Developments in Indian Country

The Ninth Session of the United Nations Permanent Forum on Indigenous Issues concludes today after eleven days.  Among the documents produced, according to Indian Country Today was a “groundbreaking report examining the roots of Christian domination over indigenous peoples and their lands”:

North American Representative to the Permanent Forum Tonya Gonnella Frichner, an attorney and founder of the American Indian Law Alliance, presented a preliminary study on the “Doctrine of Discovery” and its historical impacts on indigenous peoples, with a focus on how it became part of United States laws.

“The first thing indigenous peoples share is the experience of having been invaded by those who treated us without compassion because they considered us to be less than human,” said Frichner, a citizen of the Onondaga Nation serving her first term on the 16-member UNPFII.

“Dehumanization leads to the second thing indigenous peoples share in common: Being treated on the basis of the belief that those who invaded our territories have a right of lordship or dominance over our existence and, therefore, have the right to take, grant, and dispose of our lands, territories, and resources without our permission or consent.”

Frichner said human rights violations faced by indigenous peoples can all be traced to the Doctrine of Discovery and its interpretive framework which has been used for five centuries to take Native lands.

I wrote about the Doctrine of Discovery in The Legal Justification for the Native Conquest. A rough equivalent to the Dred Scott decision for African-Americans, the 1823 Supreme Court decision Johnson v. M’Intosh affirmed U.S. rights through inheritance of the Christian, European doctrine. Unlike Dred Scott, Johnson v. M’Intosh has never been nullified by the Court and is used to this day as legal foundation in Native American cases that come before the Court.

The Vatican’s Doctrine of Discovery was based on the premise that all non-Christian land belonged to no one because no Christians were living there and no Christian monarch or lord had yet claimed dominion. Once Christian monarchies like Spain or France claimed the right of dominion, that claim was transferred to political successors over centuries.

The Vatican observer to the Forum responded that

the papal bulls that paved the way for European expansion had been abrogated over centuries. He insisted the Church had upheld the rights of indigenous peoples to their ancestral lands, regardless of whether the inhabitants were Christian or not.

Yet as I discussed in “Aboriginal Sin,” (pdf) in Tikkun,

During his visit to Brazil of May, 2007, Pope Benedict outraged many South American indigenous groups by suggesting that the deliverance of Christian faith to the native populations of South America had been a benefit of the colonial era—a benefit, indeed, for which the indigenous peoples had been “silently longing” and that had “shaped their culture for 500 years.” Speaking defensively, and in denial of the historical record, he declared, “The proclamation of Jesus and of his Gospel did not at any point involve an alienation of the pre-Columbus cultures, nor was it the imposition of a foreign culture.”

The colonial conquest of the Americas is inseparable in its project from the Christian European mission to spread the faith.

Other, surprising news from the Forum came on the first day, when New Zealand, one of only four nations to vote against the 2007 U.N. Declaration on the Rights of Indigenous Peoples, announced that it was reversing it decision and supporting the Declaration. Australia, another negative vote, had previously announced its reversal. Canada has given signs of a reversal, though it hasn’t yet formally announced. If it does, that would leave the United States as the sole nation standing in opposition to the Declaration.

In the face of such isolation, U.S. Ambassador Susan Rice to the U.N. “announced that the United States is undertaking a review of its opposition”:

During President Obama’s first year in office, tribal leaders encouraged the United States to re-examine its position on the Declaration – an important recommendation that directly complements our commitment to work together with the international community on the many challenges that indigenous peoples face. We will be conducting a formal review of the Declaration and the U.S. position on it.

There is no American history without Native American history. There can be no just and decent future for our nation that does not directly tackle the legacy of bitter discrimination and sorrow that the first Americans still live with. And America cannot be fully whole until its first inhabitants enjoy all the blessings of liberty, prosperity, and dignity. Let there be no doubt of our commitment. We stand ready to be judged by the results.


Others were disappointed that the United States – a country that postures itself as a champion of democracy and human rights worldwide – did not support it outright.

“We’ve already been there. It seems extraordinary to review it again since it has already been debated and adopted by the international community,” said Debra Harry, Indigenous People’s Council on Biocolonialism executive director. “We’d like to see the United States adopt it now, and then let’s talk about how to implement it domestically.”

The U.S. delegation offered that such significant acts require extensive review across federal agencies in preparation for implementation, all of which sounds on its face very reasonable when considering the nature of mammoth government bureaucracies, but consider, too, that bureaucratic sluggishness, to the point of disingenuousness is the history of U.S. government relations with Native America.

Consider that I wrote here in the middle of December last year about a negotiated settlement between the U.S. and plaintiff in the historic thirteen-year-old Individual Money Trust Fund suit. Consider that announced intent then was the Congress would ratify the settlement by the end of December 2009. Didn’t happen, as Indian Country Today reports:

The possibility of two substantial financial settlements involving Indian interests continues to hang in the balance, with several well-publicized deadlines having passed without federal action.

The separate and unique cases are known as Cobell v. Salazar and Keepseagle v. Vilsack. The former centers on claims by thousands of Indians that the federal government mismanaged billions of dollars in oil, gas, grazing, timber and other royalties overseen by the Department of the Interior for Indian trustees since 1887. The latter involves thousands of tribal plaintiffs who contend that Department of Agriculture officials denied or delayed a number of farm and ranch loans and emergency assistance applications by Indians.

Cobell has been ongoing since 1996; Keepseagle since 1999. Many Indians who would have benefited from settlement in both cases have passed away, according to their lawyers and plaintiffs. Many who survive live in extreme poverty.

Three deadlines have expired for Congress to approve a settlement for Cobell, worked out between the Indian plaintiffs and the Obama administration in early December. The expired deadlines were in December, February, and now April.

Judge James Robertson, presiding over Cobell has announced that he will not sanction further extensions beyond the latest, to May 31. Should the Congress not act by then, the likelihood increases that Robertson will enact his own settlement terms, which had already promised to be far below the already meager dollar amount, given the many tens of billions of dollars sued for, offered by the Obama administration.

How might we expect Native America to respond to yet one more – to count would be a laughing matter – insincerity and indifference?

What should we think – really, what should we think – about this prospect, currently being urged by some in Native America, that John Ecohawk, long-time director of the Native American Rights Fund be considered to fill the pending Supreme Court vacancy?

Imagine the doctrines of discovery that would lead to. But who wants to read them?


3 thoughts on “Developments in Indian Country

  1. Thank you for your excellent blog. I am learning a good deal from it, and my American History students benefit. Your work is having an effect. Keep up the good work.



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