First Commentary on TNToT: Introduction — “Framed by a Friend”

Written by: Matthew Fletcher

Primary Source : Turtle Talk, September 6, 2016

The Introduction to “The New Trail of Tears” (TNToT), written by Naomi Schaefer Riley (NSR or the author), frames the book as an attack on the United States’ Indian policies. For NSR, it the federal government’s poor governance in the area of Indian affairs that is behind the poor state of Indian peoples’ lives.

The trap for readers is that TNToT seems like a reform minded book with deep sympathy for Indian people, with the federal government as the bad guy. It’s not. At best, TNToT is paternalism, termination era- and allotment era-style liberalism. NSR characterizes the Indians that live in Indian country as poor, alcoholic, suicidal rapists. Or really, really sad people who are always slowly shaking their heads (classic Vanishing Indian stuff). 

At worst, this is paid propaganda for conservative organizations that tend to support the view that the federal government is a terrible thing. For NSR, Indians are either victims or perpetrators, and need to be saved or punished. Finally, and in my view most importantly, TNToT throughout ignores tribal and Indian property rights, which is ironic given that NSR will frequently refer to property rights as a justification for her conclusions.

Let’s begin with the Introduction.

TNToT Depends on the Myth that All Indian Nations are the Same

TNToT focuses on several specific Indian nations, but there are 567 federally recognized Indian tribes. Not all are the same. And yet on page viii, NSR writes that we have “what amounts to a third world country within our borders.” This might seem like nitpicking, but statements like these lead readers to believe that all Indian nations are the same. Readers likely know very little about any Indian nations. Some are very traditional and isolated. Some are very traditional and urban. Some have resources. Others do not. Each Indian nation has its own history, and each Indian nation has differences. There is no massive glob of federal/tribal land in the middle of the US somewhere that houses all Indian nations.

Throughout TNToT, NSR asserts terrible things about specific Indian tribes, and explicitly or implicitly applies those things to all tribes. Keep reading future posts and you’ll see.

TNToT Assumes that Federal Spending on Indian Affairs Continuously Rises 

TNToT paints a picture of federal Indian affairs policy as something as simple as federal money administered by federal bureaucrats on reservation lands. And that federal money grows and grows and grows. This is just false. TNToT ignores completely reports such as “A Quiet Crisis: Federal Funding and Unmet Needs In Indian Country.” TNToT will often reference Obama era budget requests — budget requests are not budgets.

TNToT draws from anti-government commentaries and asserts there are 9000 BIA/BIE employees, 1 per every 111 Indians living on reservations [at ix]. Of course, that number is down considerably from the years before the beginning of the self-determination era — 16,000 — and has been falling ever since. I found that number in the first edition of Getches et al., Cases and Materials on Federal Indian Law at 125. This omission of fact is either sloppy reporting or selective reporting. Context matters.

TNToT Characterizes Indian Nations and Indian People are Passive Observers with No Agency

A picture of Indian country forms from the first few pages of this book: for NSR, there is a globular mass of land out of sight of “the window of a train or a car” [p.viii] into which the United States is pouring billions of dollars. NSR writes at page xiii:

The tragedy of America’s Indian policies . . . [are] the result of decades of politicians and bureaucrats showering a victimized people with money and sensitivity instead of what they truly need – the autonomy, the education, and the legal protections to improve their own situations.

NSR’s Indians have no agency, and take no responsibility for their own governance. There is no mention whatsoever in this entire book of self-governance or 638 compacts, or that more than 50 percent of all federal Indian affairs services are administered by Indian tribes. Modern tribal self-governance policy is a conservative program (frequently and incorrectly credited to President Nixon) theorized first in the Felix Cohen era of the 1930s, and eventually championed by President Johnson in the 1960s. Local control, or localism, is the foundation of modern Indian affairs law and policy. It’s autonomy in serious measure.

TNToT continuously mocks and criticizes BIA and BIE officials. In the intro, NSR writes, “[T]oday, [these policies are] carried on by officials who claim to care but can’t seem to grasp the problems these policies are causing.” [at xiii] Of course this is deeply insulting to the Indian people in DC and elsewhere who usually know exactly what the impacts of their actions likely will be. At times, they perhaps deserve criticism. But BIA and BIE (and IHS) officials know it, and are geared toward self-determination as quickly as possible. And they know many Indian people don’t like them, but they keep trying.

NSR Doesn’t Like Liberals and Academics with Sympathy toward American Indians

NSR has been a harsh critic of ethnic studies in higher education; in years past she recommended the elimination of Black Studies programs (more details here). So this is a bias she brings to this book, and extends it to Indian studies as well.

NSR argues that college professors teaching American Indian history or Native studies or the like are delusional. Here’s NSR’s comment on the state of Indian studies in 2016: “And if only we could somehow return Indians to their state of nature, ‘pre-Contact,’ professors tell students, Indians would be saved.” We certainly don’t teach that in law schools.

But there might be a nugget of useful commentary there, at least to shine a spotlight on NSR’s biases. Consider this statement about the impacts of educating people about Indian affairs and history:

This kind of education tends to lead people to two conclusions. The first is that America should give as much money as possible from the federal coffers. . . . It should offer some kind of reparations for the harm inflicted upon Indians by westward expansion, by wars, by racism, and by the reservation system. The second is that we should make sure that American Indians don’t have to continue to suffer the indignities of having their culture mocked or degraded. So we should seek out any form of the old way of thinking about Indians and eradicate it. [at ix]

This is the straw man that TNToT is attacking, at least here in the intro. The feds throw money at a problem like Indian affairs, and they do it poorly. And BTW, Indians should stop complaining about racism, because they were mean to their adversaries, too. [“(They’ll rarely hear about the brutalities that Indians committed against white settlers, however.)” at xi]. We will see the use of parentheticals again in TNToT when, I suspect, NSR is being snarky. Well, speech is the best answer to speech, so let’s move on.

TNToT Relies Heavily (Nearly Exclusively) on Conservative, Anti-Government, Free Market Think Tanks and Agitators for Academic Support

Think the Cato Institute. The Manhattan Institute. Goldwater Foundation. Ben Chavis. [Supposedly there’s a Federalist Society call to discuss the book ongoing as this post is being published. :)]

It really is important to understand these views if one is to best advocate for tribal interests. But to rely nearly exclusively on these authorities should give readers the impression that TNToT is paid propaganda of anti-tribal groups and individuals.

It starts with a lengthy quote from a Cato Institute report that criticizes federal Indian affairs expenditures [at ix-x]. This is typical throughout the book — NSR only cites to her friends (and possible patrons). What about Rob Williams’ Savage Anxieties, or Sarah Deer’s The Beginning and End of Rape? I’d also recommend Charles Wilkinson’s Blood Struggle for detailed accounts of Indian country success stories, and Ian Haney Lopez’s Dog Whistle Politics, well, for reasons that will later in the book become obvious.

TNToT Also Relies Too Heavily Other Non-Indian Journalists and Authors

Think Felix Bordewich. I read “Killing the White Man’s Indian” in college. It’s dated as hell. NSR selectively quotes in the first half of the book to give the impression that the federal government’s “misguided paternalism” of the 19th and early 20th centuries [at xiii] is still going on, but here TNToT rips into Chief Seattle’s famous speech of 1854 is fraudulent [at xii]. Uh, okay then.


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Matthew Fletcher
Matthew L.M. Fletcher is Professor of Law at Michigan State University College of Law and Director of the Indigenous Law and Policy Center. He is the Chief Justice of the Poarch Band of Creek Indians Supreme Court and also sits as an appellate judge for the Pokagon Band of Potawatomi Indians, the Hoopa Valley Tribe, and the Nottawaseppi Huron Band of Potawatomi Indians. He is a member of the Grand Traverse Band of Ottawa and Chippewa Indians, located in Peshawbestown, Michigan. In 2010, Professor Fletcher was elected to the American Law Institute.