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President
Barack Obama and First Lady Michelle Obama had pizza with
youth from the Standing Rock Sioux Tribe at a restaurant in
Washington, D.C. on November 20, 2014. (Official White House
Photo by Pete Souza)
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This commentary is
based on a talk that Gabe Galanda gave at Harvard University's Kennedy
School of Government, in conjunction with Harvard Project on American
Indian Economic Development forum, "The
Next Horizon," on May 1st. Gabe thanks Seattle City Councilwoman
Debora Juarez, Dr. David Wilkins, and Professors Robert Williams,
Matthew Fletcher, and Eric Eberhard for their teachings and research
insights.
We were not "governments"
in 1492.
We were not "nations"
in 1787.
We were not "citizens"
in 1823 or 1832.
We were kinship societies
when Columbus arrived to Haiti, when the framers drafted the Constitution,
and when Chief Justice John Marshall authored the Marshall Trilogy.
We belonged to our societies
as members, as in family members, not as citizens.
We were self-governing,
but we were not governments.
"Native nations" and
"tribal citizens" are racial formations, established by the colonizer
under its processesnot ours.
Native nationhood was
the mode by which Treaties and other laws could be forged to dispossess
us of our landsit was a mode of annihilation.
Native nationhood, to
the extent exclusive of traditional kinship norms, remains a mode
by which indigenous peoples will be extinguished.
If we continue to determine
who belongs through use of racial formations, rather than through
kinship rules, we will eventually be terminated. Just look
at the Trump Administration's most recent treatment of tribes as
a racial group for federal Medicaid reimbursement purposes.
Unless we return to the
ways of kinship, we will eventually cease to exist.
Who were
we?
Vine Deloria, Jr.'s auntie,
Ella Deloria, said it best, writing from New York City in 1944:
All peoples who
live communally must first find some way to get along together
harmoniously and with a measure of decency and order. This is
a universal problem. Each people, even the most primitive have
solve it in its own way. And that way, by whatever rules and controls
it is achieved, is, for any people, the scheme of life that worked,
The Dakota people of the past found a way: it was through kinship.
Kinship was the all-important
matter. Its demands and dictates for all phases of social life were
relentless and exact . . . . By kinship all Dakota people were held
together in a great relationship that was theoretically all-inclusive
and co-extensive with the Dakota domain. Everyone who was born
a Dakota belonged in it; nobody need be left outside. . .
[T]he ultimate aim of
Dakota life, stripped of accessories, was quite simple: One must
obey kinship rules; one must be a good relative. . . . In the last
analysis every other consideration was secondaryproperty,
personal ambition, glory, good times, life itself. . .
[T]hose who kept the
rules consistently and gladly, this honoring all their fellows,
were good Dakotasmeaning good citizens of society, meaning
persons of integrity and reliability. And that was practically
all the government there was.
"Speaking of Indians,"
"Part II, 'A Scheme of Law That Worked,'" at pp. 25-32.
Illustrating the still
pervasive universal nature of kinship and belonging at birth, as
Ms. Deloria described, are Articles 9 and 22 of of the United Nations
Declaration on the Rights of Indigenous Peoples, which provide respectively:
Indigenous peoples and
individuals have the right to belong to an indigenous community
or nation, in accordance with the traditions and customs of the
community.
Indigenous peoples have
the right to determine their own identity or membership in
accordance with their customs and traditions.
Rather ironically, under
the colonizer's words governing its own citizens' belonging, citizenship
is guaranteed, quite simply, to all who are born unto the land known
today as the United States. That bedrock American rule is established
by the Constitution's Fourteenth Amendment and affirmed by 5 U.S.C.
1402, titled "Nationals and citizens of United States at birth."
Pre-conquest we, too,
were inclusive peoples, who identified and governed according to
very simple but exacting kinship rules. But those ancient rules
began to vanquish in the 19th Century.
How did we become
"nations"?
In 1823, in Johnson
v. McIntosh, U.S. Supreme Court Chief Justice John Marshall,
immediately before declaring us "fierce savages," observed: "When
conquest is complete . . . the conquered inhabitants can be blended
with the conquerors, or safely governed as a distinct peoples."
By 1831, he "denominated"
us "domestic dependent nations," in Cherokee Nation v. Georgia.
Whether as "savages" or "dependent nations," these are racial formations
from which modern Native nationhood has evolved.
Exclaiming the United
States' racial subjugation of indigenous peoples, the following
year in Worcester v. Georgia, Justice Marshall explained:
The words 'treaty' and
'nation' are words of our own language, selected in our diplomatic
and legislative proceedings, by ourselves, having each a
definite and well understood meaning. We have applied them
to Indians . . .
The "our" and "we" is
the colonizer. Words like "nation" were the colonizer'snot
ours.
Lest you have any doubt
about that term, as applied to the then so-called Cherokee Nation
in Worcester, consider Professor Rennard Strickland's words
in "Fire and Spirits":
Englishmen were looking
for Native versions of British courts and . . . concluded, in a
supreme gesture of ethnocentrism, that the Cherokees had no system
of law.
In truth, the Cherokee
conception of law was simply different from the more traditional
Western idea of law. To the Cherokees law was the early representation
of a divine spirit order. . .
The ongoing social process
could not, in the Cherokee way, be manipulated by law to achieve
policy goals. There was no question of man being able to create
law because to the Cherokee the norms of behavior were a sovereign
command from the Spirit World. Man might apply to the divinely ordained
rules, but no earthly authority, was empowered to formulate rules
of tribal conduct.
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Tribal
nation flags were on display at Standing Rock to show support
to opposition to the Dakota Access pipeline.
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Indeed, treaties and
positive law, including those establishing tribal "nationhood" and
"government" in the 1800s, were then the colonizer's words and waysnot
ours.
As to Cherokee kinship
and belonging, Professor Strickland offers these words:
Society is divided into
separate classes and ranks which were created by the Spirits. There
is no significant stigma attached to class membership. All classes,
both men and women, are of great value socially and have important
and useful roles in Cherokee society. . . .
Legal norms existed on
four levels among ancient Cherokees. . . .
The first of the norms
were those governing relationships between man and the supernaturalthe
Spirit Beings. Second were the norms prescribing conduct of the
individual Indian towards specific public order, issues relating
to the entire village or tribe. Next were the norms concerning clan
rights and duties. Finally, there were a limited number of norms
on individual or personal questions.
In other words, kinship
rules and norms pervaded, until the Marshall Trilogy took hold.
How did we
cease self-rule by kinship?
Aided by the Marshall
Trilogy's discovery doctrine and native nationhood model, Treaties
and the General Allotment (Dawes) Act of 1887 were promulgated.
Each of those federal laws were intended to, and operated to, pulverize
our kinship ties to multi-millions of acres of homelands.
The Dawes Rolls, created
by the U.S. in only six months and thus demonstrably incomplete
and incorrect, were especially destructive to kinship. Kinship societies-turned-tribes
have since used those federal rolls as their so-called base rollsas
the foundation of who belongs, or doesn't.
Then in 1934, the U.S.
Congress passed the Indian Reorganization Act (IRA), deciding for
tribes, who belongs to tribes, declaring Indians to be "members"
if ½ degree or more of "blood quantum" and if in residence
on reservations.
Blood quantum is a racial
fiction; one's human blood doesn't segregate mathematically.
Residence, although once
a predominate form of kinship, took on a new meaning after arbitrary
lines were drawn by the colonizer to concentrate Indian homelands
onto reservations, in order to allow Manifest Destiny to flourish
from coast to coast.
Now, 85 years later,
the colonizer's membership rulesand normsindeed racism
and classismhave supplanted kinship rules. That is why we
refer to ourselves as a race of "full bloods," "half bloods," and
"mixed bloods"; and classes of "res Indians," "off-res Indians,"
and "urban Indians."
Under the IRA, family
members became political members of tribal constitutional governments
and corporate entities, particularly under boilerplate constitutions
and corporate charters foisted upon tribes by John Collier and his
followers, including a nascent National Congress of American Indians.
Under those new tribal laws, tribal relatives can be "disenrolled"
from the tribe.
I have yet to discover
an indigenous word that translates even close the word "disenrollment,"
exclaiming the wholly foreign nature of that concept to us as indigenous
peoples.
How did money
over-rule kinship?
Dating back to the federal
Lacey Act of 1906 and continuing through the Indian Gaming Regulatory
Act (IGRA) of 1988, belonging has been increasingly individualized
and monetized, through "pro rata" or "per capita" distributions
of tribal communal wealth, by tribes to tribal members. That federally
designed regime is also intended to pulverize us into oblivion.
In fact, fueled by that
new individual wealth, and corresponding graft and greed, 15% of
today's federally recognized tribes have disenrolled their kin.
In the case of the Elem Colony of Pomo Indians, tribal politicians
are attempting to disenroll 100% of the tribe's on-Colony population.
They are purportedly legislating themselves into oblivion. It is
self-termination.
Addled by per capita
greed, tribes are also imposing enrollment moratoria, meaning no
longer enrolling or including their children among those who belong.
Think about that for
a minute.
We talk, almost tritely,
of the sustaining as indigenous peoples for sake of the Seven Generations.
Yet an increasing number of tribes are severing inter-generational
kinship ties. They are disowning their Fourth, Fifth, Sixth, and
Seventh Generations.
In today's final analysis,
kinship is secondaryto money. Venal exclusion has supplanted
traditional inclusion.
Where do
we go from here?
We cannot throw out the
Native nationhood model. Or abrogate Treaties, or IRA Constitutions
or Bylaws. Or abandon tribal capitalism via economic development.
Tribes would be terminated
without the modern nation-to-nation relationship; without Treaties
as the Supreme Law of the Land per the U.S. Constitution; or without
economic resources and the political power that accompanies those
dollars.
Kinship, however, must
be infused into Native nationhood, and throughout Native nation
institutions as we know them today.
In particular, we must
use traditional kinship norms to define ourselves and our belonging.
That can mean maintaining the rubric and language of citizenship
and IRA membership, if necessary.
But we cannot self-define
who belongs according to the Dawes Rolls or other federal censuses,
or blood quantum, or colonial residential criteria, or gaming per
capita checks.
We cannot allow racism,
classism, individualism, nor capitalism to self-define us any longer.
We must re-define ourselves
according to kinship rules. We must re-define ourselves according
to birthright. We must re-define ourselves according to spiritual
and cultural indigenous norms.
If we do not, our nascent
Native nations will rot from our core, until we eventually fall.
Gabriel S. Galanda
is the managing lawyer of Galanda Broadman, PLLC, in Seattle. Gabe
is a descendant of the Nomlaki and Concow Tribes, belonging to the
Round Valley Indian Tribes of Northern California. He can be reached
at (206) 300-7801 or gabe@galandabroadman.com.
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