Indian Country and
Congress:
Why Native Americans Can't Expect Fair Representation
by Dina M. Gilio
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Indian Country and
Congress: |
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Introduction Undertaking a comprehensive discussion about congressional representation of Native Americans is a complex topic that doesn't fit strictly or neatly within either the disciplines of Native American studies or political science, but does have to be explored as an intersection of both. So little has been written on the subject, in fact, that there is virtually no body of academic literature on it.[1] One can speculate as to why this might be so: with 4.12 million Americans who claimed Native American ancestry on the 2000 census, only about 1 to 2 percent (at best) of the country's population could be called Native American. Comparatively, Asian Americans comprise 4.4 percent, African Americans 12.4 percent, and Latino Americans 14.8 percent. With such a small minority, it could be assumed simply that not enough people care about Native American issues of representation to study it. However, while this could be true, there are nonetheless far reaching critical implications for the state of American democracy and its race relations in light of the realities Native Americans face regarding their relationship to congress. In this paper I argue that understood from the framework of the 500 year historical continuum upon which Native[2] people have interacted with Europeans and Euro-American immigrant populations and their descendants, the American system of representational democracy as it exists cannot be applied to Native Americans in the same way as it applies to all other Americans, even other ethnic minorities, and is in fact an ongoing manifestation of the colonial domination that was imposed upon the original inhabitants of this land since the beginning of the European invasion. In order to fully understand the nature of Native Americans' relationship to the American government, it is first necessary to lay out the historical and legal contexts that shaped the current paradigm, which will be the purpose of this introduction. In the early days of the colonies and later the new American government, relations with Indians were conducted through treaty making procedures based on the norms of international law of the time, and as established by the US Constitution[3]. As the Anglo-immigrant population rapidly grew, and the population of Indians decreased through contact with foreign diseases and military domination, the treaty making process ceased in 1871 through an act of congress. The purpose of the treaties was to regulate commerce with the tribes and to cede land to the US, as well as to maintain peace between the Indian and non-Indian populations. Based on the constitutional mandate of the treaty making power of congress and the presidency, states were forbidden to engage in formal diplomatic relations with Indians for the purpose of transferring land or imposing taxes or certain laws in Indian country. By 1823, the first Supreme Court case emerged which dealt directly with Indians. Two more Indian cases followed in 1831 and 1832, and together, the three cases are known as the Marshall Trilogy[4]. The Marshall Trilogy forms the foundation of federal Indian law and the legal paradigm through which the US administers its relationship with tribal nations as a colonizing power. The legal doctrines which were established as a result of those cases provide the guiding principles for all subsequent legal decisions about tribal nations, as well as federal Indian policy on the legislative level. Those foundational principles are known as:
Many Native and non-native scholars and law professionals alike view the Marshall Trilogy and the descending theories of federal Indian law as the creation of a complex maze of legal fictions by a colonial power that justifies the ongoing abrogation of Native treaty rights and unilateral diminution of Native sovereignty. Yet, the US does recognize what it terms a "limited (or quasi) sovereignty" of Native nations, and it is well established in law that there exists a legal/political relationship between the federal government and tribes. This relationship distinguishes Native peoples (including Native Hawaiians, known as Kanaka Maoli,) from all other ethnic minorities in the US. This limited sovereignty affirms, among other things, the rights of tribes to self-governance, the right to determine their own citizenry, and government-to-government relationships with the US as long as tribes meet the prescription of federal recognition. The United States is comprised of not just two sovereigns (state and federal), but three- including all federally recognized tribes within the borders of their respective reservations. Congress, via the concept of plenary power, has intervened in the lives of Indians through various eras of its Indian policy. The eras are known as Assimilation (1871-1928), Reorganization (1928-1945), Termination (1945-1961), and Self-determination (1961-present). These policy eras, in addition to the legal concepts, are key to understanding the ongoing political issues Native Americans face, and will be explored in more depth later in the essay, but can generally be characterized as varying tactics of forced inclusion of Native Americans into the fabric of American society. Catalyzing the Conversation As an undergraduate Native American (Colville Confederated Tribes) university student majoring in Native American studies and minoring in Political Science, I am especially intrigued by not only the fact that Native Americans are characterized by their unique political relationship with the United States, but also by the fact that so little has been written about it in the political science literature. Being a Native student in political science classes has been intensely frustrating for me, as many times I have felt marginalized and even discredited for my indigenous perspective. But really, it is just an extension of my prior experience as a political activist and writer for and about Native issues, and ultimately not surprising to me. The combination of my study of the two subjects led me to pursue a congressional internship, where I could see firsthand how Natives fit into the workings of a congressional home district. It was an extremely valuable experience in many ways, one that I will treasure for a long time to come, not necessarily for cementing any ideals of the wonders of American democracy, but for the on-the-ground realities I witnessed, and the times I was able to spend with the congressman engaging in district business and enlightening conversations. It was out of one of these conversations that this paper is born, and constitutes my response to the discussion of that fateful day with him. On that day, we were attending town hall meetings; he, his main field representative (my supervisor) and I, which meant long stretches of time driving from place to place in the rural landscape. Knowing what I know about Native American history and federal Indian law, and the fact that the concept of plenary power is in fact a manifestation of ongoing colonial domination, questions about congress' ability to truly represent the best interests of Native people loomed large in my mind. This particular member of congress represents a district with many tribal groups within it; he is generally considered "pro-Indian", and I knew he fully understood the legal and historical issues involved. Prior to our trip that day, I'd decided I'd take the opportunity to ask him a few pointed questions. Nervously, from the back seat I handed him a sheet of paper with my questions typed out, and asked him for his response. These are the questions I posed:
He thought about it for awhile, carefully formulating his response. First he said that the reality was that the United States has the military. I took that to mean that right or wrong, the US can do whatever it wants because of its superior military power. It was harsh, but of course I know it's true. He then asked me if I'd read the book Blood Struggle: The Rise of Modern Indian Nations by Charles Wilkinson[6], to which I replied no, but that it was on my reading list. He spoke at length and with passion about the issues I was raising. He warned that the kind of language that I was using in my questioning could also be used against tribes; I assumed he meant to further dismantle what sovereignty they currently experience. Finally, he said that tribes were better off just "sticking to issues" when it comes to their interactions with congress. The conversation stuck with me for months. It occurred to me that what he didn't say spoke louder than what he did say. The reality, it seemed to me, was that he skirted the very crucial issues I was raising, namely the ability of congress to fairly represent Native people given the unjust legal principles which guide the way congress interacts with them. More questions formed in my mind: by not addressing the questions directly, was he exhibiting his own belief that these injustices couldn't (or worse, shouldn't) ever really be overcome? Does he truly believe, like the majority of Americans, that American democracy is fair to all and that Native Americans should just accept their historical fate along with the legal mythologies which were invented to justify relentless and illegal American incursion into Indian territories and internal affairs? Does he not see the US in the same light as so many of his Native constituents that the US is an ongoing colonizing force (not only on these shores, but in other places such as Guam, Hawaii, and Puerto Rico) committed to maintaining the paternalistic dominating paradigm of the ward/guardian relationship? If so, how does this reflect the larger realities of congress and how it deals with Native Americans, especially those members of congress who don't understand the historical and legal context of the US' relationship with tribes, if for no other reason because they have no Indian reservations, or insignificant numbers of Native American constituents within their districts, and therefore don't have to confront these issues on a regular basis? Although I considered myself reasonably well versed about the workings of congress and the political problems Native people face, I was not aware of any ongoing conversations or topic of study in Indian country at the academic level or elsewhere, challenging the notion that congress fairly represents Native people. If anything, there is increasingly a "get out the vote" movement in Indian country, encouraging Natives to engage more deeply with the American political process by advocating for Natives to seek public office at the local, state and federal levels[7]. Natives participating in the political process on these levels can be seen as accomplishing what the congressman suggested; a "sticking to the issues" approach to the struggle for recognition of Indian rights. While it may be true that if a Native person is elected to public office (particularly at the regional or state level), they encounter the possibility of being able to represent Native interests through the promotion of pro-Indian legislation. Pro-Indian legislation stands much greater chances of being passed in districts where there is a high concentration of Native voters, for example in the states of Arizona, New Mexico, Oklahoma, South Dakota and Washington, assuming they are mobilized and actually voting. Statistics show that overall, Natives tend to vote in higher numbers percentage-wise (42 percent) than Blacks (40 percent), and Latinos (40 percent), at a slightly lower rate than Asians (43 percent), but at a much lower rate than whites (56 percent)[8], but these percentages are not big enough to guarantee any mandates of the Native vote. Research suggests that these statistics reflect the fact that because the majority of local, state, and federal candidates are typically white, ethnic and racial minorities feel alienated from the general election process as they don't feel the white candidates represent them[9]. While there is not much data indicating the impact Native office holders actually have on Native affairs, in one informal study by Robinson, Olson and McCool, interviews were conducted with 15 Indian office holders in local governments in 2004-2005. They were asked, "What impact do you think you have had on laws and regulations, the delivery of service, Indian peoples' access to local government, and Indian people's perceptions about local government?...While seven of the elected officials expressed the view that they had made an impact on laws and regulations, five others said their presence had no impact. One commissioner bluntly stated: 'I'm only one vote here, we get overrun on anything.'"[10] In another survey of tribal officials' political opinions conducted by Stubben, a question was posed asking which branch of the government best protected tribal sovereign rights. Forty one percent responded that congress best protected their rights, 23 percent felt that the Supreme Court did, and 6 percent felt that the president best protected their rights. Interestingly, however, even though congress was perceived as the best protector of Indian sovereignty, "the vast majority of respondents (75 percent) did not approve of how the US congress had been handling Indian affairs ... The trust level of the federal government by Indian tribal leaders appears to be moderate to low. None of the respondents felt that they could trust the federal government to always handle Indian trust responsibilities, 11 percent felt they could trust the government most of the time, 54 percent felt that they could trust the government some of the time, and 32 percent felt that they could never trust the federal government."[11] One of the arguments I advance in this study is that a "sticking to the issues" approach towards the protection of Indigenous rights through congressional action, without addressing the overarching fictional legal principles applied in federal Indian law- especially the plenary power doctrine- merely amounts to damage control of the monumental impact on Native Americans of the 500 years since the European invasion and formation of the United States of America. First of all, it assumes that congress will always have the best interests of Native people at heart. To the contrary, all of the positive Indian legislation of the past few decades, if we are to take our cues from Wilkinson's book Blood Struggle has been necessary to counteract the detrimental affects of congress' prior laws and policies. Second, it assumes that the current progressive trend of congress toward the supporting of tribal self-determination will remain unchanged for the indeterminate future. However, the history of federal Indian policy has shown prior periods of progressive (relatively speaking) ideology in which self-determination defined congressional action, but was then followed by long periods of regressive and deleterious legislation. The best example of this is the contrast between the Reorganization era of the 1930's when the federal government sought to improve the dire conditions of tribal nations, utilizing the language of self-determination, and the Termination era of the 1950's and 60's, when it then attempted to cope with it's ongoing "Indian problem" through unilaterally terminating it's historical legal responsibility to tribes by simply discontinuing it's relationship with them. Additionally, I maintain that Native people must be extremely cautious of what they are arguing for when they argue for inclusion into the American political process, especially in the realm of congressional representation. Unlike all other Americans, Native Americans are in the unique position of claiming citizenship within not just America, but with their tribal nations as well, and this political/legal relationship with the US distinguishes them from all other Americans. This raises questions of not just patriotism and loyalty, but of equality. Looking to the civil rights era, equality was what was demanded by ethnic minority groups in America whose historical experiences were of marginalization and disenfranchisement from the "American dream", an ideal reserved only for white Americans. For Native people, forced inclusion via assimilationist policies of the US government set up a contradictory civil rights issue, and they argued instead for an end to governmental intrusions into their lives. Vine Deloria, Jr., in his civil rights era classic Custer Died for Your Sins: An Indian Manifesto, said it best: "What we need is a cultural leave-us-alone agreement in spirit and in fact" (27). He also addressed the issue of equality within the civil rights movement when he observed, "The tragedy of the early days of the Civil Rights movement is that many people, black, white, red and yellow, were sold a bill of goods that said that equality was the eventual goal of the movement. But no one had considered the implications of so simple a slogan. Equality became sameness" (pg. 179). Indian political agendas have never argued for equality, but for what Robert A. Williams terms a "degree of measured separatism."[12] The danger of Natives seeking congressional representation is in the perception that it is a demand for equality-of sameness- to be on par with all other Americans, in spite of their unique political/legal status as sovereign entities.[13] I see this as a direct threat to and potential compromise of the albeit limited tribal sovereignty tribes currently enjoy. What is needed is something altogether different, a relationship which is instead based on true nation-to-nation status, a complex notion with many interesting possibilities, but which is also beyond the scope of this paper. Toward identifying the specific limitations Native Americans face in congressional representation, and in light of the above reasons for Native people to question the concept of seeking congressional representation, there must be care taken to consider the language we use to frame this discussion. I have identified six elements I believe to be not "barriers" to fair representation, but rather "precluding factors". The term barrier implies that there is something blocking the achievement a particular desired goal; but again, I maintain that Natives seeking congressional representation is not necessarily an ideal to be attained. Rather, there are factors that simply render "fair and effective" representation impossible, thus "precluding" it. These Precluding Factors are:
A Closer Examination of the Precluding Factors Precluding Factor #1- American history as a colonial construct; collective distortions of the past; and inaccurate, harmful stereotypes of Native Americans. It's been said that the victors of war control the history of a nation (the notion of triumphalist history). Of course, this doesn't mean they control the actual events of history, but rather the way the history of a nation is perceived by its citizenry via the framework from which it is told. It begins with its children at the earliest levels of education and media exposure, and is perpetuated throughout all the cultural, educational and legal institutions that comprise its social structure. The goal of history telling in the public arena is not necessarily to present accurate portrayals of events experienced by all people who were involved (particularly those on the losing end of military conflicts), but more pointedly to instill a sense of national pride and patriotism for one's country. In Western cultures whose histories are replete with the realities of European imperialism, this inevitably leads to a whitewashing of history; to be a proud American one simply cannot think too deeply about who was displaced from the land or how the displacement occurred in order for America to be. According to Professor of history, Dr. Timothy Linter, " ... history is a delicate amalgam of fact and fiction tempered by personal and pedagogical perception. Though the premise of history is rooted in empiricism, the teaching of history is not so subjective. History classrooms are not neutral; they are contested arenas where legitimacy and hegemony battle for historical supremacy."[14] The fictions of American history are familiar territory, and multitude. Beginning with the story of Christopher Columbus we see the Eurocentric notion of Indians having been "discovered", yet we have a juxtaposing, even contradictory, concept of the discoverers encountering vast expanses of uninhabited land, simply there for the taking, despite the fact that there were many millions of Native inhabitants who utilized those "uninhibited lands" for their sustenance through the hunting of game and gathering of wild foods for thousands of years. The nineteenth century doctrine of manifest destiny provided ample justification for the Euro-American immigrant population to seize the land from the Native inhabitants by any means necessary- a population who was seen as unworthy of so much land to begin with because most of them were not using it according to European norms of land cultivation. As "heathen savages" the uncivilized Indians' "primitive" way of life was destined to end when it encountered the superior race and culture of Europe because progress was inevitable, and progress was based not only on the exploitation of natural resources to benefit the human race, but on an assumption of the "commonness of human nature and the uniformity of the laws of human behavior over time."[15] In other words, Native cultures were expected to conform to European ways because to do so was in the natural order of things. All these (and so many other) historical narratives about Indians are based on the idea of Indians as "the other", those not European and ultimately inferior in their otherness. Much has been written on the concept of the other in the discourses of colonialism, and forms the core discussion of American identity and where Native Americans fit in America's collective unconscious. From an indigenous perspective, Phillip J. Deloria in his book Playing Indian explores non-Indians' ongoing fascination with Indians and their "historical anxiety" about them. Drawing upon the work of the British writer D.H. Lawrence in his "most significant work of literary criticism, Studies in Classic American Literature" (pg. 3), Deloria identifies two dilemmas surrounding American identity: "First, Americans had an awkward tendency to define themselves by what they were not. They had failed to produce a positive identity that stood on its own. Americans were, as he [Lawrence] put it, 'not so much bound to any haven ahead, as rushing from all havens astern.' Second, Americans (and he did not hesitate to generalize) had been continually haunted by the fatal dilemma of 'wanting to have their cake and eat it too,' of wanting to savor both civilized order and savage freedom at the same time" (pg. 3). He continues:
America's collective ambivalence about its indigenous people is rooted in its dark history of violent suppression of those people and the unjust taking of their lands. An irresolvable conflict is present when America, which holds itself as the foremost beacon of freedom, human rights, and democracy in the world, cannot reconcile the reality of its violent past with the high ideals it says it stands for. The conflict is perpetuated when Native people are too visible in the population, and especially when they are vocal about their indignation of past and present wrongs of the American government against them. In Going Native: Indians in the American Cultural Imagination, author Shari Huhndorf also explores notions of national identity and its relation to Native America. Americans have a long history of co-opting Indian identities for their own as evidenced by various movements over the past few hundred years in which the Indian as the "noble savage" is idealized. Captivity narratives, new age cultural appropriation, even the appropriation of ancient Native artifacts into museum collections are all part and parcel of the American attempt to reconcile itself with its troubling past. In her analysis of the movie Dances with Wolves which met with massive success in Hollywood in 1991, winning the Oscar for best picture that year, the movie industry proudly claimed that the film "was an original, Hollywood's first successful attempt to render justice to these Indians through Costner's sympathetic telling of their proud history. This claim attests to one of the primary impulses behind going native: European Americans' desire to distance themselves from the conquest of Native America" (pg. 3). Additionally, "the narrative serves another purpose. It starkly evokes the conquest of Native America, the precondition of the birth of the white nation, only to assuage the guilt stemming from that painful history" (pg. 4). Then, poignantly on page 11 Huhndorf goes on to say that "acknowledging this terrible past contests the imaginary unity of America and undermines the ideal of a free and democratic nation. It also raises a series of challenging, perhaps unthinkable, questions about the defensibility of European-American political dominance, past and present, and even the legitimacy of European Americans' presence on the continent." The stereotypes that result from the distorted telling of history, with all the attendant complexities raised by America's inability to reconcile its imperialistic foundations and its profound impact on Native America sets the stage for a social disorientation in which the American people are ill prepared to deal with the truth of their history. With so many mixed messages, unless Americans are willing to acknowledge not only the atrocities of the past toward Native Americans, but of the ongoing injustices- especially those Americans at the highest levels of political leadership- there cannot possibly be the collective presence of mind to do the right thing by Native people. True justice at the deepest levels means the willingness to envision a political reality that abandons the domination of colonial legal structures that keep Native people subjugated to the authority of congress. Short of this, at best all we can expect are merely tokens of guilt reducing acts of goodwill, feel good attempts to right the wrongs which have led to the profound cultural, physical and psychological dispossession of Native people from their traditional lifeways, homelands and resources. All we are left with are the half measures of the "sticking to the issues" approach of justice in the legislative system. Precluding Factor #2- The plenary power doctrine makes Native American citizens accountable to congress, instead of making congress accountable to Native American citizens, as is true for all other citizens of America who are represented in congress. One of the most fundamental and cherished tenets of American democracy in theory is that government is of the people, by the people and for the people; in essence that congressional representatives work for the public, who is ultimately "the boss" of congress. The plenary power doctrine sets up congress to be in an entirely opposite function for Native Americans. Tribal nations are positioned to be at the mercy of congress, with no real power to take corrective action when congress acts against their interests, except perhaps through the court system which is mostly a Pandora's Box full of problems and will be discussed further. For Native peoples, congress has been the primary conduit for colonial domination over nearly a century and a half of unilateral actions (beginning in 1871 when congress unilaterally abolished the treaty making era) in which congress systematically stripped tribes and individual Indians of their lands, their cultures, their religions, their languages, their identities, and even their children through policies intended to deal with the US' ongoing "Indian problem". Assimilation emerged out of the end of the Indian wars in the late 1800's. Legislated primarily through the Dawes Act, forced assimilation had as its aim the detribalization of Indians through a three pronged approach: 1) the breaking up of the communally held tribal land base through the allotment of individual parcels to each tribal member. The goal was to instill a previously unknown sense of ownership of land in keeping with European values, but a peripheral and much more detrimental consequence was the legal theft of approximately two thirds of tribal treaty lands which had conveniently been determined to be "surplus" lands, much of which was thrown open to homesteading for white settlers. 2) The establishment of mandatory government-run boarding schools which were designed to "civilize" the "savages" through prohibiting the speaking of native languages, and all manner of oppressive, even abusive practices designed to force them into whiteness. "Kill the Indian and save the man"[16] was the guiding principle. 3) The unilateral "granting" of citizenship to all American Indians, which occurred in 1924. By 1934, after some fifty years of assimilationist efforts, with the reservation communities suffering dire levels of poverty, high mortality rates, horrendous health conditions, inadequate education and poor housing, government studies were conducted to reevaluate its Indian policy. Forced assimilation, according to the Merriam Report[17] "has resulted in much loss of land and an enormous increase in the details of administration without a compensating advance in the economic ability of the Indians." The policy of forced assimilation was modified and gave way to the new policy of Reorganization, which focused on limited self rule for tribes. In the words of David Wilkins, "Of course, the federal strategy was to employ tribal culture and institutions as transitional devices for the gradual assimilation of Indians into American society. The vehicle for this transition was the Indian Reorganization Act (IRA) of 1934, which represented a legitimate but inadequate effort on the part of congress to protect, preserve, and support tribal art, culture, and public and social organization."[18] Through the imposition of tribal governmental structures which closely resembled the American constitutional system, traditional governing systems were largely discarded and the paternalism of the Bureau of Indian Affairs remained deeply entrenched in all aspects of Indian life. By the 1940's, according to Wilkins, conservatives in congress believed that the IRA reforms were "'retarding' the Indians' progress as American citizens, and a sense among liberals that Indians were still experiencing racial discrimination in the BIA's overly colonial relationship with tribes all fueled a drive to abandon tribal reorganization goals and terminate federal benefits and support services for tribes." Termination and Relocation became the new language of federal Indian policy, based on the old ideas that Indians would be best off by blending into the American mainstream once and for all. House Concurrent Resolution 108 adopted by congress in 1953 stated that the Indians should "be freed from all Federal supervision and control and from all disabilities and limitation specially applicable to Indians" (pg. 120). The Relocation program was the vehicle through which reservation Indians would be finally absorbed into American society by providing job programs in large urban "relocation centers". Wilkins: "The relocation policy was [once again] a coercive attempt to destroy tribal communalism" (pg. 121) Many reservation tribal communities were fractured, more tribal land was lost to private ownership, the trust relationship with many tribes was terminated, programs and services for federally recognized Indians were stopped, and their legal sovereignty ended. It was a dark and dangerous time for tribes and served as yet another harsh reminder of the power possessed by congress to determine the destinies of Native people. The civil rights era beginning in the 1960's harkened yet another change in direction for federal Indian policy, as activist driven demands for justice for Indians successfully motivated congress to end their efforts at termination, largely at the behest of the Nixon administration who declared Indian self determination to be the new Indian policy goal. New laws aimed at reinvigorating an ideal based on tribal self determination were enacted; yet while some laws were indeed beneficial to tribes, others struck hard blows at tribal sovereignty, particularly the Indian Civil Rights Act, which subjected Indians to the US Bill of Rights and amounted to a new level of constitutional restraint in their governmental actions.[19] Meanwhile, a series of Supreme Court decisions were handed down that severely limited tribal governmental authority over non-Indians in issues pertaining to law enforcement and hunting and fishing within reservation boundaries and water rights.[20] Indian policy throughout the 1980's up to the present has been characterized as "a bizarre and inconsistent blend of actions that, on one hand, affirmed tribal sovereignty, and on the other, aimed at severely reducing tribal sovereign powers, especially in relation to state governments."[21] Two terms of the Bush administration has seen a continuation of this schizophrenic approach, highlighted by a consistent cutting of federal funding to all of the most crucial Indian programs in education, health, housing and law enforcement.[22] It can be said that much (if not all) of the positive Indian legislation enacted since the current policy of self determination emerged in the 1970's has been to control the damage done to Native people since the inception of the United States and before. The genocidal policies of the US and British colonies combined with the import of foreign diseases resulted in the decimation of as much as 95% (and possibly more) of the Native population since the arrival of the Europeans.[23] Despite recent improvements, Indian people still suffer the highest levels of poverty, unemployment, death rates from certain mental health and chronic diseases, greater family disintegration (including the highest incidence of domestic violence), drug and alcohol use, and violent victimization.[24] Additionally, the US Commission on Civil Rights found in a 2003 report titled A Quiet Crisis that Native Americans "receive a disproportionately low level of federal funding compared with the general US population across virtually every category of the federal government's budget. The study found that the government's failure has resulted in services that are of lower quality than those provided to other Americans and inequitable access to much-needed programs."[25] In the realm of education, "Indian school children are at or near the greatest risks of receiving poor education and underperforming at the elementary and secondary levels ... moreover, BIA [Bureau of Indian Affairs] schools are severely under-funded; spending per student is less than half of the amount spent in public schools on American students nationally."[26] The goal of some of the Native American legislation since the 1970's has been to renew government-to-government relations and the trust relationship after the devastating affects of the termination era. The restoration and implementation of tribal self government took form in legislation such as the Indian Self-Determination Act (1975), and the Tribal Self-Governance Act (1988), both of which were intended to allow tribes to contract and operate federal service programs within the BIA and Indian Health Service, but were amended several times to address problems such as bureaucracy, alleged mismanagement of funds, and the relinquishment of control to tribes while denying trust responsibility. Other legislation was enacted that directly addressed the intense social damage caused by prior Indian policies. For example, as a result of paternalistic assimilationist policies prior to the 1970's which viewed traditional Native cultures as inferior to white American culture, between 25 and 35 percent of Indian children were removed from their homes and placed for adoption in non-Indian homes. Congress responded to this crisis in Indian country by passing the Indian Child Welfare Act in 1978. The act ensures that Indian children removed from their homes or placed for adoption stay within tribal cultures in order to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families" (25 U.S.C. ¤ 1902). Another example of damage control legislation is the Indian Religious Freedom Act of 1978 (AIRFA). Many Indian religious practices were outlawed during the assimilation era, forcing them underground, and many sacred sites were lost to the legal land theft of allotment. Also, the use of certain traditional ceremonial items such as eagle feathers and bones became illegal with the passage of the Endangered Species Act; the use of some traditional sacramental substances like peyote became illegal due to modern drug laws. The act is considered more of a policy statement, and as such is seen as a law without "teeth," especially in the face of two Supreme Court cases (Lyng v. Northwest Indian Cemetery Association, 1988, and Employment Division, Department of Human Resources of Oregon v. Smith, 1990) that handed down decisions with negative impacts on the religious practices of Native Americans. AIRFA paved the way for the Native American Graves and Repatriation ACT of 1990 (NAGPRA). During the Indian wars period of the 1800's the United States made it policy to collect the remains of Indians on the battlefields for the "study of science," and the legal grave robbing of anthropologists digging up Indian burial sites resulted in hundreds of thousands of Indian remains, ceremonial items, and other funerary objects being placed in public and private museum collections. To address this particularly egregious practice Congress passed NAGPRA. Yet while the spirit of the law is altruistic, it falls far short of its goals because it applies only to institutions who receive federal money and not to private institutions and individuals who collect such objects. According to Winona LaDuke, "only about 10% of the estimated 200,000 remains in public collections has been even inventoried, according to federal records. Leading collections include the Smithsonian, followed by Harvard University and then the University of California at Berkeley, with 8,000 remains.[27] There are many more examples too numerous to mention that demonstrates the notion of legislation as damage control. It can be said that congress, even under the plenary power doctrine, can be the best friend to tribes, even while they can be their worst enemy. Congress simply has too much power to determine the destinies of Native people. According to Laurence Hauptman in his essay on plenary power, "The noted attorney Alvin J. Ziontz has observed that the doctrine of plenary power 'in practice means that congress has the power to do virtually as it pleases with the Indian tribes. It is an extraordinary doctrine for a democracy to espouse. It would justify abolishing the political existence of tribes ... Plenary power thus subjects Indians to national powers outside ordinary constitutional limits.'"[28] This is entirely inconsistent with the ideals of representational democracy "of the people, by the people and for the people" (especially people whose citizenship was imposed rather than chosen), and presents a number of conceptually and pragmatically irreconcilable problems. One of the biggest problems is the potential for conflicts of interest with members of congress who must represent the interests of Native governments and individuals along side those of non-Native individuals and groups within their districts and whose interests often are diametrically opposed to one another, particularly when it comes to sensitive issues such as water rights or gaming. Consider the following example, a story I wrote about in my days as an activist/journalist several years ago: The Federated Indians of the Graton Rancheria (FIGR) are a tribe whose ancestors were Coast Miwok Indians and whose homelands are in what is now the Marin and Sonoma County areas of the Northern California coast. These counties consist of some of the wealthiest per capita income and real estate in the world, and Sonoma County is famous for its wine industry. The original Graton Rancheria[29] is in the heart of Sonoma County, and was a federally recognized tribal community who were the victims of congress' termination policy in the 1950's. While the tribe was terminated, the people remained and never forgot who they were. In 1990, the tribe regrouped and initiated efforts to petition the government for the restoration of their federal status. Their ten year endeavor culminated in their restoration via a congressional bill signed into law by President Clinton, and was sponsored by representative Lynn Woolsey, D-Ca and Senator Dianne Feinstein. While the bill provided them with renewed political standing, it did not restore any land; as a landless tribe, they had very limited possibilities for economic development to relieve the poverty conditions suffered by most of their membership. Sonoma County is also home to several bands of Pomo Indians, whose Rancherias lie within county lines. After the passage of the Indian Gaming Regulatory Act (IGRA) in 1988, in an exercise of their tribal sovereignty some of the Pomo bands began to establish casinos in the area. This was met with a firestorm of opposition from a large cross section of the non-Native population, ranging from wine industry interests to ranchers to environmentalists, conservative and liberal alike. Despite its liberal leanings and its inability to change federal Indian policy, Sonoma County established itself as a vehemently "anti-Indian gaming" community, and when it came to FIGR having their status restored, the primary concern of the non-Native community was whether or not the tribe would seek to establish a casino. It was in this politically charged atmosphere that FIGR began working with Woolsey and Feinstein to regain their status. This was particularly tricky for Woolsey whose job depended on the good feelings of the anti-gaming electorate of Sonoma County on the one hand, and on the other hand wanting to support the tribe in the regaining of their federal status. The way she attempted to please both sides of the debate was to write into the original version of HR 2656 a clause which would have prohibited the tribe from ever pursuing a gaming facility. In other words, they could be restored as a tribe if they agreed never to have a casino, a clear violation of the principle of tribal self determination. It's hard to say if Woolsey could or could not see at the time that the bill written that way would never make it out of the Senate Indian Affairs Committee, whose chairman was Daniel Inouye, a staunch defender of Indian sovereignty. Indeed, the way it played out was that the clause was to be removed, thus creating the distinct possibility that the tribe would establish a casino in the heart of the wine country, against the prevailing sentiments of the majority non-Native population. This is in fact what the tribe did, and it stirred up such a controversy (expressed in an ugly anti-Indian backlash in which all manner of racist language and even death threats were delivered) that it received national media attention for months. Caught in between two extremely polarized groups, Woolsey's actions with regard to the tribes' best interests were compromised, and in a different political climate where there may not have been such strong advocacy from the Senate Indian Affairs Committee, could have delivered a potentially crippling blow to tribal sovereignty by setting a dangerous precedent if the bill had been allowed to pass with the anti-gaming clause. The decolonization[30] efforts of indigenous peoples worldwide are being played out in the international arena under the umbrella of the United Nations, who is increasingly recognizing the rights of indigenous peoples. In 2006, the United Nations Human Rights Committee levied a strongly worded criticism against the United States regarding the plenary power doctrine and its treatment of indigenous people urging its compliance with the International Covenant on Civil and Political Rights:
It seems necessary at this point, from a purely political science perspective, to address the specific issue of representation and a Native American political agenda. It can be said that certain aspects of a tribal agenda are the same as for all other Americans; health, education, economic development, infrastructure, environmental concerns, etc. However, because of the sovereign status of tribes these issues exist within the larger context of nation-building (the need for Native nations to economically maintain their own communities based on their own individual cultural, spiritual, and political traditions) and the trust relationship with the US; political realities experienced only by tribes and no other groups, minority or otherwise. Simply stated, their needs are different than everybody else's by virtue of their unique relationship to the US. For the sake of argument, suppose a Native candidate could run for congress on a "Native" platform (for example, promising to secure adequate levels of funding for the Indian Health Service and tribal schools, or promising to halt the numerous intrusions into Indian country by mining interests who are causing catastrophic environmental problems in reservation communities), and they won. It would make that person only one vote in congress supporting those specific issues; whatever legislation they could sponsor that would directly benefit tribal communities exclusively would inevitably have to be considered against the interests of all others involved in the complex maze of the legislative process, i.e. the non-Native members of congress, for example, whose agendas most likely do not include Indian specific issues which can easily run counter to the interests of their non-Native constituencies. (The hypothetical scenario of mining interests on or near reservations is a very real ongoing situation for several reservation communities, where mining companies as donators to the campaign coffers of MC's are in powerful positions to sway political votes against tribal interests.) That Native MC is then isolated in their attempts to bring justice to their Native constituents. The result is most likely a watering down of their Native platform, rendering them almost totally ineffective, jeopardizing their ability to even get reelected. The most that can realistically be hoped for in such a situation is raising the public awareness of Indian issues, by keeping those issues in front of congress as much as is possible and in front of the constituency back home, particularly the non-Natives. The plenary power doctrine combined with the political realities of representing the interests of such a small minority that most Americans neither know nor care about very much sets up a dynamic for MC's where Indian interests are accorded "back-burner" status. Their reelection doesn't depend on it, and even if they agreed that the plenary power doctrine is unjust, they are relatively powerless to do anything about it unless the majority of congress is mobilized to address it in a positive way by overturning the doctrine and set up a different paradigm of relating to tribal Nations. There simply is not enough political motivation to address Native issues on a large scale. Precluding Factor #3- The persistent racist language used by the Supreme Court, which frames the legal doctrines that justify the continual subjugation of Native Americans to the authority of congress. Colonization is defined by Wilson and Yellowbird as "both the formal and informal methods (behaviors, ideologies, institutions, policies, and economics) that maintain the subjugation or exploitation of Indigenous peoples, lands, and resources." If the plenary power doctrine is the drive train that keeps the wheels of subjugation in motion, then the Supreme Court is the ignition system which initiates it and allows it to keep rolling forward century after century. In his book Like a Loaded Weapon: the Rehnquist Court, Indian Rights, and the Legal History of Racism in America, Native legal scholar Robert A. Williams explores in vivid detail the courts' development and use of the Marshall Trilogy whose reliance upon the racist language of Indian "savagery" and cultural inferiority maintains a system of legalized white racial dictatorship to conduct its relations with Indian tribes even today. "As evidenced by their own stated opinions on Indian rights, a long legacy of hostile, romanticized, and incongruously imagined stereotypes of Indians as incommensurable savages continues to shape the way the justices view and understand the legal history, and therefore the legal rights, of Indian tribes" (pg. xxv). Further,
Prior to the Marshall Trilogy, the Founding Fathers had formulated their first Indian policy based in part on the British Royal Proclamation of 1763 which stated that all the territory beyond the eastern mountain ranges was to be off limits to settlement and reserved to the tribes of the region. In 1783, aware of the fact that the tribes still posed a significant military threat and were deeply suspicious of the motives of the new United States, George Washington wrote in a letter to then head of the Committee of Indian Affairs of the Continental Congress James Duane, how the United States should approach its dealings with the Indians. Advocating a policy of friendship, Washington declared that:
Thus was the language established that would then be used by the Supreme Court. Beginning in 1823 with Johnson v. McIntosh, considered (in Williams words) to be "without question the most important Indian rights opinion ever issued by any court of law in the United States," the racist language of Indian savagery was institutionalized in the Supreme Court:
With a single stroke of Justice Marshalls pen in this decision, several things were accomplished: 1) the very first precedent for all subsequent Indian cases was set; 2) the justification for the taking of Indian land based upon racial, cultural and religious superiority of Europeans; 3) the codification of the language that would justify future American incursions into Indian lives and resources. Further, it "absolves the justices for perpetuating the discovery doctrine as part of US law by viewing it as 'indispensable' to the European-derived 'system' of colonial governmentality 'under which the country has been settled.'"[31] In other words, by deferring to the European doctrine of discovery, the Court engaged the Founders "racist vision for Indian rights"[32] and in a sense justified its justification for the US' aggressions against the tribes. The language of Indian savagery was to be revisited many times in subsequent nineteenth century Supreme Court decisions in the Marshall Trilogy and beyond, in cases such as United States v. Rogers (1846), Ex Parte Crow Dog (1883), and United States v. Kagama (1886). While the tradition of racist language in the Court reared its ugly head in African American cases as well, most famously in Dred Scott v. Sanford (1856) and later in Plessy v. Ferguson (1896), the twentieth century saw a paradigm shift in the language of those types of cases with Brown v. Board of Education (1954), the landmark decision credited as heralding the civil rights movement a decade later. Yet, when it came to Indian rights cases the language which perpetuated the negative stereotype of Indian savagery as well as white racial superiority was still very much alive, in Tee-Hit-Ton v. United States (1955), and even into the Rehnquist Court with Oliphant v. Suquamish Indian Tribe (1978) and United States v. Sioux Nation of Indians (1980). Addressing the problematic nature of the Court's continued reliance on negative racial stereotypes, Williams raises several concerns. First, he cites legal scholar Robert Cover, who wrote about a cultural process he called "jurisgenisis", the creation of legal meaning- a process which takes place within the context of social eras, and sanctioned by a government who is willing to use force to back the meanings created by the Court (the law of the land). Because of this willingness to use violence to enforce the Supreme Court's view of law, "Cover charges [that] judges in general and justices of the Supreme Court most especially 'are people of violence. Because of the violence they command, judges characteristically do not create law, but kill it.' Cover labels this killing of non-state centered law the justices' 'jurispathic" function: 'Confronting the luxuriant growth of a hundred legal traditions, they assert that this one is law and destroy or try to destroy the rest.'"[33] It is this jurispathic (rights destroying) process through which the Court perpetuates racism against certain groups. "In other words, the justices have the legal authority in our society to tell people that it's not only reasonable to act in a racially discriminatory and hostile way, it's perfectly legal as well ... their decision creates a lawful precedent giving legal meaning and sanction to that language of racism and perpetuates it in a particularly forceful way, jurispathically."[34] Another serious concern about the use of racist language in the Court is the legal doctrine of stare decisis- the principle that the precedent decisions are to be followed by the courts. Examples of the Courts' reliance upon precedent in deciding minority rights cases are many, and too many of those precedents were (and are) ultimately used to violate the human and civil rights of various groups of people. For instance, in Korematsu v. United States (1944), the Court upheld military orders which justified the internment of thousands of Japanese Americans during World War ll. The entire body of federal Indian law is based on nineteenth century precedents, and outmoded ways of thinking which by today's standards are considered barbaric and dehumanizing, and yet is tolerated if not staunchly defended by those within the existing American power structures. Historically, when the justices of the Supreme Court have chosen to reject the language of prior decisions- decisions which only served to oppress certain peoples- and adapt a new language which affirms the rights of those people, positive racial paradigm shifts have occurred within the Court and society at large, even if only for a time. Critical Race Theory (CRT) is an academic, legal and political movement which is "interested in studying and transforming the relationship among race, racism, and power."[35] Emerging out of the critical legal studies movement of the 1970's, it is a response to what civil rights activists and legal scholars saw as a rolling back of the legal gains made by people of color (particularly blacks) during the 1960's. Within CRT, there are three possible theoretical suppositions that are asserted: 1) "idealists" hold the idea of race as a social construction that can be changed by "changing the system of images, words, attitudes, unconscious feelings, scripts, and social teachings by which we convey to one another that certain people are less intelligent, reliable, hardworking, virtuous, and American than others;"[36] 2) "realists" believe that race is a means by which society bestows privilege and status; a hierarchical system which determines who gets the tangible benefits from society; 3) "materialists" assert that "conquer[ing] nations generally demonize their subjects to feel better about exploiting them."[37] The taking advantage of one group over another is rationalized by forming the appropriate collective attitudes. Coinciding with these suppositions is the idea of "interest convergence", the notion that the social conditions of oppressed minority groups won't change out of the altruistic desires of the dominant (white) culture alone, but that there must be a perceived benefit for the dominant group to be motivated enough to initiate change. For example, it has been demonstrated that Brown v. Board could only have been decided the way it was because the social and political climate allowed it; black soldiers having served in two wars (World War 11 and the Korean War), "unlikely to return willingly to regimes of menial labor and social vilification"[38]; the United States engaged in the Cold War vying for loyalties within the Third World, many of whom were black, brown and Asian, were circumstances that caused the US to be actively seeking to improve its image in the rest of the world. Images of lynchings, racist police enforcement, and murders would not go far to win the hearts and minds of the Third World. Law professor and member of the African American community Derrick Bell, recognized as the "father" of CRT, wrote a much criticized article for the Harvard Law Review postulating that the civil rights advances for blacks always coincided with changing economic conditions and the self-interest of elite whites. Ten years later, legal historian Mary Dudziak uncovered a plethora of official government documents demonstrating Bell was correct in his assessment. Robert Williams, a self proclaimed "racial realist", is quick to point out that simply changing the way the Supreme Court talks about Indian rights is not enough to transform long-established legal doctrines and precedents in Indian law. There must also be a requisite perceived need based on the self- interest of the dominant society, what he calls his "singularity thesis"; ie Indians' desire for a "degree of measured separatism" ("the right to govern their reservation homelands, even when these might be incommensurable with the dominant society's values and ways of doing things").[39] Additionally, articulating the need for
Yet, for Williams, this cannot be accomplished without first confronting the justices of the Supreme Court about their ongoing talk of Indians as uncivilized, unsophisticated savages because "we are not likely to make much headway in developing a winning courtroom strategy that convinces the justices that it is in the American public's interests to recognize an admittedly highly problematic and exclusive set of Indian rights to a degree of measured separatism in this country."[41] Until the justices of the Supreme Court are willing to disavow their legacy of negative racial stereotyping of Indians they continue to rely upon in deciding Indian rights cases, they are also unlikely to divest congress of its plenary authority over Indians, which is based upon the Court's characterizations of Indians as lawless, uncivilized savages, incapable of handling their own affairs. The vicious cycle of colonial domination will continue repeating itself, on the one hand denying Native nations their inherent powers of complete self-determination; on the other hand, contributing to current widely held beliefs in the international arena of the United States as an imperialistic force in the world; the rights-denying rogue Superpower. Just as the concept and practice of congressional plenary power is inconsistent with democratic values, so is a high court which perpetuates racist language that results in keeping America locked into nineteenth century modes of thinking about Native American people. Precluding Factor #4- The conscious or unconscious belief within congress, collectively and individually, that the current paradigm cannot or should not change. Because the guiding principles of indigenous rights and policy- making are based on deeply entrenched, archaic, colonial-era perceptions, ideologies and practices that are taken for granted as "just the way things are", there is a certain sense in the "Indian business" that there's no hope that things will ever change, so don't even bother trying. I believe this was the attitude reflected by the congressman in my conversation with him that day, based on the things he did and did not say. Taking into consideration the previous precluding factors, what we are really talking about is a profoundly deep level of psychological disassociation America collectively has adapted itself to with regard to its historical treatment of its Native peoples; so deep and pervasive that even the most highly learned and sophisticated thinkers at the highest levels of government are unable (or unwilling) to embrace an ethos of justice at the most fundamental levels by renouncing their hold of power over the lives of Native people. There is an overwhelming, undeniable, and ever-growing body of scholarly work domestically and internationally that exposes the legal inconsistencies and the outright injustices indigenous peoples' experience at the hands of their dominant, rights-denying nation statesÐall countries (especially the US, Canada, New Zealand and Australia) who claim to be democracies, upholders of human rights, yet employ the same basic colonial European-derived tactics of subjugation of their indigenous populations within their nations and territories. Whether Native American, Alaska Native, Kanaka Maoli, Canadian First Nations Peoples, Maori, Aborigine, Samoan, Taino and others; each group is engaged in a process of ongoing active resistance to colonial domination. In the academic world, the very existence of indigenous studies programs which teach their students from indigenous perspectives, are expressions of that resistance. The international decolonization movement of indigenous peoples at its core is about telling history and current realities from indigenous perspectives, dispelling and discrediting when necessary the self-serving, patriotism-inducing narratives of the colonial powers. In much the same way the civil rights era of the 1960's produced racial paradigm shift not just here but worldwide, as evidenced in African and Asian decolonization, as well as here in the African-American legal realization of equal rights, so too does the indigenous decolonization movement seek a paradigm shift in their relations with their dominant nation-states. This paradigm shift cannot happen without first confronting the colonial powers with their illogical and immoral behavior through deconstructing their histories and their power structures (effectively holding up a mirror), inserting indigenous perspectives, and demanding change. Deconstructing the histories and power structures and inserting those indigenous perspectives is necessary to knowing what kinds of changes to demand. For indigenous people, those perspectives include not just their histories, but their worldviews, their theories, their own ideologies. Those ideas must then be compared and contrasted with the ideas and practices of the colonizer to identify the divergences of those paths, to more coherently challenge the current power system. For example, the notion of sovereignty as a political construction is firmly rooted in European thought but adopted from earlier Asian cultures, and was a theological term to "describe both the power and arbitrary nature of the deity."[42] It was later appropriated by European thinkers within the context of church-controlled governments and used to explain the nature of the King (the sovereign) as head of the state, vested with an inherent divine right to power. Taiakake Alfred, invoking Vine Deloria's discourse on sovereignty makes the distinction between indigenous concepts of nationhood and those of state based sovereignty saying that "self-government" (or the domestic dependent nation) is a status accorded to indigenous people by the United States. "The right of 'self-determination,' unbounded by state law, is a concept more appropriate to nations."[43] Further,
Alfred goes on to point out that indigenous peoples must develop appropriate postcolonial governing systems that disconnect the notion of sovereignty from its Western legal roots and transform it.
Alfred's assessment of politicians' views of indigenous sovereignty accurately reflects the premise of Precluding Factor #4. A power structure (congress in this case) composed of individuals who don't really believe that Native people are entitled to exercise their pre-existing right to self-determination are not capable of representing the best interests of Natives as Natives themselves understand them. As long as tribal nations are held hostage to the plenary authority of congress, there will always be a dichotomy between what non-Indian politicians believe is best for Indians and what Indians believe is best for Indians, and all that can result is the damage control, patchwork method of "justice" for Indians in the "sticking to the issues" approach of legislation for Indian rights. The potential for racism is another very real problem that exists within congress. In an extensive study of racism in congress[46], Mary Hawkesworth tracked "the experiences of marginalization reported by Congresswomen of color in the 103rd and 104th congresses in an effort to make visible power relations that have profound effects constructing raced and gendered hierarchies that structure interactions among members as well as institutional practices, while also shaping public policies" (530). While the study focused on gender and an "ethnic minority" dynamic within congress and did not mention Native Americans specifically, it is useful in order to illustrate the fact that congressional members are not immune from acting out of a position of conscious or unconscious racism. Focusing on a methodology informed by hermeneutics, it also combined textual analysis of data collected from interviews conducted with 81 women in congress, including 15 women of color (Black, Latina, and Asian) interpreted in light of critical race theory, feminist theory, and African American history, as well as a case study on welfare reform in the 103rd and 104th congresses (1993-1996). The extensive interviews revealed (among other things) detailed stories illustrating the very different experiences between white congresswomen and congresswomen of color:
Among the conclusions Hawkesworth's study drew are the notions that political equality doesn't translate to social equality within the halls of congress, compromising a basic principle of democracy; that congresswomen of color are situated symbolically as "outsiders within the legislative body"; questions as to the possibility of substantive representation of minority interests; and ultimately questions whether the system of majority rule can be seen as legitimate in the face of dissenting minority opinions. "In contrast to the optimistic view that 'consensus decisions are likely to be regarded as fair decisions' (Fenno, 1978, 245), the testimony of congresswomen of color recounted in this analysis suggests that racing-gendering by the majority is recognized as a fundamentally unfair form of dehumanization, whether it is encountered in the legislative process or in the policies generated by that process" (548). Where Native Americans are concerned, with their interests differing vastly from other ethnic minority groups, the question must be asked: if those groups, who are simply vying for equality, cannot perceive their needs being met through congressional representation, how much more unlikely is it for Native nations to expect fairness in congress as it currently exists? Precluding Factor #5- The lack of clear, binding international law that protects indigenous peoples from the domination of nation states. The guiding legal principles of federal Indian law to which Native nations are subjected are rooted in European norms of international law as it concerned the "discovery" of new lands and the non-Christian "infidel" inhabitants they encountered. During this time when the Roman Catholic Church was the dominant political and legal institution of Western Europe, Getches, Wilkinson and Williams in Cases and Materials on Federal Indian Law, trace these roots back to the Crusades between the eleventh and thirteenth centuries, and
By the time of Europe's "Age of Discovery" beginning in the 1400's "the legal justifications for the holy-wars against 'heathen and infidel' peoples...[were] developed and refined by Church lawyers and theologians" (44). The European appropriation of the New World by the old was effectively a done deal, and was accomplished via a series of fifteenth century Papal Bulls (edicts issued by the Pope) which proclaimed various doctrines regarding the new lands that were to be discovered, how they were to be divided between the European powers, and how the indigenous "infidel" inhabitants were to be dealt with. They were to be converted to Christianity for the sake of saving their souls, and if they resisted they were to justifiably be warred upon, enslaved, and have their lands taken from them.[47] The foundational legal principle of the discovery doctrine evolved directly out of these events and is still relied upon in today's world, not just in the US, but in Canada, New Zealand and Australia as well, to "manage" their indigenous populations. The realm of public international law today is fortunately based on a much different worldview, having evolved beyond the dark ages of European colonialism. Indigenous issues were not recognized in any of the world's forums until the 1930's, within the International Labor Organization (ILO) which was formed in 1919 as a result of the Treaty of Versailles. The ILO published its first study on indigenous peoples in 1953 and adopted Convention No. 107 in 1957, but due to the "paternalistic and assimilationist attitude of this convention, in 1989 the International Labor Conference approved a revised version, which is Convention No. 169 (ILO 169) concerning indigenous and tribal peoples."[48] According to the United Nations' IWGIA Handbook, Convention 169 "is the only current International Treaty to consider the problems of indigenous peoples in a comprehensive manner" (19). However, ILO 169 has been criticized as not going far enough to protect indigenous rights stemming from the fact that they were not included in the negotiation process. Among their concerns is that the fundamental right to self determination is not recognized, as well as a host of other issues. Today, the United Nations is the primary international body whereby human rights are articulated on behalf of weaker populations. Until quite recently, however, the unique rights of indigenous peoples were not adequately addressed in the UN. Prior to 2000, indigenous issues were considered under the umbrella of the UN Commission on Human Rights, but that year the UN formed the Permanent Forum on Indigenous Issues which accords the representation of indigenous peoples the same status as governmental representatives. It was not until 1977 that international indigenous leaders began the formation of a movement for indigenous rights, a historic meeting which took place in Geneva, and came on the heels of the UN's undertaking of the first formal study of discrimination against indigenous populations, lasting between 1972 and 1984. By 1982, the Commission on Human Rights established the Working Group on Indigenous Populations as a subsidiary organ to the Sub-Commission on Prevention of Discrimination and Protection of Minorities. In 1985 the Working Group began work to formulate the Draft Declaration on Indigenous Rights, a comprehensive document that included indigenous leaders and governments alike. An arduous process that pitted the interests of indigenous peoples against their dominant nation-states who took issue with the strong wording protecting the right of self-determination and lands and resources, it took twenty two years to finally pass in the General Assembly, which happened in September of this year. In the end, a much watered down, weakened final version (due to the demands of Member States) passed with an overwhelming 143 votes, 11 abstentions, and 4 negative votes- notably, Canada, Australia, New Zealand, and the United States (known collectively as the CANZUS states). The Declaration is non-binding, especially since it was passed by vote rather than consensus. In international law, declarations can become law (known as customary law) if adopted by consensus, but even if not, it can become customary law in time if enough of the world's nations recognize and abide by it. While the Declaration is generally seen by indigenous peoples as compromised, it is still a major victory because of its strong emphasis on self-determination and indigenous control over lands and resources, and speaks volumes about the countries who voted against it, casting them in a bad light in the world's eyes. It represents the first effort in world history to consider the realities of indigenous peoples on a global scale within the historical context of conquest and colonization, and is an arena to where they may in the future look for justice and protection of their rights against the force of dominant nation-states. The CANZUS states in particular prefer to see the concerns of indigenous peoples within the context of domestic issues, leaving out the international community as they continue to interact with their indigenous populations- a position which ultimately speaks to their unwillingness to release the grip of colonial domination over those peoples. It is only the hope that with time as the Declaration is regarded with respect from the rest of the UN member states that indigenous peoples have the possibility for justice in the international arena. Precluding Factor #6- Congressional Native American policy is subject to the shifting winds of public opinion. Congress is by nature representative of the prevailing sentiments of the American public in two significant ways: 1) MC's are elected because of their reflections of the beliefs of the majority of their own constituencies; 2) when they aren't, and public opinion changes during their tenure, it's often in their own self interest to sway with the prevailing political winds if their goal is to be re-elected (which it inevitably is the majority of the time). As we have seen, public sentiment towards Native Americans is based on a complex matrix of psychological factors, conscious and unconscious, influenced by historical understandings (or perhaps more accurately, misunderstandings) of who they believe Native Americans are and by Eurocentric ideas of how they think Native Americans should fit into the spectrum of American life, socially, economically and politically. Even highly educated politicians are not immune from the traps of those misunderstandings and succumb to colonial ideology when it comes to Native American affairs in the legislature. And, as has been demonstrated, federal Indian policy throughout American history has reflected a cacophonous variety of philosophical approaches, consistent only in the sense that it has been primarily self-serving and subject to prevailing political climates. It is also apparent that America is not free of racist thinking and action; it's quite evident that America is still grappling on a daily basis with Indian issues, and this continues to show up in anti-Indian rhetoric in many places (wherever there are Indians). If it's not specific issues around gaming or water rights or land issues, it's challenging the entire notion of tribal sovereignty. The anti-Indian movement is well organized, backed by big corporate money, and lobbying congress full force. The largest of these organizations is One Nation United based out of Washington State. According to their website, www.onenationunited.org, "We lobby Congress, the White House, and federal agencies. We conduct public education campaigns on the extremely serious problems with Federal Indian Policy. We're the nation's leading nonpartisan, grassroots umbrella group addressing this major problem. We've built and are expanding a diverse nonpartisan national network of concerned citizens, elected officials, lawyers, academics, law enforcement officials, clergy and community leaders to shape the debate on this issue." Under the cover of American patriotism and with the American flag and statue of liberty emblazoned on all pages of their website, One Nation exists solely to encourage the divestment of tribal sovereignty, claiming that "ONU represents more than 300,000 American citizens who have joined together to defend our private property rights, protect the free enterprise system, and reform seriously flawed federal Indian policy for the benefit of Indians and non-Indians alike." Couched in the language of civil rights, their statement of principles espouses a belief in equal rights, justice and opportunity regardless of race, creed, sex, age or disability; belief in individual rights over group rights, private property rights and freedom, invoking individual ethnic and racial background as "an example of the beauty of America's racial diversity"; the belief that American sovereignty must be protected and preserved, emphasizing "equal inclusion and acceptance of the diverse, multicultural heritages that comprise our country". Tribal sovereignty is characterized as a threat to the well being of America: "We should allow no tribal, foreign, or international agenda to negatively impact America or its way of life"; Indian tribes' federal tax exempt status within reservation boundaries are seen as "illegal tax evasion" and on an uneven playing field with other businesses; tribal governments are portrayed as "government-supported monopolies" and with "special privilege". Another major anti-Indian group is Citizens Equal Rights Alliance (CERA), also based in Washington. Its goals are to, 1) seek an end to the jurisdiction of tribal governments over Indian country, and 2) end treaty-protected off-reservation rights of Indians to certain resources, such as fishing and hunting.[49] Native Americans view the current anti-Indian movement as a backlash to the gains made since the termination era, a continuation of assimilationist and termination philosophy, and "a serious political challenge that Indian nations must confront."[50] They rightly point out that they have a long standing legal reality of their existence both outside and within the American federalist and state frameworks and that they should "fight back the faulty rationales used by anti-Indian forces that patriotism and Americanism are on their side, when in fact they are the ones denying well-established American historical, political and cultural legacies, and dishonoring the country's diplomatic government to government heritage."[51] It's important to recognize how the anti-Indian movement's arguments are framed, says Steven Newcomb of the Indigenous Law Institute, in an editorial for Indian Country Today published earlier this year. First of all, the use of terminology such as "One Nation," "equal rights," "liberty," "equal justice under law," etc, make perfect sense to the average American. There is a reliance upon and exploitation of the fact that most Americans are woefully uninformed about Native American issues and history. The larger challenge lies in articulating Native perspectives, formulating a meaningful response to anti-Indian messages because "attempting to express indigenous cultural and political understandings by means of concepts and categories that carry the baggage of a European cultural mentality, cultural context and values ... will automatically interpret our messages within their own mental framework using their own cognitive and cultural background." This cognitive background imagines America as a "container," an "object" based on the boundaries (borders) of the country itself, and everything within it- including Indian lands- is subject to the US governmental system, resulting in confusion of where Indian nations fit within that system. The anti-Indian movement employs a political/legal metaphor with language such as "inside of", "is under the jurisdiction of," thus Indians within the boundaries of the US must be subject to the political and legal authority of the US (indicating the plenary power doctrine). There is then a further appeal to "free" Indians from the chains of plenary power in the name of civil rights and "equal justice for all," by terminating the existence of tribal governments. Tribal leaders understand all too clearly that it is simply the language of termination rearing its ugly head once again. Because the American system of representational democracy as it exists relies upon popular elections, elections that depend on big campaign coffers and the commensurate support of powerful, well financed lobbying groups with agendas of their own and who see Indians as a threat, the possibility of termination will always loom over the heads of Native nations. Until Americans fully understand Native issues and history, and can see beyond their own European derived cultural values to accept the very different values Native people embrace (especially the importance of group rights vs. individual rights), Native people will always have to be vigilant to fight off the attacks on their rights to sovereignty, limited though it currently is under unjust domestic law. Under the plenary power system, public opinion will always be a wild card tribal nations will have to beware of. Conclusion The study of Native Americans and congressional representation cannot be studied solely from a perspective limited to Political Science as an academic discipline which addresses it in terms of a domestic issue. As such it tends to be Eurocentric, and the circumstances that apply to Natives as colonized peoples exist within the international arena, not simply as American citizens. Rather it must be examined in the context of the discourse on decolonization; a discipline currently limited to the academic realm of Indigenous Studies both in this country and abroad. This raises the question: shouldn't decolonization discourses be just as appropriately located within the Political Science discipline as a subject of study within the realm of international politics? The conscious and unconscious attitudes Americans collectively hold about Native Americans, which reflect their unresolved historical reality as both the perpetrators and beneficiaries of profound injustice, make it impossible for Native nations to realize true justice, if justice is defined in terms of international standards based on the honoring of treaty relationships, as well as the Constitutional mandate that treaties are the "supreme law of the land." If congress is to be an upholder of justice, it is incumbent upon them to critically examine and abandon the legal doctrines which make that justice unrealizable for America's First Nations, striving instead for another paradigm which is not simply a resurrection of earlier termination efforts but based on partnership, respect, goodwill, and international law. Until
these attitudes and behaviors are reconciled in the light of truth, America
will continue to act from a place of hypocrisy, and congress will continue
to treat the lingering physical and psychic wounds inflicted on Native
people with band-aids drenched in the dual poisons of denial and avoidance,
no matter how well intentioned they may be. What is that truth? It is
the truth of many things; not just the truth of America as a colonizer,
but the truth of who Native people are; they are not the bloodthirsty
savages of Supreme Court language, or the weak and dependent people whose
condition needs to be raised to that of a mythically superior European
derived culture, as congress treats them. The images of Indians reduced
to ridiculous, dehumanized caricatures depicted by the sports teams of
mainstream America like the Washington Redskins or the Cleveland Indians
are chains that keep Americans locked into false understandings about
Native people. America must begin to see indigenous peoples as people
merely different from themselves, but people who have survived what may
arguably be the most brutal genocide in world history, people whose worldviews
are different from their own, superior in their own ways, and from which
the world can learn much, especially in this time of global climate crisis.
Nothing less than action based on brutal honesty is called for if America
is to live up to its proclaimed ideals of justice for all. Endnotes [1] In 2006 a book was published as part of a series on political participation in America called Native Americans and Political Participation by Jerry Stubben, an enrolled member of the Ponca tribe. In the preface of the book he makes th |