Written by: Matthew Fletcher
Primary Source : Turtle Talk, September 8, 2016
This is the second full commentary on “The New Trail of Tears” (TNToT), written by Naomi Schaefer Riley (NSR or the author). The first commentary, “Framed by a Friend,” is here. The announcement post is here.
Chapter 1 is a story about modern tribal economies, using the Crow Nation and the Northern Cheyenne Tribe as examples of failed tribes. But it also a story of the history of American Indian law and policy from the allotment era to the reorganization era, loosely the mid-19th century to 1934 or so. Students of American Indian history will see a lot of familiarity to the recitations of history in TNToT, but don’t be fooled: the conclusions drawn by NSR are geared toward the termination of the federal-tribal trust relationship and the confiscation and dispersal of tribal and Indian property rights.
TNToT’s Attack on the Crow Nation
TNToT’s description of the Apsaalooke Nation (and Northern Cheyenne, too) is truly unpleasant reading. In TNToT, the Crow Reservation is full of broken down cars and trucks, broken windows, children’s toys, lawn chairs, trash, and stray dogs. [at 6] The Indians there have a “dark sense of humor”; “They’ve seen it all before, and they don’t expect anything to get better.” [at 7] There’s “too little law enforcement.” [at 7]
TNToT alleges that the Crow Nation government is corrupt and/or incompetent. This is a frequent allegation by NSR about all tribal governments, usually comes from a disgruntled tribal or community member, and usually supported by no facts whatsoever. Here, NSR quotes a tribal leader as saying that the Crow Nation owes $3 million to HUD, and cannot construct new housing until HUD is repaid. This sounds weird. The tribe and HUD are in a protracted legal battle. Is that dispute the source of the statement? We sure don’t know from reading TNToT. All we get from NSR is implied corruption or incompetence. BTW, in FY 2016, HUD allocated $2.7 million to the tribe.
TNToT’s Attack on the Northern Cheyenne Tribe
NSR’s main source on the Crow and Northern Cheyenne reservations is Ivan Small, the director of the St. Labre Indian School (though NSR doesn’t reveal that tidbit until chapter 4, when she praises Mr. Small and the school without referencing the controversial $11 million payment the school made to the Northern Cheyenne Tribe after being sued for “exploitation“). Small is quoted as criticizing Crow reservation residents as not respecting the maxim, “A man’s home is his castle.” [at 6] He’s the first of several Indian people in the book NSR quotes as being angry at other Indians for a wide variety of character flaws. These informants usually are accusing Indians of flaws based on their status as Indian people — in other words, on their race. NSR brilliantly (and cynically) only quotes Indians to make these race-based commentaries about Indians; to quote non-Indians for the same propositions would be to quote racists. These Indians are usually described as slowly shaking their heads or muttering in frustration throughout TNToT (they must have very sore necks). Small is angry, but “mostly tired,” [at 6] and “past the point of anger.” [at 7]
NSR notes that there is a small casino there, asserting: “These gamblers are effectively taking money given to them by the tribal government for food or housing and giving it back to the tribe through its slot machines.” [at 6] It is my understanding that small casinos in small markets don’t make much dough. In my experience at Hoopa and at Grand Traverse Band (the Leelanau Sands casino), casinos might remain open to maintain some semblance of a job market at that location. Maybe the tribe makes little or no money from that casino, but it doesn’t lose money, and tribal employees are employed. And that can have important benefits — tribal members can establish an employment record at that casino, for one. Also, NSR’s reference to food or housing money “given” to tribal members is not supported by evidence. This kind of talk is just dog whistle politics.
Again, I’d love to hear more about the Crow and Northern Cheyenne reservations in light of NSR’s characterizations. Comments are welcome, or you can email me.
TNToT Mocks or Misstates the Federal Government’s Obligation to Conserve Tribal Assets
Ivan Small tells NSR about his effort to buy land at below market value from a tribal member, but the BIA blocked the sale. [at 7] Well, good! Maybe the BIA did it’s job on this one. NSR characterizes Small as a free market player. Without more details or some facts from the BIA or the other side of the transaction, one could conclude that Small is a real estate opportunist. Not sure why we should believe NSR or Mr. Small on this one.
There’s a group of Indians that have been trying to hold the BIA accountable for not acting to stop real estate deals that allegedly ended up being a huge million-dollar windfall for energy companies at Fort Berthold. What about their story? NSR’s notion of property rights throughout TNToT gives short shrift to Indian and tribal property rights.
TNToT Condemns Restrictions on Alienation of Trust Lands under the IRA
TNToT criticizes the tribal trust lands regime (“The effects of the trust have been disastrous for economic development on Indian lands.” [at 12]). NSR cites to some older studies by Terry Anderson that purport to show that the agricultural value of trust lands is lower than reservation lands. I like Terry. The new book he edited is way more intellectually honest than TNToT in that it includes views from actual American Indian scholars like Bob Miller and greatly expands knowledge of tribal property systems. However, Terry’s older scholarly work, in my view, sometimes suffers from a lack of context. The study that NSR relies upon to devalue trust lands would have been stronger if Terry took into acccount the decades of federal race discrimination against American Indians eventually settled in the Keepseagle matter (to be fair, his study predated that settlement by a couple decades). Terry’s study might have noted that nonmembers are often not regulated or taxed by either the tribe nor the state and local governments, which would greatly increase the value of their land.
TNToT argues that at Crow and Northern Cheyenne no bank will lend to tribal members because no way to “foreclose on a property.” [at 5] This is an example of NSR’s blanket statements that tend to fall apart to a significant extent with exposure to additional information. The Office of the Comptroller of the Currency recently published “Commercial Lending in Indian Country: Potential Opportunities in a Growing Market.” This is a document designed for lenders to navigate Indian country lending. There are BIA loan guarantees that can help, too. But yes, it really can be difficult on some reservations to build a home on tribal trust lands. NSR’s statement should probably be hedged by saying that borrowing money in Indian country is more expensive than elsewhere. Still, things are turning around.
TNToT Praises Allotment; Criticizes US for Messing It Up
Generally speaking, observers condemn the allotment era. Two thirds of all Indian-owned lands left Indian ownership (roughly 100 million acres) in the allotment era from 1887-1934. You wouldn’t know that from reading TNToT.
Drawing from Felix Bordewich again (come on, there are just better sources than a 25 year old survey from another mass market journalist), NSR lionizes Sen. Dawes, the lead architect of the General Allotment Act of 1887. On page 11, NSR argues in favor of Dawes’ views that Indians who owned property would become better citizens:
[T]he connection between owning land and full citizenship was a strong one. Dawes and his colleagues in Washington clearly believed that if Indians got the former, they’d be entitled to and embrace the responsibilities of the latter. Their confidence in Indians’ ability to take their fate into their own hands was striking – and it’s a sentiment rarely heard among politicians today.
There’s a lot going on here. (1) Many Indians at this time had no interest in American citizenship (some still don’t and issue their own passports). (2) Those who did might become federal citizens, but still were not state citizens and faced discrimination from states in voting issues, especially. (3) And the attack on current politicians is just wrong — federal bureaucrats like the Obama Administration era BIA leadership always talk about turning over federal programs to tribal control and do so every chance they get. The American politicians who express skepticism “Indians’ ability” are always concerned about how Indians treat nonmembers, and usually express no concern about how Indians govern themselves.
There is yet another way to tell the history of allotment that kinda takes Sen. Dawes off the hook (kinda) – the reformers in power in DC stripped Indians of their property rights without tribal consent (the cases of Lone Wolf v. Hitchcock and Cherokee Nation v. Hitchcock are about the federal government’s powers to abrogate reservations and liquidate the assets without tribal consent), all because reformers like Dawes did not believe Indians as a race were capable of self-determination. Private interests that wanted to access Indian country resources for profit backed these “reforms.” TNToT tells allotment like it was a distribution of private property to individual Indians without acknowledging the reality that most allotted lands are no longer owned by Indians. Allotment is (1) the mass confiscation of entire Indian reservations (2) guaranteed by treaty as a vested property right (3) by the United States(4) over tribal objections, and (5) the liquidation of those assets for pennies on the dollar, all without the acknowledgement of the tribe’s property interests under the Fifth Amendment. No due process. No just compensation. One of NSR’s favorite sources, the Cato Institute, holds up SCOTUS’s eminent domain doctrine as a serious problem (see the Kelo case). Why doesn’t NSR talk about Indian property in this way?
Of course a parcel of land owned in common by individuals or entities is private property! The confiscation of that parcel for liquidation under allotment should have been considered a taking by the federal government subject to the Fifth Amendment. The fact that it wasn’t in the 1900s is a story of deep shame and insult to the United States as a whole.
Any serious discussion of allotment should include discussion of the tribal property rights simply eliminated by the federal government during this era. TNToT’s discussion is not serious.
TNToT Attack the Indian Reorganization Act
Instead of addressing the lost Indian property rights during allotment, TNToT attacks the Indian Reorganization Act, which put an end to the allotment era. TNToT argues that the IRA’s preservation of Indian lands through the trust process created a “tragedy of the commons” akin to Africa and South America [at 12-13]. NSR argues that the IRA cemented the bad old federal Indian affairs bureaucracy [at 12]. Finally, TNToT blames 1930s federal reformers for all these problems as if Felix Cohen and John Collier are still in charge at the BIA (or perhaps Sen. Dawes):
“Underlying federal policy are the assumptions that Indians are simply incapable of managing their own affairs and that natural resource development somehow runs contrary to their traditions.” [at 13]
Again, lots of stuff here. (1) The original draft of the IRA contained a rough draft of the Indian self-determination acts of the 1970s and beyond that would have transferred administrative control of federal Indian affairs policies to the tribes. This is the gaping hole throughout TNToT, acknowledgment of tribal local control and lessening federal control in Indian country. (2) Yes, the BIA (it is told) helped to kill that part of what would become the IRA then, but now the BIA is different. (3) Any serious discussion of the “tragedy of the commons” must acknowledge that the US through the Department of the Interior sold off trillions in public resources for pennies on the dollar — that’s why 95 percent of the Redwoods are gone, for example, or why fracking might be causing serious manmade earthquakes. That’s a tragedy of the commons. Not tribal trust lands.
Also, for some tribes, and many tribal members within energy producing tribes, natural resources extraction does run afoul of tribal cultures, not to mention terrible for the environment. TNToT cites older Terry Anderson studies claiming that Crow and Northern Cheyenne are woeful under-producers of energy given their potential extraction capacity, and claims this must be because of the federal trust. Maybe until the 2000s — Honor the Earth has a whole webpage detailing the extensive energy production at Crow (they’re not happy with it). Northern Cheyenne has been deeply conflicted over energy extraction for since at least the Ford Administration (see report here from the Ford papers), and generally opposes coal extraction today. NSR quotes Ivan Small again, who she says “believes . . . tribal government is overly influenced by people concerned about the environmental impact.” [at 20] Well, good! TNToT also sorta acknowledges that the Crow Nation does have a significant mine on page 20 — so does it or doesn’t it? TNToT is riddled with these internal contradictions. Finally, NSR apparently didn’t do enough research to discuss the HEARTH Act. Love it or hate it — total game changer in Indian country, turning over leasing decisions of trust lands to the tribes. Most everything complained about in TNToT about federal supervision of tribal trust lands is completely outdated and false.
NSR Declares that “private property is an almost magical force”
Again, the preaching about property rights in Indian country cannot be taken seriously without acknowledgment that Indian tribes and individual Indians remain uncompensated for massive amounts of private property takings through allotment, termination, and simple confiscation. There is no acknowledgment that, for example, the SCOTUS held that the taking of Indian title is not compensable under the Fifth Amendment in a case where the Department of the Interior sold off Indian timber in Alaska. That one case involves millions of dollars confiscated by the federal government (well, at least until ANCSA, I guess). And of course there is the Black Hills that the US confiscated from the Lakota-Nakota-Dakota tribes and won’t return. [Update 9/8/16 — 1:50 PM] The NYTs ran a story today on the DAPL protesters, some of whom lost their homelands at the Fort Berthold reservation when the US Army Corps flooded their lands.
TNToT Promises Economic Growth through Pure Free Enterprise on Poor Reservations
Man, we all wish this were true. A repeated TNToT premise is that the federal trust relationship keeps Indian reservations from being profitable. NSR criticizes a Northern Cheyenne tribal elected official for not caring enough about private enterprise: “But nothing Russell suggests would do anything to encourage private enterprise. It would merely continue the same kind of dependent relationship the tribe has with the federal government right now.” [at 21]
The lack of private enterprise in Indian country argument is an old one. And it depends on an assumption that Indian people are lazy or unmotivated and ignorant and passive actors in their own failures. Consider the Northern Cheyenne Tribe. NSR doesn’t want readers to know the tribe’s history — or any tribe’s history for that matter. The Northern Cheyenne speak a language from the Algonkian linguistic group — they are Great Lakes Indians forced out of their woodlands lifestyle and (eventually) into the Great Plains where there are few trees and less water. It is forbidding territory. Mere “private enterprise” isn’t going to make this reservation profitable in the way NSR envisions.
Weirdly, had NSR actually done her research, she would have found that Congress eliminated individual allottees access to the mineral estate. See Northern Cheyenne v. Hollowbreast.
TNToT Describes Federal Government Services to Indians under the Snyder Act as “Subsidies”
Citing Lone Wolf v. Hitchcock and Cherokee Nation v. Hitchcock, NSR claims “[T]he federal government isn’t even legally bound to deliver subsidies to Indians.” [at 21] Again, that’s not what those cases say at all – they’re Indian property rights cases in which SCOTUS authorized the Feds to confiscate Indian lands to allot them, a massive private property rights debacle. NSR continuously ignores tribal and individual Indian property rights — here, she turns these cases into a story about how the United States could at any time stop supporting tribal governments, what she calls “subsidies.” Big banks are the beneficiaries of subsidies, not Indian tribes.
TNToT ignores the root of the federal-tribal trust relationship — treaties. There’s no mention of treaties in TNToT whatsoever. Treaties established the trust relationship when the US accepted a “duty of protection” to Indian tribes. That includes the provision of governmental services to every tribe federally recognized. The Constitution, by listing tribes alongside states and foreign nations, acknowledges Indian tribes as sovereigns. Later, NSR will mock the notion of tribal sovereignty, so more on that later (meanwhile, read the Constitution).
NSR even laments that federal spending in Indian affairs keeps going up: “Sadly, it seems that these spending adjustments are always going in one direction – up – and there’s a general assumption that these programs will simply be permanent.” [at 21] If only that were true! Addressed this claim in the first commentary. . . .
NSR refers to Custer’s last stand as a “Pyrrhic victory” for Indians [at 3]. Not sure what she means by this, and I’m not sure she knows what that is — according to the dictionary, a victory “won at too great a cost to have been worthwhile for the victor.” Huh. Custer already did the damage he was going to do by advertising the discovery of gold in the Black Hills in violation of his military duties. I guess some people are pretty sensitive about Custer. Reminds me of the anecdote told by Vine Deloria when he was working on a TV script treatment for a show about the old west. He spoke of Thomas Marquis’ book, “Keep the Last Bullet for Yourself,” positing that many of Custer’s soldiers killed themselves rather than be captured. His co-author freaked out and yelled that couldn’t be true.
Still No Indian Scholars or Commentators
NSR still hasn’t found any American Indian historians or policy scholars to cite. There’s the references to Terry Andersons work [at 8, 12, 15-16, 19]; a couple more Fergus Bordewich sightings [at 10, 14-15]; a “Forbes writer” [at 12-13]; Charles Mann [at 13-14]; Leonard Carlson [at 15]; and S.C. Gynn [at 45]. The Cato report is here again [at 21]. TNToT’s first full chapter could have been a little more interesting if NSR had engaged Bob Miller’s Reservation Capitalism, Randall Akee, or any of the papers produced by the Harvard Project on American Indian Economic Development or the Native Nations Institute.
Tribal Government Corruption
TNToT repeatedly asserts there is tribal corruption but offers no evidence, excepting some unsupported allegations of disgruntled people. Not going to deny that there are disgruntled people, or that there is tribal corruption (usually tied to “private enterprise,” NSR). There are, and there is. But there’s a reason why NSR won’t seek details — TNToT wants to imply that tribal corruption is tied to the dependence of Indians on the federal government [at 22]. The onerous federal government reporting and accounting obligations imposed on tribes that do administer federal programs radically undermines the notion of broad based corruption in tribal government. NSR does acknowledge “[t]here were some reforms in the 1970s.” [at 22] Yep, that’s right, the self-determination era began then, massive reforms. No discussion or acknowledgment from NSR.
NSR concludes Chapter 1 with a coda on Quanah Parker, the aide-de-camp to General Grant at the end of the Civil War and later an Indian affairs officials. We all love Quanah, but he’s a man of his own time. TNToT has vanishing Indian disease — the Indians NSR lionizes are long dead or are pining for the past (we’ll see this again and again in later chapters). Where’s Ada Deer? Jefferson Keel? John EchoHawk? Winona LaDuke? Later, NSR will eviscerate Cecelia Fire Thunder, who is probably one of the great heroes of our time.
In short, NSR doesn’t really like Indian people all that much.