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Plenary Power and the High Plains

What should Native Americans take away from the experience at Standing Rock NoDAPL fight and what have we learned?
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Ray Cook, ICMN Opinions Editor

Ray Cook: The NODAPL movement has entered a new phase. To get to this point took a lot of sacrifice, managing some social hurdles and maneuvering around legal battles, principally the U.S. reality of NDN’s being less than equal politically and socially. What should we take away from the experience and what have we learned? 

Harold Monteau: I think that it showed that we can mobilize resistance around the world utilizing social networking and the free press. We certainly are going to need what we learned in that respect as we go though the next four years here as we organize resistance to what is becoming a very repressive and oppressive regime.

Steve Newcomb: In my view, it is imperative to channel the kind of mobilization we saw at Standing Rock toward a deeper analysis of the U.S. ideas and arguments that are being used against Native nations. We cannot stay primarily focused on the effects of the overall system instead of discussing and opposing the origin of the ideas that form the foundation of the system itself. We need to assist the world community to understand the idea-system that continues to impose its patterns of domination and dehumanization on our nations and peoples. Unfortunately, the world of federal Indian law attorneys seems unlikely to meet us even half way on our approach, and they are perhaps never going to feel comfortable using words such as ‘domination’ and ‘dehumanization.’

Ruth Hopkins: I think the Doctrine of Discovery and the ‘plenary power’— the mistaken assumption that the U.S. Constitution granted Congress authority over Native nations it entered into treaties with—is ripe for contention. Many people recognize the invalidity of these concepts. I mean, c'mon. The 'Founding Fathers' and Justice Marshall conjured them out of thin air, and their basis isn't really legal, it’s religious—born of the Papal Bulls and its greedy offspring, manifest destiny. Its root is domination, under the auspice of conversion. The Doctrine of Discovery is nothing more than an alibi, and that mystical plenary power the U.S. has claimed over this land's original inhabitants would not exist but for its military superiority. But while we acknowledge the elephant in the room (which is now painted orange *hard eyeroll*), I think there's the concern that taking such a case to court could make matters worse. We wouldn't just be challenging the doctrinal foundations of Federal Indian Law, but striking at the very heart of colonization. Such a victory could topple the Empire. Would U.S. courts allow this to happen? Will the Master allow its house to be dismantled with the Master's own tools?

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Steven Newcomb

Newcomb: If not one federal Indian law attorney, other than Peter d'Errico and Joe Heath, lead Counsel for the Onondaga Nation, is willing to condemn the U.S. government's 1954 Biblically-premised legal brief in Tee-Hit-Ton Indians v. United States, there is something radically wrong with the manner of the approach. Why can the Dakota Access Pipeline be forced through Oceti Sakowin territory that has never been ceded or relinquished? Because it’s consistent with the government's argument that the Tee-Hit-Ton people should not receive monetary compensation for the taking of their timber because the "Christian nations of Europe acquired jurisdiction over the lands of heathens and infidels." The Justice Department even cited Genesis 1:28 and Psalms! When these patterns of domination based on the Bible and Christianity become the central focus of our attention with regard to desecration projects such DAPL, that's when we will have reached the heart of the issue.

Peter d’Errico: I think we are getting to a straightforward presentation of the need to challenge the doctrinal foundations of federal Indian law that we could put out as a formal statement of the challenge, which would also be a good thing to do to educate people, helping them to know how to talk about federal Indian law, Christian discovery, Johnson v. Mcintosh, Tee-Hit- Ton, etc. I don't see us ready to do that by tomorrow, but we can agree by tomorrow that such a thing ought to be done—that the time is right. The global attention to Standing Rock is the platform…

I think we also are at agreement about the necessity for joining the 'protectors' actions and the lawyers' actions…which have not been much in sync as to basic federal Indian law (but have been as to historic preservation and environmental impact).

When people say, “They took our land away," we need to say: "Look out the window. Is the land still there? Are you still here?"

Monteau: That's the line we have all been taught in law school, Peter, and it's time to break out of the paradigm in which it has been used against us and use it for us. Are we nations or not? Our law professors taught us, "You're not nations anymore.” Who the hell said that? The Trustee and SCOTUS? Yeah, they always get it right. The Native American Righ

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Harold Monteau

ts Fund gives the same take on it as you.

The question is, “Do we have a better way to limit so-called plenary authority?” Of course we can't use International Law if we don't try. Talk to the Onondaga Nation about how they view their status in the International Community of Nations. So you're saying we should not turn it around and use it to limit our trustee's plenary authority? What else you got then?

We always end up at we can't, we shouldn't, we mustn't, they won't let us.

Newcomb: We are attempting to mentally engage, from our own perspective, ideas and arguments that were meticulously designed for our ‘containment,’ but it's not a physical containment, it's ideational. It's created by means of an invented construct they are calling ‘law.’ Then they work on conditioning us into ‘the habit of obedience,’ which is one of their definitions of ‘law.’ If we passively fail to question and challenge the assumptions underlying the ideas and arguments that constitute their system of domination, then we are not going to get very far.

It's frustrating to understand that the international system of states of domination, and its inter-state (inter-national) law is designed and set up to work against us. It emerged out of the papal bulls and violent colonialism. In Anthony Anghie's book Imperialism, Sovereignty, and the Making of International Law, Anghie points out that Indians were deemed by Francisco de Vitoria to not be sovereign because they were pagans!

This is not "We can't, we shouldn't, we mustn't." It's we have been, we shall continue to, and we will not be stopped from laying bare the bogus and fallacious nature of the idea-system of domination and dehumanization which they dare to call international law and federal Indian law.

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Ruth Hopkins

Hopkins: That’s why there’s so much to learn from Standing Rock. For one, this movement would have never happened without ancestral teachings. All of those who fought and died for our spiritual beliefs, ceremonies, and cultural practices, and hid them in their hearts and protected them when they were illegal, saved us. It was because of them that we knew how to set up camp, and live off the land. Elders who taught us how to pray with water, showed us where sacred sites were, signed the treaties, told us the prophecies, and how to unite like a mighty fist, made us who we are. We are our ancestors. And we still have that resilience. Through countless nights of blinding lights and low flying planes, vicious dogs and water cannons, everyone held on and did not know how to stop fighting. We must continue to practice these ways and protect them for future generations. Without them, we lose our core and we fail.

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Peter d'Errico

d’Errico: It is an historic moment when thousands of people gather to defend Indian Country, in numbers that rival what happened at some of the treaty gatherings… except this time there are non-native allies on the Indian side. This is the moment to be clear that the defense is aimed at protecting the original free and independent existence of Native Peoples on their own lands, which are still there and the people still here.

Hopkins: It's also shown us the importance of fighting for a cause on multiple fronts. We really needed all hands on deck, from Grandma Regina on the frontline to a veteran from Baltimore who heard our call, came without question, and brought thousands of his friends. Everyone who signed a petition, called President Obama, and marched at a rally in their city played a role. People hold the real power. That's where true change will happen. I'd like to think that's the true hope of America.