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American Indian nations wrongfully defined by non-Indian concepts

In "Indians & Other Americans: Two Ways of Life Meet" (1959, 1970), D'Arcy
McNickle said that "the settlement of the United States took place by
compelling the Indians to accept European laws and practices pertaining to
land." But he added that the United States achieved "dominion over the
tribes themselves" by taking "inherent self-rule" away from the Indians,
and replacing self-rule with "the rule of the outsider."

Strangely, the chapter in which we find these words is titled, "Government
by Consent." The chapter title may have been chosen to convey a deep sense
of irony. "Compelling" Indians to accept European concepts and practices,
while forcing them to accept "dominion" through "the rule of the outsider"
places a cynical twist on the word "consent."

McNickle saw that the United States had considered two main choices in its
treatment of American Indians. He expressed these two choices in terms of
the dominant society deciding whether to treat Indians as "separate
nations" or as "wild beasts." If it is true that as human beings "we act
according to the way we conceive of things" then how U.S. lawmakers and
policy makers chose to conceive of Indians is a matter of tremendous
importance, because that choice would determine how the U.S. behaved
towards indigenous peoples. Obviously, a different set of behaviors is
called for when dealing with "separate nations" than when dealing with
people conceived of as "wild beasts."

What has just been stated above assumes that the United States already has
the right to decide what conceptions will be assigned to indigenous
peoples. On what basis did U.S. officials automatically assume "the right"
to be in charge of deciding what conceptions shall be assigned to (imposed
on) Indians? Although this question generally goes unasked, one answer is
the assumption of dominion based on the concomitant assumption that
non-Indians are superior to Native peoples, and that Christians are
superior to non-Christians.

The conceptual system of the United States was under the control of men
whose job it was to think about how best to deal with and resolve certain
problems, or how to make and successfully carry out certain necessary plans
or policies. But the question arises, why should we as contemporary
indigenous peoples accept the idea that the United States had "the right"
to impose its conceptions, its ideas, its definitions on the originally
free and independent nations of our ancestors, simply because non-Indians
considered themselves superior to Native peoples, or simply because
Christians considered themselves superior to non-Christians?

As contemporary indigenous nations and peoples there are ideas we should
definitely not accept, such as U.S. "plenary power" over Indians.
Additionally, although U.S. government officials in the past conceived of
Indians as "wild beasts," or as "wild and wandering savages," we, in this
generation, are not obligated to accept those imposed categories. Nor are
we obligated to accept old court rulings that were made on the basis of
these bigoted and racist categories. We have every right to contest and
challenge those court rulings and the wrongful ideas underlying them.

We as contemporary indigenous peoples have a responsibility to intensively
study the conceptions that the United States imposed on our ancestors and
to explain why the United States had no right to do so. Additionally, we
need to sort through the misinformation that the dominant society has
devised and perpetuated, and to set the record straight by telling our
indigenous side of the story. Because our side of the story is so seldom
told, our explanations and interpretations of the past are extremely
important. It's essential that we work hard to continually develop and
refine our own explanations and interpretations, something that takes a lot
of time, energy, discipline and financial backing.

As contemporary indigenous peoples, we need to recognize that our debate
with the United States is perpetual and ongoing. Yet how well-trained and
well-equipped are we to engage in such a debate? What are we presently
doing to acquire and improve the skills we will need to engage the dominant
society in a detailed discussion of the past, the present and the future?
Since we are compelled to use the language of the dominant society to carry
on this debate, in what ways might that language trip us up and weaken our
arguments if we are not careful? What are we now doing to train and equip
our young people, our future leaders, to carry on this debate as they age
and mature, and eventually take our place when we pass on?


One topic that ought to be dealt with is California Indian land rights. In
the mid-1960s, each Indian person in California, having been previously
registered on an official roll established for eligibility purposes,
received a check for a little over $600. This money was said to end once
and for all any idea that the Indians of California had any further right,
interest in, or "claim to" any lands in California outside the
approximately 660,000 acres of Indian reservation lands. Because there are
some 100 million acres of land in California, this means that some
99,000,000 acres are now deemed to have been "taken" from the Indians of
California by the United States.

So, what are the Indians of California now supposed to make of this
information? Suppose that they start meticulously digging into the records
of what took place leading up to the distribution of those "claims" monies
in the 1960s? What kind of information do you suppose they would find?
Would they find a neat and clean series of events that negated for all time
any idea that the Indians of California have any land rights remaining in
their ancestral homelands? Or would we be likely to find evidence of a
massive land fraud and a well-orchestrated mischaracterization of the land
rights of the Indians of California?

A simple example of a mischaracterization of Indian land rights is found in
the book, "Indians of California: The Changing Image" (1984) by James J.

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"Beginning in February, 1851, and continuing for more than a year, the
Three [federal Indian] commissioners negotiated eighteen treaties involving
about twenty-five thousand California Indians. In each of these treaties
the natives acknowledged the jurisdiction of the United States, agreed to
refrain from hostilities, and relinquished all claims to the territory that
they held."

Although Rawls went on to explain how the United States Senate refused to
ratify these proposed treaty documents in June 1852, and that for this
reason no reservations were established on the basis of those documents, he
leaves several points completely undeveloped. For example, since the
proposed treaty documents never became ratified treaties, the Indians of
California never formally relinquished or forfeited their ancestral land
rights. Human beings that have lived in a given region for thousands of
years would ordinarily be recognized as having some fundamental right to
the soil where they live, at least until they freely consent to forfeit or
relinquish that right, but the dominant society could pretend to get around
this by simply assigning (imposing) labels such as "wild and wandering
tribes" on the Indians, without Indian consent.

The line of logic seems to be as follows: Because of their innate
superiority, non-Indians have the unquestionable right to judge Native
peoples, and to decide on the basis of such judgments what rights the
Native peoples have or do not have. This superiority and right of judgment
is otherwise referred to as "sovereignty" and "dominion." Using the
rightful power of judgment that comes from sovereignty and dominion, the
non-Indians deemed the Indians to be "wild and wandering savage tribes,"
and, as such, to have no ultimate right to the soil once the predominant
Christian race came into contact with them.

When the Mexican-American War ended, the United States and the Republic of
Mexico entered into the Treaty of Guadalupe Hidalgo. By a "protocol annex"
the United States inserted Article 3 of the 1803 Treaty of Louisiana into
the text of the 1848 Treaty of Guadalupe Hidalgo (see, 98 Ct. Claims, "The
Indians of California", decided October, 1943, p. 586). In 1943, the Court
of Claims said that as a result of this insertion, "the United States was
required to maintain and protect the inhabitants of the State of California
and other territory included in said treaty ... in the free enjoyment of
their liberty, property, and the religion which they profess." Liberty,
property, and religion are the same concepts found in the 1787 Northwest
Ordinance, and at the time that the Treaty of Guadalupe was made, American
Indians constituted a large part of the inhabitants of California.

Article III of the Louisiana Purchase Treaty that was inserted into the
1848 Treaty of Guadalupe Hidalgo reads: "The inhabitants of the ceded
territory shall be incorporated in the Union of the United States and
admitted as soon as possible according to the principles of the federal
Constitution to the enjoyment of all these rights, advantages and
immunities of citizens of the United States, and in the mean time they
shall be maintained and protected in the free enjoyment of their liberty,
property and the religion which they profess."

The above language would seem to apply to all human beings living within
the limits described in the Treaty of Guadalupe Hidalgo, but because of
deep seated bigotry the colonizing dominant society did not consider "the
free enjoyment of ... liberty, property, and the religion" to apply to
American Indians. For example, Article XI of the 1848 Treaty of Guadalupe
Hidalgo, expressed racism and bigotry toward American Indians nations with
the following words: "... a great part of territories, which, by the
present treaty, are to be comprehended for the future within the limits of
the United States, is now occupied by savage tribes, who will hereafter be
under the exclusive control of the Government of the United States."
(emphasis added)

Dehumanizing Native peoples by labeling them "savage tribes" provided a
rationale for not according indigenous human beings the protections
guaranteed by the language taken from the Louisiana Purchase Treaty and
inserted into the Treaty of Guadalupe Hidalgo, "the free enjoyment of their
liberty, property, and the religion which they profess."

Furthermore, reference to Indians being "comprehended for the future within
the exclusive control of the Government of the United States" completely
contradicts the pledge that the United States made in Article 3 of the 1787
Northwest Ordinance that the Indians' "property, rights, and liberty ...
shall never be invaded or disturbed unless in just and lawful wars." As
originally free and independent peoples, the American Indians of California
had the inherent right to maintain their liberty, in other words, their
free and independent existence. Accordingly, diplomacy and treaty making
are the correct basis for relations between such Native nations and the
United States.

That Mexico and the United States identified Native nations and peoples as
"savage tribes" in the Treaty of Guadalupe Hidalgo is extremely important
because it factors into the way that California Indian land rights were
later dealt with by U.S. judges sitting on non-Indian tribunals. The Court
of Claims, for example, said that Mexico "did not recognize a title to the
country in" the Indians, and that "so far as the wild tribes were
concerned, Mexico did not set apart reservations for them." The Court of
Claims noted: "There are authorities which hold that the Spanish law not
recognize any kind of title to the soil growing out of occupancy in wild or
wandering tribes ... and that the uncivilized Indian was as free from being
considered in the laws of Spain and Mexico as the wild beast of the

Because as human beings we act according to the way we conceive of things,
non-Indian tribunals acted in their rulings toward California Indian land
rights according to the way non-Indian judges conceived of Indians as, for
example, "wild and wandering savages."

We as contemporary Indians should not sit back and passively accept such
dehumanizing categories that are still embedded in the old pages of U.S.
case law. Instead, we ought to be actively challenging those outmoded
categories and bigoted mischaracterizations of Native nations and peoples.
Furthermore, we ought to be asking, "how did non-Indian conceptions gain
control over our existence as Native peoples, and how shall we overcome
this strange predicament?"

Steven Newcomb, Shawnee/Lenape, is Indigenous Law Research Coordinator at
Kumeyaay Community College on the Sycuan Indian Reservation, co-founder and
codirector of the Indigenous Law Institute and a columnist for Indian
Country Today.