LITMIR.BIZ

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S. Ball[1]

      “A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life. Interpretations in law also constitute justifications for violence which has already occurred or which is about to occur.”

      —Robert M. Cover[2]

      When I was a kid, I thought that history was something that had already happened and was over; all the continents had already been discovered, and all the wars had already been fought. It took me years to understand that history is created all the time and that through history we are able to better understand the movements of today.

      A history created all the time is an apt way to talk about the American Indian experience, an essential topic to a thorough discourse about land struggles in the United States. Of course, we have all been made aware since childhood that Europeans stole this continent from the indigenous peoples who had lived on it for tens of thousands of years prior. But even when our textbooks were not revisionist or downright racist, Native Americans were still portrayed as a sort of dinosaur—one of history’s great tragedies that anyone alive today could safely and passively lament because the colonizers and Indians of the past were long dead.

      Patricia Nelson Limerick eloquently describes the situation in this way:

      Since there was no chance of reversing the conquest, it was safe to regret it. Discontent with modern industrial society led to an interchanging of the usual terms: white Americans were the barbarians, savage and unprincipled, possessed by primitive greed; Indians were the genuinely civil people, who lived with an ecological wisdom and saintliness that made white Americans look like childish brutes.[3]

      An exploration of American Indian history that goes deeper than a superficial understanding of their abuse is rare. And the story of their past is further obscured to the mainstream when Indians themselves tend to be notably absent from current events. Most of the things we know about Native Americans we learned in elementary school, and those things tended to be reductive stereotypes that we perceived as glaringly obsolete. Images of feathers, headdresses, and loin cloths were and continue to be so painfully primitive to young people trapped in an age of rapidly advancing technology. And all talk of native peoples was relegated to the history books, effectively removing them from the present tense as a people who continue to live and breathe and struggle.

      Bruce N. Duthu calls this phenomenon the “dying race” thesis.[4] Europeans employed this thesis as a reaction to the presence of natives that stymied their original plans for colonization in the New World. The “dying race” thesis presupposed the extinction of hundreds of tribes by virtue of performative speech; if the notion were absorbed into the hearts and minds of the public, then it would eventually become true. Many of the historical Indian plights that followed can be traced back to and justified by the dying race thesis.

      The tactic was particularly useful in disputes over land, the linchpin of indigenous struggles. Because American Indians tended to view land as a life-giving and life-sustaining force, while Europeans tended to view it as a resource, a commodity, and a source of revenue, the two perspectives on the value of land were irreconcilable.[5] This, of course, was not the only difference between the two groups: In a catch-22 for natives, settlers declared that only Christians could invoke the Doctrine of Discovery, the credo that granted colonizers land simply because they were the first Christians to discover it.[6] The declarations that vested power in Christians were the first of many ways in which colonizers dehumanized natives and habitually branded them as inferior. This narrative has stretched through time to touch even the contemporary struggles of Native Americans.

      The first and most pivotal case regarding indigenous peoples in U.S. law was the 1823 case of Johnson v. McIntosh, a case that not coincidentally involved no input from indigenous peoples. Johnson argued that, before European colonization, Indian tribes “held the country in absolute sovereignty, as independent nations, both as to the right of jurisdiction and sovereignty, and the right of soil,” while McIntosh asserted that the tribes were in a “state of nature, and [had] never been admitted into the general society of nations.”[7]

      The court favored McIntosh, forcing Indian tribes to relinquish their sovereignty, and endowing natives with a paternally granted “right to occupancy.” Ultimately, this ruling set a precedent, justifying all subsequent maneuvers to disenfranchise Native Americans and set them on an interminable course of federal abuse. According to Duthu, “The decision rationalized the dispossession of a continent from its original owners by creating a legal framework that, at its core, assumed the racial inferiority of Indian people.”[8]

      The decision not only shaped indigenous affairs in the United States for the foreseeable future, but it also influenced the legal structure of natives’ place in commonwealth countries, including Canada, Australia, and New Zealand.[9] This racist ethos is explicitly carved into the language of the courts, illustrating that these attempts to bureaucratically extinguish whole tribes of people was not a subtle one and proved to be anything but unintentional.

      In the 1913 case of United States v. Sandoval, a dispute over the selling of alcohol by non-Indians on Pueblo Indian land in New Mexico, the court condescended to call the Pueblos simple-minded and obtuse: “Always living in separate and isolated communities, adhering to primitive modes of life, largely influenced by superstition and [fetishism], and chiefly governed according to the crude customs inherited from their ancestors, [the Pueblos] are essentially a simple, uninformed and inferior people.”[10] Similarly, and as late as 1980, Supreme Court Justice Rehnquist said Native Americans “lived only for the day, recognized no rights of property, robbed or killed anyone if they thought they could get away with it, inflicted cruelty without a qualm, and endured torture without flinching.”[11]

      The Johnson case, however, was just the first in a series that would incrementally decimate indigenous peoples’ land base on the continent, often pushing them to other open lands, and eventually relocating them to cities. Seven years after Johnson, in 1830, Andrew Jackson signed the Indian Removal Act, which would authorize the government to exchange lands west of the Mississippi River for eastern tribal lands. Some forty years after that, as the American conservation movement was taking its first steps, and National Parks were becoming fashionable displays of environmental integrity, the U.S. government lassoed larger tracts of land further west and again wrangled them away from natives. The Crow, the Blackfoot, the Nez Perce, the Shoshone, and the Bannock Indians’ insistence on hunting within the bounds of Yellowstone National Park baffled park authorities, who saw the natives as interfering with pristine wilderness. One government liaison to the Shoshone wrote in 1865, “Wild Indians, like wild horses, must be corralled upon reservations. There they can be brought to work, and soon will become a self-supporting people, earning their own living by their industry, instead of trying to pick up a bare subsistence by the chase.”[12]

      The presence of these natives challenged the Western European assumption of dichotomous spheres of activity: During the week, white men worked and lived in the cities; on the weekends, they came to the wilderness to relax, commune with nature, and hunt for sport. The Indians of Yellowstone lived outside of those spheres, which is why they were eventually walled into various reservations in the area. That kept the West categorical, and it kept the National Parks comfortable only for weekend warriors.[13]

      With the Indian Removal Act of 1830, as white settlers migrated further west, the beast of land consumption grew. The same year that the Indian Removal Act was signed into law, Congress also passed the first Preemption Act, which entitled any non-Indian settler on unsurveyed public domain to claim up to 160 acres and buy it from the government for $1.25 per acre. The act was originally intended to expire after two years, but was renewed in 1832, 1834, 1838, and 1840. In 1841, Congress extended the act indefinitely. It was finally repealed as late as 1891, during what became known as the Allotment Era for Native Americans, ­between the 1870s and 1930s.

      The General Allotment Act (or Dawes Act) of 1887 authorized the parceling of reservation lands for individual sale. Individual Indians could claim parcels, but the surplus would be opened to homesteading by non-Indians.[14] “Congress dreamed up the Dawes Act…to destroy the Indian nations, then take the rest of their land,” writes Russell Means of the American Indian Movement (AIM) in his autobiography.

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