An Indigenous Peoples' History of the United States (31 page)

The Doctrine of Discovery is so taken for granted that it is rarely mentioned in historical or legal texts published in the Americas. The UN Permanent Forum on Indigenous Peoples, which meets annually for two weeks, devoted its entire 2012 session to the doctrine.
⁴
Three decades earlier, as Indigenous peoples of the Americas began asserting their presence in the UN human rights system, they had proposed such a conference and study. The World Council of Churches, the Unitarian Universalist Church, the Episcopal Church, and other Protestant religious institutions, responding to demands from Indigenous peoples, have made statements disassociating themselves from the Doctrine of Discovery. The New York Society of Friends (Quakers), in denying the legitimacy of the doctrine, asserted in 2012 that it clearly “still has the force of law today” and is not simply a medieval relic. The Quakers pointed out that the United States rationalizes its claims to sovereignty over Native nations, for instance in the 2005 US Supreme Court case,
City of Sherrill v. Oneida Nation of Indians
. The statement asserts: “We cannot accept that the Doctrine of Discovery was ever a true authority for the forced takings of lands and the enslavement or extermination of peoples.”
⁵
The Unitarian Universalist Association (UUA) resolution regarding this is particularly powerful and an excellent model. The UUA “repudiate(s) the Doctrine of Discovery as a relic of colonialism, feudalism, and religious, cultural, and racial biases having no place in the modern day treatment of indigenous peoples.” The Unitarians resolved to “expose the historical reality and impact of the Doctrine of Discovery and eliminate its presence in the contemporary policies, programs, theologies, and structures of Unitarian Universalism; and … invite
indigenous partners to a process of Honor and Healing (often called Truth and Reconciliation).” They additionally encouraged “other religious bodies to reject the use of the Doctrine of Discovery to dominate indigenous peoples” and resolved to collaborate with groups “to propose a specific Congressional Resolution to repudiate this doctrine … and call upon the United States to fully implement the standards of the U.N. Declaration on the Rights of Indigenous Peoples in the U.S. law and policy without qualifications.”
⁶

US officials get tangled in the contradictions inherent in the attempt to legitimize empire building through the Doctrine of Discovery and the origin story of making a clear break from the British empire. The rhetoric is often baffling, particularly when it references US American cultural memory of the wars against Native nations, as it did following the declaration of the “War on Terror” after the terrorist attacks of September 11, 2001.

In early 2011, a Yemeni citizen, Ali Hamza al Bahlul, was serving a life sentence at Guantánamo as an “enemy combatant,” a military tribunal having convicted him of crimes associated with his service to al-Qaeda as Osama bin Laden's media secretary. The Center for Constitutional Rights (CCR) issued a statement prior to the hearing in the appeal of Bahlul's conviction. In arguing that Bahlul's conviction be upheld, a Pentagon lawyer, navy captain Edward S. White, relied on a precedent from an 1818 tribunal. In his thirty-seven-page military commissions brief, Captain White wrote: “Not only was the Seminole belligerency unlawful, but, much like modern-day al Qaeda, the very way in which the Seminoles waged war against U.S. targets itself violate the customs and usages of war.” The CCR objected to this passage in the government's brief. “The court should … reject the government's notable reliance on the ‘Seminole Wars' of the 1800s, a genocide that led to the Trail of Tears,” the CCR declared. “The government's characterization of Native American resistance to the United States as ‘much like modern-day al Qaeda' is not only factually wrong but overtly racist, and cannot present
any legitimate legal basis to uphold Mr. Bahlul's conviction.”
⁷
In response, the Pentagon's general counsel issued a letter stating that the US government stood by its precedent.

The question of self-determination of peoples is a recent historical phenomenon integral both to the formation of modern European nation-states and to the gradual formation of an imperialist world system eventually led by the United States. National integration and state formation occurred first in western Europe as its states established colonies and colonial regimes in Africa, Asia, the Pacific, the Americas, and the Caribbean, and as the United States established itself as an independent state. These conquests afforded European states and the United States access to vast resources and labor that in turn allowed them to industrialize and to create efficient bureaucratic structures and political republicanism. At the end of this process, with decolonization of European holdings in the twentieth century, self-determination became a major global issue eventually incorporating all human beings as citizens of nation-states. The creation of nation-states and the redrawing of national boundaries that this often entailed inevitably raised the questions of which national, ethnic, religious, and linguistic communities were included and whether their consent or participation would be required. There are peoples and nations without their own states, locked under a state authority that may or may not be willing to respond to their demands for autonomy within the existing state. If the state is not willing, the peoples or nations may choose to insist on independence. That is the work of self-determination.

In the United States, Indigenous nations that seek political autonomy or even independence engage in nation building—that is, developing Indigenous governance and an economic base. For decades, Native activists and organizers in North America have worked tirelessly to establish the validity of treaties and to foster and protect the self-determination and sovereignty of Indigenous nations. The nations seek control of their social and political institutions without
compromising what they consider unique and essential cultural values. The central concern for Indigenous peoples in the United States is prevailing upon the federal government to honor hundreds of treaties and other agreements concluded between the United States and Indigenous nations as between two sovereign states. Demands to have treaties and agreements upheld have never abated, and they have accelerated since the end of the termination era. However, the Indigenous concept of nation and sovereignty is quite distinct from the Western model of the state as the final arbiter of decision making, based on police enforcement. Rather, as Indigenous lawyer and activist Sharon Venne has put it, “We know the laws given to us by the Creator. It is an obligation. It is a duty. It is the future of our [children's] children. We cannot like the non-indigenous people who make rules and regulations and change them when they don't like the rule or regulation. We were given the laws by the Creator. We have to live the laws. This is sovereignty of Indigenous Peoples.”
⁸

Following the 1973 standoff at Wounded Knee, the American Indian Movement brought together more than five thousand Indigenous representatives, including ones from Latin America and the Pacific, in a ten-day gathering that founded the International Indian Treaty Council (IITC), which then applied for and received UN nongovernmental consultative status in 1975. The IITC proceeded to organize the first conference to be held at the United Nations on Indigenous Peoples of the Americas in 1977. At this conference, Northern Cheyenne tribal judge Marie Sanchez opened the proceedings:

Members of this conference, delegates, and my brothers and sisters who are present here today.

We are the target for the total final extermination of us as people.

The question I would like to bring forth to this conference, to the delegates from other countries here present, is why have you not recognized us as sovereign people before? Why did we have to travel this distance to come to you? Had you not thought that the United States Government in its deliberate and systematic attempt to suppress us, had you not thought
that that was the reason they did not want to recognize us as sovereign people? The only positive thing that I feel should come out of this conference, if you are going to include us as part of the international family is for you to recognize us, for you to give us this recognition. Only with that can we continue to live as completely sovereign people.

And you also, because you are part of the family of this world, you should also be very concerned, because the common enemy is your enemy too, and that enemy dictates policy to your governments also. I warn you not to be so dependent on the country that we are under, on the government that we are under. We have demonstrated to you how many hundreds of years we have survived.

We wish to continue to exist.
⁹

This international work at the United Nations grew slowly at first, but by the mid-1980s it was attracting grassroots Indigenous representatives from around the world and constructing important initiatives.

The global Indigenous cause reached a major milestone in 2007 when the UN General Assembly passed the Declaration on the Rights of Indigenous Peoples. Only four members of the assembly voted in opposition, all of them Anglo settler-states—the United States, Canada, New Zealand, and Australia. All four, with some embarrassment, later changed their votes to approval.
¹⁰
Leo Killsback reflects the perceptions of most Native people that the declaration might “bring western cultures out of their old world of savagery and closer to humanity,” noting the example of the end of World War II:

After the fall of Nazi Germany, its leaders were publicly ostracized, tried, convicted, and executed for war crimes at the Nuremburg trials. This led to the Genocide Convention and the Universal Declaration of Human Rights. Nazi society members affirmed that the Holocaust occurred and some were forced to visit concentration camps only feet from their place of residence. Under truth and reconciliation German society
began to rebuild itself, and with the end of their savage world, they and numerous other countries adopted Holocaust-denial laws. This is exactly how a society moved from one reality to another.
¹¹

For Indigenous peoples in North America an important action within the UN human rights framework was the 1987 mandate given to a UN special rapporteur, Miguel Alfonso Martínez, to investigate the status of treaties and agreements between Indigenous nations and the original colonial powers and the national governments that now claim authority over Indigenous nations by virtue of those treaties. The UN Study on Treaties, completed in 1999, is a useful tool for Indigenous peoples in the United States in their continuing struggles for land restoration and sovereignty. The investigation concluded that Indigenous treaty rights in the United States have contemporary effective status. The special rapporteur based this finding largely on the US Constitution, which in Article VI provides that “all treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Article I, Section 8, of the Constitution explicitly includes relations with Indigenous nations as among the powers of Congress: “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
¹²

With a large part of Indigenous nations' territories and resources in what is now the United States taken through aggressive war, outright theft, and legislative appropriations, Native peoples have vast claims to reparations and restitution. Indigenous nations negotiated numerous treaties with the United States that included land transfers and monetary compensation, but the remaining Indigenous territories have steadily shrunk due to direct federal appropriation by various means as well as through government failure to meet its obligation to
protect Indigenous landholdings as required under treaties. The US government has acknowledged some of these claims and has offered monetary compensation. However, since the upsurge of Indian rights movements in the 1960s, Indigenous nations have demanded restoration of treaty-guaranteed land rather than monetary compensation.

Native Americans, including those who are legal scholars, ordinarily do not use the term “reparations” in reference to their land claims and treaty rights. Rather, they demand restoration, restitution, or repatriation of lands acquired by the United States outside valid treaties. These demands for return of lands and water and other resource rights illegally taken certainly could be termed “reparations,” but they have no parallel in the monetary reparations owed, for example, to Japanese Americans for forced incarceration or to descendants of enslaved African Americans. No monetary amount can compensate for lands illegally seized, particularly those sacred lands necessary for Indigenous peoples to regain social coherence. One form of Native claim does seek monetary compensation and might provide a template for other classes. Of the hundreds of lawsuits for federal trust mismanagement that Indigenous groups have filed, most since the 1960s, the largest and best known is the
Cobell v. Salazar
class-action suit, initially filed in 1996 and settled in 2011. The individual Indigenous litigants, from many Native nations, claimed that the US Department of the Interior, as trustee of Indigenous assets, had lost, squandered, stolen, and otherwise wasted hundreds of millions of dollars dating back to the forced land allotment beginning in the late 1880s. By the end of 2009, it was clear that the case was headed for a decision favoring the Indigenous groups when the lead plaintiffs, representing nearly a half-million Indigenous individuals, accepted a $3.4-billion settlement proposed by the Obama administration. The amount of the settlement was greater than the half-billion dollars that the court would likely have awarded. However, what was sacrificed in the settlement was a detailed accounting of the federal government's misfeasance. As one reporter lamented: “The result will see some involved with the case, especially lawyers, become quite rich, while many Indians—the majority, in all likelihood—will receive about a third of what it takes to feed a family of four for just one year.”
¹³