Monday, December 17, 2007

The Persistence of Memory

I've remarked to any number of people, and probably right here on this blog, that the consistent failure to address the past is why the United States persists in being such a global dickhead in the present.

By way of illustration, allow me to share with you my favorite legal opinion in the history of legal opinions. The case was United States v. Lucero, and was decided by the Supreme Court of the Territory of New Mexico in 1869. For the benefit of the dorks, the citation is 1 N.M. 422.

By way of background, this case challenged the applicability of the Non-Intercourse Act, whereby Congress place Indians off-limits to the general public. Among the more significant portions of the Act are those relating to land; the Act explicitly forbade the transfer of Indian lands to non-Indians without the approval of Congress. In this case, Section 11 provided that any non-Indian settling on Indian land would be required to pay a $1000 fine. A squatter in this case challenged the fine, asserting that the Pueblo people weren't "Indians" as the term was generally applied.

This is important, because in New Mexico there was an influx of settlers after the Civil War, many of whom were wealthy (white) folks looking to acquire land for ranching, mining, railroad rights-of-way, and so on, and the Pueblos were sitting on some prime real estate; absent status as Indian tribes, this land could be stolen without running afoul of federal law.

Question for the Court: are Pueblos "Indians?" Answer: No.

Here's where it gets fun. The Court started by attempting to define what is an Indian:

"Who and what are the Indians for whom said laws were passed, and upon whom they were intended to operate? They were wandering savages, given to murder, robbery, and theft, living on the game of the mountains, the forest, and the plains, unaccustomed to the cultivation of the soil, and unwilling to follow the pursuits of civilized man. Providence made this world for the use of the man who had the energy and industry to pull off his coat, and roll up his sleeves, and go to work on the land, cut down the trees, grub up the brush and briers, and stay there on it and work it for the support of himself and family, and a kind and thoughtful Providence did not charge man a single cent for the whole world made for mankind and intended for their benefit. Did the Indians ever purchase the land, or pay any one a single cent for it? Have they any deed or patent for it, or has it been devised to them by any one as their exclusive inheritance?

"Land was intended and designed by Providence for the use of mankind, and the game that it produced was intended for those too lazy and indolent to cultivate the soil, and the soil was intended for the use and benefit of that honest man who had the fortitude and industry to reclaim it from its wild, barren, and desolate condition, and make it bloom with the products of an enlightened civilization. The idea that a handful of wild, half-naked, thieving, plundering, murdering savages should be dignified with the sovereign attributes of nations, enter into solemn treaties, and claim a country five hundred miles wide by one thousand miles long as theirs in fee simple, because they hunted buffalo and antelope over it, might do for beautiful reading in Cooper's novels or Longfellow's Hiawatha, but is unsuited to the intelligence and justice of this age, or the natural rights of mankind. The government of the United States, while thus dignifying these savages with the title of quasi nations, with whom the United States has, from time to time, and quite often, entered into stipulations to purchase their lands, have generally purchased at an average of about two cents an acre, and then sold it out to the people at from one dollar and a quarter to ten dollars and fifty cents per acre, thus making a speculation off of the Indian lands of over fifty millions of dollars, if their title is anything but an ingenious and benevolent fiction."


"When the term Indian is used in our acts of congress, it means that savage and roaming race of red men given to war and the chase for a living, and wholly ignorant of the pursuits of civilized man, for the simple reason that when those laws had been enacted, no such class of Indians as the pueblo Indians of New Mexico existed within the existing limits of the United States.

Neither the Spanish crown, its viceroys in the new world, nor the Mexican republic ever legislated for the savage class of Indians. They would as soon have thought of legislating upon what time the wolf should be admitted into their sheep-fold, the bear into their cornfields, the fox into their hen-roosts, or the skunk into their parlors. "


Indians, in their nature and habits, are like other animals. The horse, the cow, the sheep, the chicken, can be tamed and made useful. The tiger, the bear, the panther, and wildcat can not be tamed or reduced to subjection, except by commencing when young, and bestowing years of labor in the undertaking. It is the same with Indians. Some tribes can easily and readily adopt the pursuits and habits of civilized life; but in other tribes, the civilization of those of mature age is impossible; and even when taken young, civilization is rarely accomplished under half a century. To extend over all the same system of laws is the height of folly and injustice."

The Court essentially found that Pueblos, in contrast with "savage" Indians, were civilized, and therefore not really subject to legislation governing "Indians." This holding was later affirmed by the U.S. Supreme Court in United States v. Joseph, 94 U.S. 614 (1876). After a statement of how industrious, pious, law-abiding, and downright civilized the pueblos were, the Court stated:

"They are Indians only in feature, complexion, and a few of their habits; in all other respects superior to all but a few of the civilized Indian tribes of the country, and the equal of the most civilized thereof."

Things were a little blurred by the Enabling Act that allowed New Mexico to become a State. Among other things, it expressly lumped the pueblos in with us savages as far as prohibitions on the sale of liquor went. A challenge to the Act went up to the U.S. Supreme Court in United States v. Sandoval, 231 U.S. 28 (1917), where the Court took a second, hard look at the pueblos:

"The people of the pueblos, although sedentary rather than nomadic in their inclinations, and disposed to peace and industry, are nevertheless Indians in race, customs, and domestic government. Always living in separate and isolated communities, adhering to primitive modes of life, largely influenced by superstition and fetichism, and chiefly governed according to the crude customs inherited from their ancestors, they are essentially a simple, uninformed, and inferior people."

See? Indians after all.

Where I'm going with this is, when I look around today and see people carping about the U.S. throwing its weight around, suspending habeas corpus, whatever, I'm completely and totally unsurprised, because all of this has been done before. Not only has it been done before, but afterward it was pushed under the rug and never dealt with in an honest fashion. It still hasn't. I wish I had a dollar for every time I heard some poor, downtrodden white person whine about how fundamentally unfair it is for any minority to expect them to have an honest discussion about the actions of past generations toward Indians, or any other minority, because they shouldn't be subject to "white guilt" (whatever the hell that is). Yep, god forbid we should make anybody uncomfortable when trying to wrestle with the still-present effects of an evil fucking past.

But hey, let's all hold hands and hope that things will go differently, through our fervent hope that ugly things will somehow be made better through willfully ignoring them.

Indian law and policy is the Original Sin of the United States. Iraq is the new Pine Ridge.