In his farewell address to Congress in 1796, George Washington predicted that the flaws embedded in federalism, as it was set up in the U.S. Constitution, would eventually translate into incomprehensible misery for the American Indian. His biographer, Joseph Ellis, tells us that Washington, more than any other of our Founders, foresaw that “what was politically essential for a viable American nation was ideologically at odds with what it claimed to stand for.”
Somewhere along the way to full national maturity, cautioned Washington, there would have to be a reckoning between what was “politically essential” for national survival and the unbounded freedom the nation “claimed to stand for.”
As settlers on the Western frontier and clamored for the right to subdue and populate the new Edens of California and the Oregon territory in the mid-1800s, the government’s most reliable instrument for securing its restless society’s feverish desires was the treaty. Throughout the half-century-long era of Westward migration, hundreds of abandoned treaties would help pave the immigrant’s highway to the Pacific.
Every treaty that was brokered by the U.S. government became another stepping stone for immigrants pushing the frontier across the continent. As much as any theory of Westward expansion, those stones tell our nation’s story, the narrative of how the Euro-American citizens on the Eastern Seaboard claimed their God-ordained Manifest Destiny to subdue the Natives, tame the wilderness, and turn Indian lands into public and private domain. An authentic national narrative would seek to expose the forces of governance that succeeded in laying those stones, and the price that was paid to achieve that end.
“The one true thing about every American frontier that seems concrete and immutable,” writes essayist Charles Pierce, “is that it does not last. Sooner or later, everything that makes it a frontier collapses into maps and charts and roads and cities, and it becomes a place where we all go and live.”
It is in those places, in those towns and cities and river valleys where we run out of wilderness, that we come face to face with each other at places like Wounded Knee and Standing Rock. At that moment of encounter, we are compelled by common interest to try to reconcile the paradoxes, conflicts and contradictions that have defined us and brought us together in the first place. In the end, says the Western writer William Kittredge, reconciliation will be America’s only way out of that legacy of dishonor, the only sensible path to a future worth living — our Last Chance Saloon.
That place of reconciliation is currently situated at the confluence of the Cannonball and Missouri rivers adjacent to the Standing Rock Reservation in south-central North Dakota — not far from the sites of Wounded Knee I and Wounded Knee II. Since August, members of hundreds of Indian nations have traveled to the protest site to join the encampment at Standing Rock in an effort to stop a proposed oil pipeline that would run alongside Indian lands, and beneath Indian water, stretching from the Canadian border to Illinois. Their tribal councils and their leaders — who have full legal standing as heads of state at the United Nations, in Geneva, Switzerland, in federal courtrooms and in international courts of law — are supporting the Standing Rock Sioux with money and logistical support.
Unlike Wounded Knee I and II, this contest will not be decided by gunfire or siege. Standing Rock will be decided in federal courts well versed in the legal arcana of the federal trust doctrine and usufructory rights (“reserved rights”) embedded in treaties that predate the settlement of the northern plains by cattlemen and homesteaders. The politicians rattling their sabers with threats against the tribes blocking the pipeline will be forced to learn that treaties, in the words of Chief Justice John Marshall, are a granting of rights from the tribes to the states and the federal government. Moreover, all treaties protecting natural resources owned by the tribes must be interpreted, in the 21st century, as the Indians would have understood their terms and conditions at the time of ratification, 150 years ago. It is the law of the land.
The proposed pipeline, which would transport oil from the Bakken oil fields at the Canadian border to refineries in Illinois, was designed to cross the Missouri River north of the capital city of Bismarck, North Dakota.
A flood of taken landsVirtually every aspect of this 21st century jurisdictional train wreck has its point of origin in the U.S. Congress’ unconstitutional ‘taking’ of Indian treaty lands on the Missouri River with the passage of the Flood Control Act of 1944. It only took half a century for Congress to finally admit, in 1992, that it had unlawfully neglected its trust responsibilities to the tribes with the approval of the Pick-Sloan Plan. Nevertheless, in September, a federal judge upheld the new plan and ruled that construction of the pipeline could go forward. Hours later, the Department of the Interior, the Bureau of Indian Affairs, and the Army Corps of Engineers declared a moratorium on further construction of the pipeline until the tribes could be properly consulted. Cooler heads in the federal government had avoided what could have easily turned into Wounded Knee III.
In his landmark decision on March 3, 1832, Marshall redressed his long-standing discomfort with relying on a legal relic from the 16th century, known as the Doctrine of Discovery — which gave European discoverers dominion over native people and the lands — as the backbone of federal Indian policy. In summary, wrote Marshall, by expelling the Cherokee from their homelands, the state of Georgia’s actions were extensions of authority it never possessed in the first place. “The acts of Georgia are repugnant to the Constitution, laws, and treaties of the United States. They interfere forcibly with the relations established between the United States and the Cherokee nation, the regulation of which, according to the settled principles of our Constitution, are committed exclusively to the government of the union”...which formally recognized “the pre-existing power of the Cherokee nation to govern itself.”
To this day, Marshall’s ruling in Worcester reverberates with seismic shocks through the bedrock of federalism. President Jackson famously ignored the Marshall opinion and pressed ahead with the forced removal of tribes from the Eastern forests. Nevertheless, Marshall had unwittingly set up a ‘states’ rights” conflict over Native sovereignty — not slavery — that eventually led to Bull Run, Gettysburg, Cold Harbor, and culminated in the 14th Amendment, which once and for all suborned the rights of states to the central authority of the federal government. At Standing Rock in November 2016, 180 years after Worcester, that codified authority invokes the trust relationship between the tribes and the federal government as a trump card that overrides the interests of the counties, states and pipeline companies.
The conflict at Standing Rock has its origins in centuries of bloody historical conflicts that have never been resolved. It’s not for nothing that when General Sherman was asked by reporters to describe an Indian reservation, he replied, “An Indian reservation is a parcel of land set aside for the exclusive use of Indians, surrounded by thieves.”
The ghosts of Andrew JacksonIf we could conjure the ghosts of Andrew Jackson and his contemporaries and restore them to flesh and blood in the 21st century, nothing would surprise them more. When Jackson was elected to the White House in 1828, the extinction of the Indian looked as inevitable as tomorrow’s sunrise. But the Indians, who are nothing if not careful students of historical ironies, fooled everybody. Today, they comprise about 1 percent of the nation’s population, but the outback real estate they were forced to accept in the 19th century holds approximately 40 percent of the nation’s coal reserves. At a time when the nation’s industrial machinery and extractive industries are running out of vital mineral resources on every front, Native lands hold 65 percent of the nation’s uranium reserves, untold ounces of gold, silver, cadmium, platinum and manganese, and billions of board-feet of virgin timber. In the ground beneath that timber are billions of cubic feet of natural gas, millions of barrels of oil, and an untapped treasure chest of copper and zinc. Not to mention 20 percent of the nation’s freshwater.
Tribal councils and resource departments across the country are well aware of these treasures. Many tribes have opened up their own legal departments, so that they no longer have to depend on federal agencies, such as the Bureau of Indian Affairs, to do their bidding — a long-term strategy that is proving very successful. Eight hundred miles to the east of Ward Valley, Isleta Pueblo tribal attorneys recently won a U.S. Supreme Court contest that forced the city of Albuquerque to spend $400 million for a cleanup of the Rio Grande River. Pacific Northwest tribes won the right to half of the commercial salmon catch in their ancestral rivers and streams, like the Columbia and Snake, and the U.S. Supreme Court has agreed with Indian lawyers that tribes are the first in line for the over-allocated water that flows down the Colorado River. In Wisconsin, the Potawatomi and Chippewa tribes recently won a 20-year battle to prevent the Exxon Corp. from opening a copper mine at Crandon Lake, a battle tribal lawyers won by enforcing Indian water rights and invoking provisions in the Clean Air Act.
These are just a few of the dozens of natural resource and sovereignty cases that the tribes have won in recent years. “Back in the old days,” says Tom Goldtooth, the national director for the Indigenous Environmental Network, “we used bows and arrows to protect our rights and our resources. Today, we use science and the law. They work much better.”
Science and law have worked so much better that recent decisions by the High Court have often enraged white communities who found themselves on the losing end. And after 220 years of nationhood, non-Native citizens still have no idea what Native sovereignty is, let alone why tribes are winning all these court cases.
The test of Indian sovereigntyOur Founders weren’t fools. At the core of our nationhood, they wisely placed a bundle of laws that would be unwavering and timeless. And none of our oldest laws — those precepts known to legal scholars as “foundational laws” — are more deeply anchored to our national origin than those that bound the fate of the Indian nations to the fate of the republic. With each of those tribes, we have made solemn agreements, known as treaties, compacts and covenants, that underscore each party’s inherent sovereignty, theirs and ours, and are protected by the Article VI, Clause 2 of the Constitution as the supreme law of the land. Among others, George Washington knew that we could not survive the first years of nationhood without the friendship and cooperation of the Indian nations. Moreover, without their lands and concessions, the fledgling nation could not have expanded its public domain to the Mississippi River, and later, the Pacific Ocean. It’s for this reason, among others, that the Founders saw fit to anoint treaties in our Constitution as our laws of the highest standing.
Washington warned members of the national Legislature, and the states’ rights advocates scattered among them, that the young republic’s legal compacts with the Indian nations were inviolate. No harm could be done to those agreements without undermining the very foundation on which the Founders had built the American house of democracy.
When the legal concept of Indian sovereignty was finally put to the test in the U.S. Supreme Court, Chief Justice Marshall took pains to examine the character of treaties within the framework of the Law of Nations and to explain their role in mediating relations between sovereign governments. Marshall knew that battles between state governments and the tribes were only going to escalate over time, and from the vantage point of the 21st century, we can now read his opinions as forceful and thoroughgoing rebuttals to his wrongheaded nemesis and cousin, Thomas Jefferson. For it was Jefferson who fostered the crisis with Georgia in the first place when he signed the Georgia Compact of 1802, a compact that attempted to nullify the federal government’s obligations to the Indians under the Indian Commerce Clause by ceding its exclusive power to the states. In the end, Marshall bested his cousin by writing the landmark decisions in three Cherokee cases he presided over in the final decade of his career. Today, those cases are known to federal Indian law experts as the Marshall Trilogy, in which The Great One, as the chief justice was called, laid the foundation for all future Indian law that would be shaped by more than 1,000 High Court appeals over the next two centuries, right down to Standing Rock.
Marshall explained that national sovereignty existed as a pre-condition among all self-governing entities, including Indian nations, and acted as a legal shield protecting all rights and privileges reserved and implied by that nationhood. Furthermore, every treaty ratified by the U.S. Senate under Article VI, Clause II of the Constitution, states’ rights notwithstanding, was now the supreme law of the land. In the case of Indian nations that existed within the borders of the United States, Marshall ruled that these were “domestically dependent nations” that carried with them all the legal privileges of national sovereignty, with the exception of making separate treaties with foreign governments. In this way, Marshall said, the federal government and the Indian nations were inextricably bound together in a formal relationship, as trustee to obligee, a concept in federal Indian law that is known as the federal trust doctrine. Also, treaties were a granting of rights from the Indians to the federal government, not the other way around, and all rights not granted by the Indians were presumed to be reserved by the Indians, a term of art known to this day as the reserved rights doctrine.
In the end, Marshall crafted his solution to the problems posed by the fault lines in federalism out of federalism itself. He accomplished this by cleverly putting the federal government and the tribal governments in legally binding partnerships. This still left Congress and the courts with the practical problem of guaranteeing the tribes that American society would expand across the North American continent in an orderly fashion, and that its citizens would observe the terms of these agreements. Inevitably, as disorderly expansion became the norm and those agreements were ignored, by common citizens as well as presidents, state legislators, governors, and lawmakers, both then and now (as we have seen at Standing Rock), the conflict of interest embedded in federalism gradually eclipsed the rights of the tribes in the second half of the 19th century. Notably, the state of Georgia and President Andrew Jackson dismissed Marshall’s rulings and redoubled their plans to remove all Indians residing in the Eastern forests to an Indian territory in Oklahoma. Thousands of Cherokee, Choctaw, Creek and Chickasaw Indians perished in forced marches from their homelands. Reports from the field conducted by Ethan Allen Hitchcock, the grandson of his Revolutionary Era namesake Ethan Allen — revealed a “cold-blooded, cynical disregard for human suffering and the destruction of human life.” Hitchcock’s final report was so damning to President John Tyler’s administration that it disappeared, along with all the supporting evidence, and no trace of it has ever been found.
By 1850, most lawmakers in Washington had good reasons to assume that the Indians would be extinct by the end of the century. That moment would conveniently extinguish Congress’ obligations to the tribes. But when the Native Americans stubbornly resisted their own demise, Congress found new ways to finesse its obligations, by promoting massive land grabs that masqueraded as executive orders. During this period — an epoch of breathtaking lawlessness initiated by President Benjamin Harrison in 1887 — Indians lost 150 million acres of their treaty-protected homelands. This second “takings” era would continue unabated until 1934, when Congress finally repudiated its own policies as having constituted “a national disgrace.” Federal courts then began making Marshall’s century-old legal realignments more visible, through a series of controversial decisions that consistently favored the tribes and forcefully reminded federal lawmakers of their binding obligations under the federal trust doctrine. Conversely, they encouraged jealous state governments to treat the tribes’ partner, the federal government, as a heavy-handed interloper.
George Washington’s stern warnings against sullying the nation’s honor and glory by violating treaties not only came to pass, it defined the legacy of America’s expansion to the Pacific. Though many executive orders were later ruled illegal by federal courts, Sherman’s thieves got away scot-free. There was no going back, and by 1934, the remnants of the once-great tribes were simply surviving, hand to mouth, from one year to the next. The ironic turning point in their nightmare came decades later, in the first week of November 1968, when Richard Nixon was elected to the White House.
Richard Nixon’s end to sleepingIn the first speech ever delivered by an American president on behalf of the American Indian, on July 8, 1970, Nixon told Congress that federal Indian policy was a black mark on the nation’s character. In Nixon’s view, the paternalism of the federal government had turned into an “evil” that held the Indian down for 150 years. Henceforth, he said, federal Indian policy should “operate on the premise that Indian tribes are permanent, sovereign governmental institutions in this society.” With the assistance of Sen. James Abourezk, the son of Lebanese immigrants who ran a dry goods store on the Pine Ridge Reservation in South Dakota, Nixon’s staff set about writing the American Indian Self-Determination Act. This landmark legislation was soon followed by the Indian Health and Education acts. By the time Congress got around to passing these laws, in 1976, Richard Nixon had left the White House in disgrace, but not before he secured his legacy in Indian Country. For the 1.5 million Native citizens of the United States, Nixon’s presidency heralded an end to their “century-of-long-time-sleeping.”
Thousands of young Native American men and women would soon be attending colleges and universities for the first time. According to Carnegie Foundation records, in November 1968, fewer than 500 Native American students were enrolled in schools of higher education, nationwide. Ten years later, that number had jumped into the thousands. Among the first young Native Americans to benefit from Nixon-era policies was a generation of young Native leaders like Bill Yellowtail, Tom Goldtooth, Raymond Cross, Winona LaDuke, Gail Small and Lori Goodman.
“For the first time in living history, Indian tribes began developing legal personalities,” says Raymond Cross, a Yale-educated Mandan attorney and law school professor, who has made two successful trips to the U.S. Supreme Court to argue the merits of Indian sovereignty. “They realized that federal Indian policies had been a disaster for well over a hundred years. The time had come to change all that.”
As tribes slowly stirred out of the post-Wounded Knee darkness and grew into powerful political entities, leaders viewed attacks on their natural resources as extensions of 19th century assaults on sovereignty and treaty rights. It was up to the Native Americans themselves to turn that around, because in 2016, in places like Lodgegrass, Shiprock and Mandaree, long-term neglect of treaty rights had resulted into widespread poverty and a 70 percent unemployment rate. In Crow Agency, Lame Deer, Gallup and Pine Ridge, that neglect has looked like a vortex of dependency on alcohol and methamphetamines that suck Indian youths down and spit them out.
Today, at Standing Rock, the Indian nations declared: Enough.
But social ills aside, in 2016 there is too much money on the table, and too many precious resources in the ground, for anyone to walk away.