Aboriginal sin: will indigenous peoples ever receive justice for the crimes of colonization?

Tikkun Magazine, March/April 2008

Aboriginal Sin

Will indigenous peoples ever receive justice for the crimes of colonization?

by Jay A. Adler

THE ORIGINAL UNREDEEMED SOCIAL AND POLITICAL crime of human history is the displacement and genocidal destruction of aboriginal populations. Yet despite the powerful and irrefutable history of these events, overwhelming numbers of people in the Western world have yet to be moved by conscience. What is the reason for this demurral, and what is to be done about it? For those attuned to discordances in matters of social justice, this harsh reality is a historical given of the modern world. For others, whatever it is that may have occurred took place long ago—it is history, it is past, there is nothing to be done.

Recent events in the United States and elsewhere suggest otherwise, however.

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."

Of course, the belief that European civilization and religious conceptions were superior to the native cultures, which were barely dignified as such, was what originally rationalized the subjugation of those cultures for those uncomfortable with purely materialistic motives. In Africa, the Western Hemisphere, and Oceania, notwithstanding the pain and loss—whole societies, millions of lives—the native peoples would be better off in the end. The cross or the sword had really been the cross and the sword. And now, in the twenty-first century, the leader of one of the world's predominant religions, that had in fact served as the handmaiden of conquest, that had offered spiritual balm to soothe cultural disembowelment, can still assert that no real crime was committed and the aboriginal peoples had been delivered a gift.

How does the conscience not reel?

Newspaper accounts reported the protests for a day or two and the world reacted with habitual indifference.

Around the same time HBO premiered Bury My Heart at Wounded Knee, an Yves Simoneau film inspired by Dee Brown's seminal 1970 book of the same name. The book is a corrective account of the final act, in the second half of the nineteenth century, of the U.S. government's subjugation of the American Indian, its title drawn from the location on the Pine Ridge Indian Reservation in South Dakota where in December 1890 the United States 7th Cavalry massacred over 300 Sioux Indians.

Despite the film's mediocre reviews, there is no reason to think that quality is the explanation for the film's failure to resonate in the American consciousness. Better films over the years, and a fairly complete revision in the scholarly histories of European-Indian contact, have served to undermine any serious, sustainable narrative of the expansion of the United States as, simply, a heroic and noble endeavor. Yet there has not been any fundamental alteration in the American sense of nationhood—no commonly accepted understanding of a sin concomitant with the nation's origin and development that demands some form of atonement.

Such crimes, however, are not mere history. In South America, for the past century up until the present day, miners, ranchers, and multinational corporations have overrun, despoiled, or committed murder among small indigenous societies in the Amazon rainforest. Throughout Latin America indigenous peoples have been bandied between the poles of oligarchic exploitation and demagogic tyranny.

And what of the United States? Were the Native American tribes not so thoroughly conquered and diminished in the nineteenth century as to make any continuing assault on their dignity, culture, and lives effectively impossible? Unfortunately, no.

More than a century later all of the expected social afflictions and human maladies of a conquered and disintegrated culture are present: inadequate education, joblessness, drug dependence, despair, and poverty. The Pine Ridge Reservation itself is wholly within Shannon County, South Dakota, which is the second poorest county in the United States. The very poorest county is Buffalo County, South Dakota, which is mostly constituted by the Crow Creek Indian Reservation.

It might be argued that these are the sad and unfortunate after effects of a regrettable past that we do not oppress and exploit the Indian today. We have, after all, the achievements of the Civil Rights and feminist movements behind us. Gay marriage is a subject of public and political debate. But what consideration is there of American Indians beyond occasional, unsympathetic arguments about naming athletic teams and mascots after them?

Indeed, though it is little noted by the American people, even today the U.S. government is actively deceiving and plainly stealing from Native Americans in lineal continuation of the deceptions and thefts of the nineteenth century. In fact, two current lawsuits brought by Native Americans against the U.S. Department of the Interior originate in obligations the government forced or coerced the tribes to accept during that long ago history of conquest. The conflict, we thought, had ended well over a century ago, but the end game is being played out today. A precursor lawsuit set the stage, though.

Among the most well known deceits in an extensive history by the US government, the 1851 Treaty of Fort Laramie caused several Indian tribes, including the various Sioux tribes, to relinquish their customary freedom of movement and accept large tracts of the Great Plains as designated reservations for each tribe. In the successor 1868 Treaty of Fort Laramie, the Sioux were compelled to renegotiate the original treaty and accept as theirs a much-reduced expanse of territory, but which still included the Black Hills of South Dakota, land the Sioux consider sacred. After the discovery of gold in the Black Hills by prospectors who were already there illegally, the U.S. government broke the treaty and seized the Black Hills.

In 1980, in United States v. Sioux Nation of Indians, the U.S. Supreme Court ruled in favor of the tribes of the Sioux Nation in their claim to the Black Hills. The monetary award was the $17.5 million market value of the land in 1877, which at 5 percent interest came to $105 million in 1980. The Sioux decided that they wanted not the money, but the land, and refused the award. Today, with continuing interest, the award money held in trust is in excess of $700 million dollars. However, the Black Hills trust money is very small compared to other Indian trust funds that the U.S. government has mismanaged and institutionally embezzled for over a century.

In the Dickensian lawsuit of Cobell v. Kempthorne, filed in 1996, individual American Indians sought reform of the Individual Indian Money (IIM) trust system of the U.S. Department of the Interior's Bureau of Indian Affairs (BIA). It is important to recognize that the BIA is not an agency charged by the American government with delivering any kind of reparation to Native Americans or with actualizing any restoration of relations with them. The BIA manages a problem.

It manages the problem poorly, negligently, scandalously, even criminally.

Since 1887, the BIA has managed between 375,000 and 500,000 individual accounts of Native Americans. The funds it collects and disburses are the proceeds from government and corporate use of individually owned Indian lands. In the early 1990s, after many decades of the trust's inability to properly account for the funds it was charged to manage, the accounting firm of Arthur Anderson & Co. was hired to audit a random sampling of 17,000 IIM accounts, along with the distinct and separate tribal trust fund accounts that the BIA also manages, but which are not included in Cobell v. Kempthorne. Just for the twenty-year period of the audit that Arthur Anderson was able to reconcile, the auditor noted several billion dollars from the tribal accounts that were unaccounted for or untraceable.

Worse, according to the auditor, the 109-year-old IIM account records were so incomplete as to be beyond reconciliation. Estimates by the Native American Rights Fund (NARF), which filed the suit, are that over the life of the trust up to $10 billion owed to individual Indians—some of the poorest people in the United States--have been mishandled and are undiscoverable.

Over the eleven years of Cobell v. Kempthorne, through three Secretaries of the Interior and two court-appointed efforts at mediation—both of which were declared by the mediators to be hopeless—two of the Secretaries have been held in contempt by the judge for failing to produce documents and withholding evidence, records have been destroyed prior to their required presentation in court, and the generally obstructive behavior of the government during the life of the suit finally enraged U.S. District Judge Royce Lamberth—a Republican appointee of President Ronald Reagan—to declare after ten years of presiding over the case: "Alas, our 'modern' Interior Department has time and again demonstrated that it is a dinosaur—the morally and culturally oblivious hand-me-down of a disgracefully racist and imperialist government that should have been buried a century ago, the last pathetic outpost of the indifference and Anglocentrism we thought we had left behind."

In December 2006, at the request of the U.S. Justice Department, the U.S. Court of Appeals for the District of Columbia removed Lamberth from the case.

In the same month, in response to a congressional directive setting December 31,2006 as a final deadline for any claims regarding the tribal trust fund accounts, NARF filed Nez Perce Tribe v. Kempthorne on behalf of what are now twelve tribes, with the ultimate intent to be a class action on behalf of over 300 tribes. The tribal accounts were intended to hold in trust monies owed to the tribes as collectives, rather than to individuals, for the use of tribal lands and their resources. These monies dwarf those at issue in the IIM suit. In testimony before a U.S. House committee in 2005, Attorney General Alberto Gonzalez testified that the liability for tribal trust fund mismanagement potentially exceeded, not the estimated $10 billion of the IIM case, but $200 billion. Yet in response to the ongoing litigation of Cobell and the filing of Nez Perce, the Bush administration informed the Senate Committee on Indian Affairs on March 1, 2007 that it would settle all tribal claims as well as Cobell for an amount of "up to $7 billion."

How does this continue? How can the U.S. government—nearly 117 years after the Pine Ridge massacre, long after most Americans believe their nation began its struggle to repair the injustices that shadowed the ideals from which it was formed—continue its deceptions, its thefts, its oppression of Native Americans, and have its people still be silent? While even the great sin of slavery is confessed, the genocide of the American Indian is not even discussed. Can it be that the fundamental truth is too painful, too disillusioning to acknowledge? Slavery was an enormous and inconceivable crime. It cannot be undone any more than can any other crime. But we do not continue to perpetrate it. Yet every day, just by virtue of our presence in the lands we occupy—in the Western Hemisphere, in Australia—we affirm as real not just our political ideals and heroic myths, but the conquest and the genocide that enabled our cultural ascension. Still, we cannot undo them. We cannot give the land back. We cannot undie the dead.

The answer for too many is denial. The land was so vast, and they were so few. They could not use it all, did not need it all. And they simply did not understand. The conflict was inevitable. We were stronger, more unified, more ambitious. We had ambition. It is the sad way of the world. It was always so. But the world—we—are different now.

But we are not. The lawsuits are now. The money that could change the lives of so many Native Americans, still contending with their decline as the legacy of our ascension, the money is now, and it is theirs. We require the Germans to confess and pay for their genocidal crimes. We admonish the Japanese for refusing, still, to fully acknowledge theirs. Yet how well do we confront our own?

How can we be so great if the land is not ours?

Despite changes in scholarship, and the education of a segment of the population that might consider itself more historically enlightened, the public events of the past fifty years have achieved little for Native Americans. Events have not galvanized the American people or their government finally to concede the crime committed and to begin a policy of moral and social restoration.

On the contrary, as the University of Colorado's Patricia Nelson Limerick has written in The Legacy of Conquest (W.W. Norton & Company, Inc., 1988) a "myth of victimization" was cultivated among settlers of the American West. It was they, as they conceived it—in their attempts to settle, farm, and ranch—who were victimized by marauding Indians. Even today, almost any local event in the West and elsewhere aimed at respecting traditional Indian customs—such as fishing practices or land use—is perceived as impinging on non-Indians' rights, and will be met with aggrieved resistance. Arnold Schwarzenegger's television advertising campaign targeting Indian tribes' casino gambling profits during the California recall election against then Governor Grey Davis was a recent variation of this behavior. Of greater cogency than Schwarzenegger's own attitude toward Native Americans was his campaign's belief that stimulating resentment of Indians was a credible tactic in aiding his election prospects.

How will this inverted mythologizing of the sin that was committed ever end? When will the American people, and through them their government, come to recognize that the great potential of the nation's fundamental and evolving ideals can never be fully realized until there has been adequate acknowledgement of the nation's fundamental flaws?

During the second half of the century in which so much progress was made for African Americans, for women, and for gays and lesbians, too, there has been little progress for the American Indian. The last period of any heightened and sustained public attention to the legacy of conquest in the United States was over thirty years ago, when two different approaches to raising public awareness proved equally fruitless. Occurring during the social unrest of the Sixties and Seventies, a certain kind of chic media display—such as the spectacle of Sacheen Littlefeather rejecting in protest Marlon Brando's 1972 Oscar for The Godfather—only managed to impress on the public the sense that anyone who speaks too vociferously on behalf of American Indians is engaging in a form of crackpot eccentricity. The radically threatening obverse of such acts were those like the seizure of the town of Wounded Knee in protest in 1973 by members of the American Indian Movement (AIM). A seventy-one day siege by U.S. Marshalls that followed in which two Indians were killed and one FBI agent was shot and paralyzed. Such incidents served only to brand aggressive protest on behalf of American Indians in the public mind as part of the era's general wave of 'subversive' leftist radical violence.What can we do now to address the wrongs committed against aboriginal peoples?

In Australia, the course of conquest was strikingly similar to that of the United States. Again, all of the predictable social ills of a subjugated population struggling to overcome the loss of integral selfhood afflict aboriginal Australians today. Nonetheless, Australia has taken measures to acknowledge this history of subjugation, both substantively and symbolically, that cannot be observed in North and South America. On the symbolic level, in 1998, Australia instituted National Sorry Day as an annual acknowledgment of the wrongs that were committed against the indigenous population. So purely symbolic an act can easily be construed as pathetically inconsequential, but all acts of redemption must begin or end symbolically with acknowledgment of the wrong committed. When will the United States do as much?

Readers of Tikkun are familiar with the Global Marshall Plan, and with the version being proffered by the Network of Spiritual Progressives. The plan is a vision of equity conceived in a spirit of commonality and a shared sense of responsibility on the part of those nations that possess so much of the world's wealth and that control, in one way or another, so many of its resources. However, it is not a vision of simple equity alone that guides the plan. There is a deep and necessary reparative spirit that informs it. As Rabbi Michael Lerner wrote in the introduction to the plan, "[O]ur approach must reflect a deep humility and a spirit of repentance for the ways in which Western dominance of the planet has been accompanied by wars, environmental degradation, and a growing materialism and selfishness reflected in a Western-dominated global culture." Nowhere need this spirit of repentance be greater than in the modern Western world's treatment of indigenous peoples.

A call for gestures of atonement toward the world's conquered and exploited aboriginal populations need not rely first on resolving the differing perspectives of left and right; the symbolism of the gestures may help to initiate the resolution. Whatever progress may have been made over the past century—consisting of even very great and significant achievements—there is so much more to do, and it seems appropriate to ask how we can repair the world before we have fully acknowledged the nature of the damage that requires our repair.

Part of a Global Marshall Plan should be dedicated, in appropriate countries and in appropriate percentages of the funds invested in each country, to reparative policies specifically targeted at the surviving indigenous population, to assist it in its educational, economic, and political development, and to aid it in the reclamation of its history and culture.

The United States alone can act both symbolically and substantively. On the symbolic but very significant level, the United States should follow the lead of Australia and institute a national day of mourning and atonement in permanent recognition of the various crimes against the Native American population. At the appropriate levels, school curricula should more fully educate American students in the complex legacy that would call for such a day. The day might even be instituted to coincide with Columbus Day. As it is, an unacknowledged divide exists in the nation with respect to Columbus Day. Some casually look upon it as an honorific occasion for the origin of American history and culture, and others ironically, even bitterly, disdain the day. To join a day of atonement with Columbus Day would capture all of the contradictions and ambivalence with which a developed, mature, and confident nation and culture should regard human history.

Substantively, it is time that Cobell v. Kempthorne and Nez Perce Tribe v. Kempthorne are settled generously, which is only to say rightfully. This does not mean through the courts. Co-bell amply illustrates how the courts' necessary devotion to impartiality and procedure, and a defendant's clever play on that devotion, may be used to delay justice until, in Gladstone's formulation, justice is denied. Indeed, in United States v. Sioux Nation of Indians, Justice Blackmun himself, speaking for the majority, wrote, "Other decisions clearly establish that Congress may recognize its obligation to pay a moral debt not only by direct appropriation, but also by waiving an otherwise valid defense to a legal claim...." It is long past time for the U.S. government to still be extending its subjugation of Native Americans through legal defense when the opposing moral claim is so great. It is time for Congress to act, in the spirit, of Blackmun, to legislate the settlement of the lawsuits. Such legislation has not emanated and will not emanate from Congress on its own. It will require the urging and a movement of the national citizenry.

It may be that one reason that African Americans have managed advances in American society that Native Americans have not is the common spiritual and intellectual tradition upon which Black people in the United States were ultimately able to draw in appealing to the conscience of the nation. Slaves and the descendents of slaves adopted Christianity as their religion and came to speak to white people, and the world, out of the familiar history of Judeo-Christian moral conceptions, a shared language of origins and eschatology. It maybe that in this way and others, Native Americans remain for the American polis—and indigenous peoples everywhere for the dominant cultures—radically other. In all these ways they are different from those who conquered and continue to dominate them, and despite the choice of some individual Indians to assimilate, as groups Native Americans do not seek to end this difference. While hyphenated Americans of every kind may retain or seek to reclaim some essential cultural forms, or merely the customary trappings of their origins, they have always ultimately assimilated. But Native American is not hyphenated; the Native is unalterably prior and unassimilable. Whenever Indians assume and act out their native cultural selves, they express not a variation on a human theme, but a different human theme. They remind us that they were not an element in the great, historically evolving American amalgam, but the original state to which that amalgam was applied, and which has been overwhelmed by it, yet continues to resist it. They remind us, uncomfortably, how this all began.

For this reason and others, the effort to repair the sins committed against Native Americans will clearly be more difficult than other already difficult endeavors. Non-native Americans, and the many different civil rights and social justice organizations dedicated to the varied aspects of the ultimately unitary human rights cause, need to recognize that the time has come to address themselves together, in a single grand cause, to righting the original wrong, from which can flow only good to all. If the past is to be our guide, no lesser effort will succeed.

Other nations have no basis upon which to feel condescension and contempt. Racism and cultural arrogance are observable all over the globe. When the imperial nations of the colonial era decided out of practical necessity and a growing moral imperative to forswear slavery and, ultimately, recede from their colonies, they had the luxury of withdrawing into homogenous cultures and maintaining mostly symbolic ties. It is the nations born of their colonies that have had to struggle to face the consequences and obligations of the African diaspora produced by the slave trade, and of the conquest and genocide of aboriginal peoples. It is in the New World and its outposts that the great laboratory was incidentally constructed to test whether human beings can ever live together, heterogeneously, in the face of what they have done to each other.

There are dispossessed and subjugated peoples all over the world, some currently favored by history and some not, and they learn every day what aboriginal peoples in many parts of the world can never forget: that while life may be short and art long, history is long and hard. It feels no sympathy, it sheds no tears, and it represses every awful memory but those that can be wrenched from it by the retrograde jolts of revolutionary upheaval or the lengthy, arduous treatment of the liberal imagination.

HBO's Bury My Heart at Wounded Knee has two unexpected virtues. The first is found in a dramatically absurd battlefield debate between the Sioux Chief Sitting Bull and Colonel Nelson Miles in which Miles argues forcefully that long before the white man arrived, the Sioux had warred with, conquered, and taken land from their Indian enemies. The second is in the portrayal of Henry Dawes, a U.S. Senator and white friend of the Indian, who, it is soon clear, was in the end only a patronizing pawn in the campaign of subjugation, offering the Indians help in giving up their land, culture, and language, as the only way for them to "survive." The lessons are that indigenous peoples need not be idealized to recognize the wrong that was done them, and there is no friendship in the unrefusable offer.

If we are ever to deserve the various appellations we take upon ourselves to claim we are unlike those who came before and would not do what they did, then we must freely acknowledge, without reservation, the sins of those who produced the world in which we live. We must do this not because we are personally guilty of the crime against native peoples. None of us lived when the genocide was committed, and in the United States most may not have ancestors who were even on the continent when these acts were committed. But if we are not familial, we are cultural descendents of those who committed this wrong, and like any people of conscience, we must accept the full legacy that we inherit, all that is so great and kind and all that is not. There need be no single set of ideas for how this may be done. In every nation the way may be different. Nothing lost can be reconstituted. Nothing can be restored except a form of balance. But we may be redeemed.

A. Jay Adler is professor of English at Los Angeles Southwest College. His essay "The American Road: Route 66 at 80" appears in the Fall-Winter issue of DoubleTake/Points of Entry.

RELATED ARTICLE: A Declaration of Withdrawal

Treaties between European powers and American Indian tribes go back as far as 1621. The first treaty signed by the warring colonies was a 1778 alliance with the Delaware tribe against the British. The Lakota signed their first treaty with the United States government in 1805, after the Louisiana Purchase brought part of their land into what the U.S. now considered its national territory. There are several hundred treaties between the federal government and hundreds of Indian tribes. In 1871, the Indian Appropriations Act ended the government's practice of signing treaties with the tribes, though the act provided that the obligations of the existing treaties would remain in effect. Now, a group led by long-time Indian activist Russell Means has declared, on December 19, 2007, its withdrawal from the treaties and the establishment of the "Republic of Lakotah." Means, an early member of the American Indian Movement (AIM) who participated in its most famous, early acts of protest, serves in no Lakota tribal government, and none has expressed support for the action. In recent decades, Means has been controversial in Indian circles. He ran for Vice President in 1984 on the Libertarian Party ticket along with Hustler publisher Larry Flynt. AIM has long distanced itself from Means. The declaration of withdrawal cites the "continuing violations of these treaties' terms" that "have resulted in the near annihilation of our people physically, spiritually, and culturally." In essence, Means argues, the treaties have been rendered useless. Tribal leaders, while expressing their agreement with Means's historical account, state that he is not empowered to speak for the Lakota people. They further argue that it is in the treaties that the U.S. government legally acknowledges its obligations to Native Americans as well as the land rights and sovereignty of the tribes.

RELATED ARTICLE: Declaration on the Rights of Indigenous Peoples

After twenty years of negotiations between representatives of the United Nations and indigenous groups throughout the world, and over thirty years after the first ten points were drafted by authors including chiefs of the Iroquois Confederacy—just short of 515 years following the arrival of Columbus in the Western Hemisphere—the UN General Assembly on September 13, 2007 passed the Declaration on the Rights of Indigenous Peoples. The declaration proclaims in forty-five articles the rights of an estimated 370 million indigenous people throughout the world. Rights that indigenous peoples are stated to possess collectively as well as individually include those of autonomy relating to their internal and local affairs, of self-determination, to hold a nationality, the right not to be subjected to forced assimilation or destruction of their culture, or to be forcibly removed from their lands or territories, and effective mechanisms for prevention of, and redress for, violations of their rights. On December 13, 2007, the UN Human Rights Council additionally resolved to create an "Expert Mechanism" on the Rights of Indigenous Peoples. The purpose of the Expert Mechanism—a standing committee of experts—is to report on conditions and abuses and to seek practical means of enforcement. Since UN "declarations" are non-binding, backers will work to make the declaration a "convention" and thus binding international law. The September 13 General Assembly vote had 143 nations voting in favor, eleven abstaining, and only four nations—Australia, Canada, New Zealand, and the United States—opposing.