To Shout Into The Wind ©
by Jordan S. Dill

On Wed, 18 Jan 1995, Deward E. Walker Jr. responded to an earlier Natchat post by "Roger Macklin concerning the degree of sovereignty enjoyed by the Mescalero Tribe" via an article he wrote, "Tribal/Federal/State Relationships." This response (article) appeared in The Health Physics Society's Newsletter, January, 1995. I didn't see the initiating post but imagine it had something to do with (am guessing here) radioactive waste storage? Mr. Walker states that:

When treaties were executed with the United States, important rights were reserved to Tribes, many of which continue to be enforceable today...Treaties with Tribes also stand on essentially the same footing as treaties with foreign nations. Since they are made pursuant to the Constitution, they take precedence over any conflicting state laws by reason of the Supremacy Clause.

On the surface this sounds admirable and there is the intimation that the United States honors all that it has sworn to. However, some important issues ought to be kept in mind, if only for perspectives sake.

"Sovereignty is a complex matter and one of degree...," Mr. Walker states. Indeed it is, and I suggest that the term sovereign be defined, in this instance with the only dictionary at hand, the Oxford American Dictionary: sovereign-adj. (1) supreme, sovereign power. (2) possessing sovereign power, independent sovereign states. (3) very effective, a sovereign remedy.

Prior to 1871 the United States participated in a treaty making process with the First Nations because this technique was the obvious "legal" answer to westward expansion. Treaties, as defined by the Supreme Court did not incorporate a "grant of rights to Indians, but a grant of rights from them." Originally treaties were contracts between sovereign nations and accordingly were "the supreme law of the land." If Wasichu wasn't smart enough to think of everything he wanted and get same into the relevant treaty then "any right not expressly extinguished by a reserved to the tribe." This is known as the "reserved rights doctrine." (Pevar)

As time, disease, despair, genocidal activity, public opinion and overwhelming superiority in terms of combatant bodies took their toll, the need for defining the First Nations as sovereign passed. "It was at this point that an effort to reconcile official terminology with the semantics of the general public began to emerge" and the "word 'tribe' completely [displaced] the word 'nation' in the legal discourse [which] lead to congressional termination of treaty-making with Indians in 1871." (Churchill) The First Nations:

" one time had had enough power to make a favorable cession of lands a diplomatic triumph for the United States. But from the early nineteenth century on, perceptive men had seen the incongruity of treating Indian tribes as equals, and as demands for reform in Indian affairs grew during and immediately after the Civil War, the treaty system came under increasing attack." (Prucha)

If one has all the power then why bother being just?

Note the comments from Commissioner of Indian Affairs, Ely Parker (Donehogawa, Seneca Chief), 1869,:

...a treaty involves the idea of a compact between two or more sovereign powers, each possessing sufficient authority and force to compel a compliance with the obligations incurred. The Indian tribes of the United States are not sovereign nations, capable of making treaties, as none of them have an organized government of such inherent strength as would secure a faithful obedience of its people in the observance of compacts of this character. They are held to be wards of the government, and the only title the law [Wasichu's law] concedes to them to the lands they occupy or claim is a mere possessory one. But, because treaties have been made with them, generally for the extinguishment of their supposed absolute title to land inhabited by them, or over which they roam, they have become falsely impressed with the notion of national independence. It is time that this idea should be dispelled, and the government cease the cruel farce of thus dealing with its helpless and ignorant wards. Many good men, looking at this matter only from a Christian point of view, will perhaps say that the poor Indian has been greatly wronged and ill treated; that this whole country was once his, of which he has been despoiled, and that he has been driven from place to place until he has hardly left to him a spot to lay his head. This indeed may be philanthropic and humane, but the stern letter of the law admits of no such conclusion, and great injury has been done by the government by deluding this people into the belief of their being independent sovereignties, while they were at the same time dependents and wards. As civilization advances and their possessions of land are required for settlement, such legislation should be granted to them as a wise, liberal, and just government ought to extend to subjects holding their dependent relation.(Cohen)

Small wonder Donehogawa was appointed commissioner!

The termination of the treaty-making process was presaged by section 6 of the Act of March 29, 1867, which provided that "all laws allowing the President, the Secretary of the Interior, or the commissioner of Indian Affairs to enter into treaties with any Indian tribes are hereby repealed..." (Cohen) While this Act, supported by the House of Representative, was soon repealed, it stood as a harbinger of what was to come. In 1871 Wasichu recognized that he was working himself into a hole by dealing with "sovereign nations" which resided smack dab in the middle of what he was trying to gain full custody of. This realization combined with a rebellious House of Representatives heretofore excluded from the treaty making process prompted the House to rebel. The result of this protest was a law enacted on March 3, 1871, which prohibited making any more treaties with the First Nations (Title 25, United States Code, Section 71). The law further established that the First Nations were no longer independent [sovereign?] entities: "...hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe with whom the United States may contract or treaty." (Chamberlin)

Treaties made prior to 1871 were to be honored but Congress covered itself by noting that:

The power exists to abrogate the provision of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so.(Getches, Wilkinson, and Williams)

Had the Senate not agreed to work with the House of Representatives, the House was prepared to propose that all treaties made prior to 1871 were to be abolished. Under a so-called gun, the Senate cooperated and prior treaties remained valid.

You see, in the beginning when Wasichu first started his march to the West it was necessary for him to justify his land grabbing activity to those foreign nations from whom he solicited respectability and international cooperation. Hence his purely tactical acknowledgement that the First Nations were sovereign entities and the resultant "treaties" with these Nations.

Note the following comments from dear ole I-can-not-tell-a-lie George Washington, a man who earned the nickname "Town Destroyer" for his direction of the obliteration of "at least 28 out of 30 Seneca towns from Lake Erie to the Mohawk a period of less than five years."(Stannard):

"...the Settlemt. [sic] of the Western Country and making a Peace with the Indians are so analogous that there can be no definition of the one without involving considerations of the other. For I repeat it, again, and I am clear in my opinion, that policy and oeconomy [sic] point very strongly to the expediency of being upon good terms with the Indians, and the propriety of purchasing their Lands in preference to attempting to drive them by force of arms out of their Country; which as we have already experienced is like driving the Wild Beast of the Forest which will return as soon as the pursuit is at an end and fall perhaps on those that are left there; when the gradual extension of our Settlements will as certainly cause the Savage as the Wolf to retire; both being beasts of prey tho' they differ in shape. In a word there is nothing to be obtained by an Indian War but the Soil they live on and this can be had by purchase at less expense [sic], and without that bloodshed, and those distresses which helpless Women and Children are made partakers of in all kinds of disputes with them..." (Washington)

In this same vein, Thomas Jefferson advocated a bloodless approach to First Nations property acquisition: promote this disposition to exchange lands be glad to see the good and influential [Indian] individuals among them run into debt, because we observe that when these debts get beyond what the individuals can pay, they become willing to lop them off by a cession of lands (Sheehan)

My tendency now is to analogize the Wasichu/First Nations relationship as wolves set amongst sheep. Yet the First Nations were by no means sheep. No, rather it might be considered that Wasichu was so skilled, so wily, so ruthlessly single minded in his desire to fleece (no pun intended) the First Nations that, until the First Peoples realized what was happening, they stood no chance. As stated in United States v. Kagama (1886):

The power of the general government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell. It [Power] must exist in that government, because it never has existed anywhere else, because the theater of its exercise is within the geographical limits of the United States, because it has never been denied, and because it alone can enforce its laws on all the tribes.

Did this viewpoint spring unannounced into the light of day? No. There was ample precedent. The United States took great pains to insure that the First Nations acceded to demands that they acknowledge, on paper, themselves "to be under the protection of the United States of America, and of no other sovereign whatsoever" (Hopewell Treaty) and that the First Nations "were not free to deal directly with European nations, with individual states, or with private individuals." (Prucha) Just one example of "sovereignty" as defined by proprietors of the Land of the Free and Home of the Brave.

If the fact as to just who is in charge and where their priorities lie requires any more hammering home, note Supreme Court Justice O'Connor's comments rendered in the April 19, 1988 Supreme Court decision concerning Lyne v. Northwest Indian Cemetery Protective Association:

...the constitution simply does not provide a principle that could justify upholding respondents legal claims...Whatever rights the Indians may have to use of the area [17,000 acres of "High Country" forest held sacred for centuries by the Yurok, Karok, and Tolowa "tribes" of California through which the Forest Service proposed to build a 6 mile road so as to provide loggers with easier access to timber], however, THOSE RIGHTS DO NOT DIVEST THE GOVERNMENT OF ITS RIGHTS TO USE WHAT IS AFTER ALL, ITS LAND...

Capitals are mine. And the real kicker? After the road's "legitimacy" was affirmed by the Supreme Court, the project was abandoned!

Just as the Doctrine of Discovery which underwrote Wasichu's possession of this continent was based on fabrication, so to is the belief that the First Nations can expect justice under the Conqueror's sword. To expect justice from an Overlord who considered/considers the First Nations to be "essentially a simple, uninformed and inferior people," (United States v. Sandoval) who are "...semi-barbarous, savage, primitive, degraded and ignorant" (Clinton-Newton-Price) is to shout into the wind. For:

Besides justifying unquestioned abrogation and unilateral determination of tribal treaty and property rights, the discourse of conquest derived from the Doctrine of Discovery has been interpreted to permit the denial of other fundamental human rights of Indian tribal peoples in the United States. Violent suppression of Indian religious practices and traditional forms of government, separation of Indian children from their homes, wholesale spoiliation of treaty-guaranteed resources, forced assimilative programs, and involuntary sterilization of Indian women represent but a few of the practical extensions of a racist discourse of conquest that at its core regards tribal peoples as normatively deficient and culturally, politically, and morally inferior...(Williams, Jr.)

Bottom line? Wasichu can do what he wants, whenever he wants because "...title by conquest is acquired and maintained by force. [Only] the conqueror prescribes its limits." (Marshall)

Works Cited:

Chamberlin, J. E. The Harrowing of Eden, White Attitudes Toward Native Americans . The Seabury Press: New York, 1975

Marshall, Chief Justice of the United States Supreme Court

Churchill,Ward. Indians Are Us?, Culture and Genocide in Native North America . Boston: Common Courage Press, 1994

Clinton-Newton-Price, American Indian Law, Cases and Materials . Charlottesville: The Michie Company, 1991

Cohen, Felix. Handbook of Federal Indian Law . Buffalo: William S. Hein Co., 1988

Getches, Wilkinson, and Williams. Federal Indian Law, Cases and Materials. St. Paul: West Publishing Company, 1993

Hopewell Treaty . 1785-1786

Sheehan, Bernard W. Seeds of Extinction.Chapel Hill: The University of North Carolina Press, 1973

Pevar,Stephen L. The Rights of Indians and Tribes: The Basic ACLU Guide to Indian and Tribal Rights. Carbondale: Southern Illinois University Press, 1992

Prucha, Francis Paul. The Great Father, The United States Government and the American Indians. Lincoln/London: University of Nebraska Press, 1986

Stannard, David E. American Holocaust, Columbus and The Conquest of the New World . New York/Oxford: Oxford University Press, 1992

Supreme Court, Lyne v. Northwest Indian Cemetery Protective Association ( 1988)

Supreme Court, United States v. Kagama (1886)

Supreme Court. United States v. Sandoval (1913)

Washington, George. Letter from George Washington to James Duane, September 7, 1783

Williams, Robert A., Jr. The American Indian in Western Legal Thought: The Discourses of Conquest . New York/Oxford: Oxford University Press, 1990