The sacred Earth plus human activity is the very basis of economics. Land is the only permanent foundation for economic prosperity. Obviously, the economic system of every Indian nation is and always has been ultimately tied to the land. However, the United States has used “law and policy” to feed its own economic development by separating Indian nations from their traditional lands and resources, thereby enriching itself to the greatest extent possible.
Supreme Court Justice Oliver Wendell Holmes referred to the U.S. system of law as, “one of the vastest products of the human mind.” Based on Holmes’ comment, we may surmise that, federal Indian law and policy are by-products of the white man’s mind and cultural consciousness.
Federal Indian law and policy consist of ideas that have been designed by the dominating society to limit Indian economies by cutting off, controlling, limiting, and regulating Indian access to and activities on their own lands. One of the most graphic illustrations of this point historically is the U.S. policy of intentionally slaughtering millions of buffalo in order to destroy the bison-based economies of the Plains Indian nations in order to force those nations into subjection.
The ideas of federal Indian law and policy are colonial in nature because they’re designed to make certain that the greatest economic benefit accrues to the United States by diverting it away from Indian economies. As a direct result of the colonial and corporate expropriation of Indian lands and resources, the U.S. is now the wealthiest and most powerful nation on the planet.
While many Indian nations can now point to their economic success stories due to powerful revenue streams from gaming, others are still suffering tremendous economic hardships as a direct result of the colonial legacy of federal Indian law and policy. And some Indian peoples, such as the small Indian “colonies” in Nevada or the tiny rancherias in California are now almost completely cut off from their traditional territories and restricted by the dominating society to the tiniest parcels of land, sometimes consisting of a few hundred acres, or less.
Over the past 40 years, $18 billion in gold has been extracted from Western Shoshone lands as defined in the 1863 Treaty of Ruby Valley. Not a penny of this amount has gone to the Western Shoshone people themselves. This example illustrates how, under the color of federal Indian “law” and policy the theft of Indian resources siphons wealth out of Indian country and into the U.S. economy.
What are otherwise known as principles, doctrines, definitions, opinions, rulings, regulations, etc., are really nothing but ideas, albeit backed by a sufficient threat of lethal force to make those ideas stick, and to produce a habit of obedience. Whether we like it or not, it is within the context of these ideas that Indian economic development takes place, or doesn’t.
To the extent that the white men who first created the ideas known as “law” in the United States were racists, the idea-system called “law” will reflect their racist thought processes. Nowhere is this more evident than with regard to the dominant society’s “legal” definitions of Indian land rights, which, by extension, define the very basis of American Indian economies.
While recently investigating how the dominant society defines the land rights of the California Indian nations, I found ample evidence of racist ideas cast as “law.” In the case The Indians of California ? v. The United States, decided by the U.S. Court of Claims in 1942, we are referred to an earlier decision Charles D. Hayt v. United States, ET AL (1903), which deals with the definition of Indian country. Hayt refers us to United States v. Lucero (1869), handed down by the Supreme Court of the Territory of New Mexico.
In Lucero we find the following pronouncement as part of the ideas called “law” – from the point of view of the white man – with regard to Indian land rights: “Indians, in their nature and habits, are like other animals. The horse, the cow, the sheep, the chicken, can be tamed and made useful. The tiger, the bear, the panther, and wildcat can not [sic] be tamed or reduced to subjection, except by commencing when young, and bestowing years of labor in the undertaking. It is the same with Indians.”
And this: “This utopian idea, that kind treatment and a few agents and missionaries can civilize and Christianize these wicked and wild savages in a few years, is a sad and fatal delusion.”
Here’s one last amazing quote from Lucero: “The idea that a handful of wild, half-naked, thieving, plundering, murdering savages should be dignified with the sovereign attributes of nations ? might do for beautiful reading in Cooper’s novels or Longfellow’s Hiawatha, but it is unsuited to the intelligence and justice of this age, and the natural rights of mankind.”
Based upon such “enlightened” ideas about Indians, the Court of Claims in The Indians of California ? v. The United States of America said that, with a few minor exceptions, the Indians of California essentially have no land rights because no part of the lands in California ever belonged to them to begin with.
The Indians of California would be compensated for the failure of the United States to ratify 18 proposed treaties that the Indians made with U.S. treaty commissioners in 1852. However, they were not entitled to compensation for the land because, in the opinion of the Court of Claims, they had no “legal claim” to the lands in California. Why? Because those lands had first belonged to Spain, based on “discovery,” and then to Mexico until the U.S. wrested California from Mexico in 1848.
Oliver Wendell Holmes also once said: “The rational study of law is still to a large extent the study of history.” When I recently read this quote it brought to mind Napoleon’s cynical remark, “history is a lie agreed upon.” Holmes’ and Napoleon’s respective comments suggest that, “The rational study of federal Indian law is, to a large extent, the study of a lie agreed upon.” How apt, beginning with the lie of “discovery,” and the racist rant found in United States v. Lucero. Such lies reflect the colonial context within which sovereign Indian nations must succeed in building a future of liberation based on powerful, self-determining economies.
Steven Newcomb, Shawnee and Lenape, is director of the Indigenous Law Institute, and Indigenous Research coordinator at D-Q University at Sycuan, on the Reservation of the Sycuan Band of the Kumeyaay Nation and is a columnist for Indian Country Today.