“We have seen that the white man does not take his religion any more seriously than his laws, that he keeps both of them just behind him, like Helpers, to use when they might do him good. … These are not our ways. We kept the laws we made and lived by our religion. We have never understood the white man, who fools no one but himself.”
—Plenty-Coups, Crow
In his farewell address to Congress in 1796, our first U.S. president, 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.” America was shaped at its conception by ideals and paradoxes, in equal parts, and by great aspirations and even greater contradictions. 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.”
If history could be used as a yardstick to measure the essential ingredients of man’s nature, for good and for ill, then for Washington, James Madison and Benjamin Franklin, a day was already marked in the future when the newly solemnized rights of “life, liberty, and the pursuit of happiness” would be vanquished by “venality, corruption, and prostitution of office for selfish ends.” Though Washington would not live to see that day, his predictions were soon borne out by the social and political cataclysms of the 19th century. Just as he had predicted, chief among them were the cataclysms caused by flaws embedded in the republican government’s new concept of federalism. In 1787, the American republic was a solitary nation surrounded by hundreds of sovereign Indian nations, yet there was almost no mention of these Native nations in the United States’ founding charter.
As settlers gathered 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. The Crow Indians’ last hereditary chief, Plenty-Coups, was born about the time of first contact with the white man, and his life extended three decades into the 20th century. As an old man, he sat down under a tree on a summer day with his biographer, Frank Linderman, and told his life story. Plenty-Coups had taken part in many treaty councils with the “Great White Fathers,” and he had personally witnessed the breaking of every one of those treaties. As he related his story on that summer day, a biplane passed overhead and disappeared over nearby hills. Linderman notes that Plenty-Coups’ eyes did not even lift toward the plane, toward the sky. It was as though his eyes had already seen too much for one man’s lifetime.
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.
Even in the 1830s, the writer James Fenimore Cooper could see how the narrative was going to play out. When his protagonist, the legendary frontiersman Natty Bumppo, lies dying on the prairie as an old man, what he hears as life runs out of him is the sound of wagon wheels approaching in the distance. No matter how far or quickly Natty pushed west, Cooper always knew — as did Washington, Mark Twain, Thomas Fitzpatrick, Father Pierre DeSmet and others — that the wheels of civilization would soon erase the pioneer’s tracks. “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. Like the currents of the Missouri River, or the force of gravity, a young and restless American society could no more escape the violent pull of Westward migration than it could avoid the consequences of betrayal and loss that forged that migration’s end product. 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.
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.
That place of reconciliation, that Last Chance Saloon in this unfinished American narrative, 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, coincidentally, 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, this contest will not be decided by the 7th Cavalry’s slaughter of unarmed women, children, and tribal elders as a payback for the Battle of Little Bighorn. Unlike Wounded Knee II, this contest will not be decided by gunfire and a siege between the Federal Bureau of Investigation and leaders of the American Indian Movement. Nor will Standing Rock be decided by the convoluted and racially tainted politics of the Northern Plains – played out almost every night on regional and national newscasts – where a renegade sheriff and his posse comitatus of gun-toting cattlemen in Morton County have subordinated the First Amendment rights of the ‘water protectors’ (and the press covering the story) to the pipeline’s right-of-way as — all the while — the state’s governor and attorney general have busied themselves with ribbon cuttings, budget deficits, and other ceremonial trivialities of state government. Unlike those previous tragedies, and for the reasons that follow, Standing Rock will be decided in federal courts well versed in the legal arcana of the federal trust doctrine and usufructory rights (also known as “reserved rights”) embedded in treaties that predate the lawless settlement of the northern plains by cattlemen and homesteaders. The governors, congressmen, city councilmen and county sheriffs now rattling their political sabers with venomous threats against the tribes blocking the pipeline will be forced to learn the civics lesson that treaties, in the words of the great 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. This is not some latter-day cockamamie scheme designed to undermine state governments or pipeline companies. It is the long-standing 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 originally designed to cross the Missouri River north of the capital city of Bismarck, North Dakota. Concerns about what a rupture might do to the city’s drinking water prompted engineers to redraw the map and run the pipeline west and south, beneath nine tributaries to the main stem of the Missouri River, skirting the Standing Rock Reservation where the pipeline would cross under the Missouri River. When this was brought to the public’s attention by the Bismarck Tribune, the Sioux immediately protested. This was an all too familiar echo of what happened 70 years ago, with the Pick-Sloan Plan, when the Army Corps of Engineers placed five flood-control dams on the main stem of the Missouri River in places that would inundate Native lands, but spare white-owned property and towns.
Virtually 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 ran the judge’s decision through a paper shredder and 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.
To get the standoff at Standing Rock in perspective, it is important to understand that the conflict is less about the pipeline and oil profits and much more about the federal government’s trust doctrine with the tribes, a doctrine that put the government and the tribes in a guarantor/trustee relationship when Chief Justice Marshall realigned the boundaries and relationships of federalism in a series of landmark legal decisions in the 1820s and 1830s. The 1832 case Worcester v. Georgia pitted Native sovereignty and the inherent legal sanctity of treaties against the jurisdictional presumptions of the southern states. For the Cherokee, this was the last game of the season in the last season of the world.
Worcester gave Marshall the opportunity to render definitive answers to questions that were carefully avoided by the Founders. For example, how does a state’s sovereignty line up against the sovereignty of an Indian nation? Time was an outgoing tide because President Andrew Jackson was growing increasingly determined to remove the Cherokee and other southern tribes from their homelands. With this in mind, Marshall spent just two weeks composing the court’s majority opinion.
In his landmark decision delivered 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.
In the standoff at Standing Rock, the pipeline opponents do not see themselves as political activists, or even as protesters. They see themselves as “protectors of the water,” i.e., of their treaty rights. Though the mainstream media has presented the superficial details and sensationalized the brief violent encounters between the Native Americans and the pipeline advocates, 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.”
No one knows the range, depth and bitter animosity that burns at the core of that axiomatic epithet better than Bill Yellowtail, a Crow Indian whose home reservation, and his ranch, sit atop a treasure chest of natural resources, namely oil. To get to the bottom of the conflict at Standing Rock, we only have to travel a few hundred miles west to the Crow Reservation in south-central Montana.
The Yellowtail ranch isn’t the easiest place to find. It is tucked into a narrow valley of hard-rock geology that separates the Bighorn Mountains from the surrounding plains on the southern border of Montana. Hang a right at the Wyola exit on I-90, population 100, plus or minus, and head straight for the mountains. This is where Montana got its famous moniker, Big Sky Country. Eventually, with a bit of luck and a trunk full of spare tires, a red sandstone road will take you to a small log cabin on Lodge Grass Creek, 26 miles from the nearest telephone. This is the place where Bill’s mother and father eloped as teenagers — right out of high school — and built a life, a family, and a ranch together. Little did they know that their 7,000-acre chunk of the High Plains was floating on a huge lake of crude oil at the base of the Bighorn Mountains.
For decades now, ever since geologists discovered dinosaur juice beneath these mountains, cattle country on the Crow Reservation has been coveted by oil and gas tycoons in Denver, Salt Lake City and Houston. What the Crow are sitting on, with all of that coal and natural gas and oil, is a kind of petrochemical dream-puzzle that leap-frogs across the Northern Plains to the mother of all oil fields, the Bakken Overthrust Belt, in North Dakota. Since the economics of the cattle industry started circling the drain in the late 1980s, guys in blue suits and shiny black cars have been gobbling up land as fast as it comes onto the market. Over the past 20 years, Bill Yellowtail, whose uncle, Robert Yellowtail, founded the National Congress of American Indians with the Three Tribes’ chairman, Martin Cross, has watched his “neighborhood” turn into a ghost town. Dozens of small family ranchers have pulled up stakes and moved on, often selling their land for pennies on the dollar. The Yellowtail ranch holds down the middle of that petrochemical dream puzzle.
“We just barely hung on to this ranch in the ’80s,” says Yellowtail, who, in addition to being a rancher has been a state legislator, a college professor, a fishing guide, and a regional administrator for the Environmental Protection Agency. “It was dumb luck, I guess. And stubbornness.”
Regardless of where Bill Yellowtail’s life has taken him, this place has always been home. When his eyes take in the 360-degree view of rock and jack pine and endless blue sky, he sees a wintering valley of 10,000 bones, a place that has been home to his clan for untold centuries. And because his inner senses were shaped by this land, by this scale of things, Yellowtail’s eyes are accustomed to big pictures.
They see themselves as “protectors of the water,” i.e., of their treaty rights.
“The battle of the 21st century will be to save this planet,” he says, “and there’s no doubt in my mind that the battle will be fought by Native people. For us it is a spiritual duty. We get our very identity from our connection to the earth, a connection that we celebrate in our ceremonies and rituals. Those ceremonies bind us to our forefathers, to the beginning of time.”
“The battle has begun, just as it was foretold in the prophecies of our ancestors, and right here,” he says, sweeping his hand across the thunderous silence of the surrounding plains from the top of a sandstone bluff, “this is where we will meet.”
What Yellowtail describes is not so much a physical place as a metaphorical battlefield that ranges over the horizon, from Fort Berthold, Standing Rock, and Pine Ridge to the Mille Lacs and Chippewa reservations in Minnesota and Wisconsin, and south to the Shoshone, Pueblo and Hopi and Navajo nations in the Southwest. It is here where the epic battles over the allocation and distribution of diminishing natural resources will be fought with life and death consequences in the 21st century. Tacitly, those looming battles beg a question that Americans have finessed, deflected, or avoided answering altogether, for more than 200 years: What do we owe the Native Americans? Whether the American society answers this question squarely or finds new ways to ignore its obligations and the trust doctrine, it is on this battlefield that 562 federally recognized sovereign Indian nations — nations that co-exist inside a common border with the federal government and the 50 states — are staking their claim to the future. What is problematic for politicians, state and federal lawmakers, presidents, governors, county commissioners and many non-Native citizens, is that all of those claims are grounded in 381 treaties ratified by the federal government in the 18th and 19th centuries. Many of those agreements are inextricably entwined in the republic’s moment of conception, in the first laws laid down by the Founders, and like the Constitution that solemnized treaties with Indians as the “supreme law of the land,” those compacts are alive and well today. If for no other reason, these contests will be decided in the nation’s federal courts, not in the state or national legislatures.
If 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. And that’s just for openers. 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. For example, 1,500 miles to the southwest of Yellowtail’s ranch, elders and lawyers in the Fort Mojave Tribe successfully thwarted a government-sponsored nuclear waste facility in Ward Valley, California. 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. Similarly, 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 the forests of 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. That didn’t work out so well. 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. The flurry of newspaper and media stories that inevitably follow such decisions, and the subsequent avalanche of letters to the editors, reveal that few things are more deeply contentious or misunderstood by mainstream American society than the concept of Native American sovereignty. 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. On the front steps of numerous federal courthouses, I have been asked by reporters whether I think there should be a statute of limitations on treaties. That’s a fair question, to which I reply, “Sure, as soon as we put a statute of limitations on the U.S. Constitution.”
Tacitly, those looming battles beg a question that Americans have finessed, deflected, or avoided answering altogether, for more than 200 years: What do we owe the Native Americans?
You don’t have to have a degree in federal Indian law to get at the answers to those questions. Nevertheless, to make sense of where tribes stand today, we are obliged to clear some of the rubble that clutters the landscape of our shared history, rubble such as the notion that we are a nation defined by our gross national product, by American Idol and worker productivity, by Kentucky Fried Chicken, the Interstate Highway System, median incomes, Wall Street, and a plethora of rancorous political agendas. In Indian Country, all of those things are mere ephemera, like weather, social phenomenon that come and go and rise and fall and rattle and rumble.
Because these things have such high impact on non-Native lives, they tend to dominate the headlines, but as a reflection of the stuff America is made of, and why, politics and economics and the rest amount to nothing more than distortions and distractions in a hall of mirrors we reinvent one year to the next. Our Founders weren’t fools. They understood the mercurial foibles of human nature. So at the core of our nationhood, they wisely placed a bundle of laws that would be unwavering and timeless, not unlike the columns that support the portico of the U.S. Supreme Court. 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.
To his credit, none of our Founders viewed the nation’s debt to the Indians from higher moral ground than George Washington. In 1785, he urged the Continental Congress to issue a proclamation reassuring Native Nations that their title to lands and their sovereignty were inviolate. Once in office as the first chief executive, Washington and his good friend, Secretary of War Henry Knox, wrote the Northwest Ordinance, which was approved by Congress in 1790 and read, in part, “…the utmost good faith shall always be observed towards the Indians; their land and property shall never be taken from them without their consent; and in their property, rights and liberty, they shall never be invaded or disturbed.” Washington and Knox followed that up with a stern letter reminding lawmakers that “Indians, being the prior occupants [of the continent] possess the right to the Soil…To dispossess them…would be a gross violation of the fundamental Laws of Nature and of that distributive Justice which is the glory of the nation.”
Washington took that caveat a step further, telling lawmakers that the forcible removal of Indians from their homelands would be a permanent stain on the character of the nation. To preclude that possibility, he issued an executive order forbidding private or state encroachment on all Indian lands under the protection of treaties with the federal government; an undisguised warning to states’ rights advocates in the South that no harm could be done to treaties with Indians without undermining the very foundation on which the Founders had built the American house of democracy.
In so many words, the Prince of the Potomac was warning 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. While Washington’s warning was both legally accurate and historically prescient, few men in his audience, particularly the hard-boiled ideologists in the Southern plantocracy’s states’ rights faction, took his warning seriously. They brushed it aside and instead rushed headlong into an era marked by bitter and bloody battles over power-sharing with the federal government, a 70-year tumult that culminated in the Civil War.
By the 1820s, Washington’s dire predictions about the states’ rights factions were coming to pass. And, those fierce battles for dominance between the feds and the states were bringing the flaws embedded in federalism into stark relief. Certainly, no one emerging from the Constitutional Convention in Philadelphia in 1787 believed the nation’s new charter was perfect, but nor did its principal architects, James Madison and Benjamin Franklin, foresee that the deep fault line running the length of federalism would one day open like a chasm. What the Founders produced was a changeable blueprint of governance that established a central government surrounded by semi-independent state governments. So far, so good. But there was nothing in the Constitution that explained how any of these entities were going to share power with the hundreds of sovereign Indian nations within the republic’s borders, and that’s where the trouble at New Echota, Lodge Grass, Pine Ridge and Standing Rock (to name a few) started.
True, the Constitution’s Indian Commerce Clause sought to neutralize the jealousy of states by giving the federal government the exclusive right to treat with tribes, but when the state of Georgia thumbed its nose at Cherokee sovereignty in the early 1800s and demanded that the Cherokee nations be removed from the state’s sovereign territory, that hairline crack in federalism became a fault-line. And inevitably and unwittingly, the Indians suddenly found themselves entangled in a fierce jurisdictional battle between the central government and a state that they had no part in starting. It was not their fight, but the ideology at stake was contested on their treaty-protected turf. This battle and those that followed — all the way to the courthouse at Appomattox — were the direct result of deep philosophical divisions that existed between the Founders, divisions that were left unresolved in Philadelphia and that made their intractable imprints on the nation’s founding charter. Georgia’s refusal to recognize the supremacy of federal treaties with the Cherokee nations prompted President John Quincy Adams to bewail the arrogance of the “Southern tyrants.” Georgia’s defiance of federal law had put “the Union in the most imminent danger of dissolution,” Adams said. “The ship is about to founder.” Short of declaring an all-out war against Georgia and her sympathetic neighbors, the nation turned in desperation to its highest court, went down on one knee, and prayed for a miracle.
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’ legal 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 under the guise of Manifest Destiny. 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. “Alas, for the inconsistency of human nature!” declared historian A. Heloise Able. “When white men fight for home and country they are lauded as the noblest of patriots. Indians, doing the same, are stigmatized as savages. What a fortunate and convenient excuse the doctrine of Manifest Destiny has proved!”
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.
Today, at Standing Rock, the Indian nations declared: Enough.
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.
In 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. The time had come, said Nixon, who credited his high school football coach, a Cherokee, with teaching him lessons on the gridiron that gave him the fortitude to be president, to break decisively with the past. “The American Indians have been oppressed and brutalized, deprived of their ancestral lands, and denied the opportunity to control their own destiny,” he said. Yet through it all, “the story of the Indian is a record of endurance and survival, of adaptation and creativity in the face of overwhelming obstacles.” 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.”
Even as the American Indian Movement, or AIM, commanded the nation’s attention with gunfire and hostages at the siege of Wounded Knee, 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 like Bill Yellowtail and Raymond Cross viewed attacks on their natural resources as extensions of 19th century assaults on sovereignty and treaty rights. Mineral corporations, federal agencies, and state governments — emboldened by 160 years of neglect of the government’s trust responsibilities — were long accustomed to having their way with Indian Country. 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 New Town and Yankton and Second Mesa, that neglect looked like a proliferation of kidney dialysis clinics and infant mortality rates that would be a scandal in Ghana. 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 into a night so dark that self-inflicted gunshot wounds, cirrhotic livers, and the all-too-familiar jalopy crashes — marked by the blizzard of little white crosses on wind-scoured reservation roads — read like a cure for breathing.
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; not the Native protectors, and certainly not the corporations. Too much is at stake. The renowned Mandan and Hidatsa attorney Raymond Cross predicts that there will be occasional celebrations of mutual understanding and reconciliation, but, he cautions, no one is fooling anybody. The contest of wills, as it was in the Alleghenies in 1790, in Georgia in the 1820s, and on the Great Plains in 1870s, will be fierce. And still the question reverberates over our nation’s deep past: “What do we owe the Indian?”
“From the beginning, the man-versus-nature argument was a contrived dichotomy,” Cross told me. “The minute you tame nature, you’ve destroyed the garden you idealized. The question that confronts the dominant society today is ‘Now what?’ After you destroy Eden, where do you go?”
In the meantime, it’s a late Sunday evening inside the Yellowtail cabin on Lodge Grass Creek, and the weighty matters of the world are at bay. Friends and family have gathered in the kitchen for an evening of that most treasured of all rural activities, community fellowship. No radio. No cell phones. The adults’ wide-eyed offspring lie curled like punctuation marks under star quilts in the living room, listening to the grown-ups absorbing each other’s lives. Mostly, the grownups dream out loud over the cherry pie and homemade strawberry ice cream. Gallons of coffee flow from a blue speckled pot on the stove, a pot big enough to irrigate an acre of Iowa corn in one trip. At peak moments all seven adult voices soar and collide in clouds of laughter.
Outside, the Milky Way glows overhead as bright as a Christmas ribbon. The surrounding country is held by a silence so pure, so absolute, that individual stars seem to sizzle. Laughter, happy voices, a shriek of disbelief, drift into the night where far overhead a jet’s turbines pull at the primordial silence with a whisper. From 35,000 feet in the night sky, zipping along toward tomorrow near the speed of sound, a transcontinental passenger glances out his window and sees a single light burning in an ocean of darkness. And he wonders: Who lives down there? Who are those people?
That dim speck of light illuminates a spot in Indian country where the past meets the future. It marks the spot where the enduring ethics of self-sufficiency and interdependence, cooperation and decency, community and spiritual wholeness, are held in trust for unborn generations of Crow and Comanche and Chickasaw, Pueblo and Cheyenne, Hidatsa and Hopi, the seven Sioux nations, Menominee, Potawatomi, Nisqually, Nez Perce, Yakama, Cahuilla, Chippewa, Swinomish, Umatilla, Shoshone, Blackfeet, Salish, Utes, Pawnee, Paiutes, Assiniboine, Arikara, Mandan and Cherokee. That spot of incandescence marks the spot where people who know whothey are gather around half-moon kitchen tables to make laughter and share grief, to make families which hang together which make tribes which hang together. Still there after all the storms.
Note: This article has been updated to reflect the fact that the letter written in 1790 following the Northwest Ordinance was penned by George Washington, in conjunction with Secretary of War Henry Knox, not by Washington alone.
Paul VanDevelder is the author of the Pulitzer Prize-nominated Coyote Warrior: One Man, Three Tribes, and the Trial that Forged a Nation (Little Brown & Co.), and of Savages and Scoundrels: the Untold Story of America’s Road to Empire through Indian Territory (Yale University Press). Twitter: @pablomango Website: SavagesandScoundrels.org
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