This
winter I have been reading a lot on the American Justice System. My
explorations have covered the gambit from the abrogation of treaties with
Native communities to the questionable imprisonment of poor and non-White
individuals. The more I read, the more I realize that the American Dream was
never intended for non-property owning individuals, egalitarian peoples, women,
people with mixed or non-European heritage. Over the course of the last hundred
years we have seen women and disenfranchised Americans struggle to retain the
same civil rights as their founding fathers – rich, property owning White men.
As much as I have seen positive changes for all people born or who have
resettled in the United States there continue to be as many examples of individuals
and small communities railroaded by the Federal and State governments. I notice
when those communities make progress the status quo make new laws to further
our disenfranchisement. If you doubt my thought consider the struggles of
felons and GLBT peoples.
The
foundation of the United States is not based on justice, liberty, and freedom,
but on real estate. From the early colonies to the first thirteen states those
institutions sought ways to convince Native communities to relinquish lands to
colonial, state, and federal government. The American Revolution did not change
property relations, but allowed new paths for investors to acquire Native
territory and multiple their fortunes.
In
the speech, "The Jubilee of the Constitution”, delivered at New York,
April 30, 1839, before the New York Historical Society" John Q. Adams is
very open about the American right to Native lands. In his praise of the
Pilgrims, he says,
“No
European settlement ever formed upon this continent has been more distinguished
for undeviating kindness and equity toward the savages. There are, indeed,
moralists who have questioned the right of the Europeans to intrude upon the
possessions of the aboriginals in any case, and under any limitations
whatsoever. But have they maturely considered the whole subject? The Indian
right of possession itself stands, with regard to the greater part of the
country, upon a questionable foundation. Their cultivated fields; their
constructed habitations; a space of ample sufficiency for their subsistence,
and whatever they had annexed to themselves by personal labor, was undoubtedly,
by the laws of nature, theirs. But what is the right of a huntsman to the
forest of a thousand miles over which he has accidentally ranged in quest of
prey? Shall the liberal bounties of Providence to the race of man be
monopolized by one of ten thousand for whom they were created? Shall the
exuberant bosom of the common mother, amply adequate to the nourishment of
millions, be claimed exclusively by a few hundreds of her offspring? Shall the
lordly savage not only disdain the virtues and enjoyments of civilization
himself, but shall he control the civilization of a world? Shall he forbid the
wilderness to blossom like a rose? Shall he forbid the oaks of the forest to
fall before the axe of industry, and to rise again, transformed into the
habitations of ease and elegance? [S]hall he doom an immense region of the
globe to perpetual desolation, and to hear the howlings of the tiger and the
wolf silence forever the voice of human gladness? Shall the fields and the
valleys, which a beneficent God has formed to teem with the life of innumerable
multitudes, be condemned to everlasting barrenness? Shall the mighty rivers,
poured out by the hand of nature, as channels of communication between numerous
nations, roll their waters in sullen silence and eternal solitude of the deep?
Have hundreds of commodious harbors, a thousand leagues of coast, and a
boundless ocean, been spread in the front of this land, and shall every purpose
of utility to which they could apply be prohibited by the tenant of the woods?
No, generous philanthropists! Heaven has not been thus inconsistent in the
works of its hands. Heaven has not thus placed at irreconcilable strife its
moral laws with its physical creation. The Pilgrims of Plymouth obtained their
right of possession to the territory on which they settled, by titles as fair
and unequivocal as any human property can be held. By their voluntary
association they recognized their allegiance to the government of Britain, and
in process of time received whatever powers and authorities could be conferred
upon them by a charter from their sovereign. The spot on which they fixed had
belonged to an Indian tribe, totally extirpated by that devouring pestilence
which had swept the country shortly before their arrival. The territory, thus
free from all exclusive possession, they might have taken by the natural right
of occupancy. Desirous, however, of giving amply satisfaction to every pretence
[pretense] of prior right, by formal and solemn conventions with the chiefs of
the neighboring tribes, they acquired the further security of a purchase. At
their hands the children of the desert had no cause of complaint. On the great
day of retribution, what thousands, what millions of the American race will
appear at the bar of judgment to arraign their European invading conquerors!
Let us humbly hope that the fathers of the Plymouth Colony will then appear in
the whiteness of innocence. Let us indulge in the belief that they will not
only be free from all accusation of injustice to these unfortunate sons of
nature, but that the testimonials of their acts of kindness and benevolence
toward them will plead the cause of their virtues, as they are now
authenticated by the record of history upon earth.”
Adams’
quote is lengthy, but it aptly outlines the American view of aboriginal title
and the European God given right of conquest of Turtle Island. Passages from
this speech have been used in numerous court cases concerning Euro-American right
to Native lands, as if Adams’ eloquence serves as the justification for one of
the greatest land swindles in human history. It is almost if these words simultaneously
serve as a rally cry for westward expansion, to depopulate the lands before
them, and to embed the Pilgrim as America’s chosen peoples. Adams’ speech used
in an earlier argument in front of the Supreme Court, Fletcher v. Peck, 6 Cranch 87. [10 U.S. 87, 3 L.Ed. 162 (1810)], in
which Adams concludes his argument “what is Indian title? It is mere occupancy
for the purpose for hunting. It is not like our tenures; they have no idea of a
title to the soil itself. It is overrun by them, rather than inhabited. It is
not a true and legal possession.” He says these knowing Native people existing
here for many millennium before their arrival.
Many
eastern Native nations under duress and pressures transformed their enclaves
into European-style governments or protected their holdings into the form of
title continued to lose their arguments in American legislative, judicial,
electoral spheres. No matter how closely Native people followed the letter of
American law, Americans always found ways to extricate aboriginal possession. In
a last example, the Tuscarora Indian Nation of New York living for over 150
years on gifted and purchased land protected as fee simple title became the
target for a reservoir in the 1950s. The Federal government could have imminent
domain and claimed any large tract of land that would be suitable for a
reservoir, but they settled on Tuscarora Land. The Feds did the same thing
again with the Seneca and their Alleghany territory. The people of the
Tuscarora Indian Nation did everything they could to stop the confiscation of
their territory from monkeywrenching construction equipment to taking their
case to the U.S. Supreme Court. In Federal
Power Commission v. Tuscarora Indian Nation, 362 U.S. 99 (1960), the Court declared
that all reservation land was owned by the Federal government. Ultimately, the
Tuscarora lost 1/8th of their territory to Federal Power Authority. Dissenting Justice
Black tried to explain Native attachment to space and place. He said,
“It
may be hard for us to understand why these Indians cling so tenaciously to
their lands and traditional tribal way of life. The record does not leave the
impression that the lands of their reservation are the most fertile, the landscape
most beautiful or their homes the most splendid specimens of architecture. But
this is their home – their ancestral home. There, they, their children, and
forebears were born. They, too, have their memories and their loves. Some
things are worth more than money and the costs of a new enterprise. There may
be instances in which Congress has broken faith with the Indians, although
examples of such action have not been pointed out to us. Whether it has done so
before now or not, however, I am not convinced that it has done so here. I
regret that this Court is to be the governmental agency that breaks faith with
this dependent people. Great nations, like great men, should keep their word.”
The
more I read, the more I realize that the idea and practice of the justice
system is inherently unjust. Basically, the idea that Native people,
non-property owning, poor, Black, Latino, women, and other unwilling minorities
did not share in the consensus in continuing this Western tradition of law with
the formation of the United States. We have been pulled into this entangled
mesh of law and money that hopelessly traps most of us without ever providing
us with justice. I like to end with a truncated quote by Michel Foucault. He
says, “Power is war, a war continued by other means….The role of political
power…is perpetually to reinscribe this relation through a form of unspoken
warfare; to reinscribe it in social institution, in economic inequalities, in
language, in the bodies themselves of each and everyone of us.” Michel
Foucault, Two Lectures in
Power/Knowledge 90 (1980).
