This issue of Nygaard Notes is the final installment of a three-part series on reparations and American Indians. In the first part I summarized An Indigenous Theory of Justice. In Part Two I talked about the Doctrine of Discovery, in an attempt to show the origins and official justification for the massive injustice done to the hemisphere’s indigenous peoples. My hope there was that it might help to explain why we should be talking and thinking about reparations in the first place.
In this issue, Number 612, I give a couple of examples to illustrate how the Doctrine of Discovery lives on into the 21st Century. My hope here is that this little bit of history can help people—“white” people especially—start to see some of the ways that reparations are being made all the time, even if no one calls them “reparations.”
Another example of reparations-that-are-not-called-reparations is a controversy over the designation of a newly-created national monument. On December 28, 2016, President Barack Obama proclaimed the new 1.35 million-acre Bears Ears National Monument in southeastern Utah, and this week’s “Quote” of the Week is made up of the first two paragraphs from a response from native leaders to a Trump attack on the designation:
“In an unprecedented and illegal move, U.S. Interior Secretary Ryan Zinke recommended that President Trump shrink the Bears Ears National Monument and have Congress undermine protections in the remaining areas. The Bears Ears Inter-Tribal Coalition, which includes five sovereign Native nations, issued the following statement:
“‘For us, Bears Ears is a homeland. It always has been and still is. The radical idea of breaking up Bears Ears National Monument is a slap in the face to the members of our Tribes and an affront to Indian people all across the country. Any attempt to eliminate or reduce the boundaries of this Monument would be wrong on every count. Such action would be illegal, beyond the reach of presidential authority.’”
Go to Indianz.Com for more on this issue.
Some little-noted testimony before the U.S. House of Representatives Natural Resources Committee on May 23rd by Deputy Secretary of Interior Jim Cason caught my eye, and before I tell you why it caught my eye, some history is called for. Specifically, we need to know just a little bit about a law called The Dawes Act, and a court case called Cobell v Salazar.
William Bradford tells us that “By 1887 all two billion acres of the U.S. continental landmass had been discovered, conquered, and expropriated [by the United States] save for 138 million acres apportioned to Indian reservations.” But despite having such a tiny land base, and despite a relatively tiny population (estimated at under a quarter of a million by the 1880s), the United States still considered the continent’s indigenous population to be a threat.
One of the big reasons was that many of the native nations adhered to a system of collective land ownership. That is, rather than each individual tribal member owning a “piece” of land, many reservations held the land collectively, and all tribal members had a relationship with that land. This practice—and, even more so, the non-capitalist philosophy it represents—was seen to be incompatible with the individualistic nature of the U.S. project. This led to a push for what is known as “allotment,” which meant that all collectively-owned land would be broken up and “allotted” to individual members of their respective tribes. The Indian Land Tenure Foundation (ILTF) explains why this legal attack was perceived to be needed:
“There were several reasons that allotment proponents supported the policy. First, many of them considered the Indian way of life and collective use of land to be communistic and backwards. They also saw the individual ownership of private property as an essential part of civilization that would give Indian people a reason to stay in one place, cultivate land, disregard the cohesiveness of the tribe, and adopt the habits, practices and interests of the American settler population. Furthermore, many thought that Indian people had too much land and they were eager to see Indian lands opened up for settlement as well as for railroads, mining, forestry and other industries.”
For all of these reasons, by 1887 there was sufficient support in the U.S. Congress to pass the General Allotment Act of 1887, also called the Dawes Act after Senator Henry Dawes, the Act’s lead proponent. The act authorized the President of the U.S. “to survey Indian tribal land and divide the area into allotments for individual Indians and families.” Then, according to the ILTF, “Members of the selected tribe or reservation were either given permission to select pieces of land – usually around 40 to 160 acres in size – for themselves and their children, or the tracts were assigned by the agency superintendent. If the amount of reservation land exceeded the amount needed for allotment, the federal government could negotiate to purchase the land from the tribes and sell it to non-Indian settlers. As a result, 60 million acres were either ceded outright or sold to the government for non-Indian homesteaders and corporations as ‘surplus lands.’”
An Act of Lawfare
Many an indigenous voice has been heard referring to the Dawes Act as a “disaster,” or worse. Gale Courey Toensing, writing on the website of the Indian Country Media Network on the 125th anniversary of the Dawes Act a few years ago, sums it up well: “The Dawes Act was one of the most effective implementations of the colonial and imperialist strategy against Indigenous Peoples of divide-and-conquer—a strategy that combines political, military and economic tactics to gain power over another power by breaking it up into individual units that are powerless to resist domination.” Toensing note that “It was also an act of lawfare—a relatively new term for an old phenomenon: warfare by legal means. It makes ‘what was illegal legal,’ according to Philip Giraldi, a writer and former CIA military intelligence officer. Giraldi defines lawfare as ‘using the law itself to subvert existing constitutional arrangements and, ironically, to undermine legal restraints.’” The takeaway, according to Toensing: “It was a land-grab on a massive, almost unimaginable scale.”
The Dawes Act was in force for almost 50 years, and would have resulted in all Indian trust lands reverting to private ownership had it not been reversed in the 1930s. Some land did remain in indigenous hands, but the way the law was written made the ownership of the allotments quite difficult. The ILTF explains that, “When an allottee died, title ownership was divided up among all of the heirs, but the land itself was not physically divided. As such, each Indian heir received an undivided interest in the land. We’ll let Dina Gilio-Whitaker of the Center for World Indigenous Studies explain what that has meant:
“Throughout the decades as the original allottees died the allotments passed to their heirs in subsequent generations. The result has been that an allotment of 40, 60, 80, or 160 acres which was originally owned by one person is now owned by hundreds or sometimes even thousands of people. These fractionated allotments are usually vacant parcels of land that are still managed under resource leases by the US, and have been rendered useless for any other purposes because they can only be developed with the approval of 51% of all other owners, an unlikely scenario. Each of those people are assigned Individual Indian Money (IIM) accounts which are credited with any revenue generated by the leases (or would have been had there been appropriate accounting and crediting maintained). With hundreds of thousands of IIM accounts now in existence, accounting has become a bureaucratic nightmare and highly costly.”
Which leads us to our most recent bit of history, what has been called “the largest class action lawsuit against the United States in US history.” That would be the 2009 case known as Cobell v Salazar.
According to US law, since the days of the Dawes Act “Indian lands are technically not owned by tribes or individual Indians themselves but are held in trust by the US government,” according to Dina Gilio-Whitaker. The word “trust,” in this case, is highly ironic, as the U.S. government has proved itself to be anything but trustworthy in regard to American Indian land or the wealth derived from that land. Twenty years ago a class-action lawsuit was filed to address the gross mismanagement (at best) of these lands and monies. The case is known as Cobell v Salazar, and a part of the settlement amounts to what might be called “reparations,” as I hope you’ll see by the time we get to the end of this essay.
The website EveryCRSReport.com explains that “In the capacity of trustee, the United States holds title to much of Indian tribal land and land allotted to individual Indians. Receipts from leases, timber sales, or mineral royalties are paid to the federal government for disbursement to the appropriate Indian property owners.” (This is the “Individual Indian Money” mentioned elsewhere in this issue.)
Seeing that the government was not accounting properly for this money, an indigenous woman named Elouise Cobell (Blackfeet), “in 1996 sued on behalf of a half million Individual Indian Money (IIM) account holders who had not been receiving the payments to which they were entitled. The case was settled in 2009 for $3.4 billion,” according to Indian Country Today.
The most interesting part of that $3.4 billion amount (in terms of the current discussion) is the $1.9 billion amount that was allocated to fund an Indian land buy-back program. I mentioned earlier that individual land allotments, over time, had come to be “owned” by hundreds of people, making it nearly impossible for the “owners” to have any meaningful relationship with the land. Land with all these owners is called “fractionated” land. The 1.9 billion dollars from the Cobell settlement was established to begin a process that might be called “un-allotment,” as it was to be used to purchase land from individual “owners” and give it back to the tribes. As of last November, the fund had “paid out $900 million to purchase the equivalent of 1.7 million acres of land and put it under tribal, rather than individual, control,” according to Indian Country Today.
The Cobell settlement also resulted in the creation of a scholarship fund for Native American and Alaskan Native students.
Reparations, By Any Name
Now here’s where we get to the part about reparations. Two issues ago in Nygaard Notes I summarized the seven stages of An Indigenous Theory of Justice, which stresses that the moral obligation of the United States to American Indians cannot be addressed by paying cash reparations. One stage on the road to justice was called “Compensation,” and it began by stressing that it is impossible to put a cash value on the injustices suffered by the native people of the continent. But then the author William Bradford said this: “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 [Indigenous Justice] theory to the question of justice for Indians.”
What Bradford is saying is that money, in and of itself, is not helpful if it is intended to “settle” some sort of “claim” arising from the loss, grief, and trauma of the U.S. imperial project. However, if cash is used to buy back land as part of a project to restore traditional relationships with that land, then money—as with the $1.9 billion from the Cobell settlement—can be a part of the larger project of reparations.
NOW, finally, we return to that testimony I mentioned earlier, the little-noted testimony before the U.S. House of Representatives Natural Resources Committee on May 23rd by Deputy Secretary of Interior Jim Cason. He was testifying on the Cobell Land Buy-Back Program that I’ve just been discussing.
About 42 minutes into the 90-minute testimony by Cason (who worked on the Cobell case as an Interior official during the George W. Bush years) we hear him say this:
“Essentially, if you look at it, we [the federal government] provide money to the tribe to go out and search for fractionated interests they want. We buy those fractionated interests, and then we give it to them. And so, I don’t think there’s any tribal leader that would say, ‘Gee, I don’t want free money.’”
To her credit, California Representative Norma Torres responded to Cason, saying, “Well, it’s not necessarily ‘free money.’ You remember, they were the original owners of this land that was taken from them, pillaged from them.”
And that was the end of that. Good for Torres, but where were the headlines about another Trump appointee displaying enormous insensitivity, if not contempt, for oppressed communities? In fact, the point that Cason appeared to be making was that the land buy-back program is a failure. As he put it, “the program unfortunately has made relatively little progress” over the years. And we should know this routine by now: Strike an opening blow against a program, initiative, or individual by attacking its integrity or effectiveness, which lays the groundwork for a full-fledged attack. This should make headlines in the WHITE press, which is to say, the mainstream press, the corporate press, the press that has the ability to reach a mass audience, including people with the power to do something about it.
Instead, the job of reporting this attack fell to the news website Indianz.Com, which DID report on the testimony, leading off their article with this lead paragraph: “The Trump administration is prepared to let the Land Buy-Back Program for Tribal Nations die after a top official said it wasn’t achieving results.” The website further reports that “In the eyes of Indian Country, the $1.9 billion program has been a resounding success.”
A resounding success, now under attack by the President and his henchmen. White voices need to be heard in defense of this small attempt at healing the wounds inflicted by U.S. imperialism upon the nation’s original inhabitants. From the Doctrine of Discover to Allotment to a bureaucratic theft of Indian wealth. This has got to stop.