excerpted from: William Bradford, With a Very Great Blame on Our Hearts": Reparations, Reconciliation, and an American Indian Plea for Peace with Justice, 27 American Indian Law Review 1-174, 19-75 (2002-2003) (811 Footnotes)
II. The Claim for Indian Redress: How the West Was Stolen
Concealed behind the benevolent facade of the American mission civilisatrice is the brutal reality of invasion, slavery, forced relocation, genocide, land theft, ethnocide, and forcible denial of the right to self-determination wholly incompatible with contemporary understandings of U.S.-Indian history and with the notions of justice informing the human rights regime. It is perhaps impossible to overstate the magnitude of the human injustice perpetrated against Indian people in denial of their right to exist, on their aboriginal landbase, as self-determining peoples: indeed, the severity and duration of the harms endured by the original inhabitants of the United States may well exceed those suffered by all other groups domestic and international.
A. Genocide: "The Metaphysics of Indian Hating"
On May 3rd, 1493, Pope Clement called upon Spanish conquistadores to discover and conquer new lands in the Americas in order to draw "barbarous nations" to the Christian faith. The subsequent invasion of the Western Hemisphere, predicated upon a jurisprudential assumption that the indigenous inhabitants were a distinctly inferior species, was governed by the legal principles of discovery and conquest. The latter provided as a matter of international law that a nation became the sovereign of territory its agents "discovered" provided it subjugated the population and annexed its lands. Although prudence restrained pre-eighteenth century aggression in lands that became the United States, conquest was eventually applied in all the Americas, and the period subsequent to first contact is notorious as the "Age of Genocide."
In the aftermath of conquests, colonizers offered financial incentives to corporate slavers to create bounties between tribes, thereby facilitating a divide and conquer strategy that served territorial objectives while providing free labor to developing economies. The abomination of the Indian slave trade
played a significant role in both colonial trade and in the extermination of most of the southeastern tribes ... [T]he Indian slave trade involved all the colonies and ... involved all the horrors long associated with the worst images of slavery, including beatings, killings, and tribal and family separation. It became routine policy to separate families, sending the Indian men off to the northern colonies while keeping the women and children in the south .... In the east, Indian slaves became a viable component of trade, along with deer skins and furs; in the west, American Indians were enslaved by the Catholic Church in order to build and maintain its missions ... Indian slavery was ... an integral part of the colonial economy.
Although Indian slavery had largely discontinued in favor of African American slavery by the early nineteenth century, Californian Indians, as late as the mid nineteenth century, were regularly raided by slave-hunters looking for men to work in mines and women to work in brothels, and extermination befell many who resisted.
3. Transcontinental Ethnic Cleansing
The precise number of Indian victims of the genocide committed by Euro-American colonizers over the past half-millennium evades quantification. Estimates of the pre-Columbian indigenous population in what later became the United States range from five to ninety four million, yet by 1880 disease, slaughter,slavery, and aggressive wars reduced their number to as few as 300,000 -- and declining. Although luminaries such as President Thomas Jefferson denounced the genocide as it unfolded, the prevailing racial ideology reassured the public that the disappearance of an inferior people before the United States' continental advance was a "historical and scientific inevitability." Initially, a legislative approach effected physical removal of Indian people from ancestral lands; however, when this proved politically inefficient, measures more clearly within the inherent powers of the executive and therefore less susceptible to judicial review were devised: Indian genocide became official policy of the United States and its political subdivisions.
In the aftermath of the Civil War, the might of the U.S. Army was directed toward Indian eradication. Military and civilian contractors induced deliberate starvation by destroying primary food sources such as the buffalo, yet Indian tenacity necessitated more direct applications of force. One by one, the Seminole, Nez Perce, Lakota, Shoshone, Comanche, Apache, and other tribes were hunted, pursued, cornered, and murdered. A series of "massacres" were written in Indian blood on the pages of American history: Blue River (1854), Bear River (1863), Sand Creek (1864), Washita River (1868), Sappa Creek (1875), Camp Robinson (1878), Wounded Knee (1890), and about forty others. Gruesome, shocking, deliberate exterminations of defenseless women and children, were perfectly legal exercises of State and federal authority as the law then stood. By the conclusion of the "Indian Wars" in 1890, the pre- Columbian Indian population was reduced as much 98%, and an Indianrein United States was not beyond possibility. Although radical depopulation of Indian land may have been merely an efficient means to capture and annex territory, the United States nonetheless committed genocide in overtly manifesting a clear intent to kill, and killing, Indians as such.
B. Land Theft
The relationship between the land and Indian people is fundamental to their physical and cultural survival as distinct, autonomous groups. Indian land is constitutive of the Indian cultural identity and designative of the boundaries of the Indian cultural universe. Indian land transmits knowledge about history, links people to their ancestors, and provides a code of appropriate moral behavior. From the moment of first contact with European "discoverers," Indians proclaimed a sacred responsibility to preserve and transmit Indian land, and with it, identity, religion, and culture, to successive generations. The discharge of that responsibility was compromised by federal policies of land acquisition ranging from fraud and deceit to expropriation and outright theft.
Throughout the seventeenth and early eighteenth centuries, prudence directed Euro-Americans to formally recognize militarily potent Indian tribes as independent societies and accord them diplomatic recognition as sovereigns. Even subsequent to the defeats of France in the Seven Years' War in 1763 and Britain in the War of Independence in 1781, the Euro-American foothold in North America remained tenuous, and ongoing military insecurity stymied territorial ambitions while stifling any notions of conquest. Moreover, the United States' land hunger was largely sated by available space within the original thirteen colonies, and land acquisitions from Indian tribes were of necessity accomplished by treaties of cession after peaceful negotiations. Still, if during its first several decades of existence the fledgling government was obliged to recognize the sovereignty of Indian nations and to respect Indian land titles as a matter of international and domestic law, from the moment of its creation the United States was crafting legal solutions to the "problems caused by the ... fact that the Indians were here when the white man arrived[.]"
1. Fraud and Firewater
The Indian conception of land as utterly incapable of reduction to ownership as property by human beings -- an essential element of pan-Indian cosmology -- crippled tribes in their early negotiations with U.S. representatives operating within an imported common law tradition commodifying land. While Indian tribes generally understood treaties to create sacred kinship ties entitling the United States to share and settle the lands in question, the goverment, disinterested in kinship but desirous of no less than fee simple title, manipulated Indian (mis)appreciations of Western property rights in treaty texts incomprehensible to Indian negotiators not proficient in the English language. Moreover, U.S. negotiators, notwithstanding their claims of moral ascendancy over Indian tribes as the philosophical basis for acquiring dominion over their lands, secured further fraudulent advantage by dulling Indian wits with alcohol. Deliberately faulty translations of treaty text and inaccurate explanations of treaty terms to Indian tribes possessed of limited language skills and a Weltanschauung in which land is a sacred living thing incapable of reduction to ownership exacerbated a fundamentally unequal bargaining position and erased the line between consent and coercion; worse, later treaties simply codified the results of more pronounced forms of coercion, including conquest and genocide. In sum, many, if not all, of the Indian treaties ceding land to the United States are physical embodiments of the fraud, unconscionability, and duress governing their drafting and as such are arguably subject to revisitation, reconstruction, and even renunciation as
2. Conquest by Fiction: Johnson v. M'Intosh
By the early nineteenth century the U.S. population was clamoring for more Indian land even as Indian tribes, increasingly convinced of the insatiability of white land hunger, began to resist. Original legal protections for Indian land grew incompatible with white notions of progress, and pressure mounted to annul the marriage of political convenience and legal principle effected by the discovery doctrine. However, even as the United States waxed ever more militarily potent, Indian tribes retained the capacity to defeat conquest, and thus it fell not to armed force but yet again to law to wrest away additional Indian lands. The seminal case Johnson v. M'Intosh provided the opportunity whereby to expand the Euro-American foothold.
Although he acknowledged both the "impossibility of undoing past events and the fact that the sovereign he represented was born in sin," and although he recognized that Indian tribes were as yet independent political communities in retention of original rights to property and self-governance, Chief Justice John Marshall accepted the extravagant arguments that European discovery, not Indian occupancy, constituted ultimate title to lands in the United States and that purchase or, in the alternative, conquest of territories by the discovering sovereign conferred good title to those lands. While Marshall conceded that such arguments "may be opposed to natural right, and to the usages of civilized nations," he drew from the doctrine of stare decisis, comparisons to the practice of other states, and ultimately a jurisprudential affirmation of the "inferiority" of Indian nations to find that "if [such arguments] be indispensable to that system under which the [U.S.] has been settled, and be adapted to the actual condition of the two people, it ... certainly cannot be rejected by Courts[.]" Although the progressive Marshall intended to impose legal limits on the future conduct of conquerors less charitably disposed toward Indian tribes than he, M'Intosh fueled subsequent claims that "Indians were conquered as soon as John Cabot set foot on American soil," "that it only required the inevitable march of history to carry out this preordained outcome," and that "tribal property rights are not properly understood as rights at all, but merely as revocable licenses, or ... 'permission by the whites to occupy."'
3. Trust Doctrine: Cherokee Nation v. Georgia
Subsequent cases further diminished tribal sovereignty over Indian land. In the 1831 case, Cherokee Nation v. Georgia, the second in the Marshall Trilogy, Chief Justice Marshall determined that, despite their retention of a set of reserved rights and powers to include occupancy of their lands subject only to voluntary cession, Indian tribes were "domestic dependent nations" and "wards" under U.S. "pupilage," not sovereign foreign nations or states within the meaning of the Constitution, and that as a result the Court could not take original jurisdiction over a case wherein the Cherokee sought to enjoin enforcement of the laws of Georgia on land guaranteed by treaties. Although Marshall held that the United States owed a common-law trust duty to Indian tribes, not only was this duty specifically held to be judicially unenforceable, but an examination of the other justices' opinions, construing the U.S.-Cherokee relationship as that between a conqueror and a subject people, hinted that the "trust doctrine," true to its roots in medieval Christian xenophobism and scientific racism, would serve as yet another legal tool with which to diminish Indian sovereignty. In short order, the United States claimed trust title to all Indian lands within its borders.
Although U.S. federal Indian policy with respect to Indian land under the trust doctrine generated a host of express obligations to ceding Indian tribes undertaken in subsequent treaties, statutes, and executive orders to create and protect permanent land reservations as against States and private parties, popular political pressure ensured that these judicially unenforceable obligations were almost never discharged with "good faith and utter loyalty to the best interests" of the Indian tribes.
4. Plenary Power: Worcester v. Georgia
In Worcester v. Georgia, Marshall interpreted the Commerce Clause of the U.S. Constitution to hold that Congress had "plenary" power over Indian affairs. Although the precise meaning of the term "plenary" was not subject to ready determination, Worcester loosed Congressional plenary power upon Indian tribes, qualifying all remaining tribal powers by express congressional legislation by 1900. Moreover, by the late 1840s, with the military power calculus shifting and gold discovered out West, "whites c[ould] no longer be kept out of Indian country." By adding plenary power to the legal arsenal, Worcester and its progeny ushered in a violent phase of expansion, executed under the rubric "Manifest Destiny."
Over the next several decades the Army prosecuted a sequence of wars to perfect discovery by divesting Indians of their possessory interest and enabling the United States to claim trust title and exercise plenary power. Still other wars were fought to suppress Indian unrest after violations of Indian treaties. After each genocidal campaign, a dwindled, harried, and hungry Indian nation in extremis sued for a peace that surrendered vast tracts of lands and political freedom in exchange for dependence and "civilization." During the first decade after the Civil War, the United States acquired nearly one-fourth of the land within its modern contiguous boundaries entirely free of any legal obligation to pay more than token compensation. Yet despite distribution of millions of cheap acres to settlers, the national greed for space, fueled by an evolving inter-branch compact authorizing takings of Indian land, dictated confiscation of the remainder of Indian country.
5. Sunset of Indian Sovereignty: End of the Treatymaking Era
In 1871 Congress exercised plenary power to strip away the last formal vestiges of Indian juridical sovereignty by providing that "[n]o Indian nation or tribe shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty." No longer compelled as a matter of federal law to treat Indian nations as foreign sovereigns or to regulate Indian affairs by treaty, the government could now acquire Indian land without even the pretense of consent, and Congress, unwilling to allow "(a)n idle and thriftless race of savages ... to stand guard at the treasure vaults of the nation[,]" gave the Army free rein to employ genocide to crush the last obstacles to the orderly march to the Pacific.
6. Allotment to Present: "Mighty Pulverizing Engine"
By 1887 all two billion acres of the U.S. continental landmass had been discovered, conquered, and expropriated save for the 138 million acres apportioned to Indian reservations, which the General Allotment Act of 1887 (Allotment) targeted for further dismemberment and colonization. Allotment, an exercise of plenary power, subdivided large swaths of communally- owned tribal lands into parcels for the private use of individual Indian allottees under a twenty-five-year period of federal guardianship. Upon expiration of the trust period, the United States issued an unrestricted fee patent to allottees who proved "competence," assumed U.S. citizenship, and paid real estate taxes. For most tribes, Allotment was devastating: although tribal governments remained in situs on vestiges of reservations still under trust protection, by encouraging Indian individuals to formally withdraw from the tribe in exchange for a per capita share of tribal land and by meeting the failure of unemployed Indian allottees to pay property taxes with foreclosure, reversion of title, and sale to white speculators at prices far below market value, Allotment abolished Indian reservations as autonomous and integral sociopolitical entities.
Although several Indian tribes attempted to block Allotment, the Supreme Court ruled not only that Indian land was subject to the sovereign right to take for public use upon payment of just compensation, but that takings of Indian land, described as a "legitimate form of 'investing for thetribe"' that did not require either consent or notification, were precluded from judicial review. By 1934, Indian lands had been reduced by a further ninety million acres, with almost twenty-six million lost through fraudulent transfers, and of the two billion acres of formerly contiguous tribal land holdings all that remained was a fragmented, forty-seven million acre mosaic of reservation lands under trust, plots owned in fee simple by whites, and plots held by Indian individuals no longer members of any tribe. Moreover, 95,000 Indians were now landless. In sum, the synergy of discovery, the trust doctrine, and plenary power as manifested in Allotment perfected the legal theft of Indian land.
Despite infrequent restitution and compensation for Indian land, the Constitution affords no protection to Indian tribes, and what remains of their landbase continues under siege. In light of the progressive evolution of rights regimes it is surreal that the United States continues to wield:
[a]bsolute, unreviewable power to continue the conquest of Indian nations that have not yet been forced to sign a treaty ... [and to] take land held under original Indian title as it pleases, ... without any constitutionally mandated obligation to pay compensation for the taking of land possessed by Indian nations for thousands of years, and despite the fact that the members of such tribes are United States citizens otherwise protected by the Constitution.
With its Manifest Destiny secured, the United States, heretofore oriented toward the physical separation and extermination of indigenous people, changed tacks to follow the prevailing political winds, and U.S. Indian policy adopted a treble action agenda for implementation in conjunction with private actors: liquidation of Indian culture, eradication of tribal self-government, and forced assimilation of "civilized" Indians, shorn of cultural and social attachments, into the body politic. These interrelated policies, along with the specific laws, regulations, practices, and customs developed throughout the late nineteenth and much of the twentith centuries to deny Indians the right to maintain separate and autonomous polities and preserve their culture from interference, painted Indian tribes as targets for a sinister "genocide-at-law." Promising to free "backward" Indians from an "outmoded past" and endow them with "civilization," "education," and "prosperity" whether they desired these "blessings" or not, the BIA, along with religious missionaries, set about dissolving the "glue" of Indian society.
1. Cultural Liquidation
a) "Kill the Indian to Save the Man"
Of all the processes engineered to strip away the Indian sense of self, world view, and tribal identity, perhaps the most nefarious was Congressional funding of religious schools geared toward eradication of Indian culture and the substitution of Euro-American, Christian culture in its stead. Beginning in the late nineteenth century, Indian children were taken, often without parental or tribal consent, to boarding schools where their hair was cut, their tribal clothing exchanged for Western garb, forced manual labor was required, and harsh abuses of a physical and sexual nature were meted out for speaking tribal languages or engaging in customary religious practices. During their residence, Indian children were prohibited from visiting their relatives, who, as a result, they often did not see for years. Removed Indian children, and their descendants down through the generations, have typically lost the use of their languages, been denied cultural knowledge and inclusion, and been deprived of opportunities to take on tribal responsibilities.
b) American Crusade: Eradication of Indian Religion
While Indian children were spirited off to forced conversions at distant boarding schools, the United States, exercising its plenary power, posted Christian missionaries to the reservations as Indian agents with orders to ban tribal religions, initiate Christianization of tribal populations, and pacify political and cultural discourse. At the behest of the Indian agents, Congress launched a broad-based assault upon Indian religion with laws that weakened "marriage, family and clan relationships, the distribution of property, and social and political organization." Courts of Indian Offenses ("CIO") enforced these stringent social control mechanisms. In arguing before Congress for the suppression of tribal dancing and feasting, the Secretary of the Interior proclaimed that "[i]f it is the purpose of the [U.S.] to civilize the Indians, they must be compelled to desist from ... savage rites and heathenish customs." For most of the twentieth century, non-Indians played "cultural game warden," circumscribing the legal exercise of Indian religion. Despite passage of the American Indian Religious Freedom Act (AIRFA) establishing the federal policy to "protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise ... traditional religions," in practice Indian religions have proven too enigmatic for non-Indian jurists to admit them within the meaning of "religion" as enunciated in the Bill of Rights. For Indian claimants, who have not won a single case of religious freedom since AIRFA was signed in 1978 and who may not celebrate the sacraments of their faith without threat of prosecution for violation of controlled-substance or species- protection legislation, the American tradition of religious freedom has been a "cruel hoax." With AIRFA ineffectual in the courts and Congress unwilling to strengthen statutory protection, a new millennium reveals only that Indians' freedom to preserve their religious beliefs "amounts to nothing more than the right to believe that their religion will be destroyed." Even as Indians continue to assert that denial of their religious freedom is a deprivation of the highest magnitude, the preservation of teachings, values, objects, and places for which they bear sacred inter generational responsibility is yet diminished by federal law.
2. Suppression of Indian Self-Government
The United States' Indian policy has long disabled autonomous determination of the political organization, economic development, and legal regulation of Indian tribes and people, principally by disintegrating tribal institutions and supplanting them with Euro-American forms of governance. From the dark ages of the Allotment Era to the present, Indian legal institutions have presented an attractive point-of-entry to agents of forced "social evolution" whose labors have wrought the domination and physical assimilation of Indian tribes and people.
a) Legal Imperialism
Although no Indian tribe had codified a body of written law as of 1776, many tribes had "rules of conduct and attitudes of the mind concerning their kinship system." Tribal legal systems conditioned members to adhere to a sacred system of well-elaborated tribal values of order, harmony, interdependence, and peace. Consequently, disputes within the tribe were typically resolved not in formal institutions using adjudicative procedures, but rather with the aid of respected elders who would guide disputants to a restorative compromise. "[T]hough it appeared to the casual white observer that anarchy reigned," spiritual consensus produced a coherent jurisprudence that served Indian tribes well despite the absence of the "paraphernalia of European civilization." In contrast, the Anglo-European model imported by discovering nations focused on individual rights, the placement of the burden of proof on accusers, and the punishment and removal of offenders from the community by imprisonment. Despite retention of nearly exclusive subject matter and personal jurisdiction to the territorial limits of their reservations even as of the late nineteenth century, Indian tribes, with no easily identifiable legal institutions, procedures, or records, were beset by a constellation of religious proselytizers, "friends of the Indian," and BIA agents who, concluding Indians were without law or justice, imposed legal "civilization."
The 1883 case of Ex parte Crow Dog, in which the U.S. Supreme Court overturned, for lack of jurisdiction, the federal conviction of an Indian charged with the murder of another Indian, induced Congress to extend the complete coercive power of federal criminal law to thereservations. Determined to rectify the barbarous, "savage quality" of tribal law and mollify public fervor, Congress applied "white man's morality" with the Major Crimes Act of 1885 to expressly establish concurrent federal jurisdiction over major felonies committed by Indians on reservations regardless of the status of their victims. Legal challenges to the Major Crimes Act failed to reestablish tribal legal self-determination but provided the judiciary occasion to further undergird the trust doctrine and plenary power.
The paternalistic assault upon Indian legal sovereignty, joined on the religious front with the adoption of the CIO/CFR courts, intensified during the Great Depression with the passage of the Indian Reorganization Act of 1934 ("IRA" or "Dawes Act"). Although the IRA expressly recognized that tribes might create their own courts and enact their own laws, the legislation imposed BIA-drafted boilerplate constitutions that created strange new substantive and procedural obligations. Moreover, after the passage of Public Law 280 in 1954, providing that specified states could unilaterally accept concurrent jurisdiction over Indian territory within their borders, the entire body of state civil and criminal law was extended to classes of cases involving Indians. Fearing that failure to create acceptable tribal courts would result in states taking jurisdiction over all cases occurring on reservations, and understanding that review of plenary power in the exercise of regulatory jurisdiction over Indian affairs was an exercise in futility, the tribes begrudgingly implemented constitutions and adversarial justice systems.
The penultimate blow fell in 1968 with the Indian Civil Rights Act ("ICRA"), which imposed many of the individualist strictures of the U.S. Constitution -- in particular the Bill of Rights and the Fourteenth Amendment -- on tribal governments and smoothed the way for what Indian activists branded "white-man's justice." Although the ICRA amended Public Law 280 to require tribal consent for the exercise of state civil and criminal jurisdiction and left interpretation of the legislation to the tribes themselves, by the early 1970s the centuries-long federal assault on tribal legal systems had displaced pre- Columbian methods of social control from tribal courts where an Anglo-American adversarial legal system had acquired tenure. BIA-drafted codes permitted tribal court judges to apply tribal statutes, yet federal and state laws were supreme, and federal judicial review steered tribal court jurisprudence into lockstep conformity with the U.S. legal system. Individual reliance on foreign legal concepts and advocacy removed Indian disputes from their natural contexts and compounded growing acrimoniousness in reservation communities. With tribal governments increasingly shackled by American legal hegemony, enforcement of judgments became far more difficult, further damaging tribal harmony. When a landmark 1978 case extended the United States' legal colonization of Indian tribes still further by denying them jurisdiction over the acts of non-Indians occurring on reservations, a new generation of critical legal jurisprudence, influenced by the Civil Rights Movement, began to question the foundations and institutions of federal Indian law.
Although tribal proactivity and federal interposition hold state law partly at bay, at present Indian tribes may exercise jurisdiction solely over consenting tribal members on fragmented remnants of former tribal holdings. Even this vestige of sovereignty is threatened by the plenary power to extend all federal, and, by inaction, state laws to the reservations. Rediscovery of tribal dispute resolution methods after a century of legal imperialism, and their reintroduction in Indian Country as an assertion of legal autonomy, are pressing concerns of Indian scholars and activists, yet reacquisition of Indian law is inadequate by itself to offset the crushing force of federal Indian law, a mechanism "genocidal in both its practice and intent."
b) Political Domination
Although Indian tribes are separate sovereigns in retention of all rights and powers not explicitly ceded to the United States by treaty or abrogated by explicit legislative intent, U.S. Indian policy has been generally hostile to the right of Indian tribes to self-govern as politically distinct communities. If the theme of the nineteenth century was eradication of Indians and the seizure of their land, the motif of the twentieth century was the destruction by law of tribal sovereignty. With the passage of the IRA, Indian tribes, traditionally hyper democratic and consensus-driven institutions, were reconstituted in the image of non-Indian society and subjected to the veto power of the Secretary of the Interior. Subsequent legislative and judicial action has stripped artificially reconstructed Indian tribes of most of their inherent sovereignty over their form, property, and powers. Relations with post-IRA Indian tribes, rather than proceed as if between mutual sovereigns, are conducted largely through a welter of executive agencies. As a result, the terms and conditions of Indian existence are frequently dictated from Washington, rather than debated on the reservations. Federal agencies to which Congress delegates power smother tribes under a blanket of regulation and programming that, although it provides the means of subsistence, suppresses traditional modes of social control and value allocation, and the Secretary of the Interior looms large over every aspect of tribal life.
Driven in part by the Civil Rights Movement, a "dawning recognition that [Indians] must be freed from federal dominance ... and that Indian[s] must have more control over ... their lives and institutions" spurs calls to end the fundamental asymmetry of U.S.-Indian relations. Nevertheless, several decades after official introduction of the federal policy of "Indian Self- Determination," many Indian tribes remain politically subordinate to and, consequently, economically dependent upon the United States Whether political subordination of Indian tribes is the translation of the majoritarian principle of democracy into action or a statist demonstration, by induction, of the inferiority of competing governance structures and philosophies, Indian Self-Determination, absent an ideological revolution spanning from the treetops of the international human rights regime to the roots of federal Indian law, will remain a chimera.
c) Ethnodevelopmental Suppression
Despite significant endowment with resources natural and human, many Indian tribes remain ensnared in a web of economic dependence deliberately fashioned by the United States over centuries from the strands of institutionalized domination, geographic dislocation, gross undercapitalization, and various legal disabilities. Although the non-legal obstacles to Indian economic independence, the first and foremost goal of tribal governments, are very real, the constraints imposed by federal Indian law are even more formidable.
The United States holds trust title to Indian lands and resources, and Indian property owners cannot sell, lease, or borrow against their property without the express approval of the Secretary of the Interior. As the very question of Secretarial approval introduces political uncertainty, trust- based land-tenure constraints diminish the relative output-values of land-intensive enterprises such as agriculture, ranching, and resource development. Moreover, federal management of Indian resources grants the government paternalistic control over Indian economic destiny. Although the United States is under amoral obligation to husband Indian resources, diligently advance Indian land claims against the states, secure adequate funding for Indian social services, and enhance the economic well-being of Indian people, federal agencies have withheld basic subsistence, mismanaged tribal resources, and violated the animating principles of the trust with near-impunity: only in very recent years has the trust doctrine charged the United States with judicially enforceable obligations apart from those incorporated in specific treaties, statutes, or executive orders. Although the protective dimensions of the trust doctrine have broadened, aggrieved Indian beneficiaries still lack effective legal recourse for its breach.
Plenary power, as well as judicial review of its exercise, further stifles Indian economic development by enabling Congress to terminate federal benefits and restrict or even abrogate Indian rights reserved under treaties. Domestic lobbying to induce Congress to allow non-Indian economic interests access to Indian resources threatens tribes with divestiture of sustenance, culture, religion, and income. Furthermore, although Indians, as prior sovereigns, reserved rights in treaties to, inter alia, use water, hunt and fish, and engage in traditional modes of production and worship on customary lands and waters, recent federal jurisprudence suggests that Indian reserved rights are "temporary and precarious" privileges subject to revocation even in the absence of explicit Congressional intent to abrogate them. The synergy of the trust doctrine, plenary power, and judicial review of Indian treaties in derogation of Indian rights are felt most acutely when tribes employ development methods that promote Indian culture, spirituality, and identity. As Indian "ethnodevelopment" threatens the regulatory jurisdiction, market power, and legal sovereignty of the states and the United States, federal Indian law has been carefully crafted to check its expression.
3. Forced Assimilation
Early U.S.-Indian treaties did not contemplate incorporation of Indians as United States citizens, and later treaties incorporated only those individuals who had been objectively "detribalized." Against the force of a clear general preference for a primary affiliation with tribal institutions, federal Indian policy, for more than a century, has subsumed individual Indians within the broader body politic, thereby facilitating seizure of tribal lands and resources, elimination of contending governmental entities, and eradication of a critical mass of practitioners of alien cultures and religions "stand(ing) in the way of progress." The first such assimilative measure, Allotment, divested many Indians of their lands and created great physical and social distance between them and their tribes. The imposition of U.S. citizenship in 1924 added legal momentum to forced assimilation by foisting an awkward dual allegiance upon Indians and pressuring them to transfer loyalties from their tribes to the United States
Although assimilationist pressure abated during the Depression and World War II, with the onset of the Cold War and mounting fears of enemies within, the preservation of distinct political communities within U.S. boundaries became too offensive for many non-Indians to tolerate. House Concurrent Resolution 108, known colloquially as Termination, exercised plenary power to "make the Indians ... subject to the same laws and ... responsibilities as are applicable to other citizens of the [U.S., and] to end their status as wards[.] Termination, under the direction of the former head of the War Relocation Authority, ended the U.S. trust relationship with over 100 selected tribes, curtailing federal benefits and services, forcing dissolution of tribal governments, and distributing former tribal lands and assets on a per capita basis. By legislatively disappearing Indian tribes, Termination stripped Indian people not only of primary sources of political allegiance and economic sustenance but of sacred sites and other fonts of cultural renewal. Assimilationist pressure mounted, and in 1954 Public Law 280, by according states extensive jurisdiction over Indian tribes and individuals, granted non-Indian institutions of social control the legal authority to adjudge and condemn Indian domestic relations and employment practices.
Predicated upon the misapprehension that the emerging "Indian problem" was rooted in segregation and parochialism rather than a cascade of assimilative legislation, Public Law 959, dubbed "Relocation," directed federal agencies to create "Indians who were Indian in appearance but not in culture" and sap remaining tribal political strength. At a time when reservations were increasingly unable to provide material necessities, Relocation, by portraying "contented Indian[s] working at good jobs and sitting beside televisions and refrigerators [in Northern cities,]" induced an exodus to magnet urban areas where a generation of the Indian best and brightest were dumped into substandard housing and menial employment and subsumed in the American melting pot.
By 1970 reservation populations had dwindled so far that a final solution to the "Indian problem" appeared to be at hand, and yet the "stubborn [Indian] refusal to ... become simply another American citizen" has sustained Indian tribalism against a malign tide of assimilationism unto the present day. Although Indian individuals currently possess both tribal and federal citizenship, federal Indian law treats Indian tribes as subordinate governments, and thus meaningful "dual citizenship" -- predicated upon the assumption that tribal and federal governments exercise separate, if overlapping, spheres of authority in "good faith" -- is a legal fiction. For many Indians, this forced "split identification of citizenship" was a genocidal act destructive of tribal political identities, and few believe that tribal and national political participation can coexist when Indian self-determination is construed to threaten U.S. territorial integrity.
D. Summary: The Claim for Indian Redress
More than two centuries of genocide, land theft, and ethnocide, implemented by the brutal instrument of federal Indian law, have depopulated and seized Indian land and eliminated rival polities within the colonial state constructed thereon. The historical review of U.S.-Indian relations has revised a mythical account in order to prepare the intellectual terrain for contemporary remediation. Although the role of the United States in the deliberate destruction of Indian populations, property rights, and cultural patrimonies is for most Americans a hidden history, it presents an archetype for the contemporary exposition, analysis, and redress of a gross human injustice. However, even if re-envisioning history instructs the non-Indian majority in its moral and legal obligations to redress Indian claims, unless two fundamental, transformative principles guide and inform redress, it is foreordained to fail.
First, because a set of institutionalized legal impediments runs through the domestic order and trammels Indian rights, it falls to a process of legal reform to make the nation safe for the peaceful coexistence of basic value-differences between people as well as between peoples. Necessary reforms will include legislation to strengthen protection of Indian religious, cultural, and property rights; create specific remedial programs; tighten judicial canons of construction to resolve ambiguities and construe treaty terms in favor of tribal reserved rights; and incorporate those principles of conventional and customary international law protective of the rights of indigenous peoples. A Constitutional amendment may be necessary to renounce plenary power and restore Indian tribes to a position superior to states in the federalist hierarchy. Proposed reforms will "portend changes in power and well-being for specific persons or groups" and may compromise the universalist approach to conceiving of, promoting, and protecting rights. Redress thus invites contestation over its form, pace, and scope.
Consequently, the second principle, a corollary to the first, is that the non-Indian majority must assist in the infusion of "Indian Self-Determination" with genuine meaning. The United States and Indian tribes are not only intertwined geographically and historically, they are interdependent. Indian autonomy and prosperity on the one hand, and U.S. legitimacy and global leadership on the other, are inseverable, with each a necessary condition for the full realization of the other. Enhancement of the positive externalities of reciprocal transactions will serve both Indian and non-Indian peoples. If U.S.-Indian relationships advance on the basis of a recognition of, and respect for, mutual sovereignties, with differences and disputes attended not by coercion and domination but by negotiation and harmonization, a new era of domestic peace with justice, more worthy of emulation and export than earlier periods of American history, will follow.
The next section defines and contrasts the theories, procedures, assumptions, and remedies that distinguish reparations and reconciliation, the dominant contending modes of redress available to group victims of human injustice; bring each mode to bear upon the Indian claim; and evaluate the relative utilities and disutilities of each.
. The Lakota Indian, "American Horse," commented on the December 29, 1890, Massacre at Wounded Knee where U.S. Army troops of the 7th Cavalry slaughtered over 300 peaceful Indian women and children after a fruitless search for weapons in their encampment:
The women as they were fleeing with their babes were killed together, shot right through, and the women who were very heavy with child were also killed. All the Indians fled in these three directions, and after most all of them had been killed a cry was made that all those who were not killed or wounded should come forth and they would be safe. Little boys who were not wounded came out of their places of refuge, and as soon as they came in sight a number of soldiers surrounded them and butchered them there. Of course we all feel very sad about this affair. I stood very loyal to the government all through those troublesome days, and ... being so loyal to it, my disappointment was very strong, and I have come to Washington with a very great blame on my heart ....
WHEN SORRY ISN'T ENOUGH: THE CONTROVERSY OVER APOLOGIES AND REPARATIONS FOR HUMAN INJUSTICE 253 (Roy L. Brooks ed., 1999) [hereinafter BROOKS].
[a1]. Chiricahua Apache. LL.M., 2001, Harvard Law School; Ph.D., 1995, Northwestern University; J.D., 2000, University of Miami. Assistant Professor of Law, Indiana University, Indianapolis, Indiana.