The New Trail of Tears

by Naomi Schaefer Riley

  Beginning with the 1978 Supreme Court case of Santa Clara Pueblo v. Martinez,28 Allen notes that the protections afforded Indians by the U.S. Constitution seemed to narrow while the definition of tribal sovereignty seemed to expand. In that case, a member of the Santa Clara Pueblo brought suit against her tribe because of a rule denying membership to children of women who married out of the tribe but not to children of men who did the same. The court held that the tribe was protected from such suits because the Indian Civil Rights Act of 1968 “does not expressly authorize the bringing of civil actions for declaratory or injunctive relief to enforce its substantive provisions.” But for all intents and purposes it meant that tribes could discriminate based on gender, even if local, state, and federal government institutions were prohibited from doing so. There was a different set of rules in place for Indians.

  Some cases Allen and his colleagues looked at involved people who were denied the right to counsel by a tribal court. In other cases there were “problems with conflicts of interest in the administration of justice.” Others involved civil matters: “People engaged in a business enterprise on a reservation would receive no due process guarantees with regard to how their businesses might be treated or licensing criteria or even unpromulgated regulatory intrusions upon them.”

  Allen also notes that a new set of civil rights challenges came up with the advent of casinos on Indian land. “Tribal ownership of the casinos was achieved through a kind of cartelization process.” Trying not to be “prejudicial,” Allen notes, “they came to be greatly wound up with shadowy activity. There seemed to have been criminal beings that got involved in the business in association with the tribes, and it made tribal membership itself a commodity.” Since the members of the tribe would be sharing in the wealth generated by the casinos, “people were deregistered against their will. . . . Other people discovered an Indian heritage they had previously forgotten.”

  From a political perspective, says Allen, there wasn’t a lot of difference between Republicans and Democrats on these issues. The staff at the Commission on Civil Rights, he notes, were “close to the Justice Department people, who were sympathetic to the tribal sovereignty argument and therefore sought to limit the thrust of the commission’s investigations.”

  But over the course of the years he was on the commission, Allen says, “we began to receive testimony [about ICWA], an area we had not ourselves identified as a target of the inquiry.” The cases were so “heartwrenching” that “eventually we had to give some attention to this.”

  Allen says he was “greatly affected” by the stories he heard because “they exemplified the suspension of the most ordinary forms of judicial prudence in the child care area.” He says that U.S. courts have a “pretty elaborate system of looking after the best interests of the child.” But here was “dramatic evidence that the laws were operating so as to exclude those standard protections for those of Indian descent.” Because the discrepancy was affecting young children, he says, “it seemed even more damning in my eyes than many of the other abuses that we had uncovered.”

  Since leaving the commission, Allen has maintained an interest in the problems of the Indian Child Welfare Act. “A simple question had gone unasked in the course of developing and implementing [it], and that was ‘What was the best interest of these children?’”

  In Allen’s view, state courts were left unable to deal with the cases because ICWA is a federal statute. And “children were caught in this shadowland where there is no essential protection.” Although state courts can be quite aggressive in dealing with child welfare issues, “you do not have the same aggressive patented intervention on reservations, which means that the children are often left in circumstances of abuse from which, if they had not been on reservations, they would have been removed.”

  Allen is quick to acknowledge that not every reservation has the same abuse problems I have described here. “But there’s enough of a problem that it’s fair to say it’s a broken system.” And it’s broken because of “the vacuum created by federal unwillingness to intrude upon the activities of tribes.”

  In Allen’s view, there’s really only one way to solve the persistent violation of individual rights on reservations. And that’s to erect the reservations as states under the Constitution. For smaller tribes, this would probably not be feasible, Allen says, but for larger ones, it’s the only answer. They would have the same kind of sovereignty that states have, and federal powers would be limited to those enumerated in the Constitution. But the residents of those reservations would finally be entitled to all the protections of citizens of the United States.

  Unfortunately, the political climate both on and off reservations is such that it’s unlikely any significant changes will occur soon. American Indians living on reservations who see the problems with law enforcement, child protection, and even the court system and who worry about the safety of themselves and their children do have an option – they can leave. And many of them do. People like Elizabeth Morris and her late husband saw that the reservation was no place for their children. Indeed, for decades, reservations were losing population as residents increasingly realized there were more opportunities elsewhere.

  But once President Nixon signed the Indian Self-Determination and Education Assistance Act in 1975, things started to change. The law made it possible for the federal government to give tribes direct grants for programs in law enforcement, education, child care, and environmental protection. The dollars were tied to population numbers. As Allen notes, “After that, you began to get a steady stream of people coming back into the reservation, because it came with some pretty targeted federal funding.”

  Today it’s the most vulnerable people who remain on the reservation. They’re the ones with little education, little sense of what life outside of the reservation might offer them, or little ambition. The jumble of legal jurisdictions has made it all but impossible to adequately police some reservations. And older Indians report that the lawlessness has worsened in recent years.

  In part out of a desire not to trample on the so-called sovereignty of Indian nations, we’re not offering Indians on reservations the same protections due to all American citizens. No one has made them aware of their rights as American citizens, and they often have no idea how to pursue remedies in court. Meanwhile the politicians who represent these tribes have no incentive to change things. Tribal leaders only demand more money from Washington to fix their problems. And the senators and congressmen who represent them are only too glad to oblige in return for the votes of these populations.

  So the question is who will stand up for the civil rights of individual Indians? Who will say that it’s not simply the collective interests of the tribe or the personal interests of tribal leaders that matter?

  A great many people seem to be falling down on this job. Law enforcement is often ineffective, and jurisdictional questions can thwart even its agents’ best efforts. The court systems often can’t guarantee the rights of victims or of defendants. And the federal government is reluctant to step into the middle of things. Not only is there a sense that tribes deserve “sovereignty” – whatever that has come to mean – there’s an overwhelming sense that political correctness pervades our conversation about American Indians. How can we fault them for anything when we have mistreated them so egregiously in the past? How can we hold them accountable for their actions now?

  “The idea of forgiveness is unheard of for some people,” Renbarger tells me, which is unfortunate because “hanging on to the anger about the white man does no good, and it perpetuates a lot of the issues affecting Indians.”

  Indeed, if tribal leaders’ attitudes and Washington’s policies don’t change soon, another generation of Indians will be lost to the epidemics of drugs, abuse, and suicide. If Americans owe something to Indians, it’s surely the basic protections we afford all Americans.

  CONCLUSION

  Native Americans as Americans

  IN JULY
2014, members of the Quechan Tribe, who live on the Fort Yuma Indian reservation in California and Arizona, refused to accept money from the foundation of Dan Snyder, the owner of the Washington Redskins.1 The residents of Fort Yuma, who number only a couple thousand, are not well off. According to the 2010 census, the poverty rate on the reservation is 37 percent. Alcoholism and unemployment are rampant. And suicide among young men is a serious problem (indeed, suicide is the second most common cause of death for Indians under the age of 35 nationally). The tribe had been trying to raise $250,000 for a skate park as part of an effort to curb youth suicide. Which is where Dan Snyder came in.

  His Original Americans Foundation, launched in 2014 at the height of the controversy over whether his team’s name should be changed because it was offensive to Indians, has been funding small projects like the construction of playgrounds on reservations. If the foundation sees that leaders of a tribe need money for a project, it tries to respond. But the Quechans decided they weren’t going to take what one observer called “hush money.” “We will not align ourselves with an organization to simply become a statistic in their fight for name acceptance in Native communities,” said Kenrick Escalanti, who attended the meetings. “We know bribe money when we see it.”2

  Regardless of where you come down on the question of the team’s name, it seems clear that Snyder was hoping to earn some points among American Indians and among the public at large with these projects, which also include donating coats and shoes to poor children on reservations. And boy, did he need some good press. Not only were Native groups petitioning Twitter, Google, and Facebook to remove the accounts belonging to the Redskins,3 but the president himself got involved.

  “I don’t know whether our attachment to a particular name should override the real legitimate concerns people have about these things,”4 President Obama told the Associated Press. But then the administration’s lawyers took things a step further and went about stripping the team of its trademark protections, thereby inflicting financial harm on Snyder.

  Things were spinning out of control for the Redskins. In a letter introducing the foundation, Snyder wrote, “The mission of the Original Americans Foundation is to provide meaningful and measurable resources that provide genuine opportunities for Tribal communities. . . . Our efforts will address the urgent challenges plaguing Indian country based on what Tribal leaders tell us they need most. We may have created this new organization, but the direction of the Foundation is truly theirs.”5

  The Quechans weren’t buying it. “After explaining to them how much the project was going to cost,” Escalanti recalled, “the reps met with me and said, ‘Look, we want to take care of this park for you.’ That was the moment that I felt weird. If it was that easy for them, what does it mean for us to take money from them?”6

  Good question. Tribal leaders – both at Fort Yuma and elsewhere – might want to ask themselves that sort of thing a little more often. And they might want to ask it about other money as well – especially money coming from the federal government. It has been relatively easy for Washington, as it has for Snyder, to throw more money at Indian reservations. And like Snyder’s, that money has done more to assuage the guilt of the givers than to solve any of the problems on reservations. And the truth of the matter is that whatever harm Dan Snyder has done to American Indians with his continued use of the name Redskins, the federal government – as we have seen throughout this book – has done much, much worse.

  But to many, the issue is larger than money. The National Congress of American Indians demanded the Redskins’ name be changed because “the self esteem of Native youth is harmfully impacted, their self confidence erodes, and their sense of identity is severely damaged . . . [when exposed to] “Indian-based names, mascots, and logos in sports.”7

  Writing in the Claremont Review of Books, William Voegeli took issue with the NCAI’s claim, noting that the NCAI “moves directly from these premises to discuss how Indians are disproportionately likely to be victims of suicide and hate crimes. It does not even attempt to establish a causal relationship between these dire outcomes and the psychological changes it deplores. What’s more, its social scientific argument for a cause-and-effect relationship between Indian mascots and Native youth’s impaired self-esteem rests on a single ten-page conference paper by an assistant professor of psychology.”8 And that paper seems to rest on an experiment performed on a group of 172 American Indian students at one university in the Midwest.

  But again, let’s assume that the study was correct – that mascots have some measurable effect on the way young Indians see themselves. We should ask ourselves this important question: compared to what? If you’ve grown up in poverty, living with a single parent or no parent, surrounded by adults who have problems with drugs and alcohol, and you have no educational options and not much hope of employment ahead of you, is the image of an Indian on a football team’s jersey going to push you over the edge?

  What’s insulting is the idea that the horrific problems that Native American youth experience are the result of a few politically incorrect words. Tribal leaders who try to instill a tradition of bravery and resilience in their youth know better. And the rest of us should too.

  But we don’t. Each year, thousands of people gather across the country to protest Columbus Day, accusing the explorer of launching a genocide. Last year, Seattle’s city council voted to change the name of the federal holiday to “Indigenous Peoples’ Day.”9 Minneapolis did the same. South Dakota celebrates Native American Day instead. Columbus Day is one of the least celebrated federal holidays in America, according to the Pew Research Center.10 No one wants to recognize a holiday that has come to be associated with such conflict and controversy.

  Glenn Morris, a professor at the University of Colorado at Denver and someone whom the Grand Governing Council of the American Indian Movement identified as a “Caucasian American masquerading as an Indian,”11 is one of those leading his state’s protest against the holiday. He explains that Columbus Day is a “hegemonic tool. . . . And it exists in part to advance a national ideology of celebrating invasion, conquest and colonialism.”12

  Whether or not you agree, you might wonder just how Morris’s campaign to do away with Columbus Day is going to help the average American Indian. The short answer is it won’t.

  Neither, for that matter, will the resolution passed in 2014 by the Catholic Leadership Conference of Women Religious asking the pope to repudiate the “Doctrine of Discovery.” The nuns, led by Sister Maureen Fiedler, objected to the 15th-century doctrine that gave Christian explorers the right to claim any land not already inhabited by Christians. The letter to the pope says that if he rebukes the doctrine, “all will know that today’s world is different from the 15th century as we move away from patterns of domination and dehumanization.” Most people probably already know that. But Fiedler believes that she’s speaking up on behalf of “Native Americans, who are so seldom heard.”13

  In 2014, The Chronicle of Higher Education ran an article demanding to know “Why So Few American Indian PhDs?”14 The headline would be funny if it weren’t so sad. Only 51 percent of American Indian students in the class of 2010 received a high-school diploma. That number was down from 54 percent in 2008.15 The real question we should be asking is why are we talking about doctorates? But that hasn’t stopped the Alfred P. Sloan Foundation from giving grants to colleges that award more Indians PhDs. At Purdue, the grant has been used to foster community among Indians, creating, according to the Chronicle, “an educational and cultural center where American Indian students can hang out.”

  Indeed, many well-meaning Native and non-Native leaders are convinced that what Indians need to succeed is to have their cultures celebrated, to have their voices heard, to have their wounds healed with political protest. But decades of righteous indignation have proved fruitless.

  In a harrowing essay for Books and Culture, James Calvin Schaap, an emeritus English professor at Dordt College,
tells the story of the Dakota War of 1862, a conflict between the U.S. Army and several bands of the Eastern Sioux. Treaty violations had caused hunger and deprivation among the Sioux, and they decided to attack the local settlers. No fewer than 800 were killed. Schaap says, “To this day, among white people, stories of horrifying mutilation may well be the most memorable aspect of the war’s legacy, the only stories that can’t be forgotten.”16

  And the retaliation by U.S. soldiers was also brutal, with the capture of more than 1,000 Sioux. Thirty-eight of them were hanged, in the largest mass execution in American history. Schaap, who lives in Sioux Center, Iowa, in the area where most of these horrors took place, wrote, “I’ve tried to live in the story as best I can from the distance of time and place. I’ve tried to tell it as fairly as I could. . . . But even as it echoes in my heart, I can’t help wondering if, in fact, we would all be better off simply to forget.”

  Such a sentiment runs contrary to everything most people believe about the imperatives of understanding history, of honoring the memories of our ancestors and the ancestors of those we have sinned against. And Schaap himself can’t turn away from the past. “I can feel in my bones the anger and resentment of the Dakota at scurrilous agents, empty promises, and a legacy of broken treaties. But I also know I could come to hate the red man for the murders of babies yet to be born, of children, of women and men. I can feel those emotional tremors in me, rising, rising. And with that realization, my soul weeps.”17

  For better or worse, some measure of forgetting may be necessary in order to end this painful chapter in American history. Yet the need for more cultural sensitivity imbues just about every policy suggestion when it comes to American Indians. Take, for example, a paper published in the Annals of the New York Academy of Sciences called “Poverty and Health Disparities for American Indian and Alaska Native Children.” After going on at length about the social, economic, and health deficits suffered by Indian children, the authors suggest early childhood interventions. Not only do the authors emphasize the need for these programs to be run collaboratively with the tribes themselves, but “educational institutions must acknowledge that communities often identify norms for what is considered desirable behavior and goals of education. . . . Doing so means reconsidering the use and validity of traditional means of assessing behaviors and educational achievement.” In other words, if we just stop holding Indian kids to the same measures of good behavior and academic achievement to which we hold white kids, they can succeed.18