When colonized people participate in the politics of their colonizer, does that signify the end of colonialism or its culmination?

When Native Americans act as delegates at Republican or Democratic Party conventions, do their efforts amount to an assertion of Native self-determination… or an acceptance of “domestic, dependent” status?

When John Marshall wrote the opinion in Johnson v. McIntosh (1823)—the original U.S. Supreme Court federal Indian law decision—he said the relations between the “discoverers” and the Indigenous peoples were “regulated” by the “discoverers.”
He wrote, “In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired… by the original fundamental principle, that discovery gave exclusive title to those who made it.”

Federal Indian law thus provides a mechanism for “regulating” relations between the Original Peoples and their “discoverers” in such a way as to preserve the superior legal position of the latter. No matter how often an Indian lawyer or politician embraces the “special” relationship established by federal Indian law, that “specialness” consists of a structure of colonial subjugation of “the original inhabitants.”

So long as federal Indian law maintains this “special relationship,” Native peoples will be in a position of not being “entirely disregarded,” but with their rights of self-government considerably “impaired.”

So, to repeat the question, what does it mean when Native people participate in American political processes?
John Marshall discussed the possibility that colonizers and Natives might one day “mingle with each other; the distinction between them … gradually lost, and they make one people.” But, he wrote, such “incorporation” of American Indians and the colonizers was not “practicable,” because “the tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest.”

In other words, the U.S. Supreme Court provided a system by which self-governing, independent Native Peoples could be constrained, subjugated, neutralized by law—the “Doctrine of Christian Discovery.” The ruling in Johnson v. McIntosh still stands. It has been cited in more than 300 cases since 1823.

Despite the fact that federal Indian law subjugates Native sovereignty, many Native people hail the “protection” the law offers—protection from states and third parties.

Set aside for the moment the fact that the U.S. Supreme Court continues to whittle down this “protection”—allowing states to exercise sovereignty over Indians and Indian lands in a variety of cases. Focus on the primary point: federal Indian law offers Native Peoples no “protection” from the federal government—the U.S. itself.

U.S. courts have ruled that the Indian “right of occupancy”—”aboriginal title”—does not involve a treaty relationship. Therefore, the courts say, the U.S. can deny Indian title as it sees fit. “Indian removal” and “termination” are watchwords for U.S. destruction of Indian Nations.

The courts have repeatedly emphasized what they call the “plenary power” of the U.S. Congress to do as it wishes with Indians and Indian lands. In this way, the “protection” of federal Indian law operates like a “protection racket”: the racketeers will protect you from everyone except themselves.

So, to return again to the question: what does the participation of Native people in American political processes mean?
Are Native participants providing a useful service to Indians, by restraining the exercise of federal power to destroy Indian Nations? Or are they acquiescing in that power? Are they guerrilla fighters, working behind enemy lines to quell the power of their adversary? Or collaborators with the enemy?

One way to answer these questions involves checking out the rhetoric of the parties. The 2016 Republican Platform says, “Our approach is to empower American Indians, through tribal self-determination and self-governance policies, to develop their greatest assets, human resources and the rich natural resources on their lands, without undue federal interference.”

The Democratic Platform says, “We will strengthen tribal sovereignty and tribal jurisdiction by enacting laws and policies that enhance the ability of Indian nations to govern their territories, keep their communities safe, and prosecute crimes committed on tribal lands.”

The party platforms sound good… until you remember that the key words—”tribal sovereignty” and “tribal self-determination”—are also code words for “domestic, dependent nations,” whose “rights to complete sovereignty, as independent nations, were necessarily diminished” by the Doctrine of Christian Discovery.

No political party in America has called for an end to the Doctrine that says the U.S. holds title to Native lands. No party platform calls for acknowledging that the “original inhabitants of the continent” still hold title to the lands.
Perhaps you will say this can never happen, because of the economic dependence of American Indians on the U.S. To that response, consider this: The U.S. itself—through its claim to ownership of Indian lands, aka “public lands,” remains dependent on the resources of those lands—directly and through arrangements with private developers.

The latest big example: “The Southeast Arizona Land Exchange and Conservation Act,” which mandates a “swap” of Native lands from the San Carlos Apache and other Indigenous Nations to Resolution Copper Company. U.S. Congressman Paul Gosar says this taking of Native lands “facilitates the development of an underground copper mine that will create thousands of American jobs, will reduce our dependence on foreign sources of energy and minerals, and will generate significant revenues for federal and state treasuries.”

The alleged “dependence” of Native Nations on the U.S. government thus actually involves “interdependence,” albeit an uncompensated U.S. dependence on Native lands through a “taking” of Indigenous resources, “protected” by the U.S. claim to be the “trustee” of the Indians.

The principles of George Orwell’s “double-think” and “Newspeak” operate at the core of political thinking about American Indians and lands.

Despite the absence of any American political party platform statements calling into question the fundamentals of federal Indian law, there are nevertheless some aspects of Native delegates’ efforts that may justify their roles at the conventions.

Consider the remarks of Minnesota State Representative Peggy Flanagan (White Earth) at the Democratic convention. For better or worse, Rep. Flanagan’s role as a state political figure already indicates a willingness to participate in governments descended from the colonizers. Her remarks included the following: “Your name [referring to her daughter] is not Pocahontas. It is Siobhan Ma’iingan, and you should never let anyone make you feel anything less than proud of who you are.”

Brave words, but how does the mother explain her participation in the political processes of governments whose powers are rooted in subjugation for which the U.S. Supreme Court found “excuse, if not justification, in the character and habits of the people whose rights have been wrested from them”—the “fierce savages”?

Rep. Flanagan added, “We are still here.” But which “we”? The “we” of Native Nations asserting independent sovereignty, or the “we” of Native individuals asserting personal dignity?

Does the participation of Native delegates signify reconciliation with the fact of colonization, dispossession, degradation, and plenary power? How can we “honor… our elders, show… gratitude to our warriors, [and] cherish… our children as gifts from the Creator,” and at the same time fail to challenge the fundamental Doctrine that dishonors the elders, exploits the warriors, and exposes the children to the ravages of a colonized life?

I single out Rep. Flanagan only because her words and her appearance at the Democratic convention were so widely celebrated. Her remarks call for analysis precisely because she said, “It means so much that we were invited to be here on the last night of the convention.”

To return to the question, “What does it mean?”

The governments of the United States and Israel share a common religious-political tradition, rooted in the story of the Family of Abraham. It undergirds their relations with the peoples who were there first. In the U.S., the Indians; in Israel, the Palestinians. We can explore how one government echoes the other.

A recent article by David Shulman in the New York Review of Books reviews what he calls “the finest Israeli documentary ever made about the occupation, ‘The Law in These Parts.'” Shulman holds the Renee Lang Professorship of Humanistic Studies at the Hebrew University of Jerusalem and participates in Ta’ayush, an activist Arab-Jewish Partnership organization. Ta’ayush works with Palestinian farmers and landowners to defend their homes, fields, and grazing grounds.

The documentary focuses on a group of jurists, legal advisers, and judges who sat in the military courts in the occupied Palestinian territories. In Shulman’s words, the film shows that “the legality of torture, mass arrests, prolonged administrative detention without trial, the violent suppression of civilian demonstrations, punitive house demolitions, severe restrictions on freedom of movement, and other practices … have become commonplace under Israeli rule.”

These themes and events—”the general, remorseless processes of dispossession and expulsion”— echo the history of violent dispossession of Native Peoples in the Americas, where destruction of Native communities were the hallmark of colonial invasion and ‘westward expansion.’

As Shulman explains, the appropriation of Palestinian land for Israeli “settlements” started with “ideologically motivated, religious settlers, who fairly quickly won government backing.” He points out, “Initially, when the question of the legality of this procedure came up before the Israeli Supreme Court [in 1979], the court … declared [it] illegal and forced the government to move the projected settlement to a nearby hill.”

The court’s ruling, however, was short-lived. As recounted by Eyal Press in another review of the Israeli documentary, “Just hours after the ruling was handed down,” the government began plotting how to get around the law.

The plot provided another echo of American colonialism. Where the American colonizers relied on 15th century Christian imperialism—the “doctrine of Christian discovery”—the Israelis borrowed a doctrine from the 19th century Ottoman Empire.
Ottoman law identified a category called “mawat”—”dead” land. It applied to lands outside a village that had not been cultivated for a period of years. The Israeli government argued that this law was still in force in Palestinian territories, and that such “dead” land could be appropriated by Israel.

The terminology of “dead land” again echoes Christian colonialism against Native Peoples in America, where the invaders who wanted to ‘legally’ appropriate land declared it “terra nullius”—Latin for “no one’s land.”

As soon as the Israeli government determined to use this old Ottoman doctrine, the military began flying helicopters over Palestinian lands, looking for areas that could be labeled “mawat” and seized by the state. Israeli occupiers streamed into these areas, building a string of new “settlements.”

When the new occupations were challenged by lawsuits, the Israeli Supreme Court changed its tune. It ruled that the Israeli state, as an occupying power, had discretion to dispose of the lands as it saw fit. Under this rule, the court regarded the Israeli state as the “custodian of enemy property,” with the implication—however far-fetched—that the Israelis were taking care of the land until it could be restored to its owners.

Here again, we find an echo of the American colonial invasion: the notion that the United States government is the “guardian” of the property of the Native Peoples. This doctrine supports the power of the government to do what it decides is best with the property, even where the original Peoples are still living on the land.

As Shulman says, “In the end, the law is only one delimited dimension of a pervasive political program.” But one important political consideration distinguishes the Israeli from the American colonial program: the question of citizenship. Whereas the United States government has frequently attempted to “assimilate” Native Peoples and has unilaterally declared them to be “citizens” of the U.S., the Israeli government has resisted citizenship status for Palestinians.

As Daniel J. Elazar explains, in his essay at the Jerusalem Center for Public Affairs, “Israel as a Jewish State,” “Formally, Israel is built on the modern European model of centralized, reified statehood. In contrast, the weight of the Jewish political tradition, while emphasizing the importance of political independence for Jewish survival and fulfillment, is directed against that conception of statehood.”

This means that the nature of Israeli citizenship presents serious obstacles to the “assimilation” of Palestinians. The issue boiled up in early May 2014, at an Israeli government cabinet meeting: Prime Minister Binyamin Netanyahu pushed for a change to Israel’s constitution—to affirm that Israel is “the nation state of one people only – the Jewish people – and of no other people.”

As reported in The Guardian, Netanyahu added that the civil rights of minorities, including Arabs, would be guaranteed. Civil rights are also recognized in the U.S., but, unlike Israel, the U.S. Constitution mandates a separation of state and religion. Despite this major difference between Israeli and American colonial programs, the fact remains that the foundations of the two systems are mirror images: state power rooted in religious and imperial colonial doctrines.

To add one more echo: In January 2012, Israel’s High Court rejected a challenge to Israeli mines in Palestinian territory, ruling that the occupation has gone on for so long that its legal status has “unique characteristics.” Compare this to the 2005 U.S. Supreme Court decision in City of Sherrill v. Oneida Indian Nation of N.Y., which held that the “longstanding, distinctly non-Indian character of central New York” made it impossible to enforce Oneida ownership of the lands.

In Israel as in the U.S., a colonial occupation of lands belonging to others has developed its own special rules to justify itself. This “justification,” however, is not the same as “justice.”