n order to enroll into the tribe and receive an allotment, each person came before a Dawes Commission official who interviewed them, generally through an interpreter. If the person did not claim to be “full-blood,” the official questioned them about their parents and grandparents. The interviewer established the person’s “blood quantum”: three quarters, one half, three eighths, so on. The number was recorded on the individual’s enrollment card. Once enrolled you were enrolled as a member of the tribal nation, but also enrolled as a member of a racial group – “full blood,” “mixed-blood,” or “negro.”

hus, in the process of allotment, government agents also attempted to officially define and designate who tribal members were. That meant interviewing people to determine family relationships, recording names in ledger books, and assigning deeds to those names. However, this was by no means such a simple process. The creation of the tribal membership rolls entangled the federal government in racial politics and provoked controversies over the rights of the tribes to determine their own criteria for membership.

Dawes Act and how it was rooted in a desire to provide a path to citizenship for “competent” Native people. The Dawes Act, as you’ll read in the article by Joanne Barker for this week, also established a set of bureaucratic documents whose legacy is still very important today for the determination of tribal membership

Nevertheless, I have tried to call it as I see it, and what I usually see when I look at Native America and the indigenous world—indeed, when I look into the mirror—is an x-mark

y grandparents never gave enough credit to those young people who fought racism and injustice to make a better Indian world, even though it is also true that the Red Power movement had contradictions that should not be overlooked. Although they were too busy to get involved, my father and uncles benefited from Red Power too, my dad in the form of education funding, and my uncle through a career made possible by increased federal funding for tribes. Red Power benefited me as well, not only thanks to the new educational opportunities it engendered, but also for the way it brought me to a traditional culture I did not know before. For a time in my youth I reveled in that culture and rejected everything else, but now I see it as part of a vast historical complex in the Fourth World, a structure that also must include my grandmother, grandfather, uncles, dad, Joyce, Mutt, Dennis, me, and the Minnesota Chipps. Since that irreducible tribal diversity needs a name, I wrote this text

I loved watching my uncles play with the Chipps, and es-pecially when they played white teams. Most of the Chipps had long hair and big guts and couldn’t run for squat, but they sure could hit. And they always beat the white team

I hated that sort of talk, because, you see, I loved AIM. I remembered those young Indians with their long hair and horses—also guns—speaking a discourse that sounded more like pride than anything I had ever heard from Indians before. I wanted to get a horse of my own and ride with them to wherever it was they were going next

The Indian still speaks as an Indian, yes, and this is a limitation, to be sure; but every so often an x-mark can be seen escaping from the prison house of dominant discourse

They are hired by museums, schools, and universities to speak on subjects regarding history, politics, and related matters, even though in nearly every case they lack a university degree (which puts them in an exclusive class, to say the least)

We belong to this land,” writes Daniel Heath Justice in a 2004 essay, “Seeing (and Reading) Red: Indian Outlaws in the Ivory Tower,” adding, “we’re not guests of the Invaders, to be given access at their whim. The knowledge of Native peoples is the voice of Turtle Island that speaks closest to all humanity. This is our inheritance.

apitalism has never been opposed to resistance or protest; much to the contrary, it has actually been driven by them

aim, then, was to transform the Indian, to improve him as land might be improved, lifting him up from the wild state of nature to civilization and to God.”45 Yet, around the time of the American Revolution, the at-titude changed.

As a discursive formation, “Indian” connected to another powerful discourse, that of savagism and civilization, which set the terms of debate regarding Indians for a very long time

oncepts and words like heathen, infidel, indio, and so on. Early visual representations of Natives by Theodorus de Bry and other en-gravers exemplified how existing discursive formations influenced what could be said and known about Indians. De Bry never visited the New World himself, but he did make numerous illustrations of Native people that simultaneously drew upon and contributed to the new discourses of Indianness

My grandmother was the first in my line to receive not only a high school diploma—she graduated valedictorian—but also the first higher education, attending a teacher’s college and eventually becoming one of Leech Lake’s first Indian teacher

Wallace Adams names it, “education for extinction.”44 This story is very well known: federal authorities removed Indian children from their homes and families and sent them to harsh institutions far away, where they had their mouths washed out with soap for speaking their languages and had even worse forms of abuse inflicted upon them. This discourse is power-ful. The narrative is unshakable.

“hobos”:

from age six to fourteen and ran away four times

X-marks operate in a time understood as neither linear nor “circular” but multiple and always on the move.

suspect that the word rezzy is now deployed in a similar manner to conflate ethnicity and class in a way that risks nostalgically erasing class difference “on the rez.

As a new Indian space (if that is what this is), the kitchen table is not so very quiet or spiritual but in fact actually seems to be a noisy site of conflict, “where everyone would be fed but that didn’t mean you were safe from confrontation. Many a fight broke out at the table, many a man was challenged.”43 The kitchen table is no longhouse or tribal council chamber, but decisions and community are made in this democratic space, and in that regard it might have something in common with spaces invented by peoples migrating home in traditional time

yes, even today—to describe enemy territory.31 Taken together, the two meanings of Indian country suggest an enemy territory under control, making that “dependent” an effective prisoner of war

forged a new category for describing overlapping legal jurisdictions in Indian coun-try: the checker board. Space imagined as a checkerboard means differ-ent people are ruled by different sovereigns at different times. Today at Leech Lake, for example, you can be issued a speeding ticket by tribal police, but only if you are a Leech Laker. If you are a non-Native, or an Indian hailing from elsewhere, you fall under the jurisdiction of the state of Minnesota, in keeping with Public Law 280.

As for the Indians imagined on the wild side of the line, they would either stay in their camps and vanish or evolve into someone who might yet live on the civilized side of time and space. Such was the logic of a world cut in two by imperialism

This space is poor, economi-cally speaking, and therefore to be pitied; at the same time it is an honor to inhabit this space, if only for a moment. Friends of the Indian will note a pristine natural beauty. Indian haters will note the litter strewn in the ditches, the diapers and bottles and Styrofoam cups: tragic contradic-tions

ena was wicked, and the town was like no place in the world, but . . . it made it a great place for stories

Being a woman, she was never asked for her x-mark by American treaty commissioners, but she is still honored today in a tribal and familial consciousness

I see the mod-ernization that was initiated by treaty signers as an unfinished project that can and should be pursued further.

“these societies are seen as living under the burden of charms, spells, and prodigies” and are thereby perceived as “resistant to change.”

by a self-defeated popu-lation. Traditionalists do not deconstruct binaries so much as flip the script: now “white” or “Western” time is corrupt and only pure tradi-tionalism can save us from further losses

original x-marks were pledges to adopt new ways of living that

here are no great leaps in the story of human history, only differences and definitions made in contexts of power that have often proven to be ethnocentric at best and genocidal at worst.

How do they appear to us now? They only signed treaties because they were forced to sign. No one was forced to sign a treaty. They did not understand what the treaties meant. Were the Natives not intelligent? Does the historical record not show that they understood rather clearly what was at stake?

Americans are no longer pursuing removalism,

ethnic cleansing

We are still living the legacies of this history. American Indians live below the poverty line at twice the rate of the general American population—more than 25 percent.11 Natives are twice as likely to die young as the general population, with a 638 percent greater chance of dying from an alcohol-related disease, an 81 percent greater chance of being murdered, and a 91 percent greater chance of committing suicide.12 Native teens are fully three times as likely to kill themselves as are other teenagers.13 Our heritage languages are in decline. No fewer than 45 out of a presently spoken 154 languages in the United States face an imminent extinction, with another 90 predicted to go silent by 2050.

children were no longer being raised in their communities but in boarding schools.

He was my great-great-grandfather, the first Lyons, and the first in my lineage to write in the English language. What he wrote was the letter X

The first council was held on September 4 at Payment Point on the Mississippi River. Rice complained in his report, and apparently at the meeting as well, that the council had to be conducted “in the open air, there being no settlement of any kind at this place,” to which Kah-Way-Din, an elder and leader in attendance, responded with a history lesson: “There was a promise made to the Indians here at White Oak Point that there should be a schoolhouse, and if it had been here, you could have talked in that schoolhouse.”8 Kah-Way-Din was referring to an earlier treaty made in 1867 that had gone unfulfilled by the Americans, the dis-appointment and bitter frustration of which was leading Kah-Way-Din to consider withholding his x-mark this time around

Their troubled state was the result of the Americans dishonoring treaties they had previously made and the confinement of Ojibwe to a tiny parcel of land that prohibited effec-tive hunting and gathering. The United States had failed to pay them the annuities and goods they had been promised in exchange for earlier land cessions, and reservoir dam projects had flooded huge sections of hunting and gathering territory. In a startlingly short period of time, quality of life at White Oak Point had plummeted from prosperity to impoverishment; their sad condition reflected it, and Rice acknowledged that it was the Americans’ fault

The condition of the Indians at White Oak Point is described as beyond hope of improve-ment, they being dissipated and dissolute, but they still have intelligence enough to ask that whiskey may be kept from the country and that mis-sionaries and schoolteachers be sent them

he Nelson Act is Minnesota’s variant of the Dawes Allotment Act of 1887, which required Indian people to abandon communal lands for the adoption of new individual allotments: “private property.” The stated goal was the transformation of Indians into agrarian capitalists.

not great warriors whose names are long remembered in tribal epideictic, not glorious monuments to conquest and victory, but the power of little things—a shell, a food that grows on water, the dreams of a woman or a little boy

What does migration produce? As we can see in the story of the Great Migration, it produces difference: new communities, new peoples, new ways of living, new sacred foods, new stories, and new ceremonies. The old never dies; it just gets supplemented by the new, and one re-sult is diversity

The Great Migration probably started around 900 CE and took some five hundred years to finish—if it really can be said to have “finished” at all, for in fact the Ojibwe kept moving, sometimes by choice, some-times by following the seasons, and sometimes because other people said it was time to move

both groups leaving a record of impressive rock paintings that survive yet today

a pipe was shared and peace was made

Still, the La Pointe treaty characterized these groups as a single political entity, and since treaties are by definition contracts be-tween nations, it turned them into a “nation.” Article II established “ter-ritory,” Article III created “allotments,” Articles IV, V, and VI promised “annuities” (including monies, agricultural implements, education, black-smiths, and assistance with paying off debts owed to traders), and these promises resulted in the arrival of new technologies, cultural practices, beliefs, and ways of living. These things are sometimes characterized as signs of “colonization” and “assimilation”—as well as “Civilization” in the parlance of the mid-nineteenth century—but they can just as well be described as characteristics of modernity. They contaminated the life-world of Ojibwe who made their x-marks, so Ojibwe cultural purity (if such a thing had ever actually existed) would exist no more

Before the ar-rival of the whites, communities dealt respectfully with each other in a way that encouraged different peoples to retain their ways of life, while at the same time establishing territorial boundaries, conditions of trade, and what

An x-mark also signified coercion. As everyone knows, treaties were made under conditions that were generally unfavorable to Indians, and as a result they were often accompanied by protest. Treaties led to dramatic changes in the Indian world: loss of land and political autonomy, assent to assimilation polices, the creation of quasi-private property on com-munal lands, and much else

So, when I go to Congress seeking the remedy in the Violence Against Women Act, part of my underlying goal is that we need the federal government out of our business. We need the federal government to not police our communities, because they don’t do it well and they end up harming and throwing away a great number of our men

perpetrators permission to target Native women

I’m really glad you asked that. One of the challenges that we’ve had in ad-dressing the jurisdictional problem is a seeming inability to accept the statisti-cal data that’s been consistently coming out since the mid- 1990s. And that data is telling us that most Native women who are raped are raped by a non- Indian

It is. And it’s a very frustrating distinction as well. For instance, my spouse is non- Indian. If we were to travel together to the Navajo reservation, I could commit a crime there and be penalized by the tribe and prosecuted by the tribe, and my husband, who would commit the same crime, would be immune from tribal prosecution. And the interesting thing is that neither one of us is Navajo. Politically, we don’t have any connection with that tribe, but I could be prosecuted and he couldn’t, and that presents some really interesting questions when it comes to whether tribes are a racial classification or a political entity

Can we trust tribal governments to ensure that people are given due process in tribal courts?

So the task force that I’m chairing is designed to try to ensure a constant stream of communication among and between those federal agencies, so that they’re being consistent.

One of the biggest obstacles to getting VAWA through Congress was a pro-vision that grants new authority to tribal governments to prosecute domestic abusers. Currently, tribal courts have no authority over non-Natives who do-mestically abuse Native American women on tribal lands. The Senate VAWA bill included a provision granting tribal courts the authority to prosecute in those cases, but many House Republicans opposed the provision and argued that trib-al courts would not uphold the constitutional rights of non-Natives charged with sexual violence

And I do think that that’s important. I think that if the gov-ernment can’t fund us, then we’re going to have to find alternate ways to fund our programs, and so awareness like this report provides is one door that we can open to see more resources come in

she’s unable to pay her debt; her meth dealer will bring her to the Twin Cities, put her on the street, and tell her to pay that debt off with her body.

Another that has been very common throughout the century is to not allow people that have a background of sexual violence to hold leadership positions in the community. They’re banned from running for office or from serving in any kind of capacity as a leader, whether that be as a spiritual leader or a political leader. Their history of perpetration against women and children is constantly acknowledged, such that that particular individual can’t engage at the leadership level. I don’t think that’s enough, personally. I think that’s a start, but I think that more needs to be done in terms of saying that this type of behavior cannot continue

What I have heard is that there are tribes that have enacted banishment laws to remove perpetrators from their communities. Zero tolerance is one example: we’re not going to allow sexual violence in our community, and if you commit it you are no longer welcome here.

here has to be some level of “This is wrong,” not “We’re going to talk it out” or “He had a rough childhood” or “There was alcohol involved so we don’t really know what he meant to do,” but really saying, “No, this behavior is not acceptable.” And as long as the legal response includes that, I think we’re going to see a vast improvement over the Anglo- American legal system

And that’s an assimilative kind of ideology, where if we have a court that looks like a state court then we’ll be legitimate. So the first thing that has to happen is an analysis that that’s not really working for us, or for even the non- Native community

being held accountable culturally and spiritually.

but we also need to make sure that all of those women who don’t report— and that’s their right and we should respect that— have support services that are run by and for Native women: culturally appropriate healing services that incorporate traditional beliefs and sisterhood.

You know, juries today expect that. They want that rape kit; they want that DNA.

that this is what everyone told me to expect

rape has become so common and such an everyday occurrence in the community that, in a sense, women— young women and teens and girls— don’t know that it’s wrong be-cause it’s happened to everyone that they know.

Well, from the roots in English common law, women have long suffered problems in getting justice in an Anglo- American, very patriarchal justice sys-tem. Even until the late seventies, there were still laws on the books at the state level that indicated that women usually lie about rape, that it’s very difficult to prove a rape, that a woman who had a sexual background of perhaps having had sex before marriage or was not a virgin could not be seen as a victim under the eyes of the law. So, the Anglo- American judicial construct of rape has never been one that is victim- friendly. It is set up and designed to protect white, male property owners and their right to have sex with whom they want, and not to look at the world through the eyes of a victim.

So, I just want to clarify, tribes cannot prosecute a non- Native who commits an act of rape against one of their tribal citizens on Native land

hat means that what we’re seeing here is the U.S. failing to protect Native women.

Yes. For any other parcel of land— with the exception of, say, national parks or something along those lines— rape falls under the purview of a state prose-cutor, not a federal prosecutor. So, again, that’s why people go into the federal U.S. Attorney’s Office; they’re not thinking they’re going to be prosecuting crimes like rape; that’s a state issue

, they didn’t go into those careers to deal with what they consider to be minor Indian issues. They want to do the big ones; they want to do the high- profile white- collar- crime cases. So there’s a culture there of indifference, of Why do we care?

Well, you have a group of prosecutors and U.S. attorneys and assistant U.S. attorneys who went into that field, not because they wanted to prosecute everyday, interpersonal crime but because they wanted to do bank robberies and terrorism and white- collar crime and drug trafficking.

They’re targeted there by a non- Native person who recognizes them— because she’s a very vulnerable person who’s probably not going to be believed anyway, and perpetrators target her because she’s not somebody that’s going to be believed or supported.

surveys that are conducted by the Census Bureau that call random samples of Americans, ask them for their race, if they’ve been the victim of a crime, and if so what was the race of the perpetrator. And that’s where most of these num-bers are coming from. The challenge is that these surveys don’t ask the women where these crimes took place

For those who might not be familiar with reservations, they might be thinking that reservations are where only American Indians are living.

What the Major Crimes Act then did was suggest that tribes were not ca-pable of handling the jurisprudence of a crime such as rape. It’s very paternal-istic, the view that we have to turn to the Great White Father to come into our community and essentially say, “Okay, this rape was wrong and we’re going to prosecute the offender and protect you as your guardians.” And so the problem really began then, although there was certainly history behind that, that the actual legal deconstruction of tribal justice systems can be linked to the Major Crimes Act

There was a Supreme Court decision called Oliphant v. Suquamish Indian Tribe, and essentially what that Supreme Court did was take away from tribal governments the ability to criminally prosecute a non- Indian: a person who is not enrolled in a federally recognized tribe cannot be brought before a tribal court and prosecuted.

Right. You’ll often see in the journals or the history of the European male perspective that they talked even about the land here as a woman, as if it was theirs for the taking. The Spanish missionaries would talk about the virgin land, and you know, the fertile land, and other kinds of very gendered terms when examining their “right” to the land and the Manifest Destiny, etc. So it has always been very gendered, and a lot of time, history doesn’t really play that out. When you look at the scholarly history, many times the gendered analysis is left out

many tribal languages don’t even have a word for rape, because there wasn’t a need for a word for rape prior to colonization.

Well, I think a number of factors come into play, but I think the most obvious one is that colonial projects that from the get- go— from literally Columbus on— have viewed Native women as less that human, as rape- able:

Indigenous women researchers have shown that rape was once extremely rare in tribal communities. How is it, then, that Native women are suffering from sexual violence at such outrageous proportions?

Sarah Deer (Muscogee [Creek] Nation) gave two interviews on the program, presented back- to- back here. She was the lead writer of an April 24, 2007, report issued by Amnesty International USA titled “Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA.” In it, Amnesty International cited U.S. Justice Department figures which indicate that Amer-ican Indian and Alaska Native women are two and one- half times more likely to be raped or sexually assaulted than women overall in the United States, and that more than one in three Native women experience rape in their lifetime. The report also details how that neglect is exacerbated by structural barriers such as jurisdictional questions and chronic underfunding of law enforcement and Indian health services

The federal government promised the Creek a reservation in perpetuity. Over time, Congress has diminished that reservation. It has sometimes restricted and other times expanded the Tribe’s authority. But Congress has never withdrawn the promised reservation.

Still, Oklahoma and the dissent fear, “[t]housands” of Native Americans like Mr. McGirt “wait in the wings” to challenge the jurisdictional basis of their state-court convictions. Brief for Respondent 3. But this number is admittedly speculative, because many defendants may choose to finish their state sentences rather than risk reprosecution in federal court where sentences can be graver. Other defendants who do try to challenge their state convictions may face significant procedural obstacles, thanks to well-known state and federal limitations on post- conviction review in criminal proceedings.

With time, too, Congress has filled many of the gaps Oklahoma worries about. One way Congress has done so is by reauthorizing tribal courts to hear minor crimes in Indian country. Congress chose exactly this course for the Creeks and others in 1936. Act of June 26, 1936, §3, 49 Stat. 1967; see also Hodel, 851 F. 2d, at 1442–1446. Another option Congress has employed is to allow affected Indian tribes to consent to state criminal jurisdiction. 25 U. S. C. §§1321(a), 1326. Finally, Congress has sometimes expressly expanded state criminal jurisdiction in targeted bills addressing specific States.

briefed and argued so far is beside the point. It’s all irrelevant because it turns out the MCA just doesn’t apply to the eastern half of Oklahoma, and it never has. That federal law may apply to other States, even to the western half of Oklahoma itself. But eastern Oklahoma is and has always been exempt.

Unable to show that Congress disestablished the Creek Reservation, Oklahoma next tries to turn the tables in a completely different way. Now, it contends, Congress never established a reservation in the first place.

After all, everyone agrees that the Creeks were prohibited from having their own courts at the time. So it should be no surprise that some Creek might have resorted to state courts in hope of resolving their disputes

interpretative

Out of context, statements like these might suggest historical practices or current demographics can suffice to disestablish or diminish reservations in the way Oklahoma envisions. But, in the end, Solem itself found these kinds of arguments provided “no help” in resolving the dispute before it.

But whatever the confluence of reasons, in all this history there simply arrived no moment when any Act of Congress dissolved the Creek Tribe or disestablished its reservation. In the end,

The dissent calls it “fantasy” to suggest that Congress evinced “any unease about extinguishing the Creek domain” because Congress “did what it set out to do: transform a reservation into a State.”

Indeed, with time, Congress changed course completely. Beginning in the 1920s, the federal outlook toward Native Americans shifted “away from assimilation policies and toward more tolerance and respect for traditional aspects of Indian culture.”

Congress empowered the President to remove and replace the principal chief of the Creek, prohibited the tribal council from meeting more than 30 days a year, and directed the Secretary of the Interior to assume control of tribal schools

Ignoring this distinction would run roughshod over many other statutes as well. In some cases, Congress chose not to wait for allotment to run its course before disestablishing a reservation. When it deemed that approach appropriate, Congress included additional language expressly ending reservation status. So, for example, in 1904, Congress allotted reservations belonging to the Ponca and Otoe Tribes, reservations also lying within modern-day Oklahoma, and then provided “further, That the reservation lines of the said . . . reservations . . . are hereby abolished.

[w]hen all the lands had been allotted and the trust expired, the reservation could be abolished.

(holding that allotment act “did no more than open the way for non-Indian settlers to own land on the reservati

Without doubt, in 1832 the Creek “cede[d]” their original homelands east of the Mississippi for a reservation promised in what is now Oklahoma. 1832 Treaty, Art. I, 7 Stat. 366. And in 1866, they “cede[d] and convey[ed]

So it’s no matter how many other promises to a tribe the federal government has already broken. If Congress wishes to break the promise of a reservation, it must say so

Under our Constitution, States have no authority to reduce federal reservations lying within their borders. Just imagine if they did. A State could encroach on the tribal boundaries or legal rights Congress provided, and, with enough time and patience, nullify the promises made in the name of the United States

Not least, the land described in the parties’ treaties, once undivided and held by the Tribe, is now fractured into pieces. While these pieces were initially distributed to Tribe members, many were sold and now belong to persons unaffiliated with the Nation. So in what sense, if 

“be forever set apart as a home for said Creek Nation,” which it now referred to as “the reduced Creek reservation.”

Because the Tribe’s move west was ostensibly voluntary, Congress held out another assurance as well. In the statute that precipitated these negotiations, Congress authorized the President “to assure the tribe . . . that the United States will forever secure and guaranty to them . . . the country so exchanged with them.”

gress not only “solemnly guarantied” the land but also “establish[ed] boundary lines which will secure a country and permanent home to the whole Creek Nation of Indians.

Recently, the question has taken on more salience too. While Oklahoma state courts have rejected any suggestion that the lands in question remain a reservation, the Tenth Circuit has reached the opposite conclusion.

The Creek Nation has joined Mr. McGirt as amicus curiae. Not because the Tribe is interested in shielding Mr. McGirt from responsibility for his crimes. Instead, the Creek Nation participates because Mr. McGirt’s personal interests wind up implicating the Tribe’s. No one disputes that Mr. McGirt’s crimes were committed on lands described as the Creek Reservation in an 1866 treaty and federal statute. But, in seeking to defend the state-court judgment below, Oklahoma has put aside whatever procedural defenses it might have and asked us to confirm that the land once given to the Creeks is no longer a reservation today. At another level, then, Mr. McGirt’s case winds up as a contest between State and Tribe

[a]ny Indian who commits” certain enumerated offenses “against the person or property of another Indian or any other person” “shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.” 18 U. S. C. §1153(a). By subjecting Indians to federal trials for crimes committed on tribal lands, Congress may have breached its promises to tribes like the Creek that they would be free to govern themselves. But this particular incursion has its limits—applying only to certain enumerated crimes and allowing only the federal govern- ment to try Indians. State courts generally have no jurisdiction to try Indians for conduct committed in “Indian country

The government further promised that “[no] State or Territory [shall] ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves.”

unsettling an untold number of convictions and frustrating the State’s ability to prosecute crimes in the future. This Court is aware of the potential for cost and conflict around jurisdictional boundaries. But Oklahoma and its tribes have proven time and again that they can work successfully together as partners, and Congress remains free to supplement its statutory directions about the lands in question at any time

Congress established a reservation, not a dependent Indian community, for the Creek Nation.

Once a federal reservation is established, only Congress can diminish or disestablish it. Doing so requires a clear expression of congressional intent

and that the Creeks would have the “unrestricted right of self-government,” with “full jurisdiction” over enrolled Tribe members and their property

He unsuccessfully argued in state postconviction proceedings that the State lacked jurisdiction to prosecute him because he is an enrolled member of the Seminole Nation and his crimes took place on the Creek Reservation. He seeks a new trial, which, he contends, must take place in federal court.

The Major Crimes Act (MCA) provides that, within “the Indian country,” “[a]ny Indian who commits” certain enumerated offenses “shall be subject to the same law and penalties as all other persons committing any of [those] offenses, within the exclusive jurisdiction of the United States.” 18 U. S. C. §1153(a). “Indian country” includes “all land within the limits of any Indian reservation under the jurisdiction of the United States Government.” §1151

The United States are desirous that the Creeks should remove to the country west of the Mississippi, and join theircountrymen there; and for this purpose it is agreed, that as fast as the Creeks are prepared to emigrate, they shall be removed at theexpense of the United States, and shall receive subsistence while upon the journey, and for one year after their arrival at their newhomes—Provided however, that this article shall not be construed so as to compel any Creek Indian to emigrate, but they shall be freeto go or stay, as they pleas

For ferries, bridges and causeways, three thousand dollars, provided that the same shall become the property of the UnitedStates.For the payment of certain judgments obtained against the chiefs eight thousand !ve hundred and seventy dollars.For losses for which they suppose the United States responsible, seven thousand seven hundred and ten dollars.For the payment of improvements under the treaty of 1826 one thousand dollars.The three following annuities shall be paid for life.To Tuske-hew-haw-Cusetaw two hundred dollars.To the Blind Uchu King one hundred dollars.To Neah Mico one hundred dollars

ARTICLE 1. The Creek tribe of Indians cede to the United States all their land, East of the Mississippi river.

Fully reversing the Oliphant decision and restoring tribal jurisdiction over non-Natives?

It is impossible to have a truly self-determining nation when its members have been denied self-determination over their own bodies.

Sexual violence impinges on our spiritual selves, creating emotional wounds that fester and infect larger wells of community trauma

By submitting to the overriding sovereignty of the United States, Indian tribes therefore necessarily give up their power to try non-Indian citizens of the United States except in a manner acceptable to Congress.

The act actually expired in 2012, because certain Republican members opposed this special tribal jurisdiction,

In 2005, the Tribal Title amended several federal codes to increase the powers of tribal courts. In the 2013 version of VAWA, the most controversial change was the restoration of tribal jurisdiction over non-Indians who commit acts of domestic violence on tribal lands.

The TLOA restored authority of tribes to sentence offenders for more than a maximum of one year per crime. Under the TLOA, tribal courts can now punish a rapist by sentencing him to jail for a maximum of three to nine years and fining up to $15,000

The Tribal Law and Order Act (TLOA) had three main purposes. First, it was intended to make the federal government more accountable for serving Native people. Second, it was designed to provide tribes with more freedom to design and run their own justice systems. This included those communities subject to full or partial jurisdiction under PL-280. Third, the act sought to enhance cooperation among tribal, federal, and state officials in key areas such as law enforcement training and access to criminal justice information

The decision to prosecute is often hidden from public scrutiny, which has the tendency to make many victims feel abandoned. Indeed, most rapes in the United States are never reported to law enforcement

2013

The vast majority (96%) of American Indian/Alaska Native victims of sexual violence experience violence at the hands of a non-Native perpetrator

The precedents that Rehnquist used trafficked in the language and assumptions of Native lawlessness, and the idea that they were not “civilized” enough to exercise criminal jurisdiction over non-Natives

if the state or federal systems choose not to prosecute, the victim is left without options.

Thus, even though the Major Crimes Act did not divest tribes of felony jurisdiction, the sentencing restrictions mean that tribal justice systems will often resist prosecuting extremely violent crimes because they can’t impose a sentence of more than one year, or a fine of more than $5,000. These restrictions were partially lifted in 2010, through the Tribal Law and Order Act, which authorizes tribal courts to impose sentences of up to nine years in certain situations.

Thus, ICRA protects the civil rights of defendants in tribal court.

We have pointed to one example in Nebraska—may I mention another? In 1956, a Sioux World War II veteran by the name of Vincent Broken Rope was shot in the back and later died from the wounds over a minor incident in Gordon, Nebraska, a town bordering the Pine Ridge Indian Reservation in South Dakota. A coroner’s jury made a perfunctory examination and ruled that the town marshal was doing his duty but the general understanding was that this was a wholly unwarranted shooting. (The marshal was later shown to be an unstable person.) Within the same year, two white boys picked up a fifteen-year-old Indian girl and her brother on the highway; attacked the girl and when she fell or was pushed from the car, was killed on the highway. The boy responsible for that got three months in jail. In about 1956, there was a case of an Indian shot in the Platte Valley of Nebraska; only when courageous citizens in the valley persisted for months in the face of entrenched authorities did justice finally prevail. Then there was the instances when Sgt. Rice, in about 1950, and a Mr. Nash early this year, were refused burial in white men’s cemeteries because they were Indians. Again, these occurred where white men, not Indian tribal councils, were responsible for justice and order in society. In Idaho a decade ago, some Indian boys were sentenced fourteen years for stealing sheep

The Omaha and Winnebago tribes were without law enforcement for almost eight years

Native people saw Public Law 280 as a direct interference with tribal governments. States felt they could not take jurisdiction over reservations without some kind of subsidy from the federal government—or in lieu of that kind of support, the right to tax Native lands. Congress would not give the states power to tax the reservations, and the federal courts zealously protected Native tax immunities from state intrusions. In many instances states simply refused to provide law enforcement over the reservations, leaving the tribe helpless and without any recourse

In 1953, Congress passed Public Law 280, which transferred jurisdiction over tribal lands to state and local governments in California, Oregon, Nebraska, Minnesota, and Wisconsin. Other states could unilaterally adopt it if they chose—until 1968, after which the consent of the reservation was required. The objective was to bring Native people under state authority. This piece of legislation was part of a larger policy era known as “Termination.” Termination policy sought to abolish the Bureau of Indian Affairs, dissolve the trust relationship between tribes and the federal government, and bring Native people under the jurisdiction of the states

federal officials perceived Crow Dog’s punishment to be too lenient, and subsequently arrested and prosecuted him in federal territorial quote, resulting in a death sentence. Crow Dog petitioned the Supreme Court, arguing that he was not subject to US authority as a citizen of a foreign government accused of violating foreign law on foreign soil. He won and was released from custody. Ultimately, the court found that the government with authority to respond to that homicide was that of the Lakota people

The Act provides the federal government with criminal authority on many reservations today

emb

The extension of jurisdiction of Alabama laws into Creek land was therefore in part for the protection of white Alabamans, who supposedly faced the chance of being tried and convicted within Creek systems of law if they committed a crime on Creek land.

After Georgia executed Corn Tassel, other southeastern states used similar justifications for rejecting tribal sovereignty and upholding state extension laws

Although the crime was committed by a Cherokee against another Cherokee within Cherokee country, Corn Tassel was tried in 1830 in Georgia courts, found guilty, and sentenced to hang.

Military units plucked people from their homes, sometimes not even giving them time to pack a bag. They transported them to holding camps, where they were housed until enough people were gathered to make up a removal party. Many suffered from exposure, bad water, and inadequate food in these holding camps. Much of the death toll attributed to the Trail of Tears occurred in these camps before the march

Choctaw removal began in 1831 – people were moved to Vicksburg and Memphis, transferred to steamboats and carried via the Mississippi, and then they walked. The walk was brutal—the winter was cold and snowy, the people lacked warm clothes, the transport agents failed to supply enough food. In 1832, a cholera outbreak struck the migrants and killed many. By the time the last wave was scheduled, news of the hardships terrified the remaining Choctaws, and only 900 agreed to go. Of the 14,000 Choctaws who left Mississippi, 2,500 people died in the move. About 6,000 of them remained in the East—some of whom moved themselves west over the next several years

As historian Christopher Haveman asserts, the agreement was “an unmitigated disaster” for the Creeks. Although it was technically not a “removal” document, it in effect ceded all of their land to the United States, legalizing white encroachment. Land not occupied by Creek families could be purchased by whites, which it was. Creek families could also sell their land, which many, in dire economic straits, did. Squatters also moved into unoccupied half-sections. Some took possession of occupied land, evicted Creek families, and burned Creek homes. In violation of the treaty, which promised the removal of white intruders, whites continued to squat illegally on Creek land

Finally, the Creeks agreed to a similar arrangement as had been made with the Choctaws. US officials proposed that the Creeks sign a treaty splitting their land into individual allotments

Each time, they were met with the advice that they should just remove west of the Mississippi

The Treaty of Dancing Rabbit Creek specified that removal would occur in three waves of about seven thousand people each, once a year from 1831 through 1833. Families could stay in Mississippi if they wished—after registering with an Indian agent they would supposedly receive land and citizenship in the state. However, the agent blocked the efforts of Choctaws who wished to remain, refusing to register those who asked or destroying registrations of those who signed up. In the end, only 69 Choctaw families received an allotment of land in Mississippi under the treaty

After most of the Choctaws who had attended this conference with Eaton had left, Eaton told the remaining members of the council that if they did not agree to remove, the president would declare war on them and send in the army. They agreed to sell their land, signing the first removal treaty of the Five Nations in the Southeast

have been the first settlers of this land

When one Choctaw man spoke in favor of removal, one woman asserted, “I could cut you open with this knife. You have two hearts

Choctaw women were especially vocal about their resistance to removal—as the farmers and heads of matrilineal clans, women traditionally controlled the land, and their opinions about its sale mattered a great deal.

In September 1830, Secretary of War John Eaton met with the Choctaws to negotiate the first removal treaty

What do firm jurisdictional boundaries mean for sovereignty

In 2009, the plaintiffs settled with the Secretary of the Interior. The US would distribute $1.5 billion among the plaintiffs to compensate for mismanagement of the accounts, provide $1.9 billion to consolidate fractionated lands, and devote $60 million for higher education scholarships.

The Indian tribes are the wards of the nation. They are communities dependent on the United States.

of wardship

Dawes Act. The Dawes Act set into place a policy of allotting reservation land into individual plots, to be held in trust by the federal government for a period of 25 years, after which the trust restriction would be lifted and individual Native allottees would assume ownership of the plot. Any “surplus” reservation land could be sold to white settlers after allotment was complete. By the policy’s official end in 1934, two-thirds of all Indian lands held in 1887 were lost to white settlers.

The development of Indian policy and law over the course of the nineteenth century has been characterized as “almost uniformly hostile to Indians.” [13] Significant court cases and policies undermined tribal sovereignty and emphasized the dependence of Natives upon the good will and guiding hand of the federal government

g cases in

As Williams notes, the English Crown had no choice but to recognize the tribes’ independence and their “right to self-government,” because they needed to cement alliances with them to guard against incursion by other colonial powers

European nation who “discovered” Indian-occupied land the right of acquiring that land and making settlements on it, it did not operate in any way to interfere with tribes’ preexisting rights of self-government.

But, it didn’t matter to Georgia. The state continued to do what it was doing (with the full support of Jackson),

The Court ruled that the state of Georgia did not have criminal jurisdiction to prosecute a state offense that occurred in Cherokee country.

Yes or no

The Cherokees argued that they were a “foreign state” because of their treaty history with the United States. Treaties such as the 1785 Treaty of Hopewell (assigned for this module) and the 1791 Treaty of Holston recognized the Cherokees as “sovereign and independent; with the right of self government, without any right of interference with the same on the part of any state of the United States.” Cherokees were not citizens of the US, and the Cherokee Nation was not a state of the union, therefore, they reasoned they were a “foreign state.”

The removal act, signed into law on May 28, 1830 authorized the president to enter into negotiations with all the Eastern tribes. If the tribes agreed, removal treaties would stipulate an exchange of their land in the East for equal or greater amounts in the West

“What good man would prefer a country covered with forests and ranged by a few thousand savages to our extensive Republic, studded with cities, towns, and prosperous farms, embellished with all the improvements which art can devise or industry execute, occupied by more than 12,000,000 happy people, and filled with all the blessings of liberty, civilization, and religion?”

Jackson actively defended the states. Jackson represented his plan for removal, which he first recommended in his first annual message to Congress, and later as a removal bil

Southern tribes were banned from operating tribal governments. Tribal members were susceptible to criminal punishment if they tried to go into public service.As individuals subjected to state civil and criminal jurisdiction, Native people were now accountable to a whole array of laws the people could neither understand, nor in some cases, read.Native people were also denied the right to testify in court on their own behalf. This essentially legalized the theft of Indian property. White settlers would forge promissory notes signed by Native people, pledging certain property (usually portable property like livestock or slaves) in return for a “loan” made by the settler. With that note, the swindler could get a court order foreclosing on Native property—then accompanied by the sheriff, the white settler could come and take the listed goods and the victim would have no recourse. Others would just loot Indian homes—if only Native people witnessed the crime, they were able to get away with it.

African Americans were supposedly “unfit” for any other social position besides enslavement. Many white settlers argued that Native people, because they were not white, would never be able to integrate into white society on equal footing with other non-Native white southerners

Cherokee Nation v. Georgia

The “doctrine of discovery,

The doctrine of discovery, fi rst incorporated into the Marshall model by Johnson’s diminishment of Indian rights to property and self- rule, next applied in Cherokee Nation to defi ne an inferior political status for tribes as “domestic dependent” nations under the Constitution, and then fi nally used by the Court in Worcester to justify exclusive fed-eral authority over Indian affairs, provides a powerful illustration of what happens when the justices validate a principle of racial discrimi-nation in one of their legal decisions on minority rights.

Following the Revolutionary War, as Marshall next explained, the power of exclusive colonial control over Indian affairs recognized in the Crown under the doctrine had devolved to the federal government of the United States:

Marshall’s view, that the Crown had never presumed to consider the Indians as domestic subjects to be governed by royal decree or proclamation.

In denying Georgia jurisdictional power over the territory of the Cherokee Nation, the Court’s holding recognized the federal government’s exclusive colo-nial supremacy and control over Indian affairs under the Constitution and laws of the United States

and based its holding on a racist language that described Indians as bloodthirsty, “tomahawk”-wielding savages who were simply too un-civilized to be recognized under the U.S. Constitution as possessing any original right of legal access to the Supreme Court as a “foreign state.

“do-mestic dependent nations,” Marshall wrote in Cherokee Nation, the tribes were “so completely under the sovereignty and dominion of the United States, that any attempt to acquire their lands, or to form a po-litical connection with them, would be considered by all as an invasion of our territory, and an act of hostility

“foreign” nations under the Constitution

Marshall turned directly to the European colonial- eradoctrine of discovery that he himself had incorporated into U.S. law in his 1823 opinion in Johnson. In that case, the doctrine’s principle of white racial superiority was called upon to defi ne the diminished prop-erty rights belonging to Indians under U.S. law.

Today, such ethnic- cleansing activities on the part of any government in the world would be deemed a crime of genocide, punishable by international law

The “Cherokee codes” were designed as the fi rst strike in an ethnic- cleansing campaign

President Andrew Jackson

s legally designated second- class citizens of color, they would be unable to testify in “any suit in any court created by the constitution and laws of this state to which a white man may be a party.” They would be unable to vote, unable to serve in the state militia, and unable to send their children to Georgia’s public schools under the racial apartheid laws that would apply to the Cherokees under state jurisdiction

First and foremost, the Marshall Model of Indian Rights recog nizes the exclusive right of the United States to exercise supremacy over Indian tribes on the basis of the Indians’ presumed racial and cultural inferiori-ty. The Marshall model then applies the European colonial- era doctrine of discovery as a regulative legal principle to defi ne the scope and con-tent of that right to white privilege as covering the entire continent of North America. Additionally, the model perpetuates a long- established language of racism to justify the specifi c set of rights and prerogatives of conquest and privilege under the discovery doctrine. Finally, it absolves the justices for perpetuating the discovery doctrine as part of U.S. law by viewing it as “indispensable” to the European- derived “system” of colonial governmentality “under which the country has been settled.”

First and foremost, the Marshall Model of Indian Rights recog nizes the exclusive right of the United States to exercise supremacy over Indian tribes on the basis of the Indians’ presumed racial and cultural inferiori-ty.

Marshall’searly- nineteenth- century opinion for the Court denied Indian tribes the same rights as their European colonizers because Indians were regarded, under the European Law of Nations and the doctrine of discovery, as an inferior race of savages

one of the most Indianophobic, racist justices of all time, at least when it came to giving his opinion on Indian rights in the “great case of Johnson v. McIntosh.

hat the greatest chief justice of all time

Indians were not even represented before the Court

As measured by today’s racial sensibilities, Johnson v. McIntosh has to be considered one of the most thoroughly racist, nonegalitarian, undemocratic, and stereotype- infused decisions ever issued by the Su-preme Court

In other words, it was the “system” of colonial governmentality adopted by Europeans in the New World and unequivocally acceded to by the Founders that required the Court to rule the way it did in Johnson v. McIntosh.

the same stereotypes and imagery of Indian savagery to validate the de-nial of Indian rights in Johnson that the Founders had used to construct their exclusionary Indian policy paradigm following the Revolution-ary War

“were all in pursuit of nearly the same object,” that is, control and empire over the lands of non-European peoples deemed inferior by Europeans. It therefore became “necessary in order to avoid confl icting settlements, and consequent war with each other, to establish a principle, which all should acknowl-edge as the law by which the right of acquisition, which they all as-serted, should be regulated as between themselves.”

Indian tribes, in other words, were presumptively regarded under the discovery doctrine and European colonial- era conceptions of inter-national law as an inferior race of peoples who could be lawfully con-quered and colonized

The two- step process—discover and consummate by possession—legalized by the dis-covery doctrine was relied upon by all the colonizing, “great nations of Europe,”

Even today, in the twenty- fi rst century, the Supreme Court insistently and unem-barrassedly cites these early- nineteenth- century texts as authoritative precedents in defi ning Indian rights; faithfully repeated and adhered to despite their racist judicial language of Indian savagery, they function as signs taken for wonders in the Supreme Court’s Indian law decisions