Dancing in the Sky

I'm listening to too-loud recorded music coming up the hill, maybe from the Kennedy HS athletic fields, maybe from the playground at the Marble Hill houses. Now it's accompanied by the bells from the Church of the Mediator on Kingsbridge Avenue. I have the choice of being irritated by a DJ's choices at 9:30 on a Sunday morning, when I would like a little quiet, or trying to enjoy the music. It reminds me of a flight to Florida.

It was a spring in the early 90's when the JFK senior advisor asked me to help chaperone the senior trip. I was asked late because they had to replace another teacher at the last minute. I admit to feeling some kind of way about that. I also had a longstanding question about why senior classes of 700 to 1000 kids took ambitious trips each year that typically included about 40 kids because nobody else could afford them on top of paying for yearbook, graduation, and prom. But I agreed to go.

Forty Bronx high school seniors may feel like a tiny number when you compare them to 5000+ teens in an eight-story building. But it feels like a large group on an airplane with 400 passengers. I do not need to explain how a bunch of teens can seem to take up a lot of space if you aren't a high school teacher. A lot of families were looking cross-eyed at our kids. Our kids were too excited about the trip, and too attentive to one another to notice. But this airplane had another group of passengers on it - not immediately obvious - that was smaller in number, but even larger in their energy and spirit.

Up in first class was a salsa legend, the brilliant Cuban singer Celia Cruz, on her way from NYC

to some gigs in Florida. But riding with us was her entire band. And shortly after takeoff it turned out that every single musician, whether percussionist or horn player, was carrying some little percussion instrument: cowbells, maracas, güiros, claves... I don't remember what else. They took them out and started playing. It was joy. If you have heard an ensemble of Latin percussionists, each playing their own rhythm, adding up to something transcendent, you know exactly what I mean. These were professionals, part of one of the best bands in the world.

It was really good. So good that some of our kids couldn't even remain in their seats. They were up in the aisles and dancing. 

A family behind me was now so uncomfortable that the dad asked me to make them stop. "Huh?" was my articulate and thoughtful reply.

He asked me to make the musicians stop playing. I skipped over the bizarre association that led him to conclude that my authority over our students extended to every person of color on the plane. I just asked, "Are you guys going to Disney?"

He nodded. I said, "Disney has some really special musical acts. Some of them you sit down to hear. Some of them are just playing in the streets of the park as you walk around. But I promise you that none of them will be as good as this. Maybe you should try appreciating some of the finest musicians you will ever hear playing for you for free, out of sheer love of music."

He wasn't happy. The flight attendants asked our kids to return to their seats because they needed to work the aisles. The band didn't go on much longer. But my memories are of the music itself and of the ability we each have to choose whether to appreciate it.

It is 10:30. No more music from down the hill. Maybe they were asked to wait until later. Maybe their event is over. It's a quiet Sunday morning again.

White Supremacist Land Theft

Our minds focus on stories. 

Consider this: Fifty hooded white men surrounded David Walker's farmhouse and demanded that he come out for a whipping. He refused and fired a warning shot. They torched his house, burning one son alive and then shot Walker, his wife, and his other four children when they escaped the fire. Walker's two-and-a-half-acre farm was resurveyed into his white neighbor's property. A white lady owns it today.

We read this and are horrified. But when we read that 15 million acres of Black-owned farmland dropped to 1 million over the course of the 20th century, they are very big numbers and harder to assimilate and understand. So imagine instead 153 families whipped out or burned out or murdered out of their little farm every day... for a hundred years. That is what those numbers mean.

Consider this: Ernest Burkhart, a white Texan, moved to Oklahoma to get a job on the oil rigs. He married Mollie Kyle, an Osage woman. Burkhart's uncle then contracted the murders of Mollie's sisters, Anna and Minnie, her mom, her cousin Henry, and her brother-in-law, which made Mollie the owner of all their oil-rich land. Meanwhile Ernest was poisoning his wife so that he and his uncle could take it all.

We read this and it is hard to imagine the calculation and cruelty that allows people to be intimate over a protracted period with those they are robbing and killing. But it is harder still to multiply that by the millions of white people who swindled and murdered and robbed millions of Native people of their farms and ranches. Not treaty land; privately-owned, deed-recognized land that had been assigned as compensation for the previous theft of treaty land. 

Consider this: Texas Rangers under the command of Captain James Fox searched the village of Porvenir for stolen property of which there was none. They confiscated two firearms and arrested two men, who they eventually released. Two nights later the Rangers returned with a posse of white civilians and eight US Cavalrymen. They pulled everybody out of bed, then marched 15 men and boys to a nearby hill. They murdered Manuel Morales, Román Nieves, Longino Flores, Alberto García, Eutimio Gonzales, Macedonio Huerta, Tiburcio Jaques, Ambrosio Hernández, Antonio Castanedo, Pedro Herrera, Viviano Herrera, Severiano Herrera, Pedro Jiménez, Serapio Jiménez, and Juan Jiménez. The deed for 1600 acres of land held by Manuel Morales vanished and the land became the property of one of those possemen. 

This is a grotesque atrocity, finally commemorated by a historic marker a hundred years after the fact. But it is one atrocity. It has to stand in for the remarkable fact that millions of acres of land that was privately owned by Mexicans when the United States assumed government of the US southwest is now owned by Anglos or by the US Forest Service. Some was taken by murder, as at Porvenir. Some was taken in fraudulent title transfers. Some was simply reassigned by the Supreme Court from its owners to the federal government as in United States v. Sandoval, 167 U.S. 278 (1897).

People are in the habit of looking at white supremacy as prejudice backed by power. They look at job discrimination and housing discrimination. They look at the way children are treated in school. They look at portrayals in TV and movies. They look at differences in the way people are policed based on their race. And all those things are real. All those things are serious.

But white supremacy is also about a violent expropriation of wealth. It is also about murder and theft. In the cases I allude to above, only Ernest Burkhart and his Uncle William Hale were ever charged or tried. Those two were sentenced to life, but they were paroled. In the cases of millions of other thefts and beatings and swindles and killings the white neighbors who were sheriffs and prosecutors and judges and jurors either participated in the crimes themselves or looked away. All those heirs who like to talk about the "hard work" of their forebears who did things the "right way" are either still in possession of the property or they benefited from its sale. When historians look for the archives so they can trace the title transfers they are met - again and again - with "unfortunate fires" or "tragic flooding" that destroyed those records, way back long ago. 

When people say that US wealth was built on theft and murder it is not an exaggeration. Nor is it ancient history. This all took place in the lifetimes of people still living. The stolen wealth is the property of individuals who are alive today. Is it a wonder that they don't want to discuss it?

How can a pro-tribal decision (McGirt v Oklahoma) rely so heavily on an anti-tribal decision (Lone Wolf v Hitchcock)?

How can a pro-tribal decision (McGirt v. Oklahoma, 591 U.S. ___ (2020)) rely so heavily on an anti-tribal decision (Lone Wolf v. Hitchcock, 187 U.S. 553 (1903))?

Because the settler state is so contemptuous of its treaties that it can't even be bothered to follow its own rules for breaking them.

In 1867, the Kiowa and Comanche tribes signed the Medicine Lodge Treaty with the United States. They surrendered claims to 60,000 square miles, reserving to themselves 3 million acres, or about 7.5%, in what is now Oklahoma. By 1892, the United States had decided that that fraction was still too much, and asked the tribes to renegotiate the treaty, ceding most of the reservation, but keeping 160 acres each for individual members of the tribes. The Kiowa refused. The negotiators, nevertheless, reported back to Congress that they had been successful and Congress opened up the reservation for white settlement. The tribe sued.

The Court's decision is remarkable for the contempt it shows for both the Kiowa and the promises of Congress. It says that Congress has the power to unilaterally abrogate the treaties because Indigenous people are "wards of the nation."

These Indian tribes are the wards of the nation. They are communities dependent on the United States. Dependent largely for their daily food. Dependent for their political rights. They own no allegiance to the states, and receive from them no protection. Because of the local ill feeling, the people of the states where they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of the Federal government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power.

In Justice Gorsuch's decision last month he doesn't challenge a word of that. He merely notes that the Mvskoke Creek reservation was never extinguished by Congress, and concludes: 

Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.

This verbal magic, by which a treaty is no longer a treaty, has been bothering me for a long time. In fact, I find it at the heart of the essay I wrote forty years ago to earn a Masters in history and the article I subsequently published based on that paper. I want to review the opinions of the first two commissioners of the Bureau of Indian Affairs about this question. In most respects, commissioners themselves could not have been more different in their backgrounds. But their views on tribal treaties were remarkably alike.

Eli S. Parker was a member of the Tonawanda Seneca tribe, holding the title Donehogawa, or Keeper of the Western Door, in the Haudenosaunee confederation. As a young man he worked as a translator for tribal leaders in Washington, DC. After completing his legal studies he was denied membership in the New York State Bar on the grounds that he was an Indian. He then studied civil engineering at Rensselaer Polytech and worked on the construction of the Erie Canal. Despite his considerable skills, Parker was rejected from the Army when the Civil War broke out. But he was a personal friend of Ulysses Grant and became his adjutant. With Grant's rise to lieutenant general, Parker became a brigadier general. 

Lately people have made some rather strange assertions about Robert E. Lee, claiming that the general of the Confederate Armies was not a racist. When he met Grant at Appomattox Court House to surrender in 1865 he froze at the door when he saw General Parker sitting at a desk prepared to take meeting notes. Grant had to reassure Lee that Parker was a Native, not an African American, before Lee would enter. 

When Grant became President in 1869 he promised a policy of peace with Indigenous peoples and made Parker his Commissioner of Indian Affairs. He served in that position for two years before his enemies managed to drive him out.

He was followed by Francis Amasa Walker, another breveted brigadier general from the Civil War, but otherwise with a very different background. His dad was a professor of economics at Oberlin, Amherst and Harvard, as well as a Member of the US House of Representatives. Walker used his political connections to get himself named head of the US Census. He later served as president of MIT for fifteen years. He became Commissioner of Indian Affairs as a political maneuver to keep him paid to finish his work at the Census when that became overly politicized and ran overly long. Accusations by his enemies that he was corrupt didn't stop him joining in the (false) chorus of accusations against his predecessor at the Bureau of Indian Affairs.

I will begin with Walker. What was his view of treaties? Only a few years after he left government service he wrote the atrocious The Indian Question. Here is a brief sample:

It should be remarked that there can be no question of national dignity involved in the treatment of savages by a civilized power. The proudest Anglo-Saxon will climb a tree with a bear behind him, and deem not his honor, but his safety, compromised by the situation. With wild men, as with wild beasts, the question whether to fight, coax, or run, is a question merely of what is easiest or safest in the situation given. Points of dignity only arise between those who are, or assume to be, equals. Indeed, nothing is at times so contemptuous as compliance. It indicates not merely a consciousness of strength, but of strength so superior as to decline comparison or contest. Grant that some petty Sioux chief believes that the government of the United States feeds him and his lazy followers out of fear, or out of respect for his greatness: what then? It will not be long before the agent of the government will be pointing out the particular row of potatoes which his majesty must hoe before his majesty can dine.

 I don't know what needs explaining about this. I will just say that he clearly doesn't believe that agreements made with the Sioux deserve to be treated as anything other than momentary necessities, not deserving compliance by "proud Anglo-Saxons."

But what about Parker? He was a Seneca himself. He had been a member of treaty delegations. He had also - repeatedly - experienced the unwillingness of "proud Anglo-Saxons" to accept him professionally, despite his qualifications and accomplishments. General Parker wrote a manuscript autobiography which his nephew, the historian and archeologist Arthur Parker, presented to the Buffalo Historical Society. In it, the Seneca chief made these comments on treaties:

And just here I may mention the absurdity of the United States Government making treaties with the Indian tribes of the country, tribes that number all the way from 500 souls to 25,000. They have all been declared the wards of the Government, and they all live within its jurisdiction, and yet these dependent people are treated as though they were independent, sovereign nations. Every contract or agreement made with them, whether few or many, is subjected to the same form and ceremony of consideration, ratification and proclamation as is a treaty with Great Britain, France or any other great independent power. I, perhaps, ought to be the last person to find fault with such a condition of things. I suppose that I ought to be very proud, I ought to swell out as a turkey-cock, that, with a few hundred ignorant Indians at my back,I can consider myself the head of a strong, independent sovereignty, and treat with the great United States as if I were Russia, or Germany, or China, or Japan. But I have no such feeling. On the contrary I am humiliated. For I know too well the great wrecks of violated Indian treaties that are strewn in the historical pathway of the United States. 

The similarities of this statement with that of Frank Walker are more noteworthy than the differences. Sure, Parker is upset at the history of broken treaties. But his words convey the same contempt: wards, dependent, ignorant. He clearly believed that Congress should not be making treaties with the tribes. Walker found treaties to be acceptable contingencies: no dishonor in making them; none in breaking them, either. Eli Parker considered them a humiliation... dishonoring indeed. Neither considered them binding or a blueprint for a future relationship.

But the tribes have not gone away. The tribes have not surrendered. Maybe Frank Walker imagined that the white Americans possessed "strength so superior as to decline comparison or contest." Maybe Eli Parker believed, as he wrote, that the treaties were like a jug handle with all the benefit and all the power on one side. But the tribes have found power and benefit even in the one-sided decision of Lone Wolf v. Hitchcock. Because Congress couldn't even be bothered to extinguish its post-Civil War treaties with the Creek, Choctaw, Chickasaw, Cherokee and Seminole, they now find that the reservations comprising the entire eastern half of Oklahoma are still in effect. Because Congress couldn't even be bothered to extinguish the treaty rights of the Lakota to the Black Hills of South Dakota, those rights are still being litigated today. (The tribes have yet to accept the cash awarded in United States v. Sioux Nation of Indians, 448 U.S. 371 (1980) and the amount has grown with interest to over $2 billion.)

 

 

And what about "Hispanics"?

These people who are so fond of erasing Native treaty rights love to claim that "we are all immigrants." Challenged on their facts they go on to make the bizarre claim that people whose ancestors have occupied this continent for at least 14,000 years must also have come from somewhere. This just hollows out any meaning of the world immigrant at all. It also stuns me to imagine that they consider people who were kidnapped from their homes and shipped in chains across the Atlantic to be immigrants. It also raises questions when we consider groups of people who - in some part - trace their ancestry to Europeans who arrived here before Jamestown.

But they are perfectly content to discuss all these questions using the language of "race." The contradictions emerge immediately when we start looking at the peoples variously denominated as “Hispanic” or “Latino” or some variation of those. How is it possible that people can be assigned a biological category, like race, because they speak the same language? How is it possible that people can be assigned to the same race when a cursory physical examination shows that individuals in this “race” appear to be of different races? How is it even imaginable that the Indigenous people of Mexico, Central, and South America magically become Hispanic or Latino upon arrival in the United States when they speak Indigenous languages like Mixtec or Q’eqchi’ or Aymara instead of Spanish? Since 1980, the US Census has finessed these questions by treating “Hispanic or Latino” as separate from “race” and asking everybody both questions: What is your race? Are you Hispanic, Latino or Spanish? But Americans are in the habit of seeing those as a race. People who are familiar with the predominantly Mexican-American character of the Rio Grande Valley may be surprised to see that Hidalgo County, for example, is listed by the 2010 census as being 88% white. But then they look further and discover that the same census says it is 90% Hispanic or Latino. 

Since race is a social construct anyway it may be easier to just say that Mexican Americans or Chicanos are considered a “race” in the United States. But then what about Puerto Ricans? What about Dominicans? What about Central and South Americans? Are they members of the same “race”? That’s why I think it is useful to look at the forms of domination white supremacy (and US imperialism) has imposed on the peoples. They are clearly not all the same.

Mexican Americans alone, excluding all the other “Hispanic or Latino” peoples, make up 11.3% of the US population, almost as much as African Americans, who are 12.3% of the population. Since World War 1 popular white supremacist thinking has treated them as immigrants and as crossers of the river or desert that makes up the roughly 2000-mile-long border between the United States and Mexico. This particular prejudice presents a kind of cognitive dissonance because it contradicts the basics of US history that every American child is supposed to learn in elementary school. Between 1845 and 1853 the United States took over more than half of the territory of the Republic of Mexico, about 950,000 square miles: More than the Louisiana Purchase. More than the entire United States before the Louisiana Purchase. Look at California, Nevada, Utah, Colorado, Arizona, New Mexico, and Texas on a map of the US. You’ll see.

There were plenty of Mexicans living there, too, in their own country. Many of their descendants are still there today. White people in the southwest like to pretend their "Hispanic" neighbors snuck across the border yesterday, even though the families of these Mexican Americans have been there for generations. Some people's grandparents and great grandparents did cross that border before it became militarized during the First World War but many come from families who have been crossing the river or the survey line in the desert for many generations, long before it became a border. (The Apaches, O’odham, and other Native peoples of the area had of course been crossing that non-existent border for hundreds of generations.) So that border is a historical imposition and Mexican people in the area often say: “No cruzamos la frontera; la frontera now cruzó.”

White supremacy has acted on Mexican Americans both by encouraging them to identify as white themselves and by suppressing them as members of a Mexican “race.” We can look at a few examples of white identification first. 

In New Mexico especially there is a long history of people of Mexican descent calling themselves “Spanish American” or “Hispano.” They like to trace their ancestry to the first conquistadors who arrived in the late 16th century. Until two years ago, the city of Santa Fe held an annual pageant called the Entrada to celebrate the reconquest of the city in 1692 and the defeat of the Pueblos who had kicked the Spanish out in 1680. The Native people of New Mexico had been protesting this for years. White-identifying Mexican Americans treat that Native opposition as an insult and a denial of their heritage. Last month statues of the conquistador Juan de Oñate were removed in Albuquerque and in Rio Arriba County during the current reconsideration of monuments to white supremacy. Oñate, if you don't know, headed a band of Spanish soldiers who entered New Mexico in 1598. They massacred 1000 Natives at Acoma Pueblo and destroyed the town. At Okhkay Ohwingeh Pueblo he and his men enslaved and cut the toes off 500 people. White-identifying Mexican Americans were so incensed at the removal of the statue in Albuquerque that an armed right-wing militia showed up to protest and a member shot a counter-protester!

In the early 20th century, purveyors of racist pseudoscience ridiculed the claims of New Mexicans to whiteness. Madison Grant, for example, said that Spanish American was a “courtesy title” for detribalized Indians. I am not going to jump on any bandwagon with racists like him. I will point out, though, that towns like Belén, Tomé, Socorro, San Miguel de Vado, Abiquiú, Taos, and Chimayo were largely or wholly founded in the 18th century by people - many of them from other tribes - who had been taken captive by Comanches or Apaches and subsequently ransomed by the Spanish in Santa Fe. They were placed under indenture by the Spanish governor to pay off their ransom and then settled in these outlying villages to function as military outliers for Santa Fe. 

The other long-time centers of Mexican Americans in the region, California and Texas, each have distinctive histories. For this discussion, though, it is worth looking at the struggle to desegregate schools. Texas was a Jim Crow state right up into the 1960’s. School law mandated the segregation of whites from Blacks, but custom in most places segregated Mexican Americans as well, although in many places that meant denying them schools at all. In 1930, Mexican Americans sued. The basis of Del Rio ISD v. Salvatierra was not an opposition to segregation at all, though. Instead, the attorneys of the League of United Latin American Citizens (LULAC) argued that Mexicans are white and should therefore attend white schools. The Texas courts rejected this argument, creating a judicial precedent for three-part school segregation where it did not exist in the State Constitution. LULAC relitigated the issue after World War 2 in the case of Delgado v. Bastrop ISD. This time the court ruled that segregation of Mexican American children was illegal. The argument again was that this segregation was illegal because they were white.” 

In California, a landmark case, Mendez v. Westminister School Dist., 64 F. Supp. 544 (S.D. Cal. 1946), challenged the segregation of Mexican American children by the school districts of Orange County, but the plaintiffs took a different tack. California law allowed the segregation of Chinese, Japanese, and Native children, but did not mention Mexicans. In fact, the Orange County schools didn’t formally establish “Mexican” schools; they simply created the subterfuge of “remedial” schools. The only test they used, though, to determine which children were needed remediation was their surname. Regardless of academic aptitude, regardless of fluency in English (regardless, in fact, of whether they spoke Spanish at all!) children with Spanish surnames were assigned to those remedial schools. No Mexican children in Orange County were admitted to “white” schools. No Anglo children attended the remedial schools. The parents in this case argued that the discrimination against their children was a violation of the 14th Amendment. Favorable rulings by the Federal district and circuit court judges made an important precedent for Brown v. Board of Education. Nevertheless, the judges at both levels made a point in their decisions of saying that Mexicans are white. The decision in the 9th Circuit says: “Nowhere in any California law is there a suggestion that any segregation can be made of children within one of the great races.” (My emphasis.)

However one chooses to read all this history, though, the US presence throughout the Southwest has been undeniably antagonistic to Mexican Americans. They were stripped of their land and political rights and reduced to a caste of laborers. On occasion US citizens of Mexican descent have been deported from the US, even those who were born here! That is why it certainly looks as though Mexican Americans have been treated as a race.

But we must not fail to see the history of conquest.  Tomorrow I will try to make time to write about how the land was stolen from people who actually held formal title.

Still more: Treaty Rights

Why does it matter that we understand questions of Native rights as treaty questions instead of racial questions? Because the white supremacists all want to portray treaty rights as violations of equality! One of the first post-World War 2 struggles for Native rights concerned fishing in Washington State. When Washington became a US territory in 1853 the tribes were forced to sign treaties ceding about 90% of the land. But they insisted on retaining the right to fish “at all usual and accustomed grounds” regardless of whether those fishing grounds were on or off the reservations. Migratory fish are both staple and sacred foods for the Indigenous people of the Northwest. Fishing for salmon and steelhead is a central community ritual and it is just as central to providing protein for the year.

After the Second World War both the commercial fishery and sport fishing took off, increasing the size of the non-Native catch. At the same time the paper industry and other polluters were degrading the quality of the water in the rivers. The state fish and game authorities decided to take action against tribal fishing by arresting Native fishermen and seizing their equipment. Because it was off the reservation, the locus of the conflict became Frank’s Landing, a “usual and accustomed ground” of the Nisqually Tribe on the Nisqually River near the south end of Puget Sound. If white sport fishermen were outraged at the Nisqually (and other tribes) for defying the authority of the Department of Fish and Wildlife, then they were apoplectic when the courts sided with the tribes. I suppose they felt that the Natives had gone off-script in the great pageant of Manifest Destiny by refusing to play the role of Vanishing Indian. But today the  Northwest Indians Fisheries Commission, representing 20 local tribes, manages the tribal fishery, in cooperation with the State of Washington. It operates hatcheries, monitors water quality, and keeps tabs on the size and genetic diversity of the fish when they return from the Pacific. The tribes themselves ensure the sustainability of the harvest.

White tantrums about a “double standard” for Natives only make sense if you forget the treaties, ignore tribal sovereignty, and choose to see Indigenous people as a “racial minority.” It tracks precisely with Donald Trump’s bitterness: He got into Atlantic City soon after New Jersey began issuing a limited number of casino licenses with the only other legal gambling in the United States 2500 miles away in Nevada. He thought he was sitting on a monopoly in the middle of the 50 million people of the Boston-Washington corridor. Four years later the Supreme Court ruled that the states could not regulate Native gaming. Six years after that the Mashantucket Pequot Tribe opened Foxwoods in Connecticut, roughly the same distance from New York City as Atlantic City. This is why the last words I quoted from Donald Trump’s 1993 tantrum in Congress - “Why don’t you approve it for everybody, then, sir?” - are so very significant. Because immediately after whining that he didn’t think the Connecticut tribe members “looked Indian” he switched to whining about the very notion of treaty rights, couching his complaint in the language of “equality” and “individual rights”:

Why don`t you approve it for everybody, then, sir? If your case is non-discriminatory, why don`t you approve for everybody? You`re saying only Indians – wait a minute, sir. You`re saying only Indians can have the reservations, only Indians can have the gaming. So why aren`t you approving it for everybody? Why are you being discriminatory? Why is it that the Indians don`t pay tax, but everybody else does? I do.

Let’s ignore his risible claim about paying taxes. The very substance of this is his complete rejection of treaties. He makes the truly bizarre complaint that “only Indians can have the reservations.” On this, as on so many issues, our current President has long articulated the resentment against people who he considers subordinate when they stand up for themselves. This is, of course, a characteristic feature of the ideology of white supremacy.

I hope I have not given the impression that the US government has remained true to the treaties it signed with the tribes. The Supreme Court ruled in 1903 (Lone Wolf v. Hitchcock, 187 U.S. 553) that Congress has the absolute authority to unilaterally abrogate the treaties. The reason these treaties keep coming up in court is because those treaties were broken by the states where the tribes resided without even asking Congress to change them or because Congress itself broke them without changing them. 

Two weeks ago the Court agreed with the Creek Nation of Indians (McGirt v. Oklahoma, 591 US ___) that most of eastern Oklahoma is still Indian territory because Congress never extinguished the reservations of the Five Tribes. It means that the state of Oklahoma has no jurisdiction over criminal cases involving tribal members on tribal lands, which amount to roughly half the state!

In 1980, the Supreme Court found in favor of the Lakota tribes in a suit about the Black Hills of South Dakota. (United States v. Sioux Nation of Indians, 448 U.S. 371). The Court ruled that Congress had ordered the Lakota tribes to sign a new treaty ceding the Black Hills but that the tribes had not signed it and were therefore eligible for compensation plus 104 years of accrued interest. (Now 124 years and up to approximately $2 billion because the tribes reject the compensation and demand the return of the Hills.) So despite what is often called a Trail of Broken Treaties, the tribes and their members retain significant treaty rights.

I could go on at much greater length. But I provide these cases - casinos, fishing, criminal jurisdiction, land rights - to make a point. People who think they understand racism because they are familiar with shape it takes in oppressing and exploiting African Americans may themselves be falling victim to white supremacist thought. Systemic racism in schools, courts, banks, and jobs; denial of civil rights; police violence… these things effect Native people in similar ways to their effects on Black people. But that is not the end of it. And so, just as Natives have frequently been willing participants in anti-Blackness, African American people can participate in the opposition to treaty rights that is a hallmark of white supremacy. In some circles there is an unquestioning adulation of the role that Buffalo Soldiers played in suppressing the tribes (along with striking mine workers and Filipino freedom fighters). That does not endear those people to the current members of the tribes they fought.

More! Race and Blood Quantum

Comparing how the US racially defines the category “Indian” with how it racially defines the category “Black” reveals another difference. The Dawes Act of 1887 created racial definitions for tribal members by introducing the notion of “blood” and proportion of “blood” which it called “blood quantum.” Senator Henry Dawes (R, MA) was chair of the Senate Committee on Indian Affairs in the late 19th century. Considering himself a great “friend of the Indian” he advocated measures designed to speed their detribalization and assimilation to the American mainstream. The Dawes Act took land from the various and assigned it piecemeal to individual tribal members as their personal property.  (And, because it was an Act of Congress, the Courts have accepted this unilateral treaty abrogation as legitimate.) This had the immediate - and not coincidental - effect of reducing the Native land base by two thirds, because the “surplus” was sold to non-tribal members after allotments were made. Later studies have said that this was the most destructive piece of Indian policy in a long history of genocidal policies. 

The Act also introduced the classification of tribal members by ancestry. In other words a person was full-“blood” if both parents were full-“blood.” They were three-quarter “blood” if one grandparent was white, one-quarter “blood” if one was full-“blood”, etc. Of course the commission members couldn’t always consult accurate genealogical charts, so they sometimes went by eye, applying the Donald Trump “look test,” regardless of their commitment to tribal culture. In addition, an individual who was more assimilated might be designated half-“blood” because of their language, clothing, or employment… regardless of actual ancestry or racial features. Similarly a person could be designated full-“blood” because of their lack of assimilation into white social norms. So even as it introduced a racial system of classification - using the imagined “blood” - it was relying on cultural criteria to assign people to a group. “Blood” quanta are used by some tribes to this day to determine eligibility for membership. The minimum quantum varies from nation to nation. They have also become more complicated over time and require excellent skills in adding fractions. (Diego grew up in a sheep camp west of Kaibito. Diego’s mom is 7/16 Navajo and 1/2 White Mountain Apache and his dad is 3/32 Navajo and 11/16 Miccosukee. Is he eligible to be Navajo?)*

By now you may have noticed an oddity in all this talk about blood. Let’s set aside the realization that citizenship is not biology, that people of all colors can be subjects of HRH Elizabeth II, that - as I mention above - only the most extreme white supremacists argue out loud that “American” is a race, rather than a matter of birth or naturalization. Let’s return to the question I asked about the American understanding of an Indian “race” versus a Black “race.” In the case of Indigenous people this blood quantum serves to “dilute” ones “Indianness” over generations for children of people who marry outside that “race” and regardless of political and cultural belonging. For Black people, there is no such “dilution.” Historically, this was called a “one-drop rule” and it dates back to the early 20th century, not to the institution of slavery. If the Jim Crow laws introduced at the time were to segregate Black people from white people, then they demanded a definition of who was who.** Initially, some states decided at first that persons with one Black great great grandparent (or one Black great great great grandparent) were White, but eventually all states that had laws on the subject defined any person with “one drop” of “Black blood” as “Negro.” They also insisted that the Census Bureau drop the category “Mulatto” as a racial category.***

A moment’s reflection will explain every bit of this. Again, drop the notion that this is about white people’s discomfort with being around Black people or some sort of essentialism about biological characteristics inhering in people of European or African descent. Go back to the designation of “a class of people with no rights that a white man was bound to respect” and the exploitation of others that it allows. Before the Civil War, when chattel slavery was legal, the simple rule was that the child of a person held as a slave was also a slave. That meant that the children of the kidnapper himself - if they were mothered by the Black woman he raped - were also his property by law! The 20th century brought Jim Crow. Miscegenation was made illegal. But the exploiters of labor certainly did not want any “dilution” of the class of people they meant to exploit. Hence a “one-drop” rule. 

Natives, on the other hand, held treaty rights that the settler state aimed to extinguish. So if white supremacy could convince itself that Native blood was, indeed, “diluted” by admixture of white “blood”, then eventually the Indigenous people would disappear, and with them their treaties. The “vanishing Indian” was a great trope of white supremacist art and literature. Think of titles like “The Last of the Mohicans.” (I imagine when Donald Trump was trying to block Mohegan Sun he was really disappointed that the fictional character Chingachgook was not, actually, the last. Or would have been if he read books.) Think of all those popular Edward S. Curtis photographs that show Native people in soft focus moving away from the camera. If your main goal is to exploit people, a one-drop rule. If your main goal is to rob people of their treaty-reserved land and other rights, a blood quantum rule.  It is worth remembering that Hitler’s Nuremburg Laws were modeled after American racial laws. Jews with four Jewish grandparents were stripped of their citizenship. People with one Jewish grandparent were still considered Jewish, but remained citizens (at least in 1935) unless they participated in Jewish communal and religious life, in which case they, too, were stripped of citizenship.

What about tribal members with some African ancestry? The one-drop rule kicks in for them. Senator Dawes conducted separate censuses for the Oklahoma tribes: one for “Indians by blood,” another for “Freedmen.” As anti-Blackness spread among the Oklahoma tribes in the 20th century this led to moves to exclude descendants of people on the second roll from membership and thorny legal questions about who gets to determine that membership when people are clearly being excluded because they are Black. In the Jim Crow South the state governments tried to redefine virtually every tribal member on the grounds that they were really Black. This gave them the ability both to steal their treaty rights and turn them into members of a permanent class of peons!

*  No, the answer is not 7/16 + 3/32 = 17/32. Children get only half their biological inheritance from each parent. If blood quantum were additive, a child of two full-bloods would be a double blood!? So Diego’s blood quantum is 7/32 + 3/64 = 17/64. This is over the Navajo requirement of 1/4, but just barely. If he wants his own kids to be enrolled in the tribe he will have to be very picky about who there mother is. No, I am not making this up. See the National Museum of the American Indian’s online exhibition: “Reservation Mathematics: Navigating Love in Native America.”

 ** Note that Homer Plessy (the plaintiff in the landmark Supreme Court case Plessy v. Ferguson, 163 U.S. 537 (1896), which declared Jim Crow to be Constitutional) had one Black great grandparent and would have been taken for white by anybody who didn’t actually know him.

***  People listed in the 1910 Census as “M” are listed in the 1920 census as “B” and in the 1930 Census as Negro.