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Another Impending ‘Amputation’ by the U.S. Supreme Court?

On November 25, 2015, The New York Times published Ned Blackhawk’s op-ed piece “The Struggle for Justice on Tribal Lands.” Blackhawk (Western Shoshone) is a professor of history and American studies at Yale University, and the author of “Violence Over the Land: Indians and Empires in the Early American West.”

Blackhawk’s column concerns a case now before the U.S. Supreme Court, Dollar General v. Mississippi Band of Choctaw. The case involves a sexual assault of a Choctaw teenager by a non-Native manager of a Dollar General store operating on the Choctaw reservation. The case centers on the question of whether the court system of an American Indian “tribe” has the jurisdiction to hear a civil case involving a tort (damage) claim by Indians (the parents) against a non-Indian.

Blackhawk sets the tone of his article by using the pronoun “we,” as in “we Americans.” He writes: “The Thanksgiving we now celebrate began in partnership” (emphasis added), and thereby frames himself as inside the body politic of the United States. Sadly, this style is becoming more common among Native writers these days. By using the pronoun “we” in that manner Professor Blackhawk is thereby identifying Native people primarily as “Americans” and obscuring the political distinctiveness that has historically existed between Native nations and the United States.

Similarly, a November 27 article by Tim Giago (Lakota) (“A Word About Thanksgiving Day” Native Sun News), provides another example of this style of writing: “Native Americans look at Thanksgiving Day differently than other Americans…” (emphasis added). By this style of framing, Giago is saying that “Native Americans” are “Americans,” just a “Native” version of Americans.

A traditional Native view contrary to that of Giago and Blackhawk was expressed in a comment posted to Giago’s article: “I do not observe any American national or religious holiday. I do not wear, carry, or salute the flag of the United States. It is a foreign nation. My allegiance is to my Native people and nation.”

Some may see that comment as an expression of an un-American sentiment. Upon reflection, though, the comment is obviously sensible in relation to the U.S. imperial political system (one of the “Empires” alluded to in the title of Professor Blackhawk’s book), which has been working for more than two centuries to destroy the distinctiveness, indeed, the very existence of Indian nations. The comment about the United States being foreign to our Native nations leads to the clearheaded view that the decisions and pronouncements of the U.S. Supreme Court are inapplicable to our nations because they are foreign in relation to our originally and still rightfully free nations.

Blackhawk and Giago’s vocabulary choices continue to put our nations in peril by appearing to agree with the view that our Native nations are subject to the ideas and arguments of the United States. They silently concede the unfounded argument that the white man’s perspective is the one and only true and legitimate perspective, the perspective of “America.” They silently concede the view that all of our nations are subject to whatever “authoritative” pronouncements are handed down to us by the US’ dominating, colonizing insitutions.

Here’s a sarcastic way of framing the resulting predicament: “Want to know whether Indian ‘tribes’ continue to possess our original criminal jurisdiction over non-Indians for crimes committed in Indian territory? Just ask the white man, he’ll let you know. He’ll decide what your rights are and then tell you.” This was the consequence of the imposed ruling in the 1978 Supreme Court case of Oliphant v. Suquamish Tribe.

It is a tragic curiosity indeed to realize that a Native professor with academic credentials from one of the most elite universities in the United States, is disinclined to challenge the fundamental assumptions of United States expansionism. In Blackhawk’s case, he writes as someone who considers himself to be part ofthe United States, not as someone who is part of a distinct nation (e.g., the Western Shoshone Nation) locked in an ongoing power struggle with the United States. Consequently, he does not advocate on behalf of Indian nations. Instead, he writes from a disempowering “tribal” perspective, a term that traces to the idea of “primitive” or “barbarous” peoples. (Oxford English Dictionary: “Tribe,” “now applied esp[ecially] to. . . people in a primitive or barbarous condition. . .”)

Blackhawk also appears to subscribe to the fallacious conclusion that Indian “tribes” have been “incorporated” into the body politic of the United States. Such a conclusion leads to the destructive extension that Indian nations are not “nations” at all unless they are merely “tribal nations,” being defined entirely at the whim of the “overriding sovereignty” of the US (domination). Because of his assumption that Native nations are “part of” rather than separate and independent of the overall system of the United States, they are assumed to be “tribal nations” that are “subject to” the settler-state domination of the United States, and therefore must surrender to the edicts of the highest court of the occupying government.

The result, I believe, is analogous to allowing a surgeon who hates you to be presumed to possess a legitimate, unilateral right to amputate any part of your body, at any time, “in your best interest.” In a piecemeal effort to protect yourself, you do not challenge the surgeon’s presumption that he possesses a unilateral right to amputate some part of your body, at the surgeon’s whim. Instead, you merely insist that you still retain “a right of consultation,” or that you are allowed to choose whether he will use a knife or a saw for the amputation. You are “allowed” to state your view, which the surgeon might take into account before making thefinal decision, because you are, of course, incompetent to make the decision yourself.

Imagine having no control over a unilateral decision over the fate of your own body, and you can begin to understand how Native nations should feel when they are subject to unilateral U. S. Supreme Court, or U.S. congressional or presidential decisions. The history of US-Indian relations is littered with racist Supreme Court and congressional decisions that presume the right to extend the control of the American empire, by cutting yet another aspect of Native nationhood, such as “rights to complete sovereignty, as independent nations,” or “criminal jurisdiction over non-Indians,” or, “civil jurisdiction over non-Indians.”

Professor Blackhawk confirms that the Dollar General case, “is not the first time tribes have fought to preserve their authority over non-Indians. As I mentioned above, in 1978, the Supreme Court ruled in Oliphant v. Suquamish Tribe that only the federal government could punish non-Indians for crimes committed on tribal lands.” Unfortunately, Blackhawk did not discuss the Court’s reasoning in Oliphant. He neglected to tell his readers that the conclusion in Oliphant traces back to the argument that “Christian discovery” had supposedly “diminished” the rights of “heathen” Indians “to complete sovereignty, as independent nations,” and that they, as primitive “tribal nations,” do not have the criminal jurisdiction that real nations possess.

Blackhawk states: “The argument made by Dollar General’s lawyers are radical. They conflict with decades of settled precedent that recognize the ability of tribes to protect their citizens from noncriminal harms within their territories.” Referring back to the surgeon analogy above, the linguistic “surgery” conducted against Indian nations in Oliphant (based on the fabrication of “Christian discovery” in Johnson v. M’Intosh), Professor Blackhawk’s point would have been more precise if he had written: “An amputation of Indian nation criminal jurisdiction over non-Indians occurred in Oliphant under ‘the knife’ of the Rehnquist Court, and now Dollar General seeks an amputation of ‘civil jurisdiction over non-Indians’ under ‘the saw’ of the Roberts Court.”

Steven Newcomb (Shawnee, Lenape) is co-founder and co-director of the Indigenous Law Institute, and author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Fulcrum, 2008). He is a producer of the documentary movie, The Doctrine of Discovery: Unmasking the Domination Code, directed and produced by Sheldon Wolfchild (Dakota), with narration by Buffy Sainte-Marie (Cree).My deep appreciation to Professor Glenn T. Morris (Shawnee) for assisting me with the drafting of this column.