Steve Russell is a big man, physically, intellectually, and morally. He’s also a great writer and storyteller. His recent memoir, Lighting the Fire: A Cherokee Journey from Dropout to Professor, tells the story of his life through overlapping and intertwining tales. The overall structure is chronological, but the chapters often take a step back or to the side, opening a new perspective on something we’ve already learned in order to build on it and add detail, nuance, and the ground for a following tale that will do the same thing. It’s an adventure book, a journey through space and time that becomes full of many people’s lives. We gradually realize, even if we don’t know Steve, we are part of his community—the community of people working against adversity toward realization.
The energy of the stories and their direction is impelled from the start by Steve’s urges to grow in every dimension—upward, outward, inward, and downward. Up from poverty and parental dysfunctions manifesting intergenerational trauma from the Trail of Tears; outward and inward with the love of nurturing grandparents who encouraged his native curiosity about the world and especially his curiosity about his Native identity; downward into his Cherokee roots while growing up in Muscogee Creek lands and finding his way into a career that included being a judge and a professor. The stories spiral around these movements and intentions, told with honesty, courage, and increasing wisdom. We are fortunate that no matter where he was in this journey, Steve wrote, and his writing is good.
The book title reveals the arc of the story, so we know where we’re headed, which helps cushion the shocks of so many episodes that would overwhelm a weaker, less determined person. Steve’s talent shows repeatedly in his ability to relate survival stories with grace, evenhandedness, compassion, and humor. His coming-of-age stories are often delightful, even as they hang out all the laundry; in not sparing himself, he demonstrates how it is possible to work through adversity. He doesn’t pretend trauma simply goes away, but rather, as he says at one point, that “you will, in your own time, learn to park it somewhere that allows you not to trip over it.” The stories all lead to insights like this. They are teaching stories, expanding through and beyond the telling of Steve’s life into the reader’s life.
Beyond being stories of Steve’s life, each chapter illuminates history, politics, and psychology. He accomplishes this cleanly, without becoming didactic, simply tying his personal experiences into the experiences of his people and the American people, past and present. His struggles are intergenerational struggles, and his survival is the survivance of the Cherokee and other Native peoples from the ravages of what he calls the North American Holocaust. But not only Native people: He insists again and again his is a story of being human. He reminds me of what Muscogee Creek Medicine Man Phillip Deere said: “We are not talking about an ‘Indian’ way of life; we are talking about a human being way of life.” Steve digs deeper into his Native heritage with each chapter, but he does so in a way that sets an example for any person trying to figure out who they are and where they come from and where they’re going.
Steve and I trod parallel career paths on our way through law school and into what is conventionally called US “Indian law,” but is really US anti-Indian law. We also shared an interest in journalism in college and beyond, which culminated in us both being columnists for Indian Country Today Media Network when it was owned by the Oneida Nation. He has musical talent I never developed, despite my closeness to musician friends. Our academic trajectories intersected at conferences and in shared teaching methods. Although I read his book against the background of this personal involvement, I am sure readers who have no personal connection to this man will engage with him through his writing and enrich their lives by the fire he tends.
So much hoopla surrounded the McGirt v. Oklahomadecision that few people could see what the case really decided.
The decision said the Creek Nation was “Indian country” as defined in federal law and that Oklahoma had no jurisdiction over crimes committed by Native persons in Creek territory. Lots of people were thrilled to read Justice Gorsuch’s opening line, “On the far end of the Trail of Tears was a promise.”
The temptation was great to think McGirt closed the door on the genocidal era of “Indian Removal.” But McGirt didn’t close that door. In the language of federal Indian law, when it said Creek lands are part of “Indian country” it meant they are subject to the US Major Crimes Act. That was the legal question in the case.
Despite the hoopla about a “landmark decision,” McGirtdidnot transform federal Indian law. In fact, McGirt upheld the key federal Indian law doctrine of US domination over Native nations and peoples — the doctrine called “congressional plenary power.” It said the Creek Nation existed because Congress had not (yet) “disestablished” it.
As the majority opinion itself pointed out, it was reaffirming the “plenary power” claim of US domination asserted by the Supreme Court “long ago”:
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 majority and dissent in McGirt were in agreement about this fundamental point of law. They both said the US Congress can do as it wishes with Native nations, peoples, and lands. The only difference between the majority and dissent was whether Congress had or had not “disestablished” the Creek nation. The dissent said yes. The majority said no.
To make the fundamental point clear, the majority said Congress could do the dirty deed whenever it wished:
…of course, …Congress remains free to [take action]… about the lands in question at any time. It has no shortage of tools at its disposal.
Anyone who reads the decision can see this, even with rose-colored glasses.
We should, therefore, not be surprised that the US Environmental Protection Agency has stepped through the “disestablishment” door left wide open in McGirt. On October 1, 2020, the EPA, at the request of the governor of Oklahoma, granted the state regulatory control over environmental issues in “areas of Indian country described in the state’s request.”
Governor Stitt and EPA Administrator, Andrew Wheeler, had the audacity to flaunt the McGirt decision, knowing that it upheld US domination despite its appealing rhetoric. As Wheeler’s letter put it:
…the impetus for the State’s request was the recent decision of the U.S. Supreme Court in McGirt v. Oklahoma…. EPA understands the State’s reference to McGirt as an explanation of the State’s intent substantially to reestablish the geographic scope of the State’s environmental programs as implemented prior to the Supreme Court’s decision….
Some may call this “realpolitik”; some may call it “playing hardball.” It is both. And yet, how exactly does it work? Didn’t McGirt say Oklahoma didn’t have jurisdiction in “Indian Country”? Aha! Re-read above: McGirt said, “Congress remains free to [take action]… about the lands in question at any time. It has no shortage of tools at its disposal.” And what “tools” did the EPA and Oklahoma rely on?
They relied on a tiny provision snuck into an innocuous-sounding law passed in 2005, titled “Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users.” In typical American political style, the title boils down to the catchy acronym SAFETEA. Who but a true cynic would guess there was a little provision in the Act about environmental regulation that applied only to Oklahoma? It was inserted by Senator James Inhofe of Oklahoma, Chair of the US Senate Committee on Environment and Public Works. The provision was “SECTION 10211. ENVIRONMENTAL PROGRAMS. OKLAHOMA.” Here’s the part the governor and administrator used:
…on request of the State, the Administrator [of the Environmental Protection Agency] shall approve the State to administer the State program in the areas of the State that are in Indian country, without any further demonstration of authority by the State.
When TYT News reported the EPA had granted Oklahoma the same authority the state had before McGirt, they explained that the EPA “can do this because federal legislation can nullify Supreme Court rulings.” In this case, the legislation was passed 15 years before the ruling, so it’s not quite right to say it “nullified” it. Nonetheless, this is precisely the Achilles heel of McGirt. It was visible to anyone who really read the McGirt decision: “Congress remains free…. It has no shortage of tools….”
The “freedom” of Congress is the unfreedom of Native nations and peoples. The original free existence of Native nations and peoples in their own lands was and is the target of federal Indian law. Federal Indian law, understood to its core — “plenary power” — is federal anti-Indian law, built to seize Native lands. The EPA – Oklahoma deal is only the latest effort.
Casey Camp-Horinek, Environmental Ambassador, Elder, and Hereditary Drumkeeper, Ponca Nation, provided the following statement to TYT:
“After over 500 years of oppression, lies, genocide, ecocide, and broken treaties, we should have expected the EPA ruling in favor of racist Governor Stitt of Oklahoma, yet it still stings. Under the Trump administration, destroying all environmental protection has been ramped up to give the fossil fuel industry life support as it takes its last dying breath. Who suffers the results? Everyone and everything! Who benefits? Trump and his cronies, climate change deniers like Governor Stitt, Senators Inhofe and Langford, who are financially supported by big oil and gas. I am convinced that we must fight back against this underhanded ruling. In the courts, on the frontlines and in the international courts, LIFE itself is at stake.”
Casey Camp-Horinek
Life is at stake. And federal anti-Indian law is part of the problem. Despite the fancy rhetoric of “trust relationship” and “government-to-government relationship,” the basic doctrine in federal Indian law is “plenary power.” As the 1903 Lone Wolf v. Hitchcock decision cited by McGirt makes clear, this so-called “plenary power” is an outgrowth of the 1823 federal Indian law property doctrine of “Christian discovery.”
Here’s how Chief Justice John Marshall stated “Christian discovery” in the 1823 case, Johnson v. McIntosh:
John Marshall
The colonists “acquire[d] territory on this continent …[under] the principle [of the] right of discovery [of] countries then unknown to all Christian people….
“[This is] a right to take possession, notwithstanding the occupancy of the natives, who were heathens, and, at the same time, admitting the prior title of any Christian people who may have made a previous discovery. [Marshall’semphasis]
Marshall was emphatic in adopting “Christian discovery” into US law. He said, “The United States…have unequivocally acceded to that great and broad rule….”
Justice Joseph Story, who participated in the Johnson v. McIntosh decision, later put it this way in his Commentaries:
Joseph Story
“…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.”
What more needs to be said? A colonial, racist doctrine of religious supremacy is still at the core of US “federal Indian law.” Native peoples are “merely occupants” not owners in their lands. They have the same legal status as “brute animals.” That is the “law” that still upholds colonizing, extractive industries and governments destroying the world’s ecosystems.
McGirt may have some usefulness to those who will try to block the EPA – Oklahoma deal. The majority said Congress must be “clear” when it “disestablishes” a Native nation. Was the tiny provision hidden in the “Transportation Equity Act” a “clear expression” of the intent of Congress to impose state jurisdiction over Native nations surrounded by Oklahoma? That will be the technical question.
The real question is how much longer America will tolerate a racist religious doctrine as part of its legal system.
The strangest aspect of US federal Indian law is its imperviousness to critique. Imagine that you were reading an article by lawyers before 1954 (Brown v. Board of Education) discussing how to fit their Black clients into the ‘separate but equal’ doctrine. There were such lawyers, until Thurgood Marshall and his team pushed through them and made the successful challenge that overturned the racist law.
Despite repeated demonstrations that the doctrine of “Christian discovery” is the foundation of the US claim of ownership of Native lands and dominion over Native peoples, federal Indian law practitioners act as if their job is only to guide clients through the bizarre maze built around that doctrine (“trust relation,” “plenary power,” “government-to-government,” “domestic dependent nation,” etc.). Federal Indian law has not yet found its Thurgood Marshall.
The decision in McGirt v. Oklahoma is being heralded as the most important Indian law decision in the past 50 years, if not the century. In McGirt, the U.S. Supreme Court upheld a Tribal nation’s treaty rights….
This is the common misconception circulating among the federal Indian law bar celebrating McGirt as a decision that upheld Creek Nation Treaty rights. McGirt did say the Creek Nation continues to exist despite “serious blows” from “brazen and longstanding injustices” at the hands of the US government. But the decision arrived at this conclusion on the basis of the anti-Indian law doctrine of “congressional plenary power.” McGirt said the Creek Nation exists because the US Congress has not (yet) “disestablished” it.
Justice Gorsuch’s opening words for the majority opinion fanned wishful thinking that something fundamental changed with the decision. He said, “On the far end of the Trail of Tears was a promise.” The temptation to think McGirt closed the door on the genocidal era of “Indian Removal” is alluring. But Gorsuch didn’t close that door. In the language of federal Indian law, all he said was that Creek lands are part of “Indian country” because they have not been “disestablished” and are therefore subject to the US Major Crimes Act.
The question in McGirt was whether Jimcy McGirt, a Seminole man, had been properly tried in Oklahoma courts for a crime he was alleged to have committed against his Creek wife’s granddaughter. The Major Crimes Act act imposes federal jurisdiction within “Indian country” over “[a]ny Indian who commits” certain offenses “against the person or property of another Indian or any other person.” On the basis of its holding that the Creek Nation is “Indian country,” McGirt overturned Jimcy McGirt’s Oklahoma conviction.
Note that the Major Crimes Act itself was a breach of Creek Treaty rights (as Gorsuch pointed out). This alone suffices to show that the McGirt decision was not an unqualified upholding of Treaty rights. In fact, McGirt was not about Creek jurisdiction, but about federal jurisdiction.
To explain why the Creek Nation still exists, Gorsuch relied on the US doctrine of “congressional plenary power” over Native nations. He cited the infamous 1903 case, Lone Wolf v. Hitchcock:
To determine whether a tribe continues to hold a reservation, there is only one place we may look: the Acts of Congress. This Court long ago held that the Legislature wields significant constitutional authority when it comes to tribal relations, possessing even the authority to breach its own promises and treaties. Lone Wolf v. Hitchcock (1903).
Gorsuch then concluded that the majority found no “clear expression of the intention of Congress” to “disestablish” the Creek Nation. The dissent was upset, claiming to find multiple congressional acts disestablishing the Creek. The McGirt majority and dissent agreed on the fundamental anti-Indian doctrine itself.
Gorsuch drove the point home when he assured Oklahoma and other non-Creek “interests” that they need not worry about possible adverse effects of the decision. He said:
…[W]e do not disregard the …concern for reliance interests. It only seems to us that the concern is misplaced. Many other legal doctrines—procedural bars, res judicata, statutes of repose, and laches, to name a few—are designed to protect those….
And of course, …Congress remains free to [take action]… about the lands in question at any time. It has no shortage of tools at its disposal.
The “many other legal doctrines” and the congressional “tools” are, like the “plenary power” put forth in Lone Wolf, all derivatives of “Christian discovery.” Gorsuch hid that fact in a cryptic citation to the 1868 Treatise on the American Law of Real Property by Emory Washburn. The Treatise discusses “the discovery and settlement of this country by Europeans.” It describes how Native land ownership was denied by Christian colonizers:
Nor has any title, beyond the right of occupation, been recognized in the native tribes by any of the European governments or their successors, the Colonies, the States, or the United States. The law in this respect seems to have been uniform with all the Christian nations that planted colonies here. They recognized no seisin [ownership] of lands on the part of Indian dwellers upon it.
Washburn concludes, “The sovereignty and general property of the soil …were claimed …by right of discovery.” He footnoted this sentence with a reference to Johnson v. McIntosh, the 1823 case where the Supreme Court adopted “Christian discovery” into US property law (thereby also creating “federal Indian law”).
With all this in mind, let us review some assertions in the Warren / Tanana discussion of McGirt.
“In McGirt, the U.S. Supreme Court upheld a Tribal nation’s treaty rights….”
As we have seen, McGirt upheld treaty rights subject to ‘congressional plenary power.’
“…Indian country can continue to help meet the energy demands of Americans into the foreseeable future.”
‘Meeting the demands of Americans’ has been the prime purpose of federal Indian law from the start, when the ‘resource’ was land itself.
“…Tribal communities have not always benefited from conventional energy development. While in theory oil and gas royalty revenues should strengthen tribal economies, in the past, Tribes have received below market rates. Fossil fuel production enterprises have also been connected to increased violence against Native women and environmental degradation. Indeed, Tribes continue to face negative health implications from uranium mines long closed.”
“Not always” is a disingenuous way of saying “never,” especially in light of the remainder of the paragraph. Moreover, “in theory … should strengthen tribal economies”; what “theory”? “Trust” doctrine”? More on that in a moment.
“…[T]he McGirt decision reinforces …the ability of Tribes to …hold other actors accountable….”
McGirt offers no way for Native nations to hold Congress accountable.
“Tribal sovereignty is at the heart of Indian law. … [but] they are subject to federal power. …Under the trust doctrine, the United States has a duty to act in good faith in its dealings with Tribes, much like that of a trustee and beneficiary.”
This platitudinous language is typical in federal Indian law, masking the ambiguities, contradictions, and confusions that abound in the field. Justice Clarence Thomas is right: federal Indian law is “schizophrenic” (US v. Lara, 2004). The phrase “much like” covers a multitude of federal Indian law deviations from regular (non-Indian) trust law, which Justice Samuel Alito summarized this way: “Congress may style its relations with the Indians a ‘trust’ without assuming all the fiduciary duties of a private trustee, creatinga trust relationship that is ‘limited’ or ‘bare’ compared to a trust relationship between private parties at common law” (US v. Jicarilla Apache Nation, 2011).
“Jurisdiction in Indian country is a fluid concept….”
“Fluid” is a way to avoid saying “unreliable, fickle, capricious, and erratic.” As Justice Thomas put it, “the tribes either are or are not separate sovereigns, and our federal Indian law cases untenably hold both positions simultaneously” (Lara).
“The Court provided the following guidance…: ‘To determine whether a tribe continues to hold a reservation, there is only one place we may look: the Acts of Congress. This Court long ago held that the Legislature wields significant constitutional authority when it comes to tribal relations, possessing even the authority to breach its own promises and treaties.'”
They quote this “guidance” from the McGirt decision with no apparent awareness that this presumption of “congressional plenary power” contradicts their assertion that the decision “upheld treaty rights.”
“The Court affirmed that only Congress can diminish reservation boundaries….”
Again, they show no apparent awareness that such a claim of congressional power is wholly antithetical to “upholding treaty rights.” Federal Indian law practitioners are fond of saying “only Congress” has “plenary power” over Native nations, as if that somehow removes the domination inherent in the doctrine. Would a Black person have been mollified by being told “only the driver can make you move to the back of the bus”?
“The Court does go on to explain that… legal remedies exist to protect established interests… —procedural bars, res judicata, statutes of repose, and laches, to name a few….”
Yet again they quote enfeebling language from McGirt without batting an eye, as if it does not undermine their assertion about “upholding treaty rights.” The “established interests” here are the non-Creek interests.
“Given Congress has plenary authority in Indian country, it certainly possesses the authority to disestablish reservations in Oklahoma, as Justice Gorsuch hinted at in his opinion.”
They take “plenary authority” as a “given” rather than as something to be criticized. Moreover, Gorsuch did more than “hint”; he made a strong assertion of “plenary power”: “[O]f course,…Congress remains free to supplement its statutory directions about the lands in question at any time. It has no shortage of tools at its disposal.”
“…[A]ny examination of tribal authority should start with the presumption that the tribe in question possesses sovereignty, unless the tribe has been divested of its sovereignty by the federal government.”
This (il)logic is typical in federal Indian law. To say one “should start…unless…” is to say that one starts at the beginning unless the beginning has been superseded by something subsequent, which then converts the subsequent condition into the starting point. This circuitous logic avoids acknowledging that federal Indian law displaces the historical “starting point” — the original free existence of Native nations — with a subsequent condition — the doctrine of Christian discovery. To acknowledge this would be to say the emperor has no clothes. Now you see it now you don’t.
Neil Gorsuch’s adherence to a judicial philosophy of “strict interpretation” was lauded by conservatives in the run-up to his confirmation as a Justice of the US Supreme Court. Ed Whelan, in theNational Review (February 1, 2017), called Gorsuch “a brilliant jurist and dedicated originalist and textualist,” and said he would be “A Supreme Successor to Justice Scalia.” David Savage, in the Los Angeles Times (March 24, 2017), said “Gorsuch…appears to be a strict ‘textualist’ who believes in following the exact words of a law, even if doing so leads to a seemingly unfair or undesired result.” Most observers shared the view that Gorsuch would embrace the rightward tilt of the court fostered by Antonin Scalia, the justice he would replace.
Notwithstanding these expectations, Justice Gorsuch’s authorship of US Supreme Court opinions in two major federal Indian law decisions shows that the conservative “strict interpretation, originalist” approach to legal reasoning can have consequences surprisingly pleasing to those who have fought for the rights of Native Americans for centuries.
In Washington State Department of Licensing v. Cougar Den, Inc. (2019), Gorsuch upheld Yakama Nation Treaty rights to use Washington state highways, in the face of strong objections by both state and the federal governments. In his concurring opinion, he pointed out that the Yakama Treaty explicitly reserves “the right, in common with citizens of the United States, to travel upon all public highways.” He rejected Washington and US arguments that the phrase “in common with” means the Yakama are in the same position as state citizens and must pay state road taxes. To the contrary, Gorsuch wrote, “In the Yakama language, the term ‘in common with’ . . . suggest[ed] public use or general use without restriction.” Relying on a strict reading of the Treaty language, Gorsuch brushed aside objections from supposedly stricter colleagues (Roberts, Thomas, Alito, and Kavanaugh) who warned of “dire consequences” if the Yakama could freely use state roads.
In McGirt v. Oklahoma (2020), Gorsuch upheld the terms of Creek Nation Treaties that “solemnly guarantied” a “permanent home to the whole Creek nation…[where no] State or Territory [shall] ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves.” Oklahoma and the federal government strongly opposed any reliance on the terms of the Treaties. They argued that Creek government had been “terminated” by a series of state and federal actions. Gorsuch said their arguments were based on “extratextual sources” concocted from “some stray language from a statute that does not control here, a piece of congressional testimony there, and the scattered opinions of agency officials everywhere in between.” He rejected them all as efforts “to sow doubt around express treaty promises.”
Gorsuch’s opinions in Cougar Den and McGirt stand for the proposition that the philosophy of “strict interpretation” requires close adherence to all texts, not simply US constitutional texts. Moreover, Gorsuch emphasized that the principle of strictly interpreting the text of a Treaty also means affirming the treaty process. As he put it in Cougar Den, “If the State and federal governments do not like that result [of the 1855 Treaty], they are free to bargain for more, but they do not get to rewrite the existing bargain in this Court.” Similarly in McGirt, Gorsuch responded to the dissenters’ worry about “drastic consequences” of affirming the Creek Treaties by saying Oklahoma “has negotiated … intergovernmental agreements… with the Creek” and “the spirit of good faith, ‘comity and cooperative sovereignty’ behind these agreements” will sustain future negotiations.
Gorsuch has changed the climate in the US Supreme Court’s federal Indian law jurisprudence in ways not imaginable in recent years. At the National Congress of American Indians 70th Annual Convention in Tulsa, Oklahoma, in October 2013, Richard Guest, the Native American Rights Fund’s lead staff attorney in Washington, sounded an alarm. Gale Toensing reported in Indian Country Today (28 October 2013) that Guest said, “We’ve had one win and nine losses in front of the Roberts court. And our message … is …: Stay out of the courts!” Guest added, “the majority of judges” on the Supreme Court are “very conservative, have no understanding of Indian country at all. No interest in your issues.” Four years later, a ray of optimism appeared in a NARF “Indian Law Perspective” (16 March 2017) on the nomination of Neil Gorsuch, concluding, “Judge Gorsuch has significant experience with federal Indian law, appears to be attentive to detail, and respectful to the fundamental principles of tribal sovereignty and the federal trust responsibility.”
The fact that Justice Gorsuch has emerged as a serious scholar of Treaties and Treaty history is important. But it is not sufficient to remake US federal Indian law in the way it needs to be remade. His opinions in Cougar Den and McGirt, and his joining the four “liberal” justices to affirm Crow Nation hunting rights in Herrera v. Wyoming (2019) are indeed significant legal victories for the Yakama, Creek, and Crow nations. But none of those decisions reached and overturned the fundamental federal Indian law doctrine of US domination over Indigenous lands and peoples—the doctrine of “Christian discovery.”
In a nutshell, Christian discovery doctrine says the US has “title” to all Indigenous lands and “plenary power” over Indigenous nations and peoples. The US Supreme Court adopted Christian discovery in 1823 in Johnson v. McIntosh, where it relied on this relic of 15th century colonialism to declare that Indigenous nations are “mere occupants” of their lands, not owners. The doctrine of domination persists in US law to this day. In fact, it is the unstated basis for the McGirtand Herrera opinions, each of which focuses on whether the US Congress has “clearly expressed” an intention to breach the terms of a Treaty. The presumption that Congress has the right to unilaterally breach US Treaty obligations rests on the doctrinal platform of Christian discovery.
Gorsuch stated the Christian discovery presumption this way in McGirt: “This Court long ago held that the Legislature wields significant constitutional authority when it comes to tribal relations, possessing even the authority to breach its own promises and treaties. Lone Wolf v. Hitchcock (1903). But that power, this Court has cautioned, belongs to Congress alone. Nor will this Court lightly infer such a breach….” By citing Lone Wolf, Gorsuch avoided having to cite the original case, Johnson v. McIntosh, but his focus on “Congressional intent” derives from that root.
McGirt invoked Christian discovery in another cryptic citation purporting to explain why the US can “allow non-Indian settlers to own land on [a] reservation.” Gorsuch wrote, “It isn’t so hard to see why.” He explained that federal homesteader patents “transferred legal title” to Creek land, but “no one thinks … this diminished the United States’s claim to sovereignty. To accomplish that would require an act of cession, the transfer of a sovereign claim from one nation to another.” He then cited “3 E. Washburn, American Law of Real Property *521–*524.” This reference is to a chapter in Emory Washburn’s 1868 A Treatise on the American Law of Real Property discussing “title by public grant.” The chapter begins with a discussion of “the discovery and settlement of this country by Europeans” and says, “Nor has any title, beyond the right of occupation, been recognized in the native tribes by any of the European governments or their successors, the Colonies, the States, or the United States. The law in this respect seems to have been uniform with all the Christian nations that planted colonies here. They recognized no seisin [ownership] of lands on the part of Indian dwellers upon it.” Washburn then says, “The sovereignty and general property of the soil …were claimed …by right of discovery.” This sentence carries a footnote to Johnson v. McIntosh.
Gorsuch is subtle, more subtle by far than Justice Ginsburg, whose opinion in City of Sherrill v. Oneida Indian Nation of N. Y. (2005) rejected Oneida land title by saying, “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.” (Ginsburg didn’t have the nerve to say “Christian discovery.”)
The fact that McGirt ruled in favor of the Creek Nation provides an excuse of sorts for not looking into the doctrinal basis of the decision. Many commentators, like Amy Goodman on Democracy Now! (10 July 2020), have gushingly described the decision as “a major victory for Indigenous sovereignty.” But make no mistake; McGirt rests on the old doctrine of US domination. First, the decision actually upheld US sovereignty, saying the Creek Nation continues to exist only because the US Congress has not (yet) “clearly terminated” it. Second, on the criminal jurisdiction issue, it upheld application of the federal Major Crimes Act, an assertion of US domination over Indigenous nations’ own criminal jurisdiction.
Gorsuch has pushed the envelope of federal Indian law, but he and the court are still entirely within that envelope. In Cougar Den, the Yakama Nation stepped entirely outside the envelope and challenged the doctrine of Christian discovery in its September 2018 amicus brief . The Yakama brief said Christian discovery doctrine is “the legal fiction that Christian Europeans immediately and automatically acquired legally recognized property rights in our lands upon reaching the Americas.” The Yakama called on the court “to repudiate the doctrine of Christian discovery and its racist foundations as the basis for federal Indian law.” The Yakama strategy was effective: The court majority, faced with a choice between the Yakama Treaty and the doctrine of religious domination, chose the Treaty. In fact, even the dissenting justices avoided arguments based on Christian discovery and focused only on Treaty language.
It’s possible Gorsuch believes that adhering to treaties is the most that can be done; perhaps he also believes that if enough treaties are adhered to the way would open for a true acknowledgment of Indigenous nationhood and self-government. In any event, the court will only reach the root doctrine if the doctrine is challenged. It remains to be seen how many other Indigenous nations follow the Yakama Nation and call for abandonment of the federal Indian law claim of domination. That would be an historic turning point in US law.
Although the article is likely to be well-received by many people, it displays an immense knowledge gap and educational task facing those who work, live, and study Native Nations. A few statements jumped out at me; here they are, with my comments:
1 —
Deb Haaland, who last month became one of the first native-American women elected to Congress… says… “Representation matters. And if you disagree, try not being represented for over 200 years and then see how it feels to have someone who looks like you in Congress!”
COMMENT: Notice “native-Americans” — lower case “native” positioned as an adjective for uppercase “American,” framing Natives as a sub-category of the dominant identity. This is consistent throughout the article, except where “Native” begins a sentence. Notice also that Haaland sees “representation” in the colonial master’s house as the major significance of her election, presuming that the lack of such “representation” is the root problem; moreover, her key identifier is “looks.”
2 —
Indians are doggedly beset by poverty, ill health and other social problems. Yet the picture of wretchedness on the reservation this conjures is misleading. Over 70% live in cities, where an educated Indian middle class has emerged.
COMMENT: Natives may be so far beyond the immediacy of a bond with land that land and nationhood are no longer root issues.
3 —
Native Americans still represent less than 2% of the population. So none of the candidates for national or statewide office made much of their Indianness on the trail.
COMMENT: Native candidates’ politically necessary submersion of Native issues into a range of ordinary issues undercuts the presumed significance for Natives of their election.
4 —
There were also signs of a long-standing ambivalence towards national politics. … most expressed little enthusiasm for either party.
COMMENT: The article does not dig into this ambivalence; had it done so, it might have found people with an awareness that Native concerns require independence from the US political system, that Native rights are broader, deeper, and other than civil rights.
5 —
Indians are starting to behave politically more like other groups. Yet they remain heterodox and distinct. Mental health, land rights and criminal justice are among the problems that affect Indians differently, because of their history and because of provisions such as the Indian health service. … Yet by providing a stronger, subtler voice for native Americans they have an opportunity to accelerate their engagement with national politics.
COMMENT: Having not investigated (or comprehended) land and self-determination as the core of Native rights, the article conflates Native rights and civil rights issues. “Land rights” are bracketed by “mental health” and “criminal justice,” with only superficial allusions to “difference” and “history.” The conclusion follows that “engagement with national politics” is the solution.
6 —
“Native America provides a touchstone of identity: about who we westerners are and particularly who we are not,” wrote the anthropologist J.C.H. King.
COMMENT:To the extent that “Native America” helps non-Natives figure out their identity, the same subsumption of “Native” within “America” obscures Native identity.
7 —
A decision by the interior department in September to deny a reservation to the landless Mashpee Wampanoag tribe of Massachusetts ….
COMMENT: The article perpetuates the all too common — even among Natives — trope that “tribes” are “within” states and the US, rather than understanding that Native Nations were here before those map lines were drawn.
Robert Kuttner’s review of Adam Tooze’s book, Crashed: How a Decade of Financial Crises Changed the World — “The Crash That Failed,” in the November 22, 2018, The New York Review of Bookshttps://www.nybooks.com/articles/2018/11/22/financial-crash-that-failed/ — provides a useful example of the critical limitations of America’s liberal commentariat.
In the guise of criticizing the emperor’s neoliberal clothes, liberal intelligentsia repeatedly fail to see the emperor’s nakedness. Indeed, while seeming to critique, liberals embrace the boundaries of the emperor’s hegemony! The result is superficiality and —worse — intensification of the hegemony. The Broadway extravaganza “Hamilton” illustrates this: actors “of color” celebrate the architect of the foundational U.S. alliance with capitalism — an alliance incorporating both Black slavery and confiscation of Native lands!
The following ten comments on Kuttner’s review of Tooze aim at demonstrating liberal complicity with neoliberalism. I conclude with a suggestion about the focus of a deep critique — “radical” — going to the roots.
1)
KUTTNER: “The crash …should have led to the disgrace of neoliberalism…. Instead, the old order reasserted itself…”
COMMENT:The fact that the reassertion of the old order occurred under the banner of ‘change we can believe in’ produced widespread disillusionment, especially among young voters who were so enamored of identity politics as to be blind to structural critiques of political-economic “order.” Rather than the disgrace of neoliberalism, we saw the disgrace of Obama, the hoped-for transformative leader, whose liberalism turned out to be neoliberalism. Without a deep critique, that difference is invisible.
2)
KUTTNER: “Parties such as the German Social Democratic Party, the British Labour Party, and the French Socialists disgraced themselves as co-sponsors of the neoliberal formula that brought down the economy.”
COMMENT: Why doesn’t Kuttner also say the U.S. Democratic party disgraced itself? That is in fact the case, notwithstanding his assertion that “Progressives have been gaining influence in the Democratic Party.”
3)
KUTTER: “…the collapse came, it was ‘a financial crisis triggered by the humdrum market for American real estate.'”
COMMENT: But in Kuttner’s next sentence, the real estate market appears not so “humdrum”: “The US housing bubble was pumped up by subprime mortgage derivatives that allowed lenders to sell off high-risk loans homeowners were unlikely to pay back. These were invented on Wall Street beginning in the 1980s, accepted by US regulators, and disseminated like financial toxins….”
4)
KUTTNER: “Had the authorities just stood by….”
COMMENT: Why does Kuttner pose doing nothing — “standing by” — as the alternative to the global banks bailout described in his next paragraph? As a rhetorical move, Kuttner’s phrase plays right into the notion that economic chaos is the only alternative to private ownership of the state (what he refers to as “The state had been hijacked by private finance”).
5)
KUTTNER: “Using deposit guarantees, loans to banks, outright capital transfers, and purchases of nearly worthless securities, the Fed and the Treasury recapitalized the banking system.”
COMMENT:This is not new! In fact, as Colin Woodard explains in American Nations (2011): “[Banker Robert] Morris and his protege Alexander Hamilton took control of federal financial policy, rigging it so as to literally turn their friends’ worthless paper into silver and gold. Under Morris and Hamilton, the federal government would buy back the bonds for face value, plus 6 percent interest, paid in precious metals raised by assessing new federal excise taxes designed to fall most heavily on the poor people who’d been forced to take the worthless congressional scrip in the first place.” [pp. 158-159]
A radical critique of U.S. political-economy will at every juncture remind the reader that the “hijacking” of the federal state was accomplished at its inception! Instead, Kuttner follows his description of federal machinations to support banks with this statement: “The crisis, Tooze writes, ‘was a devastating blow to the complacent belief in the great moderation, a shocking overturning of the prevailing laissez-faire ideology.’ And yet the ideology prevailed. Homeowners, both those defrauded by subprime mortgages and millions of others whose houses were suddenly worth less than their debt, were the real victims of the collapse.” Kuttner (and, apparently, Tooze) writes as if the “the great moderation” and the “prevailing laissez-faire ideology” were not only and always new clothes for the emperor.
6)
KUTTNER: “Tooze reminds us of the Hamilton Project, a small unit at the Brookings Institution created in 2006 by Robert Rubin, former co-chairman of Goldman Sachs and Clinton’s treasury secretary, and his protégés.”
COMMENT: But Kuttner (and apparently also Tooze) fails to discuss the deep roots and significance of the “Hamilton Project”!
7)
KUTTNER: “Greece, a nation hit by severe recession and loss of private investor confidence, had no choice but to pursue austerity to reassure creditors. A central bank with the prerogatives of the Federal Reserve might have prevented this outcome.”
COMMENT: Yet again, Kuttner writes as if the “prerogatives” of the U.S. central bank are the only alternative to “doing nothing” —”no choice.”
8)
KUTTNER: “…there are some aspects of the story that are omitted or glossed over. For example, the ideal of liberalized trade, and the use of trade treaties to promote deregulation or privatized regulation of finance, is a major element of the story of how neoliberal hegemony promoted the eventual collapse. But except for a passing reference, trade and globalized deregulation get little mention….”
COMMENT: Kuttner shares these omissions and glosses! Thus, to say, “Neoliberal hegemony promoted the eventual collapse,” is to ignore the fact that the ingredients of economic collapse are built into neoliberal political economy.
9)
KUTTNER: “Yellen, a left-liberal economist specializing in labor markets, was the only left-of-center Fed chair other then FDR’s chairman Marriner Eccles. She also believed in tough regulation of banks. The extension of quantitative easing well beyond its intended end was substantially due to Yellen’s concern about wages and employment, and not just price stability, since low interest rates can also help promote recovery.”
COMMENT: Kuttner offers Yellen as an example of something Tooze glosses over; but Kuttner’s description of Yellen and her actions as “left-of-center” is wholly bounded by the hegemonic assumption that neoliberalism is compatible with helping workers — in short, that neoliberalism can save itself. Or, as he puts it, “government oversight of capitalism prevented the disasters of laissez-faire policies.”
10)
KUTTNER: “The political in ‘political economy’ demands to be taken seriously.”
COMMENT: Indeed! And this final line of Kuttner / Tooze deserves to be the first line of a deep critique, focused on Hamilton’s original project for linking the federal state to capitalism. A deep critique includes an analysis of how Hamilton’s project was linked to federally controlled land speculation under a legal regime based on the doctrine of “Christian discovery” (i.e., the notion that Native Peoples could not own their own lands because they were heathens, and therefore their lands were subject to unilateral confiscation by the U.S.). Federalist Chief Justice John Marshall [born the same year as Hamilton] announced the doctrine in an 1823 Supreme Court case, Johnson v. McIntosh.
New York Magazine’s “Spring Fashion Issue” [Table of Contents – February 5, 2018] raises the #MeToo debate to a fever pitch, partly as a result of editorial intention, partly as a result of media finance infrastructure, which intermingles intellectual content and advertising: The articles may be read as criticism of the ads, which may, in turn, be read as examples for the critique; OR, the ads and articles may be read as a complex whole, exemplifying and demonstrating a moment in the history of culture, when virtual (the world of advertising images) and real (the world of intellectual apperception) are confusedly interpenetrated. Either mode of reading points to a question about the role of fashion and social media in relation to lived experience.
The interpenetration becomes obvious from titles of articles explicitly raising questions about “fashion”:
The references to “through the looking glass” and “Black Mirror” neatly implicate the experience of reading the magazine itself. On one hand, this makes the “fashion issue” a bold editorial gambit, tossing caution to the winds and challenging the paradigm of high (read exotic, transgressive) fashion—indeed, challenging the notion of “fashion” itself. On the other hand, this gambit produces the very “looking glass, Black Mirror” effect—readers are buffeted by analyses targeting their experience as viewers. In this sense, the editors are playing with a variation of the question posed by the title to the article about Poppy: “Like Warhol But for 2018. Is Poppy enacting a meta-commentary on fame in the YouTube era? Or does she simply want to be famous?”
I trust you see the quasi-pornographic aspects of the image. My point, however, goes not to the imagery as such, but to the algorithmic automaticity of its appearance in the midst of a critique of such images! Looking glass and Black Mirror, indeed!
Not to put too fine a point on it: It appears that advanced (read: hyper-capitalized) society has come to the point where an insufficient sense of “realness” drives masses of people to seek to become commodities—going beyond the commodification of persons and relations implicit in a capitalist economy. This drive toward a virtual realness fuels both sides of the pop culture—”fans” and performers. Warhol’s (in)famous equation of business and art marks an historical moment when creative acts are not creative unless—and to the extent that—they occur as commodities. And individuals become “real” only to the extent they appear as “fans” of a “famous” other—imitators of one talked about.
=============== addendum ===============
On 16 February 2018, Jenn Abelson and Sacha Pfeiffer, of the Boston Globe’s famed “Spotlight” team, presented the results of their investigation into the “fashion industry”—“Modeling’s glamour hides web of abuse” (Wow! I beat Spotlight by 6 days… :-). They present excerpts from extensive interviews with more than 50 models. One sentence in the article particularly captures the “looking glass” and “simulacra” phenomena: “the very nature of models’ work involves the marketing of seduction. At times, they are asked to dramatize sexual behavior they may not yet have experienced in real life.”
On 9 October 2017, I wrote about how social media exploits the frailties of human consciousness and monetizes the results of mental addiction — “Capitalism’s Attack on Mind; Meditation as Antidote to Social Media Addiction”. I suggested meditation as an antidote because the mental phenomena targeted by social media are understood in meditation as forms of suffering, to be alleviated rather than exploited. Recently, other voices have pointed to the same underlying vulnerability in human consciousness and have suggested withdrawal from social media. Among the most prominent critics are former executives and engineers at FaceBook (which a friend calls FacelessBook, to highlight the virtuality of its “community” experience).
On 12 December 2017, the Associated Press reported, “Some of Facebook’s early friends now its sharpest critics.” The AP report quoted Sean Parker, the company’s first president: “Facebook exploits a ‘vulnerability in human psychology’ to addict its users.” AP also quoted Chamath Palihapitiya, a former Facebook vice president: “Facebook is ‘ripping apart the social fabric of how society works.'” Roger McNamee, a venture capitalist and early investor in both Facebook and Google, was quoted as saying “both companies ‘threaten public health and democracy.'” The AP report adds explicit discussion by these figures about how social media aim to exploit human consciousness for corporate profit.
On 15 December, The Guardian followed up with a report, “Facebook admits it poses mental health risk – but says using site more can help.”The report stated, “Studies have repeatedly found that Facebook, Twitter and other social media sites can damage the emotional wellbeing of heavy users, particularly younger people.” As might be expected—following the lead of tobacco companies and other corporate actors faced with evidence of harm—FB “painted the literature on the subject as mixed and inconclusive.” But the company also says it will introduce new user features to “hopefully make their experience more positive.” {BTW and FWIW: “Hope” was the last item in Pandora’s Box.}
For the millions of social media users {n.b., drug addicts are also described as users} who begin to feel used and understand they are being used, the power to pull free remains in their hands and minds. Meditate on that.
Corporate social media aims to capture personal data by exploiting the frailties of human consciousness. Meditation aims to liberate human consciousness from the mental habits that constitute that frailty.
These questions are important, but they stay at the level of economics and politics—systems theory—and leave individuals with a sense that things are out of control unless we happen to be high-level corporate or political actors. In Read’s telling, even the latter may be unable to mount any effective response to the global situation: Facebook’s role in the last U.S. election, though “presented as a democratic town hall was revealed to be a densely interwoven collection of parallel media ecosystems and political infrastructures outside the control of mainstream media outlets and major political parties and moving like a wrecking ball through both.” Read concludes, “Facebook is bigger, newer, and weirder than a mere company.”
The self-proclaimed Facebook “mission”—to “give people the power to build community and bring the world closer together”—wraps the platform in the rhetoric of “community values”; but as Read puts it, the guiding principles of the Facebook “community” are “whatever encourages people to post more. Facebook’s actual value system seems less positive than recursive. Facebook is good because it creates community; community is good because it enables Facebook. The values of Facebook are Facebook.” Read cites a recent essay for the London Review of Books, in which John Lanchester argues “that for all its rhetoric about connecting the world, the company is ultimately built to extract data from users to sell to advertisers.” Read says, “This may be true, but Facebook’s business model tells us only so much about how the network shapes the world.”
Read acknowledges the monetization of attention and human desires (and fears) inherent in social media—how could he not?! He quotes Tim Wu, the Columbia Law School professor and author of The Attention Merchants, “Facebook has…attentional power, but …not a sense of responsibility. No constraints. No regulation. No oversight. Nothing. A bunch of algorithms, basically, designed to give people what they want to hear.” But Read frames that issue as “the government’s problem,” and segues into a confession: “From one angle, the Facebook hypercube terrifies me; from another, it’s a tool with which I have a tremendous and affectionate intimate bond. I have 13 years of memories stored on Facebook; the first photo ever taken of me and my partner together is there, somewhere deep in an album posted by someone I haven’t talked to in years. It gives me what I want, both in the hamster-wheel–food-pellet sense, and in a deeper and more meaningful one.”
A major impediment to critical thinking about social media arises from failure to investigate the human infrastructural elements of the “business model” underlying social media functions (and dysfunctions). The problem can be expressed in a single phrase—”monetization of attention”—how does social media capitalize (literally) on human consciousness? The answer, as Lanchester puts it, is that social media functions on the basis of “how people’s minds work and in particular of the social dynamics of popularity and status.” This functional basis rests on what Lanchester calls “a pretty dark view” of human nature—that we have no “values and beliefs of our own; what we have instead is an instinct to copy and compare”—a view propounded by Christian philosopher René Girard, whom Facebook investor Peter Thiel studied at Stanford. Lanchester quotes Thiel, who said. “Social media proved to be more important than it looked, because it’s about our natures.” Lanchester adds, “We are keen to be seen as we want to be seen, and Facebook is the most popular tool humanity has ever had with which to do that.”
Paul Lewis, writing in The Guardian (6 October 2017: “‘Our minds can be hijacked’: the tech insiders who fear a smartphone dystopia”), interviewed a number of silicon valley “refuseniks:.. designers, engineers and product managers who created the building blocks of a digital world from which they are now trying to disentangle themselves.” Justin Rosenstein, for example, was the Facebook engineer who created the “like” button; he told Lewis that “Facebook ‘likes’ are ‘bright dings of pseudo-pleasure’ that can be as hollow as they are seductive.” The mechanisms by which Facebook and social media systems generally attract people’s attention not only “addict users” to the systems, but—in a seeming paradox—contribute to a phenomenon called “continuous partial attention”, which limits people’s ability to focus. As Lewis notes, a recent study showed that “the mere presence of smartphones damages cognitive capacity – even when the device is turned off.” As Rosenstein put it, “Everyone is distracted. “All of the time.”
The silicon valley engineers are not limiting themselves to calling for government action. They are, as Paul Lewis put it, “weaning themselves off their own products” and preventing their children’s attentions from getting hooked. Nir Eyal, author of Hooked: How to Build Habit-Forming Products—teaching techniques used in social media—writes, “The technologies we use have turned into compulsions, if not full-fledged addictions.” He explains the “subtle psychological tricks…to make people develop habits, …to create ‘a craving,’ … exploiting negative emotions that can act as ‘triggers’: “Feelings of boredom, loneliness, frustration, confusion and indecisiveness often instigate a slight pain or irritation and prompt an almost instantaneous and often mindless action to quell the negative sensation.”
My first response to reading Read’s confession was pity: How sad to find his mind and memories intimately captured by forces outside his control; to feel intimately bound to that which terrifies; to have his life story in a database for corporate advertising; to recognize without resisting hamster-like behavior. But then I realized this confession opens the way to getting out of the hamster wheel through an exercise of our own power as individuals, independent of whatever any government may do—our “attentional power.” The power we have to “wean ourselves” from social media addiction involves paying attention to our attention! Advertisers and social media systems exploit the inverse of this phenomenon—namely, that our attention can be manipulated by others.
At this point, we can understand that social media exploits—takes advantage of, trades on—the human mind’s capacity for distraction; and, more importantly, we can focus on this capacity as a problem susceptible to our own power to pay attention to our attention, otherwise known as meditation, mindfulness. Much has been written about mindfulness meditation. Robert Wright’s new book, Why Buddhism is True, provides a useful introduction* combines a focus on core Buddhist teachings with information derived from research in neuroscience and psychology. As he explains, “Mindfulness meditation…is a good way to study the human mind. At least, it’s a good way to study one human’s mind: yours. You sit down, let the mental dust settle, and then watch your mind work.” Mindfulness meditation practice aims at breaking the grip of the very same mental habits—the “mental dust”—that social media encourages and exploits for commercial purposes! Corporate social media aims to capture personal data by exploiting the frailties of human consciousness. Meditation aims to liberate human consciousness from the mental habits that constitute that frailty.
* Note: Wright provides useful discussion of meditation practices, insights, and implications; but his digressions into “natural selection” (“Darwinism,” “evolution”) to present meditation as “undoing” evolution get in the way. First of all, the ground on which meditation happens—mind—does not require an explanation; a description suffices (e.g., “subject to illusion,” “agitated by desire and aversion,” etc.). Second, Wright grossly misconstrues “natural selection,” referring to it as “design” and “intention”; but as the Berkeley site, “Understanding Evolution” puts it in “Misconceptions about natural selection,”: “‘need,’ ‘try,’ and ‘want’ are not very accurate words when it comes to explaining evolution. The population or individual does not ‘want’ or ‘try’ to evolve, and natural selection cannot try to supply what an organism ‘needs.’ Natural selection just selects among whatever variations exist in the population. The result is evolution.” Third, if we want to hook up meditation and evolution, we would do better to follow the implications of the Berkeley discussion: “The genetic variation that occurs in a population because of mutation is random — but selection acts on that variation in a very non-random way: genetic variants that aid survival and reproduction are much more likely to become common than variants that don’t.” The question becomes: Are there genetic markers associated with ability or predisposition to mindfulness—human “attentional power”—that aid human survival? Only time and space will tell.
