As we close out another year and try to keep up with the activist flurries of the executive branch, the sluggishness of the legislative branch, and the fitful actions—and inactions—of the judicial branch, looking to Native America can provide comfort. After all, for over 500 years, Native tribes have seen it all—and, miraculously, survived. And the fact that the President’s opening day call for an end to birthright citizenship has made its way to the Supreme Court provides a lesson—and a kind of punctuation.
In President Trump’s early calls for the end of birthright citizenship he singled out Native Americans as possible subjects of the attack. As they did not gain official citizenship until it was granted by the 1924 Indian Citizenship Act, Trump reasoned that the Constitution and its amendments had made no provision for Indians—Native Americans—being citizens!
Let me try to make sense of this.
If you have been watching the Ken Burns special on the American Revolution, and/or if you have read recent histories by Ned Blackhawk or other Native historians, you know that the Tribes and tribal peoples were stronger and more numerous than colonials prior to and for some decades after the Revolution. The impact of European diseases on Native populations was staggering—50-90% in some places—but colonists still used war, treaties, and outright purchase to wrest land from Natives. They thus treated Indians as independent, and their Tribes as independent sovereign nations. There were treaties before the Revolution and the founding of the nation, but the official treaty period of the United States is from 1778 to 1871, at which point Congress stopped recognizing tribes as independent nations, shifting to agreements but upholding existing treaties.
There was an important mid-point correction/clarification in the 1820s and 1830s, when Chief Justice John Marshall authored three opinions which became known as the Marshall Doctrine, and which is the basis of Indian law in the United States to this day! Marshall reasoned that Indians had an inherent “right of occupancy,” but that the US Government, due to the ancient and Papal “Doctrine of Discovery,” had title to the lands. Tribes were thus “semi—dependent nations.” They were sovereign, but could not make war on other nations. They could and did conclude treaties between sovereigns with the US Government. Individual states and individuals, not being sovereign, could not treaty with tribes, or even purchase tribal lands. Only the Federal Government could do that.
In the post-treaty period, assimilation was government policy. The “allotment act” attempted to make individual Indians landowners with a tribal “homesteading” program. Indians who were successful, who took title to what had been communal tribal lands, would be subject to taxes, and could become US citizens. It was not a universally successful program. Lands not taken up by Indians were declared “surplus” and were sold to non-Indians. Between 1887 and 1934, Indians lost approximately 90 million acres of their reserved lands!
The years immediately before and after 1900 were a nadir for Native Americans. The Indian population had shrunk to about 250,000. Disease had claimed many, the “Indian wars” were over (Nez Perce War of 1877 one of the last), and allotment had taken another huge chunk of their lands. Indians were no longer a threat, and in fact enjoyed a period of some adulation. Philip Deloria wrote a book about the period from the 1900s through the 1920s, “Indians in Unexpected Places.” This was the time of Chief Bender in the major leagues, Jim Thorpe and Carlisle Indian School being a college football powerhouse, of Thorpe in the Olympics, and Pontiac cars. Indians served honorably in World War I—there were code-talkers in that war as well as WW II.
And The Indian Citizenship Act of 1924 granted citizenship to all Native Americans born within the territorial limits of the United States, making them explicitly citizens by birthright.
President Trump quickly backed off from including Indians in his sweeping charges against Birthright Citizenship, but enough to know that he entertained the idea, and that calmer more knowledgeable heads within his ranks, or statements by Indians who rose to the occasion, successfully corrected him.
It’s that way with Native Americans. They’ve seen it all, fought for land and rights when times were hard, and taken advantage of openings when majority opinions on law, land, and the environment showed error and invited different, more wholistic kinds of thinking and action. When questioned about recent Tribal gains and current politics, my friend Bobbie Conner of the Confederated Tribes on the Umatilla Reservation and the director of its Tamastlikst Cultural Institute noted that “it is hard to ‘unsee’ things.”
That is my comfort with current politics.
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Photo public domain from Wickicommons
