
The celebration of Haaland v. Brackeen as “a significant victory for federal Indian law and the rights of tribes and Native children across the nation” is an oxymoron, because ‘federal Indian law’ is actually federal anti-Indian law. It is a structure of US domination, not ‘protection’ (unless we want to see ‘protection racket’ as the real meaning of the system).
The outpouring of liberal “relief” in response to Haaland v. Brackeen is thus wholly misplaced. It misses the fundamental domination that the decision affirmed when it rejected challenges to the Indian Child Welfare Act (ICWA).
The Brackeen majority opinion, penned by Justice Amy Barrett, opens with the statement, “Congress’s power to legislate with respect to the Indian tribes [is] ‘plenary and exclusive.’”
Lest there be any doubt about the extent of the claim of a right of domination inherent in ‘plenary and exclusive’ power, the opinion adds:
Congress has plenary authority to limit, modify or eliminate the powers of local self-government which the tribes otherwise possess.
An alert reader, not mired in superficial discussions about ‘liberal’ and ‘conservative’ members of the court, will immediately see that Haaland v. Brackeen is a “significant victory for federal Indian law”, but not for “the rights of tribes”.
Brackeen is neither more nor less than a standard affirmation of the system of domination baked into US ‘Indian law’ from the outset. To celebrate Brackeen is to celebrate the entrenchment of the US claim of domination over Indigenous peoples.
Let’s explore why that is the case.
‘Federal Indian law’ originated in a trilogy of early 19th century Supreme Court cases authored by Chief Justice John Marshall. The urtext is Johnson v. McIntosh (1823), which declared that Native peoples did not own their lands after they had been “discovered” by Christian colonists, who thereby acquired “title”. Marshall himself admitted that the decision was an “extravagant . . . pretensionof converting the discovery of an inhabited country into conquest.” In 1831, Cherokee Nation v. State of Georgia built on Johnson, ruling that Native nations were not independent of the United States and that Native peoples were subject to U.S. “guardianship”. The third case, Worcester v. State of Georgia (1832), completed the foundation of the US claim of a right of domination, called the “ultimate right of domain” over all Native peoples and lands.
Justice Joseph Story, a member of the Marshall court, starkly summarized the claim of a right of domination in his summary of the Johnson decision:
The title of the Indians was not treated as a right of propriety and dominion; but as a mere right of occupancy. As infidels, heathen, and savages, . . . [they] were not allowed to possess the prerogatives belonging to absolute, sovereign and independent nations.
Story concluded with the extraordinary statement that Native “territory . . . was, in respect to Christians, deemed, as if it were inhabited only by brute animals.”
In short, the US ‘federal Indian law’ claim of power over Indigenous peoples rests on the doctrine of ‘Christian discovery’, the colonial claim of a right of domination adopted into US property law by the Supreme Court.
The Vatican itself recently ‘repudiated’ the doctrine and acknowledged the harm it has occasioned. In Haaland v. Brackeen, in sharp contrast, the court strongly affirmed the doctrine in its modern guise as ‘plenary power over Indians’.
One telltale sign of the deep non-Constitutional roots of federal anti-Indian law is that the claim of ‘plenary power’ is identical to the claimed power of popes—plenitudo potestatis, typically translated as ‘fullness of power’. The papal power claim allowed 15th century popes to authorize colonizing powers “to invade, search out, capture, vanquish, and subdue all Saracens and pagans whatsoever, and other enemies of Christ wheresoever placed, and… to reduce their persons to perpetual slavery, and to apply and appropriate… possessions, and goods, and to convert them to … their use and profit….” (Romanus Pontifex, 1455).
In 1954, the US Justice Department was unabashed in its embrace of Christian colonial domination. It explained to the Supreme Court in Tee-Hit-Ton v. US that “Although the nations of Europe … ceased to recognize the Popes as the source of their titles to newly acquired lands, the new concept of title by discovery was based upon the same idea that lands occupied by heathens and infidels were open to acquisition by the Christian nations.” The Justice Department cited papal bulls and the Bible, as well as Johnson v. McIntosh: “The potentates of the old world found no difficulty in convincing themselves, that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence.”
In Tee-Hit-Ton, the justices quarreled in conference about whether to mention Christianity in the decision. The 11th hour deletion of the word “Christian” marks the turning point in Supreme Court history away from open recognition of the religious, racist, colonial roots of ‘federal Indian law’. The Tee-Hit-Ton story deserves its own telling and I have done so and more in Federal Anti-Indian Law: The Legal Entrapment of Indigenous Peoples (Praeger, 2022).
By 2005, the Supreme Court had learned to completely hide the religious basis of the doctrine. Justice Ruth Bader Ginsburg’s opinion in City of Sherrill v. Oneida Nation referred simply to “discovery.” She wrote:
Under the ‘doctrine of discovery,’ . . . fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign—first the discovering European nation and later the original States and the United States.
In 2020, in McGirt v. Oklahoma, Justice Neil Gorsuch relied on “Christian discovery” doctrine without even using the word “discovery”! Gorsuch referred to the U.S. claim of domination obliquely, calling it the “significant authority” of the United States “when it comes to tribal relations.” His unelaborated citations in McGirt, however, trace directly back to Johnson v. McIntosh. He cited Lone Wolf v. Hitchcock, the 1903 Supreme Court decision that exalted “Christian discovery” into “plenary power over . . . Indians.” He added another unelaborated citation to Emory Washburn’s 1868 Treatise on the American Law of Real Property, which says, “The Christian nations that planted colonies . . . recognized no seisin [ownership] of lands on the part of Indian dwellers.”
This short summary of the origins and arc of ‘federal Indian law’ illuminate what is obscured in celebrations of Haaland v. Brackeen.
Justice Amy Barrett’s opinion presents the standard effort to hide federal domination under the fig leaf of the US Constitution, as if that would somehow make it legitimate. Of course, this effort only says that the founders were intent on inserting their claim of a right of domination into the document. Seen plainly, the argument is laughable. It can hardly be relevant to Native nations that the US claim to a right of domination is somehow enshrined in the dominator’s constitution.
Nevertheless, the court has been preoccupied with an effort to constitutionalize the US claim of dominion since the Marshall trilogy itself, where, in Cherokee Nation, Marshall constructed a remarkably obtuse reading of the judicial power clauses in Article III to justify denial of the Cherokee petition for relief from Georgia’s invasion of their lands. I analyze Marshall’s rhetorical moves in Cherokee Nation in my book: Federal Anti-Indian Law: The Legal Entrapment of Indigenous Peoples (Praeger, 2022). Suffice it to say here that Marshall pretended to be doing a close reading of the Constitution, but he did not pay attention to where the crucial words appear. Despite his reputation for rhetorical skill, there was no coherence in his analysis.
More recent constitutional theories try to tie the claim of domination to a contorted reading of the ‘Indian commerce clause’. As Barrett puts it, “While under the Interstate Commerce Clause, States retain ‘some authority’ over trade, … ‘virtually all authority over Indian commerce and Indian tribes’ lies with the Federal Government.” She says that this reading, purportedly based in the ‘intentions of the founders’, prevents the claim of ‘plenary power’ from being ‘free-floating’. Again, who cares about this fig leaf? Only those who are concerned about the emperor’s clothes.
The challengers to ICWA raised three kinds of Constitutional challenges. They argued that it exceeds federal authority, infringes state sovereignty, and discriminates on the basis of race. The Brackeen decision upheld ICWA as within the extent of federal authority, i.e., ‘plenary power’, and said the Act was so carefully drafted that it did not infringe state sovereignty.
The court did not rule on the ‘race’ challenge, i.e., that ICWA violates ‘equal protection’, and Justice Brett Kavanaugh took pains to point this out. In fact, there are racial equality challenges already making their way to the court. The issue looms.
‘Equality’ was precisely the goal of US ‘Indian’ policy for a long time. The 1887 Allotment Act is a major example. As President Theodore Roosevelt said in celebration of the Act in his 1901 State of the Union address:
The General Allotment Act is a mighty pulverizing engine to break up the tribal mass. It acts directly upon the family and the individual. . . . The Indian should be treated as an individual—like the white man.
Roosevelt spoke for all so-called ‘Friends of the Indian’, among whom was Richard Henry Pratt, founder of Carlisle Indian School, the first ‘boarding school’ for Native children forcibly taken from their homes. In a sentence that is now infamous Pratt told the 1892 Annual Conference of Charities and Correction “that all the Indian there is in the race should be dead. Kill the Indian in him, and save the man.”
Pratt kept hammering on this theme and elaborated a theory of ‘racism’ to support his project. He told the 1902 Lake Mohonk Conference of Friends of the Indian that his Carlisle School combated the “racism” of federal policy, which allowed Native nations to exist apart from American society. He said:
Segregating any class or race of people . . . kills the progress of the segregated people . . . Association of races and classes is necessary in order to destroy racism and classism.
The Oxford English Dictionary cites Pratt’s 1902 speech as the first printed use of the term ‘racism’.
Any ‘equal protection’ challenge to ICWA will wade into this thorny history, joining fellow travelers with other campaigns to ‘free’ Native people from the ‘bonds’ of Native nations.
For example, The New Trail of Tears: How Washington Is Destroying American Indians (2016), by American Enterprise Institute resident fellow Naomi Schaefer Riley calls for “equal rights” for “all citizens.” She explicitly aims to separate Indigenous persons, as individuals, from Indigenous peoples. The title of one chapter puts it as “The Tribe vs. the Individual.” Riley actually praises the Dawes Act effort to destroy Indigenous peoples by breaking up communal tribal ownership.
Riley’s rhetoric is a rehash of 1950s -1960s Congressional ‘termination’ policy, which mandated “as rapidly as possible, to make the Indians . . . subject to the same laws and entitled to the same privileges and responsibilities as are applicable to other citizens of the United States” (August 1, 1953, House Concurrent Resolution 108).
A racial critique of ICWA, no matter how ‘plenary’ federal Indian law domination may be, collapses Native peoples into groups of Native persons within a unitary US polity. If it succeeds, there is no space for Tribal nations unless some other foundation besides US domination can be found. I make some suggestions in that regard at the conclusion.
But first let’s look at the effort of Justice Gorsuch to invent an idyllic origin story for US relations with Indigenous nations, through his own reading of the ‘Indian Commerce Clause’.
Justice Gorsuch wades into the history of US – Indigenous relations with the rosy view that there was once a kind of golden age, when “our founding document mediate[d] between competing federal, state, and tribal claims of sovereignty.” He acknowledges, as he must, that the federal government “spearheaded” the original “existential threat to the continued vitality of Tribes”, and that it had “dark designs”.
Gorsuch makes a subtle rhetorical move when he says “Native American Tribes … forced onto reservations… understood that life would never again be as it was. … Securing a foothold for their children in a rapidly changing world, the Tribes knew, would require schooling.” The implication is that Native parents somehow acceded to ‘conquest’ and looked to the conqueror for ‘education’ about ‘civilization’. This is an old trope of ‘friends of the Indian’.
Gorsuch is honest enough to admit that these same parents, “Indian families, ‘forced onto reservations at gunpoint,’ … simply believed they had no power to resist.”
For Gorsuch, “This history leads us to the question[s] at the heart of today’s cases: …What authorities do the Tribes possess under our Constitution? What power does Congress have with respect to tribal relations?” He says:
Answering these questions requires a full view of the Indian-law bargain struck in our Constitution. Under the terms of that bargain, Indian Tribes remain independent sovereigns with the exclusive power to manage their internal matters.
But what sort of ‘bargain’ can be said to have been struck by the constitutional drafters with Indigenous peoples? As the Supreme Court itself pointed out in Blatchford v. Native Village of Noatak & Circle Village (1991), the “tribes . . . were not even parties” to the Constitution.
A dictionary definition of ‘bargain’ is “an agreement between two or more parties as to what each party will do for the other”. A ‘bargain’ struck in the US Constitution cannot have included Native nations. It was a ‘bargain’ among competing groups of white men intent on building an empire across the continent.
It is simply gobbledygook for Gorsuch to say, “the Constitution …reflected an understanding that Tribes enjoy a power to rule themselves.” Indigenous nations did not rely on the Constitution and its ‘bargains’ for their self-definition, their “power to rule themselves”.
The core of the Gorsuch concurrence is his particular reading of the Commerce Clause, which he construes as giving congress “authority with respect to three separate sorts of sovereign entities – foreign nations, states, and Indian Tribes.” He says the clause does “not entail the power to eliminate” any of these sovereigns. That’s an odd point to make, since the commerce clause in itself presumes the existence of other entities with which the US may engage in commerce. Why would such a clause say anything about a power of elimination of a trading partner?
Gorsuch’s larger emphasis on there being “no power to eliminate” flies in the teeth of his majority opinion in McGirt v. Oklahoma, another ‘Indian law’ case misunderstood as ‘pro-Indian’. There, he stressed that the Creek Nation exists only because the US Congress has not “disestablished” it, and that Congress could do so “at any time …[with] no shortage of tools at its disposal”. The tools, he made clear, included “even the authority to breach its own promises and treaties.” He relied for that proposition on the notorious decision in Lone Wolf v. Hitchcock, which said:
The right which the Indians held was only that of occupancy. The fee [title] was in the United States… Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning… “It is to be presumed that in this matter the United States would be governed by such considerations of justice as would control a Christian people in their treatment of an ignorant and dependent race.”
Now, in Brackeen, putting McGirt behind him, Gorsuch proclaims, “the Constitution safeguards the sovereign authority of Tribes.” He grandly proclaims:
No one can contest the … permissibility of constitutional provisions enacted to protect the Tribes’ “sovereign status.” New Mexico v. Mescalero Apache Tribe (1983). Tuck that point away too.
But before you tuck it away, take a closer look at the case he cites. Mescalero says:
…tribes retain any aspect of their historical sovereignty not “inconsistent with the overriding interests of the National Government.”
Gorsuch reformulates this:
“[t]he only restriction on the power” of Tribes “in respect to [their] internal affairs” arises when their actions “conflict with the Constitution or laws of the United States.”
In plain English, removing the grammatical inversion (“the only restriction”), this says Tribes exist at the sufferance of the US. Hard to call that ‘sovereignty’.
Gorsuch describes this framework as “a hydraulic relationship between federal and tribal authority. The more the former expands, the more the latter shrinks.” But, since federal authority expands at its own will and also sets limits for Tribes, how is this relationship anything but domination?
Gorsuch finally admits that the Constitution “does not include a plenary federal authority over Tribes”. But he then points to “other provisions [that] … facilitated the management of Indian relations. The…power to ‘declare War against the Tribes’ [and the] … authority to ‘dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States,’” which he says, “allows… it considerable power over Indians on federal territory.”
Wait a minute! Set aside the war power as obviously not aimed at ‘protecting’ Tribal sovereignty. How do ‘Indians’ come to exist ‘on federal territory’? The answer to that question can only be answered by reference to Johnson v. McIntosh: The claim of US ‘title’ to all the lands of the continent. This is the foundation of US property claims and the claim of a right of domination over peoples who ‘occupy’ that property.
But Gorsuch doesn’t touch Johnson. No other justice does, either. That decision was already too hot to handle well before the Vatican’s ‘repudiation’.
It gets worse. In Gorsuch’s effort to construct a vision of an idyllic version of the ‘founding’, he defines Tribal communities living in their own territories out of existence! He says:
“Indian Tribes” are not …territorial entities [but rather] …collections of individuals.
Gorsuch says his definition of ‘tribe’ is supported by “founding-era dictionar[ies]”. This would be laughable if it weren’t such a serious matter; the ‘founding-era’ dictionaries are obviously products of the colonizing civilization that opposes the Tribal peoples. The definitions are the views of outsiders to Indigenous reality. This is not a problem for Gorsuch because the colonizer definition of ‘Tribe’ is part of the ‘origin story’ he wants to create, not this time of an idyllic ‘mediation’, but of a federal power over Indigenous peoples, who are here read out of existence as peoples.
With his definition of Tribe, Gorsuch reaches the goal of the infamous allotment and ‘termination’ process — the transformation of Indigenous peoples from territorial communities to collections of individuals, as celebrated by Teddy Roosevelt and the ‘friends of the Indians’.
Although allotment was ended by FDR’s 1934 Indian Reorganization Act, Tribal individualization reared its ugly head again after FDR’s death when congress enacted “termination” programs. These in turn were abandoned in 1970 by Richard Nixon’s “self-determination without termination” program. Gorsuch’s definition of Tribes throws ‘Indian policy’ back into designs he earlier identified as “dark”.
Colonial dictionaries did not incorporate the experiences of colonial people who lived among Native peoples. James Axtell, in The Invasion Within: The Contest of Cultures in Colonial North America (1985) summarized what such people said about their experiences:
They found Indian life to express a strong sense of community, abundant love, and uncommon integrity . . . [as well as] social equality, mobility, adventure . . . the most perfect freedom, . . . ease of living, the absence of . . . corroding solicitudes.
The earliest contacts between colonial invaders and Native peoples illustrate Axtell’s point. The Puritans were embarrassed by the fact that so many of their kind fled to the Indians, while so few Native people wanted to adopt Puritan life.
Sebastian Junger, in Tribe: On Homecoming and Belonging (2016), quotes Ben Franklin bemoaning that:
White captives “liberated from the Indians” and returned to “stay among the English . . . take the first good opportunity of escaping again” to their Native communities. On the other hand, … “When an Indian child has been brought up among us…if he goes to see his relations…there is no persuading him ever to return.”
Junger recounts that when Colonel Henri Bouquet, a Swiss mercenary under British general Jeffrey Amherst attacked Odawa chief Pontiac’s forces (after delivering smallpox-infected blankets to Fort Pitt) he demanded the return of White “captives”. Bouquet reported that Native families had to bind those people and forcibly bring them in. Many later escaped and returned to the Native communities where they had come from.
Junger says colonials gravitated to the “intensely communal nature” of Indian life: Not only the “rough frontiersmen,” as he puts it, but also “the sons and daughters of Europe” were drawn to the natural sociability of Indian life and against “the material benefits of Western civilization.” He quotes the French immigrant writer Hector Saint John de Crèvecoeur, saying:
Thousands of Europeans are Indians, and we have no examples of even one of those Aborigines having from choice become European. There must be in their social bond something singularly captivating and far superior to anything to be boasted of among us.
Gorsuch, having defined away the communal existence of Indigenous peoples in his effort to write an idyllic origin story for the US, abruptly turns a corner and says, “Nothing in the [Commerce] Clause grants Congress the affirmative power to reassign to the federal government inherent sovereign authorities that belong to the Tribes.” This U-turn takes us straight down the rabbit hole: How can there be a ‘sovereign Tribe’ if ‘Tribes’ are only ‘collections of individuals’?
Gorsuch bemoans the “atextual and ahistorical plenary-power move …[that] expand[ed] the scope of federal power over the Tribes.” He says, “That error sent this Court’s Indian-law jurisprudence into a tailspin from which it has only recently begun to recover.” He adds, “the rise of the plenary-power theory injected incoherence into our Indian-law jurisprudence.” Gorsuch’s ‘now you see it, now you don’t’ approach to ‘Tribal sovereignty’ is evidence of continuing tailspin and incoherence.
At bottom, despite gushing praise of his concurrence as a “soaring opinion steeped in history…demonstrate[ing] a distinctive dedication to Native American rights,” Gorsuch’s opinion positions him solidly within the framework of US domination.
Put as simply as possible, federal anti-Indian law embodies the claim to ‘title’ that the United States needs in order to make its claim of continental sovereignty. Disavowing the claim of a right of domination over Indigenous peoples and lands would necessarily involve a reconfiguration of US ‘sovereignty’ claims.
The starting point is to overrule Johnson v. McIntosh and discard the foundation doctrine of ‘Christian discovery’. This step can be taken proactively, rejecting the doctrine as the basis for further land appropriation and other acts of domination, much the same as the 1954 Brown v. Board of Education decision removed the doctrine of “separate but equal” from the structure of US laws about ‘equal protection’.
One might think that this goal was already accomplished by the 2007 United Nations Declaration on the Rights of Indigenous Peoples, which says in Article 26:
1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
But two obstacles exist:
First, the UN Declaration does not provide a self-executing platform upon which Indigenous Peoples may invoke international legal protections for their lands and societies. Provisions of the Declaration depend on decisions made by member states of the United Nations.
Second, President Barack Obama’s administration made clear in its ‘signing statement’ that US support for the Declaration had meaning only within the existing US ‘federal Indian law’ framework. It pointedly singled out the Declaration Article 32 requirement that Indigenous peoples must give “free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources”.
The Obama statement then said Article 32 is only a
…call for a process of … consultation with tribal leaders, but not necessarily the agreement of those leaders, before the actions addressed in those consultations are taken.
In the ‘federal Indian law’ lexicon, “consent” does not mean “agreement”.
A second step to undoing the domination matrix is to account for damages caused by it over the years. This would include retroactive payments for land ‘takings’ beyond the minimalist ‘time of taking’ rule imposed in the Indian Claims Commission process. Where ‘taken’ land is still in the hands of the US government, it could be transferred outright. Where no agreement about a restoration of land ownership is feasible, ongoing payments akin to ground rent might be called for.
Accounting for damages would also include compensation for intergenerational trauma inflicted by US domination. One model for this is the 2019 Canadian Human Rights Tribunal order that the government provide compensation for Indigenous children removed from their families by the ‘residential school’ system.
I offer these starting points to provoke the kind of strategy discussions that Thurgood Marshall undertook in his long and successful campaign to overrule Plessey v. Ferguson and eradicate “separate but equal” doctrine from US law.
The Yakama Nation amicus brief in Washington State v. Cougar Den provides an example of how an argument for overruling ‘Christian discovery’ doctrine can be framed within existing Supreme Court practice. The brief said:
This doctrine of domination and dehumanization—Christian discovery—is not welcome within Yakama Territory, and should no longer be tolerated in United States law. …
We call on this Court to repudiate the doctrine of discovery, and in this case and all future cases involving our inherent sovereignty and Treaty-reserved rights, rely on the solemn promises made between the United States and the Yakama Nation….
The court ruled in favor of the Yakama but did not take up the task of repudiating the doctrine in all future cases.
If the doctrine of domination were revoked and Indigenous nations acknowledged as the free and independent nations they rightfully are, questions of adoption would be handled exactly as they are for all other “intercountry adoptions” under the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption.
The Hague Convention does not invoke any claim of domination by one country over another. The adoption framework it provides meets all the concerns stated by the parties and amici in Haaland v. Brackeen. The Convention preamble reads:
Recognising that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding,
Recalling that each State should take, as a matter of priority, appropriate measures to enable the child to remain in the care of his or her family of origin,
Recognising that intercountry adoption may offer the advantage of a permanent family to a child for whom a suitable family cannot be found in his or her State of origin,
Convinced of the necessity to take measures to ensure that intercountry adoptions are made in the best interests of the child and with respect for his or her fundamental rights, and to prevent the abduction, the sale of, or traffic in children,
Desiring to establish common provisions to this effect, taking into account the principles set forth in international instruments, in particular the United Nations Convention on the Rights of the Child, of 20 November 1989, and the United Nations Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally (General Assembly Resolution 41/85, of 3 December 1986)….
Nothing more would be needed; certainly, no US ‘protection’.
An article in The Nation, November 18, 2022, “It’s Time to Give Indigenous Land Back,” starts out strong, but misunderstands the crucial legal issue.
The strong start is a clear statement that the root of the land issue is a bizarre doctrine by which the US claims to own Indigenous lands:
“A genocidal campaign of conquest—fueled and justified by the Doctrine of Discovery that declared all land not occupied by Christians as terra nullius (nobody’s land)—dispossessed millions of Indigenous peoples from their homelands in the name of the United States’ policy of western expansion and Manifest Destiny.”
The confusion arises when the authors try to interpret US Supreme Court cases about jurisdiction in what US law calls “Indian country”. First, the interpretation misstates what the cases say; second, it gives the impression that “land back” can somehow happen within existing US law, if only the Supreme Court would be friendly. Let’s unpack this.
“Ignoring all precedent, Justice Brett Kavanaugh wrote that states can ignore tribal sovereignty in handling criminal cases of Indigenous citizens on tribal lands.”
In fact, the decision in Oklahoma v. Castro-Huerta did not say the state can prosecute criminal cases against Indigenous defendants. The court said the state has concurrent jurisdiction with the federal government over crimes committed by “non-Indians”; and it expressly side-stepped the question of jurisdiction over Indigenous defendants:
“…Today’s decision recognizes that the Federal Government and the State have concurrent jurisdiction over crimes committed by non-Indians against Indians in Indian country.9 [emphasis added]
9 “The dissent characterizes the Court’s opinion in several ways that are not accurate. …For example, the dissent suggests that States may not exercise jurisdiction over crimes committed by Indians against non-Indians in Indian country—the reverse of the scenario in this case. To reiterate, we do not take a position on that question.”
Oklahoma v. Castro-Huerta, 213 L. Ed. 2d 847, 142 S. Ct. 2486, 2504 (2022) <https://supreme.justia.com/cases/federal/us/597/21-429/ >
2. The article then says, referring to the July 2020 Supreme Court decision in McGirt v. Oklahoma:
“In the US Supreme Court, there were encouraging signs in sovereign rights cases involving …the rights to criminal jurisdiction on their own land for the Muscogee (Creek) Nation in Oklahoma.”
But the decision in McGirt v. Oklahoma did not say the Muscogee (Creek) Nation has criminal jurisdiction in the case. The court said:
“McGirt’s appeal rests on the federal Major Crimes Act (MCA)…[which] subject[ed] Indians to federal trials for crimes committed on tribal lands….”
“The MCA applies to Oklahoma according to its usual terms: Only the federal government, not the State, may prosecute Indians for major crimes committed in Indian country.”
“When Congress adopted the MCA, it broke many treaty promises that had once allowed tribes like the Creek to try their own members. But, in return, Congress allowed only the federal government, not the States, to try tribal members for major crimes. All our decision today does is vindicate that replacement promise.” [emphases added]
McGirt v. Oklahoma, 207 L. Ed. 2d 985, 140 S. Ct. 2452, 2459, 2478, 2480 (2020) < https://supreme.justia.com/cases/federal/us/591/18-9526/ >
In short, both cases—the supposedly “bad” one and the supposedly “good” one—were about competing state and federal jurisdictions. Indigenous jurisdiction was set aside or ignored. As I said above, the authors misstate the decisions.
More significant, I think, is that the misstatement of McGirt implies that there is space within US law to support Indigenous jurisdiction—space to get beyond the bizarre doctrine of Christian discovery.
In fact, the McGirt decision explicitly upheld US domination of Indigenous peoples, saying:
“This Court long ago held that the Legislature [Congress] wields significant constitutional authority when it comes to tribal relations, possessing even the authority to breach its own promises and treaties.”
The decision quoted from the 1903 case of Lone Wolf v. Hitchcock, which used the Christian discovery claim of land ownership to define US “plenary power” over Indigenous peoples:
“The right which the Indians held was only that of occupancy. The fee [title] was in the United States… Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning…” [emphasis added]
Lone Wolf v. Hitchcock, 187 U.S. 553, 565, 23 S. Ct. 216, 221, 47 L. Ed. 299 (1903)
https://supreme.justia.com/cases/federal/us/187/553/
The truth of the matter is that US law has never acknowledged the independent land ownership of Indigenous nations and peoples. Both Castro-Huerta and McGirt are based on the Christian discovery claim of US ownership of Indigenous lands. As McGirtconcluded:
“Congress remains free to [make decisions] about the lands in question at any time. It has no shortage of tools at its disposal.”
Misunderstanding law is not unusual, especially in popular journalism. The problem is acute, however, when the issues involve Indigenous rights, and the writer is supportive of those rights. The writer’s desire to find a sliver of hope in the thicket of US federal anti-Indian law provokes misreading of court decisions that in fact do not support Indigenous rights. The result is a failure of analysis and a fogging of readers’ understanding.
The major theme of the article in The Nation is “land back”—a movement to restore some type of Indigenous peoples’ control over their ancestral lands. The writers are clear that the nature of that control has been only vaguely defined; they say:
“There is ambiguity on the side of the United States and state governments over whether the land returned to Indigenous nations becomes sovereign or simply self-ruled, which would imply the grant of autonomy could be withdrawn by the entity that granted it.”
This ambiguity is shared by many proponents of “land back” because they do not understand the root legal issue—the US claim of land title. This is a widespread misconception.
The key point to understand about “land back” is that true restoration of Indigenous ownership goes beyond a notion of “stewardship” under the US property law system. The issue is not “giving land back,” but decolonizing the land. As Jake Edwards (Onondaga) said, the land never went anywhere; it is still here, as are many Indigenous peoples who are rightful owners of the land. “Land back” means nothing if “Christian discovery” is still valid property law.
As I explain in my book, Federal Anti-Indian Law: The Legal Entrapment of Indigenous Peoples (Praeger, 2022), the doctrine of “Christian discovery” underpins the entire edifice of US laws regarding Indigenous land rights. It is so basic to US law that even supposedly positive decisions, like McGirt, rely on it!
“Land Back” will achieve real success only when the depths of land rights legal issues are fully understood. Lack of clarity, especially if it is coupled with wishful thinking about Supreme Court and other decisions, makes for a lot of hoopla, but it fails to take us further along the path to Indigenous sovereignty in an international framework.
AFTERNOON BUZZ: Attorney Buz Eisenberg interviews Peter d’Errico to discuss his new book, Federal Anti-Indian Law: The Legal Entrapment of Indigenous Peoples *, and American Indian Heritage Month.
WHMP Radio: 101.5fm / 1240am / 1400am / WRSI-HD2 — Amherst, Northampton, and Greenfield, Massachusetts
The issue in the Brackeen case is whether the Indian Child Welfare Act (ICWA) is constitutional. Some observers are fearful the Supreme Court will use the case to attack the notion of “tribal sovereignty” by applying “race theory” to characterize Indigenous peoples, in contrast to an approach that sees Indigenous peoples as “political” entities quasi-separate from the US. A racial approach would collapse Native peoples into groups of Native persons within the US polity.
The effort to bring about a collapse of Indigenous independent existence has been long underway. Indeed, this effort begins with the first Supreme Court decisions in the field — the so-called “Marshall trilogy,” named after the chief justice who authored the opinions. A doctrinal matrix of federal anti-Indian law domination was laid down in these three early nineteenth-century cases.
The decisions may be restated succinctly: In Johnson v. McIntosh, the court adopted the fifteenth-century doctrine of “Christian discovery” and declared that the United States holds title to all Native lands. It said that the Natives themselves are merely occupants. In Cherokee Nation v. State of Georgia, the court built on the Johnson decision to define Native Nations as “wards” under the control of a US “guardian”. It denied that Native Nations have an international status. In Worcester v. Georgia, the court capped the previous two decisions with an assertion that the federal government has supreme power vis-a-vis the states over Native lands and peoples. It defined a domain of “internal affairs” of Native nations for “their self-government so far as respected themselves only” under “exclusive” federal control of lands.
These three decisions continue to be cited in “federal Indian law” cases at all levels of the U.S. judicial system. Their anti-Indian orientations are, however, submerged in widespread wishful thinking that John Marshall somehow crafted a set of doctrines to “protect” Indigenous peoples against the US by declaring the US a “trustee” for them. As I make clear in my recent book: Federal Anti-Indian Law: The Legal Entrapment of Indigenous Peoples (Praeger – ABC-CLIO, 2002), the so-called “trust doctrine” is a perversion of normal trust law. It operates as a massive “exception” to the ordinary rules governing trust relationships. “Exception” in fact characterizes all the doctrines in the field.
The fracturing of the Fifth Circuit Court of Appeals in its effort to decide Brakeen in 2021 demonstrates the deep confusion and contradiction (some say schizophrenia) that characterize the application of these fundamentally anti-Indigenous doctrines in their disguise as “federal protection”.
Sixteen circuit judges, two short of the entire bench, issued a total of 325 pages of conflicting and overlapping opinions trying to decide a case about the constitutionality of the Indian Child Welfare Act and the validity of implementing regulations promulgated by the Bureau of Indian Affairs. A narrow area of agreement produced an en banc majority for a limited range of issues, beyond which was judicial chaos. The chaos is demonstrated by a list of how the judges divided along the two principal opinions.
Judge Dennis’ opinion said:
…ICWA also falls within Congress’s “plenary powers to legislate on the problems of Indians” in order to fulfill its enduring trust obligations to the tribes. …Indeed, the congressional findings in the statute expressly invoke this “responsibility for the protection and preservation of Indian tribes and their resources” and state “that the United States has a direct interest, as trustee, in protecting Indian children.” …. The law was intended to combat an evil threatening the very existence of tribal communities, and it would be difficult to conceive of federal legislation that is more clearly aimed at the Government’s enduring trust obligations to the tribes. Moreover, it fulfills the government’s duty to protect the tribes from the states by regulating relations between the two—a power that the Framers specifically intended that the Constitution bestow on the federal government….(“The central policy … was one of separating Indians and non-Indians and subjecting nearly all interaction between the two groups to federal control.”)
Brackeen v. Haaland, 994 F.3d 249, 305–06 (5th Cir. 2021), cert. granted sub nom. Nation v. Brackeen, 212 L. Ed. 2d 215, 142 S. Ct. 1204 (2022), and cert. granted, 212 L. Ed. 2d 215, 142 S. Ct. 1205 (2022), and cert. granted sub nom. Texas v. Haaland, 212 L. Ed. 2d 215, 142 S. Ct. 1205 (2022), and cert. granted, 212 L. Ed. 2d 215, 142 S. Ct. 1205 (2022)
Judge Duncan’s opinion said:
…the question before us… is whether Congress may use its Indian affairs power to regulate a state’s own child-custody proceedings. As already observed, the fact that Congress’s power goes beyond regulating tribal trade begs the question whether it allows Congress to regulate state governments. Also beside the point is the fact that Congress’s power was intended to exclude state authority over tribes. This prevented states from, for instance, nullifying federal treaties securing Indian lands. That evidence would be relevant if the issue were whether ICWA could exclude state courts from adoptions involving tribe members. … But ICWA presents the opposite scenario: it seeks to force federal and tribal standards into state proceedings. Amici point us to no founding-era evidence even suggesting Congress thought its Indian affairs power extended that far. The most pertinent example of Indian legislation from the first Congress—the Trade and Intercourse Act—addresses various aspects of the federal government’s relationship with Indians. It says nothing about regulating a state’s own proceedings that involve Indians.
Brackeen v. Haaland, 994 F.3d 249, 385–86 (5th Cir. 2021), cert. granted sub nom. Nation v. Brackeen, 212 L. Ed. 2d 215, 142 S. Ct. 1204 (2022), and cert. granted, 212 L. Ed. 2d 215, 142 S. Ct. 1205 (2022), and cert. granted sub nom. Texas v. Haaland, 212 L. Ed. 2d 215, 142 S. Ct. 1205 (2022), and cert. granted, 212 L. Ed. 2d 215, 142 S. Ct. 1205 (2022)
Neither of these opinions garnered a majority. As I discuss in my book, the splits among the judges is a sign of deep crisis (and chaos) in the field. Following is the breakdown of joinders for the two principal opinions; once you see the crazy-quilt of intersecting legal arguments and doctrines, feel free to skip ahead:
Joinders to the Dennis opinion:
James L. Dennis, Circuit Judge; Judges Stewart and Graves join this opinion in full. Judges Wiener, Higginson, and Costa join all except Discussion Part I.A.2 (standing to bring equal protection claims other than the challenges to 25 U.S.C. §§ 1913-14).
Chief Judge Owen joins Discussion Parts I.A.1 (standing to challenge §§ 1913-14), I.C (standing to bring anticommandeering claims), II.A.2.a.1 (anticommandeering challenge to §§ 1912(e)-(f) and 1915(a)-(b) as they pertain to state courts), and II.C (nondelegation). She further joins Discussion Part I.D (standing to bring nondelegation claim) except as to the final sentence. See infra Owen, Chief Judge, Op.
Judge Southwick joins Discussion Parts I.A.1 (standing to challenge §§ 1913-14), II.A.1 (Congress’s Article I authority), II.B (equal protection), and II.C (nondelegation). He further joins in-part Discussion Parts II.A.2 (anticommandeering) and II.D (APA challenge to the Final Rule), disagreeing to the extent the analyses pertains to § 1912(d)-(f) and the regulations that implement those provisions.
Judge Haynes has expressed her partial concurrence in her separate opinion. See infra Haynes, Circuit Judge, Op.
Joinders to the Duncan opinion:
Stuart Kyle Duncan, Circuit Judge; Judges Smith, Elrod, Willett, Engelhardt, and Oldham join Judge Duncan’s opinion in full. Judge Jones joins all except Parts III(A)(2) (equal protection as to “Indian child”) and that portion of Part III(B)(2)(a) concerning preemption by the appointed counsel provision in 25 U.S.C. § 1912(d).
Chief Judge Owen joins Part III(B) (anti-commandeering/preemption) and Part III(D)(3) (“good cause” standard in 25 C.F.R. § 23.132(b) violates APA). See infra Owen, C.J., concurring in part and dissenting in part.
Judge Southwick joins Parts III(B)(1)(a)(i)–(ii) (anti-commandeering as to § 1912(d)–(f)); Part III(B)(2)(a) (preemption); Part III(B)(2)(b) (in part) (no preemption, only as to § 1912(d)–(f)); Part III(B)(2)(c) (in part) (preemption, except as to the discussion of § 1951(a)); and Part III(D)(1) (in part) (Final Rule violates APA to extent it implements § 1912(d)–(f)).
Judge Haynes joins Part I (standing); Part III(A)(3) (equal protection as to “other Indian families”); Parts III(B)(1)(a)(i), III(B)(1)(a)(iv), III(B)(1)(a)(ii) (in part), III(B)(1)(b) (in part), and III(B)(2)(b) (in part) (anti-commandeering/preemption as to §§ 1912(d)–(e) and 1915(e)); Part III(D)(1) (in part) (Final Rule violates APA to extent it implements provisions found unconstitutional in those portions of Parts III(A) and (B) that Judge Haynes joins); and Part III(D)(3) (“good cause” standard in 25 C.F.R. § 23.132(b) fails at Chevron step one). See infra Haynes, J., concurring.
As to what the Supreme Court may do in Brackeen, my book discusses a 5th amendment theory they might use to say that ICWA is “not tied rationally” to Congress’ “unique obligation toward the Indians”:
In United States v. Alcea Band of Tillamooks (1946), the Court said, “The power of Congress over Indian affairs may be of a plenary nature but it is not absolute.” That line was quoted in Delaware Tribal Business Committee v. Weeks (1977), when the Court said that it would “scrutiniz[e] Indian legislation to determine whether it violates the equal protection component of the Fifth Amendment.”
As Robert Miller put it, the Delaware Tribal Business decision called for “the lowest level of judicial constitutional review—rational basis review.” He added, “Notwithstanding that level of judicial review . . . no act of Congress has ever been overturned for exceeding its plenary power in the Indian law arena.” {Robert J. Miller, “The Doctrine of Discovery in American Indian Law,” Idaho Law Review 42, no. 1 (2005): 105.} This is not surprising because, to the extent that the Alcea language survived …, the Delaware Tribal Business decision made clear that the supposed constitutional limit on plenary power, the “special treatment” of Native peoples, is tied to the plenary power exception itself—“Congress’ unique obligations”!
Federal Anti-Indian Law, p. 82.
Using the Delaware Tribal Business language in Bracken would limit the supposed ‘plenary power’ of Congress not as against ’tribes,’ but as against states in relation to tribes. This is complex, but certainly no more so than other convolutions that make up the field.
If the Supreme Court does dive into race theories in Brackeen rather than limiting itself to a discussion of the extent of ‘plenary power’, the decision may finally break the illusion in the field that ’trust doctrine’ means anything other than a mask for the federal domination of Indigenous peoples. That could have a salutary effect equivalent to Thurgood Marshall’s realization that “separate but equal” was a malicious doctrine, not designed for “the promotion of … comfort and the preservation of the public peace and good order,” as it was characterized in Plessy v. Ferguson.
A comparable realization of the maliciousness of federal anti-Indian law will support challenges to “plenary power,” “trust,” and related doctrines rooted in the doctrine of “Christian discovery” established in the Marshall trilogy. Such challenges have been made. The 2019 Yakama Nation amicus brief in Washington State Department of Licensing v. Cougar Den, Inc., is a major example. The Yakama attacked the Christian discovery premise of federal anti-Indian law that underlay Washington’s position and was also defended by the United States in an amicus on behalf of the state. (So much for the “trust” relationship!) The Yakama brief said that Washington’s legal arguments were based on “the religious, racist, genocidal, fabricated doctrine of Christian discovery”:
Under that doctrine, this Court judicially manufactured an extra-constitutional congressional plenary authority to abrogate treaties and regulate Native Nations. This manufactured authority rests on the false assertion that our sovereignty and free and independent existence were “necessarily diminished” upon Christian European arrival on the North American continent [as stated in] Johnson v. McIntosh. . . . For nearly two centuries this Court has dehumanized original, free, and independent Nations and Peoples by issuing decisions and using language consistent with the doctrine’s religious and racist foundations—e.g., red man, uncivilized, barbarous, ignorant, unlearned, non-Christians, heathens, savages, infidels—all in an effort to manufacture a legal basis for the physical and cultural genocide of Native Peoples.
Brief of Amicus Curiae, Confederated Tribes and Bands of the Yakama Nation in Support of Respondent, Washington State Department of Licensing v. Cougar Den, Inc., 139 S. Ct. 1000, 2018 WL 4739661, at *5–6
The Yakama then offered the Supreme Court an “opportunity to repudiate the doctrine of Christian discovery.” They pointed out the fact that other “troubling decisions throughout history have . . . been repudiated,” as occurred with the “separate but equal” doctrine. They called on the court “to repudiate the doctrine of discovery . . . in this case and all future cases.”
The Supreme Court ruled for Cougar Den under the Yakama Treaty. It rejected the state and US arguments in two separate opinions: one by Justice Stephen Breyer (joined by Justices Sonia Sotomayor and Elena Kagan) and another by Justice Gorsuch (joined by Justice Ruth Bader Ginsburg). Both opinions cited the Yakama amicus brief to clarify the meaning of the 1855 treaty but neither opinion discussed the Christian discovery question. In fact, even the dissenting justices avoided talking about Christian discovery, focusing on treaty language instead.
The Brackeen case is a significant moment in the development of federal anti-Indian law. However the court decides it, we would do well to take stock of the relationship between Indigenous peoples and the US and seek a way forward that does not rest on and arise from colonial domination disguised as “protection”.
“Indian Law Turf Wars: Contesting Native Lands and History” : “Indigenous Perspectives” Monthly Broadcast on HealthyLife.Net, # 23– October 27, 2022. **
FOR AUDIO PODCAST: http://www.ecologia.org/news/23.IndianLawTurfWars.mp3 (58 min)
PDF TRANSCRIPT : “23.IndianLawTurfWars” – available from: https://www.researchgate.net/publication/364949987_23IndianLawTurfWars [accessed Nov 03 2022].
* Federal Anti-Indian Law: The Legal Entrapment of Indigenous Peoples, by Peter d’Errico. Praeger, 2022. https://www.abc-clio.com/products/a6462c/
** This a part of ECOLOGIA‘s Native American and Indigenous Paths to Environmental Resilience program and one of several podcasts and print transcripts focused on the challenges to and emerging opportunities for indigenous people to take control of environmental affairs on their own lands and on contested lands.
In August 2019, Siobhan Leddy wrote a thoughtful little essay, “We should all be reading more Ursula Le Guin.” She said, “Her novels imagine other worlds, but her theory of fiction can help us better live in this one.” Here’s a quote:
“The Carrier Bag Theory of Fiction,” an essay Le Guin wrote in 1986, disputes the idea that the spear was the earliest human tool, proposing that it was actually the receptacle. Questioning the spear’s phallic, murderous logic, instead Le Guin tells the story of the carrier bag, the sling, the shell, or the gourd. In this empty vessel, early humans could carry more than can be held in the hand and, therefore, gather food for later. Anyone who consistently forgets to bring their tote bag to the supermarket knows how significant this is. And besides, Le Guin writes, the idea that the spear came before the vessel doesn’t even make sense. “Sixty-five to eighty percent of what human beings ate in those regions in Paleolithic, Neolithic, and prehistoric times was gathered; only in the extreme Arctic was meat the staple food.” Not only is the carrier bag theory plausible, it also does meaningful ideological work — shifting the way we look at humanity’s foundations from a narrative of domination to one of gathering, holding, and sharing.
Yes, LeGuin is an important writer! I’ve read a lot of her books and in every one found a deep understanding of life as well as a good story that teaches lessons. She seamlessly weaves anthropology and science fiction into perspectives that shed light on history, politics, economics, enlivening those staid and sometimes pompous disciplines.
But let me pick a few nits with Leddy. Well, not exactly nits, because I think they are of some significance to understanding LeGuin and her relevance to Leddy’s project.
While, in reality, most meaningful social change is the result of collective action, we aren’t very good at recounting such a diffusely distributed account. The meetings, the fundraising, the careful and drawn-out negotiations — they’re so boring! Who wants to watch a movie about a four-hour meeting between community stakeholders?
No wonder she says it’s boring: “Stakeholder” washes out the juice and truth of “collective action”. The OED ties ’stakeholder’ to money, finance, and business: “A person, company, etc., with a concern or (esp. financial) interest in ensuring the success of an organization, business, system, etc.”; “An independent person or organization with whom money is deposited, esp. when a number of people make a bet or other financial transaction.” These are not the dynamics of a community.
See Vine Deloria, God is Red, describing American towns: “Very few political subdivisions are in fact communities. They are rather transitory locations for the temporary existence of wage earners.”? ’Stakeholders’ appropriately describes residents in such places, but not in the communities imagined by LeGuin.
The carrier bag gatherer, meanwhile, is no lone genius (genius being its own kind of heroism, after all), but rather someone rooted in a shared existence.
We will not “beat” climate change, nor is “nature” our adversary. If the planet could be considered a container for all life, in which everything — plants, animals, humans — are all held together, then to attempt domination becomes a self-defeating act. By letting ourselves “become part of the killer story,” writes Le Guin, “we may get finished along with it.” All of which is to say: we have to abandon the old story.
But as for ‘abandoning the old story,’ I think people will only be able to do that when they see that the ‘killer story’ has abandoned them, turned on them, come to its logical conclusion. The killer story includes the reduction of ‘community’ to ‘stake-holding’; notice the examples from the OED, where the dominator actors promote ’stake holding’ as a ‘new’ story:
stakeholder economy n. originally British Politics an economy regarded or conceived of as giving all members of society a stake in its success.
1994 W. Hutton in Guardian 31 Oct. 10/5 Instead of the winner-take-all economy and polity, the aim should be a stakeholder economy and polity in which all have an interest.
1996 Daily Tel. 8 Jan. 4/1 Tony Blair will today begin to map out the main themes of Labour’s campaign pitch for the next general election. He promises to develop a ‘stakeholder economy’ in which everyone can participate.
2003 New Straits Times (Malaysia) (Nexis) 13 Mar. 12 This will encourage more participation and, consequently, move the country closer to a stakeholder economy.
P.S. You can read “The Carrier Bag Theory of Fiction” courtesy of The Anarchist Library, at https://theanarchistlibrary.org/library/ursula-k-le-guin-the-carrier-bag-theory-of-fiction.muse
September 27, 2022, Praeger, ABC-CLIO
Hardcover: 978-1-4408-7921-0
eBook Available: 978-1-4408-7922-7
In 2020, in McGirt v. Oklahoma Justice Neil Gorsuch said Congress has “authority to breach its own promises and treaties” with Native nations based on “Christian discovery” precedents.
Telling the crucial and under-studied story of the U.S. legal doctrines that underpin the dispossession and domination of Indigenous peoples, this book intends to enhance global Indigenous movements for self-determination.
In this wide-ranging historical study of federal Indian law—the field of U.S. law related to Native peoples—attorney and educator Peter P. d’Errico argues that the U.S. government’s assertion of absolute prerogative and unlimited authority over Native peoples and their lands is actually a suspension of law.
Combining a deep theoretical analysis of the law with a historical examination of its roots in Christian civilization, d’Errico presents a close reading of foundational legal cases and raises the possibility of revoking the doctrine of domination. The book’s larger context is the increasing frequency of Indigenous conflicts with nation-states around the world as ecological crises caused by industrial extraction impinge drastically on Indigenous peoples’ existences. D’Errico’s goal is to rethink the role of law in the global order—to imagine an Indigenous nomos of the earth, an order arising from peoples and places rather than the existing hegemony of states.
Features:
“Federal Anti-Indian Law is a gut-wrenching analysis. My whole career grappled with the contradictions d’Errico illuminates and dissects. One finally comes to understand Louise Erdrich’s rotten noodles metaphor for U.S. laws that dominate Indigenous Peoples.” —Sarah W. Barlow, Retired Attorney, Albuquerque, NM
“In this ground-breaking work, d’Errico launches a frontal attack on the whole field of American law pertaining to Indigenous Peoples. He exposes not only the racism, but also the Christian discovery roots of federal domination of the Indian nations, and then goes beyond criticism, offering a way out of this unacceptable situation. This book is a must-read for anyone wanting to understand American history and the questionable basis for U.S. sovereignty.” —Kent McNeil, Distinguished Research Professor (Emeritus), Osgoode Hall Law School, York University, Toronto, Canada
“This book covers an enormous area of historical and modern-day federal Indian law, which the author calls ANTI-Indian law. Like an iconoclast in the truest sense of the word, d’Errico attacks the colonial foundations of Indian law and challenges professors, historians, Indian nations’ leaders, and tribal attorneys to stop relying on Supreme Court case law that is built on disastrous premises and instead to resist and reverse these foundational principles.”—Robert James Miller, Professor, Sandra Day O’Connor College of Law at Arizona State University
“Federal Anti-Indian Law provides a significant contribution in establishing a proper context in which to engage in the exercise of identity. Governmental representation at all levels, academia at all levels, and anyone who ‘cares’ about the Original Free Nations and Peoples of this land should have a better understanding of who these nations and peoples are and where they come from. ‘Where are we all going?’ is the real question. This book represents a contribution of the type of ‘truthful’ and ‘respectful’ communication that is absolutely necessary to know where the future will collectively lead us.” —JoDe Goudy (Yakama Nation), Owner, Redthought.org
“Federal Anti-Indian Law is a paradigm-shattering work. Professor d’Errico has spent decades teaching, studying, and reflecting upon the system of ideas the U.S. government has used to establish its claim of a right of domination over the original nations and peoples of the continent.” —Steven T. Newcomb, Director, Indigenous Law Institute, and author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery
“Many Americans have never heard of the Christian Doctrine of Discovery or understood how the federal government retains nearly unlimited authority over Native lands and nations. Professor d’Errico explains how, even today, Indigenous Peoples in the United States live under an ‘exception’ to U.S. law—an eye-opening revelation for many readers. Federal Anti-Indian Law is an accessible read that reveals the interplay of law with history and should not be limited to legal classrooms—it’s an important and enlightening book for all people, Indigenous and non-Indigenous alike.”—Robert Maxim II (Mashpee Wampanoag), Senior Research Associate, Brookings Institution
“Covering nearly every influential legislative act, legal decision, and federal policy, Peter d’Errico does not take a ‘bird’s eye view’ of U.S. Indian law, but brings us down to the ground, revealing a vast, long, and lucid view of the quagmire of ‘anti-Indian law,’ a system designed to dispossess and dominate, which rests on the ancient foundation of the Christian doctrine of discovery. Under his acute analysis, and with engaged storytelling, the shaky foundation beneath the system gives way, opening more sustainable paths to a just future.”—Lisa Brooks, Henry S.Poler ’59 Presidential Teaching Professor of English and American Studies, Amherst College; Author of Our Beloved Kin: A New History of King Philip’s War
Peter d’Errico, JD (LLB) is professor emeritus of legal studies at the University of Massachusetts at Amherst, where he has taught for more than 30 years. He is a member of the New Mexico Bar and was staff attorney at Dinébe’iiná Náhii?na be Agha’diit’ahii (Navajo Legal Services). He has litigated Indigenous land and fishing rights as well as Native spiritual freedom rights in prisons, and he consulted of-counsel in other Native cases. He is a regular presenter of online seminars about Indigenous peoples’ legal issues at Redthought.org and elsewhere, including National Endowment for the Humanities Summer Institutes for Teachers on “Teaching Native American Histories.”
In Praise of Liberty and Mutual Aid: A short review of The Dawn of Everything: A New History of Humanity, by David Graeber and David Wengrow (Farrar, Strauss, and Giroux, 2021).
By Peter d’Errico *
The Dawn of Everything, a “new history of humanity” by David Graeber and David Wengrow, an anthropology and archaeology research team, joins a burgeoning global awareness that life on Earth is in social and ecological crisis and that the crisis is tied to the system of industrial state corporate society. The book’s contribution is to help us understand why we are having a difficult time figuring a way out of the mess. The reason, they say, is that our thinking is trapped by belief in the story that modern corporate state society is the end state of human evolution, the inevitable result of “progress” from “barbarism” to “civilization.” The obstacle to thinking of alternatives to the current organization of society is a belief that there is no alternative to this organization.
This belief dominates received opinion. Francis Fukuyama, in the heady days of US self-congratulation after the collapse of the Soviet Union, said we are at the “end of history.” Recently, even as ecological data confirmed that the current social system is problematic, Jared Diamond persists in promoting the view that it is “unrealistic,” because of “biogeographical” factors, to expect to live without “kings, presidents, and bureaucrats” except in “some tiny band or tribe.” He insists on this limiting view even though the event he presumes caused the dilemma, the so-called “agricultural revolution,” is “the worst mistake in the history of the human race.” If we believe received wisdom, we can only conclude there is no way out of a world out of balance.
Speaking of Fukuyama and Diamond, Graeber and Wengrow say, “The truly remarkable thing is that, despite the self-assured tone, such pronouncements are not actually based on any kind of scientific evidence…. There is simply no reason to believe that small-scale groups are especially likely to be egalitarian—or, conversely, that large ones must necessarily have kings, presidents or even bureaucracies.” Notions of a “necessary” human evolution from small-scale egalitarian to large-scale hierarchical societies “are just so many prejudices dressed up as facts, or…laws of history.”
The Dawn of Everything is a riposte to received wisdom. But The Dawn is not a polemic. It is a detailed survey of scientific data about ancient human civilizations from archaeological and anthropological investigations that have only recently become possible (archaeobotany, DNA analysis, “statistical frequencies of health indicators from ancient burials,” etc.). The conclusions they draw from this data are directed against all stories of irreversible historical inevitability, those derived from Rousseau’s notion of an original human egalitarianism ruined by the “agricultural revolution” and those tied to Hobbes’s proposition of an original “nasty, brutish” humanity rescued by “sovereign government.” The Dawn rejects both versions on the grounds that they “simply aren’t true; have dire political implications; [and] make the past needlessly dull.”
These three analytical categories shape the authors’ overall approach and tone of the book: First, occupying the greatest portion of the book, is the scientific data; second are discussions of political implications of various readings of history; third are speculations aimed to enliven our “sense of human possibility.” The authors suggest that our “future now hinges on our capacity to create something different” and they ask a question to motivate readers through the nearly 700 pages of text: “What if, instead of …[repeating the conventional story], we ask how we came to be trapped in such tight conceptual shackles that we can no longer even imagine the possibility of reinventing ourselves?”
?
The book’s opening salvo is, “Most people rarely think about the broad sweep of human history anyway.” The authors then declare their intention to go where most people don’t go, to take up “the sort of grand dialogue about human history that was once quite common.” In fact, as the authors quickly make clear, lots of people do talk about human history, “from industrial psychologists to revolutionary theorists…[to] popular writers.” The problem, they say, is that the talk generally shares the same “foundational story… the prevalent ‘big picture’ of history [that]…has almost nothing to do with the facts.” They embark on the task of backing up their assertion by exposing the ethnographic and historical assumptions incorporated into the dominant story of human evolution to state-of-the-art scientific work. The result, they promise, will not simply be a catalog of new data, but “a conceptual shift” in thinking about the “notion of social evolution,” a shift “retracing…the idea that human societies could be arranged according to stages of development…hunter-gatherers, farmers, urban-industrial society, and so on.”
Ursula Le Guin [“Books Aren’t Just Commodities” (National Book Awards Speech, 2014)] also reminded us of human possibility and the power of conceptual shifts to motivate historical change: “We live in capitalism, its power seems inescapable – but then, so did the divine right of kings. Any human power can be resisted and changed by human beings. Resistance and change often begin in art. Very often in our art, the art of words.”
?
I approached The Dawn of Everything with a view to bolster my own work studying Indigenous peoples’ legal issues, a field I’ve been working for more than 50 years. From that perspective, rooted in scholarly study and personal experience, I long ago realized the falsity of the Anglo-European proclamation of civilizational superiority. I wasn’t looking for “proof” that Indigenous peoples of the past built sophisticated societies and grappled with complicated social problems. I understood that Indigenous perspectives about human society today offer valuable alternatives to the political economy of industrial extraction and “wealth production.” I knew Rousseau’s “noble savage” and Hobbes’s “brute” were efforts to bracket and come to terms with evidence of alternative modes of human existence from the “New World.” I had already done what Graeber and Wengrow decide to do: “To move away from European thinkers like Rousseau entirely and instead consider perspectives that derive from those indigenous thinkers who ultimately inspired them.”
The authors’ core thesis is that the story of a “necessary” human evolution from “barbaric tribes” to “civilized states” was produced by European writers to rationalize the great differences between their societies and the societies “discovered” in the “New World.” The Dawn refers to this process as Europeans responding to the “Indigenous critique,” ideas put forward by Indigenous people criticizing European Christian civilization. The most significant reports of the Indigenous critique were provided by Jesuits and other missionaries in the Northeast Woodlands region: That Native peoples are very generous with one another, that there’s no one who goes hungry within their communities unless everyone is hungry, that there are no beggars within their communities and no jails. The reports also noted that Indigenous chiefs only have authority in as far as they’re eloquent, and that no one will do anything when ordered to do so unless they find it agreeable. Scandalized missionaries reported that Indigenous women had full control over their bodies; colonial authorities noted that women often took part in Indigenous governance.
Public figures in Europe directly encountered the Indigenous critique from Natives visiting Paris, London, and other cities, who saw beggars in the streets and attributed this to a lack of charity on the part of the Europeans, condemning them for it. The contrasts between European hierarchy and domination, selfishness and greed, and the way of life of Indigenous peoples had a profound impact in Western thinking and was one of the major streams of thought flowing into the Enlightenment.
In a nutshell, The Dawn of Everything says the theory of human evolution from “barbarism to civilization” was developed specifically to defend European feudal societies against the overall Indigenous critique. Europeans were shaken by the unmistakable openness and fluidity of Northeast Woodlands Indigenous societies and the paradoxical (to Europeans) combination of Indigenous insistence on individual autonomy with an equally strong insistence on group solidarity. The central theme of the European arguments was that individual autonomy and self-determined group cohesion were viable only among “primitive” peoples and had to be abandoned as humans “evolved.” Followers of Rousseau and Hobbes alike argued that “advanced civilization” was “necessary” in human “development” and that the life of “tribes” was doomed by this necessary “progress.”
The Dawn notes that Europeans did not perceive such dangerous ideas from the Aztec and Inca, whose urban civilizations and empires rivalled Europe. Neither did they bother to figure out how their theory of “human progress” could explain such “advanced” Indigenous societies. The only explanation they needed to combat such peoples was the “heathen and infidel” argument that, with religious notes, also composed a hierarchical scale putting European Christendom at the top.
The eventual outgrowth of European defense against the Indigenous critique produced a combination of “human evolution” and the doctrine of a “right of Christian discovery,” a combination adopted into US law in 1823 by the Supreme Court decision in Johnson v. McIntosh. Justice Joseph Story [Commentaries on the Constitution of the United States (1833)] characterized that decision as “…the title of the Indians was not treated as a right of propriety and dominion; but as a mere right of occupancy. As infidels, heathen, and savages, they were not allowed to possess the prerogatives belonging to absolute, sovereign and independent nations. … The territory, over which they wandered, and which they used for their temporary and fugitive purposes, was, in respect to Christians, deemed, as if it were inhabited only by brute animals.” (Not surprisingly, “Christian discovery” originated as a Portuguese “right” to the African slave trade in 1452.)
That doctrine and the “evolution” story remain dominant at the legal foundation of contemporary US claims of inevitable supremacy. Recent examples include City of Sherrill v. Oneida Nation (2005), where Justice Ruth Bader Ginsburg said: “Under the ‘doctrine of discovery,’ …fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign—first the discovering European nation and later the original States and the United States….” [she denied Oneida land ownership]; and McGirt v. Oklahoma (2020), where Justice Neil Gorsuch said Congress has “authority to breach its own promises and treaties” with Native nations, based on “Christian discovery” precedents [he said Congress had not done this yet with the Creek Nation, but “remains free to …[do so] at any time”].
Indigenous critique also persists in the 21st century, including: Idle No More (founded 2012)— Led by women, with a call for “refounded nation-to-nation relations… a movement for Indigenous rights and the protection of land, water, and sky”; Independent Lakota Nation Declaration on Lakota Nationhood and the Dakota Access Pipeline Conflict (2016)— “We do not recognize United States or state permits to gather, pray, or otherwise demonstrate our cultural, social, and political institutions on our own aboriginal lands”; Yakama Nation amicus in Washington State v. Cougar Den (2018)—”The Court should expressly repudiate the doctrine [of Christian discovery] and instead rely on the Yakama Treaty”; Manoomin, et.al., v. Minnesota Department of Natural Resources, et.al. (Case No. GC21-0428 in White Earth Tribal Court, 2021)—”an action for declaratory and injunctive relief to declare Manoomin, or wild rice, within all the Chippewa ceded territories is protected and possesses inherent rights to exist, flourish, regenerate, and evolve, as well as inherent rights to restoration, recovery, and preservation.”
In short, the 16th century dynamic cited at the core of The Dawn remains active in the 21st century, providing global humanity with the same opportunity and challenge that faced Christian European colonial powers: to shape human societies harmoniously and sustainably.
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Even as apparently “simple” Indigenous societies befuddled and disturbed European intellectuals, they attracted on-the-ground colonists. James Axtell [The Invasion within: The Contest of Cultures in Colonial North America (1985)] summarizes what colonists said about their experiences living among Native peoples: “They found Indian life to express a strong sense of community, abundant love, and uncommon integrity…[as well as] social equality, mobility, adventure…the most perfect freedom, … ease of living, the absence of…corroding solicitudes….”
The record of contacts between colonial invaders and Native peoples illustrates what Axtell and The Dawn say: The Puritans, for example, were embarrassed by the fact so many of their kind fled to the “Indians,” while so few Natives wanted to adopt the Puritan world. Sebastian Junger [Tribe: On Homecoming and Belonging (2016)], like Graeber and Wengrow, quotes Benjamin Franklin bemoaning that white captives “liberated from the Indians” and returned to “stay among the English…take the first good opportunity of escaping again” to their Native communities. On the other hand, Franklin said, “When an Indian child has been brought up among us…if he goes to see his relations…there is no persuading him ever to return.” Junger recounted that when Colonel Henri Bouquet, a Swiss mercenary under British General Jeffrey Amherst, attacked Odawa Chief Pontiac’s forces (after delivering smallpox-infected blankets to Fort Pitt [see d’Errico, “Amherst and Smallpox” http://people.umass.edu/derrico/amherst/lord_jeff.html (2001, 2020)]) and demanded return of white captives, Native families had to bind those people and forcibly bring them in. Many later escaped and returned to their Native communities.
Junger, echoing Axtell, says colonials gravitated to the “intensely communal nature” of Indian life: Not only the “rough frontiersmen,” as he puts it, but also “the sons and daughters of Europe” were drawn to the natural sociability of Indian life, even as against “the material benefits of Western civilization.” He quotes French immigrant writer Hector Saint John de Crèvecoeur, saying, “Thousands of Europeans are Indians, and we have no examples of even one of those Aborigines having from choice become European. There must be in their social bond something singularly captivating and far superior to anything to be boasted of among us.”
Graeber and Wengrow launch their book against this background: “Revisiting [the encounters of Indigenous peoples and Europeans]…has startling implications for how we make sense of the past today, including the origins of farming, property, cities, democracy, slavery and civilization itself.” They suggest that “The ultimate question of human history…is not our equal access to material resources…, much though these things are obviously important, but our equal capacity to contribute to decisions about how to live together.” Contemporary diatribes against “tribal politics” in the US have forgotten this long-existing perspective that “tribal” life is more humane than state civilization.
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European efforts to counter the Indigenous critique and neutralize its threat, combining the “human evolution” story and religious theory, ultimately merged into a field of “natural law,” a domain of thought explicitly triggered by debates about the moral and legal implications of European Christianity’s “discovery” of the “New World.” The core debate focused on the question: What “rights” do humans have even if they exist in a “state of nature” ignorant of “revealed religion”? The answer, generally, was that they have some rights, but that these are inferior to the rights of civilized (read, European Christian) humans.
The argument in Dawn only touches on the development of “international law” from these natural law origins. That history is told by Carl Schmitt [The Nomos of the Earth in the International Law of the Jus Publicum Europaeum(1950; trans. 2003)] and will be helpful to recap here: Schmitt says, “The traditional Eurocentric order of international law…arose from a legendary and unforeseen discovery of a new world…. The Age of Discovery, when the earth first was encompassed and measured by the global consciousness of European peoples…resulted in …a Eurocentric international law: the jus publicum Europaeum. …Its nomos was determined by the following divisions. The soil of non-Christian, heathen peoples was Christian missionary territory; it could be allocated by papal order to a Christian prince for a Christian mission. … European international law considered Christian nations to be the creators and representatives of an order applicable to the whole earth. The term ‘European’ meant the normal status that set the standard for the non-European part of the earth. Civilization was synonymous with European civilization. … The first question in international law was whether the lands of non-Christian, non-European peoples…were at such a low stage of civilization that they could become objects of organization by peoples at a higher stage.”
Schmitt has this to say when he focuses specifically on the claim of “a right of Christian discovery”: “The meaning of the legal title ‘discovery’ lay in an appeal to the historically higher position of the discoverer vis-à-vis the discovered. This position differed with respect to American Indians, and other non-Christian peoples, such as Arabs, Turks, and Jews…. From the standpoint of the discovered, discovery as such was never legal. Neither Columbus nor any other discoverer appeared with an entry visa issued by the discovered princes.”
In the same vein that Graeber and Wengrow decry the absence of questioning of all this, Schmitt says, “Jurists …have in view…only the system of a specific state legality. They are content to reject as ‘unjuridical’ the question of what processes established this order.”
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We might expect that The Dawn’s thesis will be rejected by many commentators. After all, contemporary edifices of power, whether in academia, media, corporations, or statehouses, is dependent on public belief in the inevitability of the edifice; more, a fear that the absence of the edifice would mean a loss of “quality of life.” Nevertheless, a quick rejection is not viable. Proper evaluation of the thesis requires engagement with nearly 700 pages of information from the most recent scientific work related to human history. I will point readers to the book itself for that task and close my review with a comment about anarchy, which some may assume must be the underlying philosophy of The Dawn, especially because Graeber was known as an anarchist.
The dominant story of “human evolution,” to which mass society and professional commentators seem equally wed, has no room for anarchism. Liberty and mutual aid are either gone forever or limited to their bureaucratic manifestations in the “welfare state.” Anything else is said to be wishful thinking, hopelessly naïve, even “anarchy.”
If it be anarchism to challenge the received (and celebrated) story of inevitable statist domination of human life, so be it. On the other hand, anarchism is not the same as anarchy. Specifically, anarchism is “a political theory advocating the abolition of hierarchical government and the organization of society on a voluntary, cooperative basis without recourse to force or compulsion”; anarchy is “a state of disorder due to absence or nonrecognition of authority or other controlling systems.” Anarchism not only comprehends social order but celebrates such order that arises from and is compatible with liberty and mutual aid. One need not be a Marxist to embrace these values; Friedrich Hayek did also. To explore the significance of that coincidence requires more than I can do here.
Suffice it to say, quoting Carl Schmitt again, “Anarchy is not the worst scenario. Anarchy and law are not mutually exclusive. The right of resistance and self-defense can be good law, whereas a series of statutes shattering every notion of resistance and self-defense, or a system of norms and sanctions suppressing anyone who proposes resistance and self-defense can presage a dreadful nihilistic destruction of all law.”
I have long been fond of a remark by Professor Grant Gilmore [The Ages of American Law (1977)], who, to my loss, left Yale Law School as I was entering, and I close with it:
“Law reflects, but in no sense determines the moral worth of a society…. The better the society, the less law there will be. In Heaven, there will be no law, and the lion will lie down with the lamb…. The worse the society, the more law there will be. In Hell, there will be nothing but law, and due process will be meticulously observed.”
Elizabeth Cassell’s The Terms of our Surrender: Colonialism, Dispossession and the Resistance of the Innu is a powerful, lucid exposition of relations among Indigenous peoples and states. She elucidates “euro-centric” concepts (e.g.: ‘wardship,’ ‘trust,’ ‘fiduciary,’ ‘public interest’) and legal processes that manipulate these concepts to undermine Indigenous existence. She illuminates the wide gap between colonialist and Indigenous worldviews, especially as to human-land relations (e.g.: not only to ‘own’ land but to ‘belong to’ land; to see nature as ‘other life forms’ rather than ‘resources’).
Her trenchant critique of arguments that rely on old notions of social hierarchies to declare the “rightness” of Crown claims of superiority —“barbarism, savagery, and civilization”— [Chapter 19, “Academic Solutions”] was written before the very recent publication of The Dawn of Everything [David Graeber and David Wengrow, November 2021]. That work, a compilation of the latest archaeological and anthropological evidence about ancient Indigenous societies, fully supports her critique, demonstrating the scientific untenability of the view of Indigenous societies as “lower” in complexity than European societies. As they put it, “To begin making sense of the new information [about the history of human societies] that’s now before our eyes, … a conceptual shift is…required.” [5] Cassell’s writing moves in that direction.
I want to take this occasion to explore a key element in her book: The argument that the Royal Proclamation of 1763 provides significant leverage for Indigenous peoples in legal contests with the Crown. It seems to me that unresolved ambiguity (which she acknowledges) about the meaning of the Proclamation undermines this argument. Cassell stresses throughout her work the availability of other arguments based on clearly Indigenous grounds—especially land ownership by prior possession from time immemorial.
To explicate the ambiguity:
In one formulation (repeated in various phrasing throughout the book), the Proclamation is described as a document “to establish the Crown’s supremacy over its North American territories” [96] and “for the benefit of the Crown in order that all settlers took their title to land from the Crown.” [323] This formulation closely tracks the text of the document, which opens by referring to “extensive and valuable Acquisitions in America, secured to our Crown” and declares that “Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds.” [Appendix A] One sees here the underlying claim of domination over the land, accompanied by a promise (on the ‘honor’ of the Crown) to do right by the Indigenous peoples who have been prerogatively transformed from owners into somewhat privileged tenants.
Another formulation presents the “undertaking” in the Proclamation as having been “recorded both in the Treaty of Niagara of 1764 and in the wampum belts” that were exchanged contemporaneously with that Treaty. The wampum belts are said to “embody the indigenous understanding of the terms of this Treaty – that settlers and indigenous peoples should live side by side, following parallel paths which preserve their respective cultures, joined in mutual respect, peace and friendship.” [4] That Indigenous understanding is not coherent with a claim of Crown superiority. Hence the ambiguity of meaning.
The author directly addresses the ambiguity with specific attention to the crucial phrase in the Proclamation, “reserve under our Sovereignty, Protection and Dominion, for the use of the said Indians.” She cites John Borrows, who “notes the ambiguity of the wording, which ostensibly affords the indigenous people the protection of their way of life as indicated by the wampum belts and at the same time affords a mechanism through which indigenous lands could be acquired.” [100] Cassell adds, “‘For the use of’ is … the form of wording used in the numbered treaties to establish the Crown’s fee-simple title over indigenous lands.” Moreover, she says, “words such as ‘sovereignty’ and ‘dominion’ were inserted into the Royal Proclamation without the consent of the indigenous peoples.” These points all undermine the utility of the Proclamation as a basis for arguing Indigenous land rights.
It is precisely the fact that similarly ambiguous documents and argument are major themes in Indigenous rights litigation in all the former British colonies that makes them important to examine closely. I understand the difficulties of arguing against dominant doctrines in the courts of the dominator; but if we shy away from challenging these doctrines (and especially if we kowtow to the doctrines, as so many litigants at least in the US do, opening their briefs with formulaic deference to US claims of authority), fundamental Indigenous positions and worldviews will remain hidden and unargued.
To elaborate:
The notion of a “fiduciary duty” to “protect” Indigenous interests, however ambiguous, is a major theme of legal argumentation in the US as well as Canada. The Royal Proclamation does not apply to the US, but parallel documents occupy the role of rhetorically promising government “protection.” These include the 1787 Northwest Ordinance passed by the US Congress (“The utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent”) and the texts of the three foundational US Supreme Court decisions authored by Chief Justice John Marshall (Johnson v. McIntosh [1823] (“It has never been contended, that the Indian title amounted to nothing.”); Cherokee Nation v. Georgia [1831] (“Indians… relations to the United States resemble that of a ward to his guardian.”); Worcester v. Georgia [1832] (the US “right of acquiring the soil… could not affect the rights of those already in possession…as aboriginal occupants.”). The rhetoric in these documents (in Marshall’s opinions, all clearly dicta) echoes the “protection” language and “honor” concepts embedded in the Proclamation. But, like the Proclamation, the US documents rest on the major premise of a claim of colonial “sovereignty” and “land title.”
The “protective” fiduciary relation is explained as “no indigenous land could be purchased or taken in any way other than through the British Crown.” [4] In the US, this is usually referred to as a “right of preemption,” the “exclusive power of acquiring” Native land. The Marshall trilogy is typically cited in support.
We need only a bit of economic theory to unpack what this means. It is what economists call “monopsony.” The Oxford English Dictionary defines monopsony as a market in which a single buyer controls trade. This is precisely what the “exclusive power of acquiring” creates. Eric Kades [Law and History Review 19, no. 1 (Spring 2001)] described it “as a means of expropriating Indian land at minimal cost. Just as sellers can charge more when they are monopolists without competitors, so too buyers can pay less when they are monopsonists without competing bidders.” James Warren Springer [American Journal of Legal History 30, no. 1 (January 1986)] didn’t use the technical term “monopsony,” but came to the same conclusion: “It is a reasonable generalization to say that land purchases from Indians were a governmental monopoly.” Stuart Banner [Law & Society Review 34, no. 1 (2000)] studied the monopsony condition in New Zealand, where Johnson v. McIntosh was copied as the rule for dealing with Maori lands. Banner said, “Economic theory predicts that the government would realize a tidy profit in these roles, and in fact such was the case. By 1844, the government had paid slightly more than £4,000 for land, but had realized over £40,000 in land sales.” Banner said the doctrine “was defended primarily on paternalistic grounds …[that] Government was needed as a mediator between greedy buyers and easily duped sellers…. The argument contained a great deal of hypocrisy… as was frequently noted at the time. … All the problems the Maori had in negotiating with private purchasers — the inability to predict future prices, the failure to understand what the British meant by a sale, and so on — were accentuated when the Maori sold to the government, because the government faced no competition that might have pushed prices higher….”
Economic analysis demolishes any notion that Crown or US domination of Native land transactions “protects” Natives. Quite the contrary. Arguments relying on such ambiguous, double-dealing documents and precedents place Indigenous peoples in a precarious position. Cassell’s book provides food for further fruitful discussion of this dilemma.
Elizabeth Cassell has provided an important, well-researched, persuasively argued book. I look forward to discussing with her the possibilities for and implications of moving beyond the ambiguous, self-serving documents of state claims of domination over Indigenous lands and peoples. I will soon offer my own book, Federal Anti-Indian Law – Entrapment of Indigenous Peoples (forthcoming 2022), to develop the comments I have made here.