This Week: Reparations and Indians


One of the horrible things about racism is that the voices of people of color are excluded from the public discourse.  That’s horrible not only because such exclusion is unfair to those excluded, but also because the public discourse needs these voices, now more than ever.  In that spirit, this edition of Nygaard Notes, which is concerned with the issue of reparations for Indians in North America, is largely made up of excerpts from a proposal published by an Apache scholar back in 2005.

I’m trying to keep the length of each issue of the Notes to an easy-to-digest 2,200 words.  As a result, this issue of the Notes isn’t really “done,” in the sense of having said all that I think needs to be said.  So, in the next Nygaard Notes you’ll see some examples of how the process of reparations, in the unique sense spelled out in this edition, is ongoing, even if the word “reparations” is not uttered aloud by anyone.


“Quote” of the Week: “The Leading Source of Ideological Violence in America.”

Charles Kurzman and David Schanzer, a couple of academics who have studied the threat of terrorism in the U.S., published a piece in the New York Times on June 16 of 2015—two years ago.  It’s so timely that it is the Nygaard Notes “Quote” of the Week for issue #610:

“Public debates on terrorism focus intensely on Muslims. But this focus does not square with the low number of plots in the United States by Muslims, and it does a disservice to a minority group that suffers from increasingly hostile public opinion. As state and local police agencies remind us, right-wing, anti-government extremism is the leading source of ideological violence in America.”

If you want to read the entire commentary, just type “The Growing Right-Wing Terror Threat” into your browser.

A Note About Reparations and Indians

Indigenous economist Ronald L. Trosper notes that “The experience of American Indians in obtaining reparations from the federal government should interest those who seek similar actions with respect to Black Americans.”  And so it should.  So the first question to ask is: What are “reparations,” anyway?

That’s not a simple question, but the simplest answer is that reparations are things done or paid by one party to address wrongs committed against another party.  It’s a fairly-well established principle when it comes to wars between nations.  The victorious Allies after World War I demanded that the loser, Germany, pay a large sum in reparations, the final payment of which was made in 2010, believe it or not, 92 years after Germany’s defeat.  (The payments bankrupted Germany in the 1920s, playing no small part in the rise of the Nazis, but that’s another story…)  And this understanding of reparations—as “payment” of a “debt”—has shaped our understanding of the concept.

In modern times, the word “reparations” is most often heard in reference to the addressing of historical injustices.  Reparations for slavery is probably the best-known example, and here again the most common understanding is that such reparations would be in the form of some kind of payment, with discussions of “compensation” and “payment” of reparations.  (There are voices calling for a more far-reaching reparations process that goes beyond dollars and cents, as discussed below, but such voices are not often heard in the mainstream.)

There are few better examples of historical injustice than the genocide committed against the indigenous people of North America by the European colonists who killed and banished the native peoples in the process of establishing what is now called the United States of America.  In an important 2005 article in the Ohio State Law Journal, Apache law professor William Bradford says that “It is perhaps impossible to overstate the magnitude of the human injustice perpetrated against American Indian people…” True, but that didn’t stop another native scholar, Daniel R. Wildcat, a Yuchi member of the Muscogee Nation, from authoring an essay in the Washington Post in 2014 entitled, “Why Native Americans Don’t Want Reparations.”  What he was saying was: Native Americans don’t want cash.

Wildcat says that financial reparations “are ill-suited to address the harm and damage experienced by people who understand themselves, in a very practical and moral sense, as members of communities that include nonhuman life. For many Native Americans, our land (including the air, water, and biological life on which we depend) is a natural relative, not a natural resource. And our justice traditions require the restoration of our land relationship, not monetary reparations.”

Bradford echoes the point: “While financial reparations for certain past transgressions may be appropriate to some groups and situations, the historical and ongoing injustices committed against Indians living within the U.S. cannot be adequately understood in material terms.”

If it’s true that the historical injustices committed against Indians “cannot be adequately understood in material terms,” then what?  Instead of attempting a simple answer to such a profound question, I offer the following essay.

An Indigenous Theory of Justice

In the previous essay I cited an article that appeared, somewhat oddly I think, in the Ohio State Law Journal back in 2005.  I say it’s odd because, although the proposal by Apache law professor William Bradford does include some legal measures, Bradford clearly articulates the limits of a U.S. legal system that has never delivered justice to indigenous people.  Hmm… maybe that’s exactly why it was in a Law Journal.  But, wherever it was published, I think Bradford’s proposal is worth summarizing at some length, as this particular indigenous voice articulates a truly revolutionary and profound approach to dealing with the immense crimes that the European colonial project that we call the United States has visited, and continues to visit, upon the original peoples of this continent.

Bradford’s article is titled Beyond Reparations: An American Indian Theory of Justice.  In the first 45 pages he summarizes “The Indian Claim for Redress”, followed by an acknowledgment of  competing theories of justice (Justice as Supercession; Justice as Compensation; Justice as Restoration).  Finally he lays out the “General Theoretical Premises” of his version of justice—that he calls Justice as Indigenism, or JAI—which he states “commits its practitioners to a sequential process consisting of seven distinct stages.”  I’ll now attempt to summarize each of the stages (and you’ll notice that there are actually eight; the eighth one is sort of in a class by itself).  By the end I think you’ll understand why Bradford says that “the canon of U.S. law governing relations with Indians must be fundamentally transformed if justice is to be done,” and why JAI “lays out a far more ambitious project than any existing theory.”

Stage 1: ACKNOWLEDGMENT.  Here Bradford proposes setting up an American Indian Reconciliation Commission, or AIRC, which would be based on the experiences of the numerous Truth and Reconciliation Commissions that have been set up around the world after periods of national trauma.

Stage 2: APOLOGY.  The AIRC would recommend “that the U.S. government issue a formal apology, on behalf of the U.S. and all its citizens past and present, as symbolic recognition of the role of public and private actors in past acts of genocide, land theft, and ethnocide. National church and corporate boards might apologize for acts in which these institutions were complicit.”

Stage 3: PEACEMAKING.  Acknowledging that cross-cultural understanding must precede any genuine making of peace, Bradford stresses that  “Recognition of mutual sovereignty—a companion obligation to the establishment of a multicultural ethic of respect—will require a cross-cultural hermeneutics [i.e. a focus on differences in interpretation], which in turn mandates the clearing of barriers to communication and the sharing of stories, fears, hopes, and dreams.”  Bradford recommends in this regard a reliance on “the ancient Indian method of dispute resolution known as Tribal Peacemaking (TPM)” which “can guide the journey toward greater mutual understanding and trust.”

Stage 4: COMMEMORATION.  Bradford lists many ideas for commemoration, including monuments, place names, cultural centers, historical displays, and other aids to remembering our shared past.  He sums it up by saying that “Historical revision, in the most visible and tangible manner possible, is necessary to restore the gravitational force between disparate groups in the American polity, and, particularly where history has not been co-authored by subordinated groups, memorials are an appropriate way to initiate this process.”

Stage 5: COMPENSATION.  Here is where Bradford explains why his theory of justice for indigenous people is not about cash compensation.  He begins by saying that “It is impossible to objectively quantify the value of the injuries inflicted upon Indian people over history, and morally odious to try.”  He explains that “JAI theory would regard any wealth transfer from the U.S. as a symbolic act undertaken in further recognition of moral responsibility, rather than a settlement of claims for loss, grief, and trauma. Although endowment of a fund sufficient to allow tribes to repurchase some lands and to serve as a social support net for the poorest Indian individuals, and in particular off-reservation Indians who do not presently enjoy the legal, medical, and educational entitlements their tribal counterparts receive, would not be incompatible with the application of JAI theory to the question of justice for Indians—money is simply an unimportant, and potentially even a dispensable, element of JAI theory.”

[In the next Nygaard Notes I’ll discuss a small but important expression of this principle that has recently been in the news.]

Stage 6: LAND RESTORATION.  JAI recognizes that “For much of the non-Indian majority, a land restoration agenda resonates . . . as an existential threat.”  With that in mind, “JAI straightforwardly insists that Indians are entitled to the restoration of their ancestral lands to the furthest limits of reason and equity.”  Negotiating a very sensitive and potentially explosive tension in this regard, Bradford concludes by saying, “In sum, the recovery of a land mass sufficient to create the material preconditions for economic self-determination, religious freedom, and self-governance is crucial, and thus JAI proposes land restoration to the furthest limits possible short of imposing injustice on non-Indians.”  In Bradford’s article, this Stage is loaded with important ideas and details.  No space here to get into them…

Stage 7: LEGAL REFORMATION.  Bradford spends more time and space on this Stage than any other, with special sub-sections on “Indian Self-determination,” a proposed “Omnibus Indian Rights Act,” and “Constitutional Amendments.”  I really don’t have the space to do these justice, so I’ll offer the following four excerpts, which I hope will capture the essence of the nature of this Stage:

“That a system of law imported and imposed by a settler state should hobble the rights of an indigenous people is an oft-repeated story across the globe; that this system must be transformed if the impediments are to be swept away and those rights secured to their bearers is a proposition that follows logically, but has largely gone unstated heretofore by theoreticians concerned with justice on behalf of Indians.”

“The customary international legal principle of self-determination provides that social, political, and economic institutions should be substantially and continuously guided not by alien or colonial powers, but by the will of the governed.”

“Where Indian self-determination does not implicate the external powers of U.S. sovereignty, matters concerning whether and how Indians choose to hunt and fish, to produce the necessities of life, to raise children, to pass on knowledge to succeeding generations, to create and enforce law, and to worship ought simply to be of no concern beyond the territorial limits of Indian jurisdiction.”

“Finally, under the pragmatic program of Indian self-determination, rather than shedding their allegiance to the U.S., individual Indians would, through participation in their own institutions and the elaboration of their own systems of social regulation and welfare, enjoy an enhanced bicultural identity while retaining their national identity as U.S. citizens.”

And finally, Stage 8: RECONCILIATION.  Bradford starts out by saying that “The final stage of JAI theory is distinguished from the preceding stages in that it imposes a duty not upon the U.S., but upon Indian people.”  He acknowledges that there will be compromises along the way, and some may be significant ones.  “However,” he says, “if the U.S. acknowledges, recognizes responsibility for, and repairs the gross injustices suffered by Indians over the course of its creation and expansion, JAI obligates Indians to find it in their hearts and minds to forgive.”

“By forgiving the U.S. and all its people in a solemn ceremony broadcast globally to symbolize the dawn of the new relationship, Indians will finally be allowed to heal, and all Americans will be released from the chains of history and freed to forge a better tomorrow.”

That’s the end of the Stages, but I want to pass on two excerpts from the Conclusion of the article Beyond Reparations: An American Indian Theory of Justice.  The first one is this:  “JAI advances the frontiers of thinking about justice on behalf of Indians in that its normative mission is not the award of material compensation or the attribution of blame but rather the ultimate healing of the American and Indian nations and the joint authorship of a peaceful and harmonious future.”

Neither Bradford nor Nygaard imagines that the proposals discussed here will be carried out in the near, or even the not-so-near, future.  But I’ll conclude with the final statement in Bradford’s article, which addresses this very point: “If propounding a theory of Justice as Indigenism accomplishes nothing more than promoting a more searching inquiry on the requirements of justice for Indians, it will have spelled progress, and until that day when they are free once again to self-determine on their aboriginal landmass, Indians will continue to vow to endeavor to persevere.”

In the next Nygaard Notes: Reparations in the real world.