Indigenous Peoples Day

Once, years ago, we had a Nez Perce history discussion going on at the Josephy Center. Bobbie Conner, then and now director of Tamastslikt on the Umatilla Reservation, came in the door on another task. I greeted her from the balcony discussion group and announced that we were talking about Nez Perce Treaties. Bobbie walked up the stairs and told us that if we were talking about treaties we’d better start with the Doctrine of Discovery, and learn how it crept into American Indian Law.

Like many of us, I’d read past its mention many times, but never really looked at it, knew only that it was an ancient papal document that said that conquering Christian European countries could plant the flag of their ruling kings and queens and claim the lands of heathens. “The Papal Bull ‘Inter Caetera,’ issued by Pope Alexander VI on May 4, 1493… stated that any land not inhabited by Christians was available to be ‘discovered,’ claimed, and exploited by Christian rulers…”

The Gilder Lehrman synopsis further states that “[It] played a central role in the Spanish conquest of the New World. The document supported Spain’s strategy to ensure its exclusive right to the lands discovered by Columbus the previous year…” We start to get a picture of land seizures by Europeans in the New World.

Two weeks ago, we were treated to a talk by Dr. June Lorenzo, a Pueblo and Navajo scholar and Presbyterian ecclesiastic who works as a tribal judge and represents tribal concerns in state and federal courts. She talked briefly about the lingering problems left by uranium mining on Southwest tribal lands, but spent most of her talk on the Doctrine of Discovery and its impacts on Indian Law to the present day.

Which sent me back to the Indian lawyer Ray Cross and the book about him by Paul VanDeveler, Coyote Warrior: One Man, Three Tribes, and the Trial That Forged a Nation. I remembered that the book included the clearest explanation of how the Doctrine of Discovery was adopted into US Law and became the foundation of Indian Law in our country. I picked it up again.

Cross, who taught Indian Law for years at the University of Montana, and, unfortunately, passed just last year, cut his teeth as an Indian Lawyer representing the Klamath Tribe in its quest to regain sovereignty and water and land rights after the debacle of “Termination” in the 1950s. He won at the Supreme Court, and later won huge compensation—again at the Supreme Court—for lands that had been taken from tribes on the Fort Berthold Reservation in North Dakota, home to the Mandan, Hidatsa and Arikara peoples, his own reservation and people.

In the book, Cross was lecturing a bunch of BPA employees when he launched into a discussion of Chief Justice Marshall and the three decisions in the 1820s and 1830s that used the DOD to become the basis of all US Indian Law. These decisions, which were derided by President Jackson at the time, acknowledged that tribes “had governments” before European settlement, and that they retained status as “domestically dependent sovereign nations.”

Furthermore, tribal lands—and here is where the Doctrine of Discovery comes in, are actually the property of the US Government by the “discovery.” Indians were only “occupants” of lands owned by the government, but the US and not state governments (this was the piece that Jackson objected to and ignored as the Cherokee were removed).

Terrible, we say, because Marshall gave tribes only limited sovereignty. Cross sees it differently, and cites Marshall’s brilliance in claiming that the US Government is heir to the “Christian Rulers” of the Papal Bull of 1493. According to Cross, Marshall’s brilliance in establishing this Doctrine of Limited Sovereignty paved the way for treaty making—“between sovereigns”—and is the reason that the Boldt Decision on Indian salmon harvest on “usual and accustomed” places guaranteed by treaties made in 1855 lives with us today. Our treaty making ability distinguishes our US laws from aboriginal land law in Australia, New Zealand and Canada.

What Dr. Lorenzo recently brought to the discussion is what I will call a “climate of opinion” that existed in Europe in 1500 and, with some brilliance on the part of Marshall amidst very mixed feelings about Indians in general, was transmitted across time and space in the US in the 1800s. One of the quests at Dr. Lorenzo’s talk asked how church law from a distant pope could be translated so easily into civil law in the US. Because, she explained, it was the accepted knowledge of the time. In 1500, and in feudalism more generally, land was the province of the crown. To be doled out to lesser nobility and worked by tenants.

Fast forward to 1800 in the United States, when the knowledge of the time about Indigenous Americans was a mixed affair. Some, like Jefferson, considered Indians “savages” and were willing to push them out of the way as the country grew West. But west of the Mississippi was still largely in the hands of tribes, some of them, like the Lakota, very powerful tribes. And tribal people were the keys to an expanding US—they had the beaver and buffalo hides that the economy craved, and they knew the rivers and roads that Lewis and Clark would explore.

Realizing this, Marshall gave the US government the tools to negotiate with tribes via treaties, to use tribal knowledge and purchase tribal lands. And in so doing he also cut out state governments as the negotiators and purchasers; they were not sovereigns. That upset President Jackson, who paid it no mind, but it remains US law to this day. Marshall thought that it would lead ultimately to assimilation, that Indians would gradually become white and integrated into the US melting pot, the treaties having served their purpose.

He was wrong about that, and couldn’t have imagined the climate of opinion today, which gives Native people and knowledge much favor. It is nurtured by recognition of past wrongs towards Native Americans and by the appreciation of Native knowledge of the land. We now value Native knowledge of fire, fish, and water, are seeking to restore waterways and fish runs, and emulating Native practices with fire. We read Native authors and appoint Natives to high office, talk of “co-management” of parks and forests, and of reparations for stolen lands. All possible today in large part due to the wisdom of Justice Marshall long ago.

And, though popes and conquistadors might be turning over or turning colors in their tombs, we have replaced what was once an ode to “explorers” called Columbus Day, with “Indigenous Peoples Day.”

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