Doctrines of Discovery
In a speech given on September 8, 2000, at a ceremony on the 175th anniversary of the Bureau of Indian Affairs (BIA), Kevin Gover, a Commanche tribal member and outgoing head of the Bureau, issued “a formal apology to Indian people for the historical conduct of this agency,” an agency whose first mission was the forced removal of the southeastern tribes from their homelands, along the notorious Trail of Tears. “Today I stand before you,” Gover continued, “as the leader of an institution that in the past has committed acts so terrible that they infect, diminish, and destroy the lives of Indian peoples decades later, generations later.”
The Bureau of Indian Affairs was established by President James Madison in 1824, as part of the Department of War. In 1832, Congress authorized the president to appoint a Commissioner of Indian Affairs, and, in 1834, enacted a bill to organize a Department of Indian Affairs. In 1849, the BIA was transferred to the newly created Interior Department. By the 1850s, overseeing Indian reservations had become its principal arena of activity.
In this context, the term colonialism has a precise meaning: the control by the federal government over what federal law terms “Indian country” (Title 18, U.S. Code, section 1151), which, in broadest terms, includes all federal reservation land; all “Indian allotments”; and all “dependent Indian communities,” whether they are residing within a reservation or not. In Indian country, reservation land is land used by federally recognized tribes, but titled to the federal government, which thus has legal ownership of it, keeping the lands “in trust” for the tribes, of which there are 330 today in the lower forty-eight states.
The “trust” relationship between the tribes and the federal government is at best a double-edged sword. Ostensibly guaranteeing federal protection of Indian assets, it also casts Indians in the role of perpetual minors, a barely veiled version of the classic European stereotype of the childlike “savage.” Indians, by definition legally incompetent to manage their own resources, find these resources placed in the hands of a federal bureaucracy, overseen by Congress, which has historically grossly mismanaged them. The BIA currently finds itself embroiled in an almost five-year-old class-action lawsuit filed by the Native American Rights Fund against the Bureau and the Department of the Interior for the mismanagement of an estimated ten billion dollars in Indian trust funds since the end of the nineteenth century. In February 1999, as reported in the Washington Post of August 17, 2000, Gover himself was held in contempt of court for not turning over records in this case, records he claimed “no longer existed.”
As it functions, the trust relationship contradicts what for the last thirty years has been the stated federal policy of increased “self-determination” for Indian tribes. Yet the tribes, rightfully, resist any congressional attempts to dissolve this relationship (and only Congress has the constitutional power to do so) because all such attempts have only offered the dismemberment of the tribes as an alternative.
As distinct from reservation lands, allotted lands are lands, on or off reservation, which the federal government has granted to individual Indians. In this case, the government may retain title to the individual lands, which is most often the case, or the individual may hold title. Approximately eighty percent of the Indians lands to which the federal government holds title (approximately fifty-five million acres) are reservation lands.
It is clear enough under the law that any tribe occupying reservation land is considered a “dependent Indian community” in relation to the federal government. There are also tribes, like the Oklahoma Cherokees, numerically the largest tribe in the United States, that, while not occupying a reservation per se, still come under federal superintendence with title to their tribal lands held by the federal government, and are thus considered a “dependent Indian community.” Ambiguities arise, however, in the case of Alaskan Native communities, which except in one case, do not occupy reservations or other kinds of “trust” lands but hold title to their lands as corporate entities under the Alaska Native Claims Settlement Act of 1971 (43 U.S.C.A, sec 1601-28), while still receiving federal benefits of various kinds because of their standing as Native Americans.
In 1998 in Alaska v. Native Village of Venetie Tribal Government, 118 S.Ct. 948, the Supreme Court tied the notion of “dependence” to the fact of lands held “in trust” by the federal government for Native Americans and thus ruled that the Alaskan village in question and by extension all such corporate entities were not in “Indian Country,” while at the same time recognizing Congress’s constitutional authority to modify the legal definition of “Indian country.” At present, Indian country does not extend to include Native Hawaiians either, though they are a people historically colonized by the United States and are engaged in an ongoing struggle for their land rights.
In carrying out U.S. Indian policy today, the BIA has long counted on the collaboration of elected tribal councils, Western-styled governments first put into place under the auspices of the Indian Reorganization Act (IRA) of 1934. The decision whether or not to adopt IRA-sponsored constitutions was left up to the tribes. At the time, 181 tribes voted to adopt them and seventy-seven tribes voted to reject. Nevertheless, all the tribes needed a governmental mechanism (tribal council) in order to deal with the BIA for the resources it controlled under congressional mandate, which included, principally, tribal lands. Thus, whether or not a tribe drafted a constitution as the BIA requested, it had to comply in one way or another to BIA pressure to form representative governments. As they do today, these councils faced various forms of resistance from the grassroots of their communities. Thus, one often finds in Indian country a democratically elected tribal government that is at the same time opposed by or alienated from the grassroots population precisely because it is perceived as an arm of U.S. colonial power. But, it is important to emphasize, a tribal council may also oppose U.S. power in certain instances and so claim the support of its constituency on certain issues, particularly those dealing with land and sovereignty. These kinds of divisions within the tribes have a long history, which is a direct result of European colonial policies in the Americas.
Because of reforms instituted by the IRA, the BIA is now administered from top to bottom largely by Indians. But, in spite of Kevin Gover’s optimism, the BIA continues to contribute to the general impoverishment of Indian people. Today the 1,698,483 tribally enrolled U.S. Indians (out of an approximate Native population of two million) are the poorest of the poor. The 1990 census reports a per capita income in Indian country of $4,478, compared to a national average of $14,420. According to BIA statistics, in 1999 unemployment among the labor force of the 556 federally recognized tribes (226 in Alaska) was forty-three percent, a one percent increase from 1997. Only nine percent of Native Americans twenty-five years and older have college degrees in comparison to thirteen percent of Latinos, fourteen percent of African Americans, and twenty-four percent of the total population.
In his September 2000 apology, Gover distinguished between the BIA “in the past” and the BIA now, “in this era of self-determination, when the Bureau of Indian Affairs is at long last serving as an advocate for Indian people in an atmosphere of mutual respect.” But this all too clean separation overlooks, for example, the mismanagement of trust funds previously mentioned. Meanwhile, his neat distinction between the old and the new BIA also ignores the ongoing Navajo-Hopi Land Dispute in which, beginning in 1977, the Bureau has overseen the displacement of twelve to fourteen thousand Navajos from their homelands. Despite Grover’s claims for “an atmosphere of mutual respect,” the colonial structure of federal Indian law, which the BIA administers, dooms the Bureau to be a certain kind of classic colonial bureaucracy.
II. Land and Property
United States federal Indian law is grounded in the history of Western imperialism in the Americas, and in what were and remain the central issues in the conflict between Indian communities and European powers: land and sovereignty. It is not only that the Euro-Americas are built on stolen Indian land but also that the traditional Native relationship to land was radically opposed to early modern Europe’s increasingly capitalist relationship to it.
[T]reaties were always written in Western languages employing Western legal vocabularies, grounded in the term property.
Traditionally, land was and is the absolute resource of the Native community. In Native America land mediates all relationships on a plane where the distinction between the sacred and the secular made by the West does not exist. Native land is not what the West understands as property, a decidedly secular institution.As a traditional value, land is the antithesis of property. Land, in this view, is the inalienable ground of the communal, defined exclusively in terms of extended kinship relations. I use traditional in this context not to denote unchanging cultural practices, the notion of which is in any case a fiction, but rather to signify an ongoing and adaptive force marshaled from the historical moment of the Columbian invasion of the Americas (1492) against the European exploitation of Native land. Such resistance is exemplified in the present by the continued refusal of the Sioux Nation to accept a monetary settlement, now with accumulated interest worth an estimated 350 million dollars, granted them in 1974 by the Indian Claims Commission for a wrongful taking in 1877 of the Black Hills, land central to their identity as a people. For the Sioux, the Black Hills are not fungible.
Whether in such different cultures as the Pueblos in what would become the southwestern U.S. (or the pueblos in Mexico), the Iroquois Confederacy in the territory that is now the northeastern U.S. and Canada, the Creek or Cherokee towns in what became the southeastern U.S., or the tiospaye of the Oceti Sakowin (Sioux) on the great plains of North America, the traditional Native community can be described as an extended family or system of interlocking extended families working in concert for mutual sustenance. But we should be careful not to conflate the Western nuclear family paradigm with the Native paradigm of family, or, as I prefer, kinship. The relational terms of the Western family (father, mother, brother, sister, aunt, uncle, cousin, etc.) do not translate into the terms of Native kinship. In comparison to the class and gender hierarchies of Western nation-states, Native communities were marked by egalitarian social and political structures, where group action was based on group consensus, precisely because (if one wants to take an economic perspective) the labor of all, female and male, was equally valuable for the sustenance of the group. Native kinship terms extend as well into that part of the world that the West has increasingly alienated, subordinated, and exploited as “nature.” Such extended kinship by folding nature into the Native community sets conservative limits to the use of natural resources.
In theory and practice, the indigenous conception of community does not exclude conflict either within or between communities, as indigenous oral traditions clearly attest. However, in societies where there were no class divisions, where every person’s contribution was valuable to the sustenance of the group, and where there were no systems of incarceration, solutions to intragroup conflict were conceived primarily in terms of restoring balance to social relations rather than, as in Western societies, isolating transgressors from these relations. So, for example, the killing of the member of one group (family or clan) by the member of another might be balanced by a single counter-killing or, alternatively, a payment of some kind, either of which, it was agreed by the aggrieved party, would close the circuit of violence. Interclan conflicts within the Hopi villages have been resolved historically by the formation of new villages, which nevertheless remain within the Hopi fold through clan ties that link village to village on the three mesas in northeastern Arizona. The last resort in maintaining balance in indigenous social systems was exile, for psychic and social survival outside the kinship community was precarious at best. As for intercommunity conflict, what the West terms war, it is enough to say here that whatever its function (ritual, territorial, raiding) it cannot be understood in terms of modern Western warfare, which is based in an imperial/colonial paradigm: the clash of nation-states over issues of property. Once capitalist economies disrupted Native economies, of course, Native kinship relations to land were disrupted by property relations, and were forced to come to terms with property relations, but have also managed to mount a continuing, if often divided, resistance to these relations. That is, the Western imperial invasions of Native America have brought with them the kinds of collaboration that such invasions bring, the kind, for example, instanced by the BIA at the present moment.
In Native kinship economies, land was not fungible, that is, marketable, or alienable by an individual, or group acting as an individual within the community. Thus, the treaty, signed by “chiefs” or other designated leaders, in which, centrally, the Indian “tribe” or “nation” alienated a portion of its land in exchange for payment of various kinds, is always, quite literally, the sign of the imposition of Western terms on indigenous communities: treaties were always written in Western languages employing Western legal vocabularies, grounded in the term property.
Property is the foundation of Western capitalist democracies; and land is in the history of these democracies the fundamental form of property. These democracies both as nations (ideas, or ideals, or ideologies) and states (political systems that mediate, or express, the nation) are particular articulations of property, which is not simply a material relation but implies in the very history of the word property a moral and social one (what is proper) and a metaphysical one as well: the particular properties that define what the West has come to understand as an individual. When the United States was founded, for example, only property-holding white males by and large had the franchise, were, that is, considered individuals in the political realm. Even today, not to hold some form of property in the West is to have one’s individuality bracketed, to find one’s recognition as a person seriously compromised. It has been the overriding thrust of U.S. federal Indian law from its constitutional inception to the present to translate Indian land into property, not for the purpose of entitling Indians to their land but for the purpose of legally entitling the federal government to it and thereby compromising the sovereignty of Indian communities.
III. Legal Fictions
The laws that govern the colonial space of Indian country today are for the most part codified in the twenty-fifth title of the U.S. code. This makes Indians the only group of people in the United States who are governed by a distinct body of law. This body of law, which defines the colonial status of Indians, derives its ultimate authority from the Commerce Clause of the Constitution (Article I, Section VIII, Paragraph III), giving Congress the power: “To regulate commerce with foreign nations, and among the several States, and with the Indian tribes.” Using the Commerce Clause as a basis, Congress enacted a series of trade and intercourse laws between 1790 and 1834 that extended the definition of “regulating commerce” to include control over the buying and selling of Indian land, as had the British Royal Proclamation of 1763, which was the model for U.S. Indian policy in this regard. These laws became the constitutional rationale for the three major legal cases that to this day form the foundation of federal Indian law. These cases, known as the “Marshall Trilogy,” after John Marshall, the chief justice of the Supreme Court who wrote the defining opinion in each case, are, in the order of their enactment, Johnson v. McIntosh, 21 U.S. 543 (1823), Cherokee Nation v. the State of Georgia, 30 U.S. 1 (1831), and Worcester v. Georgia, 31 U.S. 515 (1832).
Perhaps the principal irony in Johnson is that in a case that has determined the status of Indian land and sovereignty from 1823 to the present, there were no Indian parties to the suit . . .
Like all bodies of knowledge that claim objectivity, the subjectivity of the law–its social, cultural, political, and economic biases–can be located in the narratives that underlie it but that are rarely brought into play in contemporary legal practice. The U S. law upholding the constitutionality of the death penalty is exemplary in this respect. It seems at this point clearly driven by the social and economic biases of race and class (a radically disproportionate number of prisoners on death row are poor and black); it provides, that is, an historical narrative of race and class discrimination not only in the workings of the criminal justice system but in the nation as a whole, which in this case Congress and the Supreme Court have agreed to ignore so that the death sentence can continue to be administered (in the majority of states) as if it were being administered fairly. Federal Indian law works in precisely the same way; that is, it is grounded in a narrative of cultural and political bias, which the government ignores so that it can continue to administer this body of law as if the narrative of the imperial domination of culturally inferior peoples that drives it were a thing of the past. When Kevin Gover apologized to Indian people for the genocidal past of the BIA, he implicitly acknowledged this narrative. But when he uncoupled the present BIA from the past BIA, he repressed the persistence of this narrative in the present.