Native Indians-156-168.pdf

reasoning was that the Black Lives Matter movement incited supporters to attack the police. President Obama forcibly walked a fine line in the matters mentioned above so as no give the impression he was favoring one community over another. Despite the election of Obama in 2008 and institutional impr...

reasoning was that the Black Lives Matter movement incited supporters to attack the police. President Obama forcibly walked a fine line in the matters mentioned above so as no give the impression he was favoring one community over another. Despite the election of Obama in 2008 and institutional improvements (CRA 1964, EEOC…), community racial tensions are still a characteristic of American culture. Different tragedies and issues come to mind (even at the end of the Obama mandate). In 2020, mention can be made of George Floyd, Breanna Taylor, or Jacob Blake… (+ BLM). Mention should also be made of affirmative action We have many cases at the SCOTUS on this: giving help to poor ppl, minorities to give them chances and access to education, employment. Arguments for Arguments against Not normal that we don’t see any blacks on TV It's derogatory (dénigrant) to give help to some (for an ex), affirmative action encourages better African Americans (and other minorities), they representation. should proceed in their professional and educational life with their own manners. It redresses the effects of discrimination. People tend to say that some ppl from minorities succeed only thanks to the AA. It's a counterproductive nature of social reforms. Individual action is better revoir ces arguments B. Indians (Native-Americans) Before Columbus discovered America in 1492, the American Indian population that lived north of Mexico numbered between 10 to 25 million. Hundreds of nations – each possessing its own government, culture, and language – populated the United States, throughout the country, from east to west. The official census of 1900 found only a quarter of a million Indians in the entire United States. The reasons for this sharp decline are well known and tragically simple: epidemic smallpox and other alien diseases introduced by the whites, as well as bloodshed and deceit – from Columbus, Cortés, Pizarro, the Puritans, Andrew Jackson, and countless others. According to the 2010 Census, the total population of Indians and Alaska Natives is approximately 5.3 million (1.7% of the nation’s population). The figure breaks down into 565 federally recognized Indian tribes in the United States (referred to as nations, bands, villages, pueblos, Rancherias, and communities, depending on the tribe’s preference), most of whom live west of the Mississippi. Alaska alone concentrates 226 406 tribes, the rest living in thirty-four states on some 315 Indian reservations covering more than 406 The percentage of Indians living east of the Mississippi is estimated at 25%, principally in the Northeast and North Carolina, which – with a population of 80,000 – has the sixth largest population of any state. See Stephen L. Pevar, The Rights of Indians and Tribes, 4 Ed. (Oxford: Oxford University Press, 2012) th at p. 1. 156 55 million acres of land (about 2% of the country’s land mass). The city with the highest Indian population is New York, with more than 100,00 Indians. Today, the Indians make up a particularly disadvantaged segment of American society. Their life expectancy rate is far lower than that of other Americans and half the adult Indian population lacks a high school diploma (only 14% earn undergraduate or professional degrees). In strict economic terms, unemployment is rife on most American reservations, 407 reaching up to 80%and nearly a quarter of all Indians live in poverty. 408 a). Discovery of the Americas (1492 – 19 Century) th From the start, the Spanish conquistadors and the British pilgrims took Indians for an inferior culture. The inferiority of American Indians could not be more inexact. Established on the continent for thousands of years , Indians long displayed complex and refined cultures when 409 Europeans still moved about in the dark ages. Indian “talent” may be seen in values (solidarity, sex equality), architecture (terraced buildings, fortifications), art (sculptures, jewelry), crafts (pottery, ceramics), agriculture (irrigation canals, dams), social structures (law and clan meetings), along with a religious faith centered on the sanctity of nature. The American historian Howard Zinn considers that whilst Native Americans were assuredly without a written language, they had “their own laws, their poetry, their history kept in memory and passed on, in an oral vocabulary more complex than Europe’s, accompanied by song, dance, and ceremonial drama. They paid careful attention to the development of personality, intensity of will, independence and flexibility, passion, and potency, to their partnership with one another and with nature”. 410 Going into further detail, Gary Nash describes the legal culture of the League of the Iroquois 411 in the following terms. “No laws and ordinances, sheriffs and constables, judges and juries, or courts or jails – the apparatus of authority in European societies – were to be found in the northeast woodlands prior to European arrival. Yet boundaries of acceptable behavior were firmly set. Though priding themselves on the autonomous individual, the Iroquois maintained a strict sense of right and wrong. […] He who stole another’s food or acted invalourously in war was ‘shamed’ by his people and ostracized from their company until he had atoned for his actions and demonstrated to their satisfaction that he had morally purified himself”. 412 407 See Education Equality Project, What is the Achievement Gap ? (2011), http://wwwedequality.org/pages/achievement_gap (accessed March 30, 2016). 408 President Barack Obama, Remarks by the President During the Opening of the Tribal Nations Conference, Nov. 5, 2009, at http://falmouth-air.blogspot.com/2009/11/remarks-by-president-during- opening-of.html (accessed October 25, 2020). 409 The Native American most likely came from Asia, 25,000 years ago, across the land bridge of the Bering Straits to Alaska. 410 Cf. Howard Zinn, A People’s History of the United States: 1492-Present, op. cit., p. 21. 411 The League of the Iroquois lived in present-day Pennsylvania and New York. As such, the League comprised the Mohawks (People of the Flint), Oneidas (People of the Stone), Onondagas (People of the Mountain), Cayugas (People at the Landing), and Senecas (Great Hill People). 412 Cf. Gary B. Nash, Red, White, and Black: The Peoples of Early America (Englewood Cliffs: Prentice Hall, 1970). 157 Following the British victory over the French in the “Seven Years’ War” (or “French and Indian War”), the British Crown reorganized its relations with the Indians in a proclamation adopted October 7, 1763. Among other things, a Superintendent of Indian Affairs was 413 appointed for the northern colonies and one for the southern. The functions of these Superintendents were to make treaties between the Crown and the Indian nations, to see to the execution of their provisions, and reconcile those tribes who were at war with each other. They were also entrusted with receiving all lands which the tribes might sell or surrender. They further had the task of prosecuting trespasses by His Majesty’s subjects upon Indian territory. In the words of one author: “The King was the ultimate lord of the soil, and all sales or surrenders of land by the tribes were technically only surrenders of the right of occupation – cessions of the dominium utile to the holder of the dominium nudum”. In addition, King 414 George III issued a royal proclamation that effectively drew a line prohibiting settlements north and west of the Appalachian Mountains (known as the “Proclamation Line of 1763”). Further purchases of Indian land could only take place with the consent of the British government. The main reason for the King’s benevolence towards the Indians was an expression of gratitude towards the Iroquois for their allegiance before and during the Seven Years’ War.These tribes are still important. We have to be aware of the fact that the most popular tribes are not the only ones. Each tribe has its own culture, … They don't represent a small territory. b). Removal Policies and the “Trial of Tears” (19 century) th At first, Indians could remain east of the Mississippi as long as they became assimilated or “civilized”. This essentially meant settling in one place, dividing communal property into private property, and adopting democracy. It also entailed relinquishing pagan worship and usage of native languages in favor of Christian worship and English. Education played an important role in this strategy of assimilation. Over 14,000 Indian children were educated in schools that were established under federal supervision. Children were forcibly removed from their homes, obliged to abandon their native tongue, and forbidden from taking up any religious or traditional activity reminiscent of their tribal origins. Absent “voluntary” assimilation, American Indians would have to relocate themselves to lands west of the Mississippi River. Nearly all relocation was carried out under duress, whether by military escort, by broken treaties or fraudulent land deals. Associated today with Andrew Jackson, the seventh president of the United States (1829-1837), removal policy became “the dominant federal Indian policy of the nineteenth century”. The basic rationale behind “removal policy” 415 was population growth and Americans’ hunger for land. “[…] Indian removal was necessary for the opening of the vast American lands to agriculture, to commerce, to markets, to money, to the development of the modern capitalist economy. Land was indispensable for all this, and after the Revolution, huge sections of land were bought up by rich speculators, including George Washington and Patrick Henry. In North Carolina, rich tracts of land belonging to the Chickasaws were put on sale, although the Chickasaws were among the few Indian tribes fighting on the side of the Revolution, and a treaty had been signed with them guaranteeing their land. John Donelson, a state surveyor, ended up with 20,000 acres of land near what is now 413 For the text of the Proclamation of 1763, see http://www.ushistory.org/declaration/related/proc63.htm (visited July 222, 2014). 414 Robert Weil, The Legal Status of the Indian (New York: AMS Press, 1888), at p. 15. 415 Vine Deloria, Jr., American Indian Policy in the Twentieth Century 242 (1985). 158  Chattanooga. His son-in-law made twenty-two trips out of Nashville in 1795 for land deals. This was Andrew Jackson. Jackson was a land speculator, merchant, slave trader, and the most aggressive enemy of the Indians in early American history. He became a hero of the War of 1812, which was not (as usually depicted in American textbooks) just a war against England for survival, but a war for the expansion of the new nation, into Florida, into Canada, into Indian territory”.416 Andrew Jackson had always been a fierce fighter of American Indians, setting them aside whenever they were inconvenient to whites. It should be added that Jackson’s contempt for 417 American Indians seems to have been more extreme than usual. The British historian Simon Schama prosecutes Jackson’s cruel treatment of Indians in scathing terms, referring to “ethnic cleansing”. As an illustration of Jackson’s cruelty before he became President, one need only 418 refer to … The Indian Removal Act 1830, adopted May 28, 1830, was passed into law during Jackson’s second year as President. In essence, the Act set the tone for his administration’s 419 handling of all Indian affairs and generally authorized the president to “negotiate” with Indian tribes on the east coast to relocate west of the Mississippi River. The cruel enforcement of the Indian Removal Act would result in the “trail of tears” of the 1830s. In the main, the expression refers to the forced removal of Indians westward. Scores of Indians would be exterminated. Those who survived would bear an indelible mark of bitterness at their defeat and loss of land, heritage, and culture. This is how Andrew Jackson referred to the plight of the Cherokees – forcibly removed from their lands in the region where Georgia, North Carolina, Tennessee, and Alabama meet. “I regret that the Cherokees east of the Mississippi have not yet determined as a community to remove. How long the personal causes which have heretofore retarded 416 Cf. Howard Zinn, A People’s History of the United States: 1492-Present, op. cit., at 126-7. Zinn demonstrates even greater severity towards Jackson at p. 130. 417 Besides fighting the Indians, Andrew Jackson was also the sworn enemy of paper currency and central banking. To point, he referred to the Bank of the United States – the institution granted the monopoly to print paper money – as the “Monster”. He effectively destroyed the Bank of the United States by vetoing the renewal of its charter in 1832 and running for reelection as the champion of “People v. Monster”. The result of Jackson’s policies was liquidation of monetary regulation in the United States and ensuing monetary decentralization (not to mention a huge economic meltdown shortly after he left office in 1837). On the eve of the Civil War, there were 7,000 local currencies circulating in the United States and an epidemic of counterfeiting. It took President Lincoln’s Banking Act of 1862 for monetary order to be restored (the Union being in dire need of dependable credit to fight the war). Today’s Federal Reserve, i.e. the successor to the Bank of the United States, was not established until 1913. Considering Andrew Jackson’s stormy relationship with banking in America, it is all the more paradoxical that his face appears on the $20 bill… To his credit, Jackson offered himself as a friend of the common man, unwilling to see the country dominated by financial oligarchs (previous tenants of the White House were all socially privileged men). Jackson was also the founder of the Democratic Party and a staunch defender of the Union. Most notably, he defeated John Calhoun, a gifted senator from South Carolina who served as Jackson’s first vice-president. When Calhoun advocated the doctrine of “nullification”, that would allowed a state to deny the validity of a federal law – and challenged the very existence of the Union – Jackson broke with him and ultimately marginalized him. For further reading on Andrew Jackson, cf. Jon Meacham, American Lion: Andrew Jackson in the White House (New York: Random House, 2008). For further reading on America’s love-hate relationship with money and banks, cf. Simon Schama, “Gilt complex”, Financial Times (Life & Arts), 16-17 May 2009. 418 Cf. Simon Schama, The American Future: A History (London: The Bodley Head Ltd., 2008), pp. 325- 326. 419 14 Stat. 411. 159  that ultimately inevitable measure will continue to operate I am unable to conjecture. It is certain, however, that delay will bring with it accumulated evils which will render their condition more and more unpleasant. The experience of every year adds to the conviction that emigration, and that alone, can preserve from destruction the remnant of the tribes yet living amongst us”. 420 Estimates put at 15,000 the number of Cherokees that died in their forced march to what would be called Indian territory and then later Oklahoma. The Choctow nation was also 421 removed from what are now the U.S. states of Alabama (itself an Indian name meaning “Here we may rest”), Mississippi, and Louisiana to Oklahoma. Of the circa 15,000 Choctows who set out, up to 6,000 are believed to have died. Foreign visitors viewed these removal policies with dismay. Meeting Indians for the first time in his life on Lake Erie in July 1831, the French political philosopher Alexis de Tocqueville (1805-1859) came out thoroughly appalled by what he saw. Brought up on readings of 422 Chateaubriand and James Fenimore Cooper , he expected to meet proud warrior-hunters who 423 breathed liberty and had “nothing to lose by being seen in their nudity”. Instead, he saw a 424 smallish and “repelling” people, with high-pitched voices, who were “more or less drunk” and demonstrated utter indifference at each other’s plight. Voicing his dismay to white Americans, Tocqueville was given the following answer: “This world belongs to us … the Indian race is bound to disappear. We can neither avoid this, nor should we delay this. God did not create them to be civilized, so they should perish. In any event, I don’t want to get involved. I won’t do anything against them, content to give them anything that will precipitate their loss. Over time, I’ll get their land and I consider myself innocent of their death”. Not 425 without a hint of irony, Tocqueville then notes in his diary that the person who just proffered these shocking statements will promptly rush into a temple and listen to a Gospel reading on the brotherhood of Man. Tocqueville develops his dismay at the plight of Indians and the 426 trail of tears in his work, De la démocratie en Amérique: “One cannot imagine greater pain in these forced migrations”. Besides the personal tragedy, what stunned the philosopher was 427 420 Andrew Jackson, in his sixth annual message to Congress on December 1, 1834. 421 Cf. Stephen L. Pevar, The Rights of Indians and Tribes, op. cit., p. 7. 422 Alexis de Tocqueville, Œuvres, Vol. I, Voyage en Amérique (Paris : Bibliothèque de la Pléiade, Gallimard, 1991), pp. 217-220. 423 Chateaubriand’s stay in the United States (April –December 1791) led to 3 romanticized works on Indians Les Natchez (written between 1793 and 1799 but only published in 1826), Atala (1801), and René (1802). On Chateaubriand’s American trip, see George D. Painter, Chateaubriand. A Biography, Volume One London: Chatto & Windus), Chapters 12-15. Prior to Tocqueville’s voyage to the United States, James Fenimore Cooper (1789-1851) had published The Last of the Mohicans (1826), an instant best- seller in Europe, enthusiastically received by critics and writers (notably Balzac and Eugène Sue). 424 According to Tocqueville, « Je croyais trouver une race d’hommes peu différente des Européens, des corps développés par des les fatigues de la chasse et de la guerre et qui ne perdaient rien à être vus dans leur nudité. On peut juger de mon étonnement en rapprochant ce portrait de celui qui va suivre » : ibid, at p. 217. 425 Ibid, at p. 219. Personal translation. The original reads: « Ce monde-ci nous appartient … la race indienne est appelée à une destruction finale qu’on ne peut empêcher et qu’il n’est pas à désirer de retarder. Le ciel ne les a pas faits pour se civiliser, il faut qu’ils meurent. Du reste je ne veux point m’en mêler. Je ne ferai rien contre. Je me bornerai à leur fournir tout ce qui doit précipiter leur perte. Avec le temps, j’aurai leurs terres et serai innocent de leur mort ». 426 Tocqueville resumed his reflections on the plight of Indians, and the trail of tears in particular, on New Year’s eve 1831: ibid, at pp. 261-62. 427 Alexis de Tocqueville, Œuvres, Vol. II, De la démocratie en Amérique, I (Paris : Bibliothèque de la Pléiade, Gallimard, 1991), Deuxième partie, Chapitre X, pp. 373-393, at 376. Personal translation. The original reads: « On ne saurait se figurer les maux affreux qui accompagnent ces émigrations forcées ». 160 the lawfulness with which removal of Indians was undertaken: “Today, the dispossession of Indians often takes place in a regular fashion and so to speak, legally”. Tocqueville 428 described the Choctow removals in Memphis, Tennessee in 1831 in the following terms: “In the whole scene there was an air of ruin and destruction, something which betrayed a final and irrevocable adieu; one couldn’t watch without feeling one’s heart wrung. The Indians were somber and taciturn. There was one who could speak English and of whom I asked why the Choctows were leaving their country. ‘To be free’, he answered but I could never get any reason out of him. We … watch the expulsion of one of the most celebrated and ancient American peoples”. c). Resistance and Downfall of Native Americans The Black Hills (or plains region) of the United States covers what is now North Dakota, South Dakota, Montana, Wyoming, Nebraska, and Colorado. When referring to American Indians in this vast region, one is referring to three nations: the Lakota, Nakota, and Dakota, each of which is further divided into bands such as the Oglala Lakota and the Minneconjou Lakota. Common usage encapsulates these nations under the “Sioux” denomination (Nadowe Su) – a word applied by outsiders meaning “little rattle” (French traders and trappers changed the spelling from Su to Sioux, and dropped Nadowe). In 1851, the [first] Treaty of Fort Laramie – entered into between the United States and the Sioux – recognized that Sioux territory included all of the present state of South Dakota, and parts of what is now Nebraska, Wyoming, North Dakota, and Montana. Whilst recognizing 429 the rights of the United States Government to establish roads, military and other posts, within their respective territories, Article 3 of the Treaty specifically recognized that “… the United States bind themselves to protect the aforesaid Indian nations against the commission of all depredations by the said people of the United States”. Soon after its ratification, the terms of this Treaty were violated by the United States, leading to a series of wars and skirmishes. In 1865, a congressional committee began a study which resulted in a “Report on the Condition of the Indian Tribes”. Ultimately, the United States established an Indian Peace Commission and committed to ending the wars and preventing future conflicts. The cost, however, would be to compel American Indians to give up their lands and, once again, move further west onto reservations. The Black Hills War, also known as the Powder River War of 1866-67, involved a series of military engagements in which the Sioux tribes, led by Red Cloud , fought to 430 protect the integrity of earlier-recognized treaty lands. With a considerable measure of success during this period, the Sioux defeated U.S. Army detachments and halted wagons moving across their territories. The result was the opposite of what the U.S. military had hoped to achieve: American Indians became more openly defiant than ever. The [second] Treaty of Fort Laramie, signed on April 29, 1868, laid down the conditions for a renewed 428 Ibid, at p. 377. Personal translation. 429 Treaty of Fort Laramie with Sioux, etc., of September 17, 1851 see 11 Stat. 749, Internet available at http://resources.utulsa.edu/law/classes/rice/Treaties/11_Stat_749_Ft_Laramie.htm (accessed May 8, 2020). 430 Red Cloud (or Mahpiya-Luta)(ca. 1822-1909) was an Oglala Sioux chief. Credited with 80 individual feats of bravery, he was chosen as tribal chief over the hereditary claimant to the title. Red Cloud strongly opposed the westward expansion of the whites but eventually counseled peace during the troubles of 1876 (infra). Several years later he was removed as chief. He died on the Pine Ridge Reservation in 1909. “Lakota Chief Biographies”, Akta Lakota Museum and Cultural Center, Internet available at http://aktalakota.stjo.org/site/News2?page=NewsArticle&id=8307 (accessed May 9, 2020). 161 agreement between the warring parties. The United States agreed to guarantee exclusive 431 tribal occupation of reservation lands encompassing a vast territory. In Article II of the Treaty, the United States specifically pledged that the Great Sioux Reservation, including the Black Hills, would be “set apart for the absolute and undisturbed use and occupation of the Indians herein named”. The United States “solemnly agree[d]” that no unauthorized persons 432 “shall ever be permitted to pass over, settle upon, or reside in [this] territory”. In so doing, 433 the Government recognized tribal hunting rights and barred setters from them, in addition to forbidding future cessions of tribal land unless they were approved by 75 percent of the American Indians affected by them. There was also a commitment by the United States to provide education to American Indian children (a classroom and teacher for every 30 children). Again, the Treaty was never honored by the United States as renewed speculation took hold regarding vast quantities of gold and silver in the Black Hills. Skirmishes and battles multiplied over the following years, with increasing intensity as of 1874, following the incursion of thousands of white settlers and prospectors searching for the precious minerals. The Executive Branch then decided to abandon the Nation’s treaty obligation to preserve the integrity of the Sioux tribes and seized the Black Hills without the tribes’ consent. President Grant had seemingly “decided that the military should make no further resistance to occupation of the Black Hills by miners, ‘it being his belief that such resistance only increased their desire and complicated the troubles’. These orders were to be enforced ‘quietly’, and the President’s decision was to remain confidential’”. The commissioner of 434 Indian affairs decreed all Lakota not settled on reservations by January 31, 1976 would be considered hostile. Among the battles that ensued, two stand out – Rosebud and Little Big Horn – taking place within eight days of each other in June 1876. The first battle, the battle of Rosebud – fought on June 17, 1876 – stemmed from the refusal by the Sioux, under the command of Sitting Bull and Crazy Horse , to comply with U.S. commands that Indians 435 436 confine themselves to reservations. Brigadier General George Crook viewed this defiance as an opportunity to crush the “hostile” Indians. Much to his dismay, Crook’s troops were largely outnumbered (three to one) and he had no choice but to withdraw, suffering numerous casualties in comparison with the Sioux. The second battle – the battle of Little Big Horn – fought on June 25, 1876 – involved a Civil War hero, Lieutenant Colonel George Armstrong Custer, who headed a force of 600 soldiers from the Seventh Cavalry into the Black Hills, again with the avowed purpose of ordering the Sioux to return to their reservations. Sitting Bull and Crazy Horse again overwhelmed Custer’s men, his entire battalion of 200 men being 431 Treaty of Fort Laramie of April 29, 1868: see 15 Stat. 635, Internet available at https://www.ourdocuments.gov/doc.php?flash=false&doc=42&page=transcript (accessed May 8, 2020). 432 Ibid, at 638. 433 Ibidem. 434 Quoted in United States v. Sioux Nation of Indians, 448 U.S. 371, 378 (1980). 435 Besides being a holy man (offering prayers to Wakan Tanka, the Great Spirit), Sitting Bull (or Tatanka- Iyotanka)(ca. 1831-1890) became head chief of the Lakota nation in 1868. Following Little Big Horn and a four-year stay in Canada, Sitting Bull moved back to the United States and surrendered his weapons to the commanding officer of Fort Buford in Montana in July 1881. Held as prisoner of war for several years, he eventually returned to a reservation. Two weeks before Wounded Knee, U.S. authorities sent 43 Lakota policemen to bring him in (out of fear he would participate in the Ghost Dance). One of the policemen shot him in the head. See “Lakota Chief Biographies”, Akta Lakota Museum and Cultural Center, Internet available at http://aktalakota.stjo.org/site/News2?page=NewsArticle&id=8778 (accessed May 9, 2020). 436 The Lakota name of Crazy Horse was Tasunke Witko (or His Horse is Wild)(ca. 1840-1877). He played a decisive role in the defense of American Indian territorial integrity, leading his band in the counterattack that destroyed Custer’s Seventh Cavalry. See “Lakota Chief Biographies”, Akta Lakota Museum and Cultural Center, Internet available at http://aktalakota.stjo.org/site/News2?page=NewsArticle&id=8601 (accessed May 9, 2020). 162 crushed by as many as 3,000 American Indians. The Battle of Little Big Horn – also called Custer’s Last Stand – marked a decisive American Indian victory and the worst defeat of the U.S. Army in American Indian wars. Fundamentally, the sting and humiliation of defeat outraged many white Americans and confirmed their idea of American Indians as bloodthirsty, unruly and vindictive. All the while, “the larger war was already lost”. In the 437 years that followed Rosebud and Wounded Knee, the U.S. Government increased its efforts to subdue the tribes to stay confined on reservations. Red Cloud and Big Foot (or Spotted Elk ) 438 moved their people onto government reservations. Crazy Horse also led nine hundred of his followers to a reservation in Nebraska, surrendering his weapons. Within months he was stabbed in the back by a military policeman: “He was only about thirty-seven years old, yet he had seen the world of his childhood – a powerful and independent people living amid teaming herds of buffalo – all but disappear”. 439 The same year Crazy Horse was killed, Congress enacted a law – the 1877 Act – that legitimized the settlers’ invasion of the Black Hills. The Act was adopted with both the 440 intent of abrogating the earlier Fort Laramie Treaty and compelling the Sioux to relinquish their rights to the Black Hills, also offered the Sioux compensation despite the fact it had made no effort to give the Sioux full value for the reservation lands. In any event, the Sioux replied that their lands, legally guaranteed to them by the United States, were never for sale. An increasing number of them, struggling to survive on the denuded plains, moved to reservations. Sitting Bull, who took refuge in Canada for four years, beyond the reach of the U.S Army, also ended his life on a reservation. By the late 1880s, fears developed around 441 spreading unrest on American Indian reservations, expressed most notably through “ghost dances”, i.e. ceremonies that promised to rid the land of white people and restore the American Indian way of life. On December 29, 1890, more than three hundred members of the Lakota Sioux, principally women and children, were killed by the U.S. Army, at point blank range, near a creek called Wounded Knee. Twenty of the soldiers involved received the Medal of Honor for their actions. Speaking twenty years later, Black Elk remembered: “I can still see the butchered women and children lying heaped and scattered all along the crooked gulch as plain as when I saw them with eyes young. And I can see that something else died there in the bloody mud, and was buried in the blizzard. A people’s dream died there”. 442 Reactions were far less compassionate on the white side. In the opinion of L. Frank Baum, a young newspaper editor writing for the Aberdeen Saturday Pioneer on January 3, 1891, just five days after Wounded Knee: “The Pioneer has before declared that our only safety depends upon the total extermination of the Indians. Having wronged them for centuries, we had 437 Brooke Jarvis, “American Sphinx”, The New Yorker, September 23, 2019, pp. 26-31, at 28. 438 Spotted Elk (or Si Tanka)(1825-1890) was best known for his diplomatic and political skills. He even traveled to Washington D.C. to request the establishment of a mission school near the forks of the Cheyenne River. Suffering from pneumonia in December 1890, Spotted Elk ordered his band’s surrender when the Minnenconjou were intercepted by the U.S. Army on their way to the Pine Ridge Reservation. He was killed at Wounded Knee on December 29, 1890. See “Lakota Chief Biographies”, Akta Lakota Museum and Cultural Center, Internet available at http://aktalakota.stjo.org/site/News2?page=NewsArticle&id=8359 (accessed May 7, 2020). 439 Brooke Jarvis, “American Sphinx”, The New Yorker, op. cit. 440 Act of February 28, 1877 (1877 Act), 19 Stat. 254. 441 Sitting Bull was nevertheless allowed to leave the reservation to participate in Buffalo Bill’s Wild West Show. Riding once around the arena, he earned $50/week (with additional income from autographs and pictures): “Unable to tolerate white society any longer, he stayed with the show for four months”. See “Lakota Chief Biographies”, Akta Lakota Museum and Cultural Center, Internet available at http://aktalakota.stjo.org/site/News2?page=NewsArticle&id=8778 (accessed May 9, 2020). 442 Brooke Jarvis, “American Sphinx”, The New Yorker, op. cit. 163 better, in order to protect our civilization, follow it up by one more wrong and wipe these untamed and untamable creatures from the face of the earth. In this lies future safety for our settlers and the soldiers who are under incompetent commands. Otherwise, we may expect future years to be as full of trouble with the redskins as those have been in the past”. c). Relative Revival A revival of American Indian culture is slowly taking place: a series of factors. 1. Law In 1975, the U.S. Court of Federal Claims described the theft of the Black Hills in the following terms: “A more ripe and rank case of dishonorable dealings will never, in all probability, be found in our history”. In 1980, the Supreme Court delivered an 8-1 decision that effectively upheld the lower court’s ruling and ruled that Congress had acted in bad faith. In short, the Court held that the reclamation of land in 1877 was a taking of propert requiring compensation under the Just Compensation Clause of the Fifth Amendment: United States v. Sioux Nation of Indians. 443 The courts set fair compensations for the Black Hills at $102 (whose value today, with accrued interest, exceeds $1.3bn). The Sioux nevertheless replied that they would not accept the payment and that their initial request was based on getting the land back. Taking money for something sacred was beyond imagination. Harking back to Crazy Horse: “One does not sell the earth upon which the people walk”. In addition, Sioux leders argued the sum of money had been based on a valuation of the land when it was sized and that it represented only a fraction of the gold, timber, and other natural resources that have been extracted from it. The funds ordered by the Supreme Court went into a trust and remain, to the day, untouched. Major lawsuit which ended in 2009 - Cobell v Salazar - involving mismanagement by the Department of the Interior of Native American money (extraction of natural resources generated on Native American lands for mining, lumber, oil and gas industries…). Class action involving more than 300,000 people… The case grinded through the court system for 13 years before a settlement was reached in December 2009: award of $3.4 billion, hailed as a major victory by the Obama administration 2. Economic Revival In 1987, the United States Supreme Court was confronted with a case that would lead to a degree of economic revival for Indians. The case concerned two federally recognized Indian Tribes that had reservation land within Riverside County, California where they conducted bingo and card games open to non-Indians. The gambling industry provided employment to many Indians on the reservation, and most clients were non-Indians. The State of California wanted to apply state gambling laws to reservation gaming and Riverside County wanted to apply local ordinances. Together, these laws would ban the card games and put charitable 443 United States v. Sioux Nation of Indians, 448 U.S. 371 (1980). Justice Willima Rehnquist was the dissenter. 164 organizations in charge of bingo games. The Tribes claimed that the imposition of gambling laws by the state government violated their sovereignty. They brought suit against the state of California and Riverside County in federal district court. The district court ruled that neither the state nor the county had the authority to regulate gambling on reservation land. The United States Court of Appeals for the Ninth Circuit affirmed. Granting certiorari, the case issue before the Supreme Court in California v. Cabazon Band of Mission Indians was whether State and local governments had the authority to regulate gambling conducted on Indian reservation land. Justice Byron R. White delivered the opinion for a 6-3 court, ruling that federally-recognized tribes could operate casinos outside state jurisdiction because the tribes were considered sovereign entities by the United States and the gaming operation must not be directly prohibited in that state. For the Court, State laws require the consent of Congress in order to apply to Indian reservations. While the federal government consented to States enforcing criminal laws on reservation land, gambling regulations are types of civil law and therefore not enforceable. The Organized Crime Control Act of 1970 did not grant States the authority to regulate gambling either. Although the Act incorporated certain State gambling laws into federal laws regulating gambling on reservations, this did not grant States authority to enforce the new federal laws on reservations. Absent explicit permission for regulation, states can only enforce laws on reservations if their interests in regulation outweigh the interests of the federal government and tribal authorities. In this case, gambling provided revenue critical to the economic self- sufficiency of the reservation. Accordingly, the federal government's interest to ensure Indian self-government outweighed state concerns about organized crime developing because of unregulated reservation gaming. One year later, in 1988, Congress attempted to put some order in this field and enacted the Indian Gaming Regulatory Act (IGRA) to establish the rules for the operation and regulation of Indian gaming. A new federal agency, called the National Indian Gaming Commission (NIGC), was established with the role of investigating, auditing, reviewing, and approving Indian gaming ordinances. 444 In terms of figures, as of 2007, the tribal gaming industry had become a $25 billion industry generated by over 350 tribal casinos in 28 states. This level of growth was made possible beginning with the U.S. Supreme Court ruling in favor of the Cabazon Band of Mission Indians. There are 425 Indian gaming facilities in the USA 233 tribes operate casinos Indian gaming operates in 28 states Tribes receive $4 of every $10 that Americans wager at casinos Indian casinos earned $26.5 billion in 2009 revenues Today, Native American casinos are pushing for the legalization of … online poker… Gambling has become an increasingly popular pastime in the United States. According to one source, “nearly two-thirds of adults place some sort of stake each year, and about one-tenth 444 Cf. the website of the National Indian Gaming Commission, at http://www.nigc.gov (visited November 19, 2017). 165 visit Las Vegas to try their luck”. Further to the Indian Gaming Regulatory Act of 1988, 445 Congress enacted the Professional and Amateur Sports Protection Act (PASPA) in 1992. The purpose of this law – adopted at the behest of major sports leagues – was to prohibit sports gambling throughout the country – with the exception of the State of Nevada – out of fear of match-fixing. The fear of match-fixing stemmed from the distant American past when, in 1919, the Chicago White Sox deliberately lost the baseball World Series. Several years after PASPA was adopted, the State of New Jersey unilaterally legalized sports wagers in outright contravention of PASPA. The State argued the law represented an unconstitutional federal infringement of the State’s rights. On May 14, 2018, the Supreme Court of the United States ruled in favor of New Jersey. Henceforth, each State was given the opportunity to permit sports gambling. An expected 32 States are expected to legalize sports gambling by 2023, handling some $90bn of wagers a year, compared with $4.9bn in Nevada in 2018. 446 3. Cultural Renaissance Two principal factors explain a cultural renaissance of the Indians. The first occurred naturally, with the twilight of Wild West shows at the beginning of the 20 century (most th notably Buffalo Bill riding besides galloping braves) and the Western as a movie genre in the middle of the 20 century (featuring works by John Ford , Anthony Mann , Budd Boeticher , th 447 448 449 John Hawks, Raoul Walsh). Both types of entertainment were aimed at the attitudes of non- Indian audiences. They embellished the West and depicted highly Eurocentric themes. By 450 the mid-1950s, the representations conveyed in these shows started to appear culturally out- of-synch and offensive. They had lost the mood of the general public. The Western as a cinematic genre began a revisionist or “be-nice-to-the Indian cycle” with works such as 451 Anthony Mann’s Devil’s Doorway (1950), Delmer Daves’ Broken Arrow (1950, and John Ford’ Cheyenne Autumn (1964). The whites were now presented as the despicable brutes and 452 savages. Convinced that history had been distorted, Arthur Penn began questioning the myths perpetuated by Hollywood in his directorial debut, The Left-Handed Gun (1958). Paul Newman, playing the part of Billy the Kid, portrayed his character as a suicidal anti-hero. By the time he directed Little Big Man in 1970, there was little doubt where Arthur Penn’s sympathies lay. Historical figures such as Custer or events, such as Little Big Horn, were demythologized. The demise of this form of entertainment coincided with the publication in 1970 of “Bury My Heart at Wounded Knee”, by Dee Brown. For Time magazine, "In the last decade or so, after almost a century of saloon art and horse operas that romanticized Indian fighters and white settlers, Americans have been developing a reasonably acute sense of the injustices and humiliations suffered by the Indians. But the details of how the West was won are not really part of the American consciousness... Dee Brown, Western historian and head librarian at the University of Illinois, now attempts to balance the account. With the zeal of an IRS investigator, he audits U.S. history's forgotten set of books. Compiled from old but rarely 445 “Gambling on sport. For the better”, The Economist, May 19 , 2018, p. 33. th 446 Ibid. For The Economist, match-fixing is less enticing today because “athletes’ rocketing salaries have made bribes less appealing”. More convincing appears the argument that fans can place bets with offshore bookmakers. 447 John Ford directed three Westerns in Monument Valley with John Wayne: Stage Coach (1939), She Wore a Yellow Ribbon (1949), and The Searchers (1956). 448 Anthony Mann directed The Furies (1950), The Naked Spur (1953), 449 Budd Boetticher directed The Wild T (1957), The Power Play ( 450 Anthony Mann’s The Furies, written by Niven Busch, was inspired by Dostoievski’s novel, The Idiot. 451 Tom Milne in John Pym (ed.), Time Out Film Guide (London : The Penguin Group, 2001), p. 143. 452 This cycle prefigured Kevin Costner’s Dances With Wolves (1990). 166 exploited sources plus a fresh look at dusty Government documents, Bury My Heart at Wounded Knee tallies the broken promises and treaties, the provocations, massacres, discriminatory policies and condescending diplomacy." The Western revived as a cinematic genre in the early 1990s, most notably with Clint Eastwood’s film Unforgiven (1992). The picture portrayed the lawman behaving just as bad as the renegade. By the time Gore Verbinski directed The Lone Ranger in 2013, the mere image of Johnny Depp playing the part of the Indian sidekick Tonto, with a dead bird on his head, appeared insulting. Attitudes also changed with respect to iconic memorials in the United States. To point, one of the most famous – and lucrative – tourist attractions in the American West, Mount Rushmore, is located in the Black Hills of South Dakota. Over three million people flock to the memorial every year depicting four U.S. presidents, carved in granite stone, each 18m tall: George Washington, Thomas Jefferson, Theodore Roosevelt, and Abraham Lincoln. According to the principal sculptor of the memorial – Gutzon Borglum – the avowed purpose of the memorial 453 was “to communicate the founding, expansion, preservation, and unification of the United States”. 454 The second reason to explain a cultural renaissance of the Indians may be found in the enactment of the American Indian Religious Freedom Act (Public Law 95-341, commonly abbreviated to AIRFA) along with the passing of a joint resolution of Congress on August 11, 1978. Since 1883, full observance of Native American rituals had largely been interfered with, if not proscribed, in deference to federal policies of forced assimilation. Taking 455 freedom of religion, guaranteed by the First Amendment of the United States Constitution as its starting-point, AIRFA was designed to protect and preserve the traditional religious rights and cultural practices of American Indians, Native Alaskans, and Native Hawaiians. These rights included, but were not limited to, access of sacred sites, repatriation of sacred objects held in museums, freedom to worship through ceremonial and traditional rites, including within prisons, and use and possession of objects considered sacred. The Act was far from perfect. It suffered from the inexistence of proper enforcement mechanisms. By way of illustration, the case Lyng v. Northwest Indian Cemetery Protective Association (CPA), delivered by the United States Supreme Court on April 19, 1988. The facts of this case begin 456 with the federal government attempting to harvest timber and construct paved roads through national forest lands, and most notably a 6-mile stretch that extended through the Six Rivers National Forest located in the northwestern corner of California. The Yurok, Karuk, and the Tolowa Indian tribes of California used this area for vision questing, the gathering of medicine roots and other ceremonial purposes. For them, it was sacred land. The Northwest Indian CPA took action against Secretary of Agriculture Richard Lyng. The lower courts, including the Ninth Circuit Court of Appeals upheld the religious freedom claims of the tribes. Reaching the United States Supreme Court, Justice Sandra Day O’Connor reversed. She asserted that the construction of the public road outweighed the rights of the specific individual religious infringement. Thus the government, as the ultimate landowner, should 453 Convinced of the racial and moral superiority of the white race, Gutzon Borglum (1867-1941) was himself a member of the Ku Klux Klan. 454 Quoted on the website of the National Park Service, at https://www.nps.gov/moru/learn/historyculture/index.htm (accessed May 7, 2020). 455 The practice of forced assimilation, in literature, is brought out in Sherman Alexie’s book, The Absolutely True Diary of a Part-Time Indian, when the main character’s teacher at the reservation school (in Wellpinnit) confesses: “I didn’t literally kill Indians. We were supposed to make you you give up being Indian. Your songs and stories and language and dancing. Everything. We weren’t trying to kill Indian people. We were trying to kill Indian culture”. See Sherman Alexie, The Absolutely True Diary of a Part- Time Indian, (London: Andersen Press, 2015), at 35. 456 Lyng v. Northwest Indian Cemetery Protective Association (CPA), 485 U.S. 439 (1988). 167 override the claims of religious infringements of the individual. In addition, the court argued that there were "too many so-called religions and the court needs to stay out of the business of defining which religions are sincere religions. Henceforth, religious freedom cases should be deferred to and conducted as legislative matters and not judicial issue, i.e., the courts are no longer in the business of protecting religious freedom of the majority or minority. But such matters should be left to the will of the majority, i.e., elected congressional members, to protect the expressions of the minority. With this ruling, the Sherbert Test was no longer applicable and in the larger context, the ruling compromised and undermined, 1. the treaty relations between the federal government and the tribes as sovereign entities and the reserved rights doctrine which assures the all rights, including religious rights, to be held by the tribes unless explicitly given up; and 2. the trust relationship" of the federal government to look after the interests of their wards, i.e., the Indians). In addition, many Indian artifacts lay beyond its reach and could not be repatriated. French explorers, missionaries and traders were the first whites to encounter Plains Indians, in territory that France ceded to the United States only in 1803 with the Louisiana Purchase. 457 Many Indian artifacts are to be found today in European museums, foremost of which is the Musée du Quai Branly, in Paris. 457 Lewis and Clark set out on their expedition the next year. 168