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Seeing Red: and the Construction of the “Indian Problem” in United

States Federal Indian and Policy

A thesis presented to

the faculty of

the College of Arts and Sciences of Ohio University

In partial fulfillment

of the requirements for the degree

Master of Arts

Kyle D. Serrott

April 2021

© 2021 Kyle D. Serrott. All Rights Reserved. 2

This thesis titled

Seeing Red: and the Construction of the “Indian Problem” in United

States Federal Indian Law and Policy

by

KYLE D. SERROTT

has been approved for

the Political Science

and the College of Arts and Sciences by

DeLysa Burnier

Professor of Political Science

Florenz Plassmann

Dean, College of Arts and Sciences 3

Abstract

SERROTT, KYLE D. M.A., April 2021, Political Science

Seeing Red: Settler Colonialism and the Construction of the “Indian Problem” in United

States Federal Indian Law and Policy

Director of Thesis: DeLysa Burnier

This thesis examines the “Indian problem” throughout successive eras of federal

Indian law and policy, beginning with the pre-constitutional era and continuing through the allotment and assimilation era. Using an interdisciplinary theoretical framework, I attempt to deploy concepts from several bodies of literature in an effort to demonstrate the relationality of systems of that are present in settler societies such as the

United States. I hope to show that settler colonialism is not a single system of domination and dispossession, but rather comprises multiple systems of power, including , orientalism, and . Thus, this thesis is a broad project of that analyses simultaneously along lines of race, settler colonialism, and capitalism.

My interdisciplinary theoretical approach also attempts to draw together theories of relational formations of race, settler colonialism, and racial capitalism to understand how the “Indian problem” is produced, maintained, and regenerated throughout the epochs of Indian law and policy that I examine. I argue that the “Indian problem” is produced through a knowledge production that rationalizes native dispossession in service of the interests of the and its white . Here, 4

I draw on Edward Said’s post-colonial theory of orientalism and situate it within the context of settler colonialism to demonstrate how such knowledge produces the “Indian problem” and informs the various policy, military, legal, and religious “solutions” to the

“problem” that the United States enacts. I conclude that the “Indian problem” will never be “solved” because it is not a real problem. Rather, the “Indian problem” and its various

“solutions” are constructed at historical and contemporary moments in furtherance of

U.S. governmental interests, and in service to whiteness, at any particular period. This is what constitutes the ongoing-ness of settler colonialism and dispossession in the United

States.

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Dedication

This thesis is dedicated to my grandparents and to the original inhabitants of the land of

Southeast Ohio, including the , Adena, and Hopewell peoples.

6

Acknowledgments

I would not have made it this far in my academic career without the individual and institutional support that I have received on my unusual journey to academia. To my advisor, Lysa Burnier: your sincere interest and investment in both my field of study and my intellectual pursuits was and is more apparent than ever, and it means the world to me. To my committee member, Jen Fredette: I thank you for inspiring me to pursue this thesis, as it was birthed from a seminar paper I wrote in her Law and Colonialism course my first semester in this master’s program. I am constantly inspired by your commitment to your students and to your activism in service of higher education as a public good. To another committee member, Kirstine Taylor: your passion for teaching as well as for the mental and intellectual well-being of your students inspired me and keeps me going. If all I achieve in my career is to be half as good of a teacher and educator as these three humans, then I will have had a most worthwhile career. Through a most adverse year, these people demonstrated to me care, support, and encouragement, and I am forever grateful.

I would also like to express my sincere thanks and gratitude to the Women’s,

Gender, and Sexuality Studies department at Ohio University, which I had informally considered my intellectual home, until this year when I was able to formally claim the department as my home though my selection as one of the 2020-2021 Graduate Student

Allushuski Fellows. The financial and professional support offered to me through this position was invaluable, and I am sincerely grateful to have had this opportunity. 7

Other people that have been instrumental in my intellectual and professional growth include Marc Spindelman, Julie White, Judith Grant, Patty Stokes, Tanisha King,

Winsome Chunnu-Brayda, Mark Brown, Mark Strasser, Debra Thompson, and Vincent

Jungkunz, all of whom have challenged and inspired me in their own ways. I presented chapters of this thesis at the 2020 Southwest Humanities Graduate Symposium at

Arizona State University and at the 2020 History Graduate Student Association

Conference at Ohio University. I thank Katherine Jellison for helpful comments at the

Ohio University conference. Both conferences provided much insight and helpful feedback that is greatly appreciated.

I thank my friend Garrett Thomas Lankford for sharing with me about his family experiences at Indian boarding schools, as well as for sharing with me the struggle for federal recognition status that his , the Little Shell Tribe of Chippewa Indians of

Montana, endured and achieved in December 2019. Our many conversations have been most insightful for this thesis. I would like to thank Capital University Law School for providing me with a solid legal education and a burning passion for the law and justice, as well as for helping me to realize that I most definitely do not want to be a .

Finally, I want to thank Ohio University and Athens, Ohio for fostering in me not only a strong intellectual curiosity and the tools to make good use of it, but for showing me the meaning of community. The people of Athens and the Southeast Ohio region are some of the most resilient and inspiring people that I have had the good fortune of coming to know over the last decade. When I think of home, I will think of Athens, Ohio. 8

Table of Contents Page Abstract ...... 3 Dedication ...... 5 Acknowledgments...... 6 Introduction ...... 10 Chapter One: Theorizing the Settler State ...... 17 Introduction ...... 17 Origins: Colonialism and Capitalism ...... 21 Colonialism, White Supremacy, and the Ideology of Whiteness ...... 23 Settler Colonialism ...... 28 Orientalism and Knowledge ...... 33 Conclusion ...... 41 Chapter Two: Discovered and Conquered: the Early Years ...... 43 Introduction ...... 43 Discovery and ...... 44 , the , and the Early Years of Federal Indian Law and Policy ...... 48 Conclusion ...... 53 Chapter Three: Legalizing the Settler State: the Marshall Trilogy, Domestic-Dependent Nations, and the Doctrine of Discovery at the Supreme Court...... 54 Introduction ...... 54 Federal Recognition, Contemporary Federal Indian Law and the Case of : A Look to the Present for Understanding the Past ...... 56 The Marshall Trilogy: Conquest, Discovery, and “Domestic-Dependent” Status...... 63 Johnson v. M’Intosh (1823) ...... 65 Nation v. (1831) ...... 69 Georgia v. Worcester (1832) ...... 73 Conclusion ...... 76 Chapter Four: To the Rez: Removal, Relocation and Westward Expansion: 1830-1870 . 79 Introduction ...... 79 9

Removal and Relocation: The Need for Land ...... 81 The Military Solution of Removal and Relocation ...... 89 “The West is the Best” (Place for Violence): , Westward Expansion, and the Expansion of ...... 91 Conclusion ...... 95 Chapter Five: The End of the : Assimilation, Allotment, -Making, and Plenary Power ...... 97 Introduction ...... 97 The End of Treaty-Making ...... 101 Allotment: “a mighty pulverizing engine to break up the tribal land mass” ...... 103 Lone Wolf, Kagama, and Congressional Plenary Power ...... 108 Conclusion ...... 117 Chapter Six: Kill the Indian, Save the Child: Education as Assimilation at the Carlisle Indian Industrial School ...... 119 Introduction ...... 119 A Brief History of Indian Education in the United States ...... 121 The Carlisle Indian Industrial School ...... 125 “Undue proportion of white blood” Admission Criteria to the Carlisle School: ...... 132 “Nothing talk ”: Violence as Curriculum at Carlisle ...... 136 Assimilation to the Grave: Physical Death and the Death of Identity and Spirit at Carlisle ...... 144 Conclusion ...... 148 Conclusion: “A Living Testament” to the failure of the “Indian Problem” ...... 150 References ...... 167

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Introduction

“It is only just to the of the United States to say that its with Indian tribes were, as a rule, made in good faith, and that most of our Indian were brought on by the circumstances for which the government could not fairly be held responsible.”—Carl Schurz, Secretary of the Department of the Interior.

“If we thought that the days were bad, the nights were much worse. This was the time the real loneliness set in, for it was then we knew that we were alone—Lone Wolf, Blackfoot Student, Carlisle Indian Industrial School.

Authors note on terminology: Terminology is always complex when talking about people that have been subject to settler colonialism. For this paper, I generally use the terms “American Indian”, “Native American”, “Indian” and “” interchangeably. I refer to individual tribal nations when appropriate. I try my best to stick with the terminology that is consistent with the literature that I have cited, and the language used by the Indigenous authors that I have studied. Finally, “Indian problem” and “solution” are intentionally presented in parentheses throughout the thesis. I do this to draw attention to one of my central arguments, which is that the “Indian problem” and the “solutions” to it are not real. These are fabricated and imposed “problems” and “solutions” that occur across spatial and temporal epochs, and they often have deadly consequences, but they are not real.

The United States has an “Indian problem.” Since European colonizers landed on the North American continent and in the Caribbean Islands of the “New World,” settlers and colonists have grappled with what to make of the inhabitants of

(Anderson et al., 2015). The constant confrontation between settlers and the Indigenous people of the has endured and will always endure. Settler colonial projects are always incomplete (Goldstein, 2019), because settler colonialism is an axis of ongoing projects of violence (Temin, 2019; Ostler, 2020) that are carried out through multiple sites of oppression. What has ensued since Europeans invaded the Americas is hundreds of years of violent towards Native , followed by more subtle, yet just as violent, policy initiatives by the federal government of the United States. What also 11 followed “discovery” was hundreds of years of resistance by native Nations, a resistance that continues today against settler imperial projects and disproportionate state violence. White European settlers, and later , have never been able to

“successfully” rid the Indigenous people of the Americas because they are resilient peoples strongly tied to the land and geography of the American continents.

This thesis is about the “Indian problem” in the United States, and the ways in which the United States has created and attempted to address, or solve, that problem through various policy. As I hope to show, the “Indian problem” does not have a true

“solution”, because the problem is regenerative of itself. That is to say, for the United

States, the “Indian problem” is one of its own creation. The United States continuously creates the “Indian problem” as a means of native dispossession and expansion, and then issues “solutions” to the problem, both of which are carried out through various political, military, religious, and legal vehicles. The “Indian problem” will look different across time, space, and contexts of U.S. history, as will its “solutions.” This is because the problem and its “solutions” are contingent upon whatever interests the United

States has at any given time and are shaped to best achieve those interests. The “Indian

Problem” is necessary for U.S. expansion and its long-term survival.

The “Indian problem” and its “solutions” rely upon a knowledge production that is always necessary to justify otherwise blatantly illegal, illogical, or irrational actions.

Borrowing from Edward Said’s theory of knowledge and the orient, this thesis explores four eras of federal Indian law and policy that demonstrate how knowledge is produced 12 about the orient by the colonial power, for our purposes the United States and its

Native American populations, to produce, maintain, and perpetuate settler colonialism.

The four eras of federal Indian law and policy that this thesis examines are: (1) the pre- constitutional and early years of the United States, approximately 1700-1820, (2) the

“Marshall Era” of 1820-1830 in which the legal relationship between the United States and Indian nations in this country is legally defined and established, (3) the relocation, removal, and westward expansion era, in which the “solution” to the “Indian Problem” is one of near-extermination, and finally (4) the assimilation era. The final era, assimilation, is covered in two chapters: allotment and the end treatymaking compose one chapter, and a second chapter dedicated to the boarding school era of assimilation, which I hope to show was the primary “solution” to the “Indian problem” of that era and the catalyst of assimilation.

The theoretical framework that guides this thesis is interdisciplinary. I deploy concepts from several bodies of literature in an effort to demonstrate the relationality of systems of oppression that are present in settler societies such as the United States.

By drawing on numerous theoretical frameworks, I hope to show that settler colonialism is a unique lens through which to understand native dispossession and domination.

Settler colonialism is fundamentally about land and geography. It is about permanently settling occupied through the continuous dispossession of indigenous people, cultures, and spirituality. Settler colonialism is not a single system of domination, as I 13 will show, but rather comprises multiple systems of power, primarily capitalism, orientalism, and white supremacy.

Thus, this thesis is a broad project of intersectionality that analyzes simultaneously along lines of race, settler colonialism, and capitalism. In this way, my project is very much indebted to the matriarchs of intersectionality (Crenshaw 1991), the matrix of domination (Collins 1990), whiteness as (Harris 1993), race and essentialism (Harris 1990) and the alchemy of race (Williams 1992). Additionally, my interdisciplinary theoretical approach also attempts to draw together theories of relational formation of race (Molina, HoSang, Guiérrez 2019, Kim 1999, Omi and Wiant

1994), theories of settler colonialism (Veracini 2010, 2011; Goldstein 2008, 2017, 2019;

Wolfe 2001, 2006, 2012) and racial capitalism (Du Bois 1935; Robinson 1983; Melamed

2011, 2015; Lowe 2015) to understand how the “Indian problem” is produced, maintained, and regenerated across successive periods of federal Indian law and policy.

The “Indian Problem” is produced through a knowledge production that rationalizes native dispossession in service of governmental and white settler interests. Here, I draw on Edward Said’s (1978) post-colonial theory of orientalism to situate it within the context of settler colonialism to demonstrate how such knowledge produces the “Indian problem” and its various “solutions.”

As part of this approach, I employ relational theories of race to demonstrate that systems of domination must be understood relationally as both working in concert with one another while also constituting one another. That is to say, these systems 14 necessarily require one another for their very existence and successful operation. It is only by understanding the relationality of such systems that compose settler colonialism that a of of settler societies can take root.

In the discipline, political science has not adequately addressed settler colonialism within its main subfields—Law and Politics, American Politics, and Political

Theory. The fields of Comparative Politics and International Politics do a better job of addressing colonialism, but still lack the tools for radical study of settler societies. I do not mean to suggest that the failure of addressing settler colonialism is unique to the discipline of political science; it certainly has its company. Rather, I want to challenge political scientists to use the tools at their disposal to critically examine settler colonialism in their study.

For example, American Political Development (APD) examines the historical development of politics in the United States. In recent years, APD has been challenged to better take account of race in that field overall, and not just as a compartmentalized analysis (Lowndes, Novok, & Warren, 2008). Similarly, APD should better address settler colonialism in that subfield. Failure to do so is not only malpractice but serves to erase indigenous struggles and contributes to deculturalization. In many ways, I see this project falling most in line with APD by demonstrating how federal Indian law and policy decisions of historical epochs effect the federal Indian law and policy of today. Political

Scientists that are scholars of law and society can critically examine the extralegal and extraconstitutional reasoning that is riddled through Indian law cases and controversies. 15

Political scientists in the comparative race and ethnic politics camp can and should explore the unique ways in which Native Americans are racialized through settler colonialism and against other minoritized groups, as well as acknowledge the complex juridical-racial legal status that has been imposed on tribes. The suggestions that I pose above are not so much about the discipline’s methodology (for such a project is certainly outside the purview of this thesis), but rather concerns the types of inquiries that are and are not being critically assessed in political science as it relates to settler colonialism.

Settler colonial studies as a discipline arose out of postcolonial thought and theory around 2010, indicating that traditional disciplines such as political science have been wholly insufficient in addressing the unique and particular realities and challenges of settler societies. While settler colonial studies have been heavily informed by the more interdisciplinary disciplines of Ethnic, American and Cultural Studies, my goal with this thesis is to adequately ground settler colonialism within the discipline of political science, and more specifically within its subfields of American Politics, Political Theory, and Law and Politics.

As I hope to show, the traditional study of political science and the understanding of core concepts in our discipline—, liberalism, , constitutionalism—obfuscate or flat out ignore settler colonialism because settler colonialism is a requirement of American democracy. This dark feature of liberal thought generally, and specifically, must be confronted head on in order to 16 address and redress the ongoing harms and violence of the settler state known as

America. It is my goal that by demonstrating the various ways the United States has created, maintained, reproduced, and ultimately attempted to solve the “Indian problem” as a means of expansion and democratization of will allow for a better and more complete incorporation Native American politics, federal Indian law and policy, and indigenous thought in our discipline—political science.

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Chapter One: Theorizing the Settler State

Introduction

The theoretical framework that informs this thesis is settler colonialism, which necessitates an examination of white supremacy, orientalism, and capitalism. Rather than accepting that these four systems exist individually and apart from one another, I am contending that white supremacy, orientalism, and capitalism are necessary components of settler colonialism. These systems are sometimes examined singularly or dually, but seldom together. The failure to examine these systems of power in concert with each other creates a dangerous implication that these phenomena are not contingent upon, but exist independently from, one another.

It is impossible to fully grasp how settler colonialism, white supremacy, capitalism, and orientalism work together to facilitate ongoing Native dispossession and devastation unless they are studied relationally. The relational study of oppression situates oppressed groups not as relative to the dominant group (e.g., colonial government, whiteness, men) but in relation to other oppressed groups (Molina,

HoSang, & Gutiérrez, 2019). Settler colonialism preys on multiple sites of difference to implement, organize, and reproduce oppression in the name of the colonial state

(Tadiar, 2016).

Relational formation posits that systems of oppression must be examined concerning one another and not only examined singularly or juxtaposed against one another. Examining systems of oppression relationally exposes their junctures and how 18 they are regenerative in their functions. Building from Crenshaw’s intersectionality thesis (1991), relational formation recognizes the limits of the intersection (a specific site or place) by exposing oppression not as generative from one dominant location or group, but rather as relationships of force among subjugated peoples. Claire Kim articulates a relational form of oppression when she writes: “[B]y spotlighting the particularity of each axis of power while also illuminating the structural relationships among axes, they deepen our understanding of the complexity, multidimensionality, messiness, and intractability of domination” (Kim & Freccero, 2013, p. 465).

Similarly, Michael Dawson’s concept of “linked fates” exposes how closely intertwined the multitude of supremacies really are by situating an understanding of oppression not in a purview to one form of domination, but rather within the relationships between various forms of domination and their subjects (1995). Finally, perhaps a helpful comparison of relational formation of oppression is that it is similar

(but not equivalent) to a Foucauldian theory of power, which maintains that power is not centralized, but functions as a system of multiple ongoing relationships (Foucault,

1978, 1990). Relational formation of oppression is key to understand the interconnectedness of settler colonialism, orientalism, capitalism, and white supremacy that defines the status of Native Americans in the United States.

This chapter will provide a brief overview of the discipline of settler colonial studies, and go on to demonstrate that white supremacy, capitalism, and orientalism are necessary components of settler colonial projects. Applying a settler colonial 19 analytical framework to the relationship of the United States to Native American tribes during and before the assimilation era is necessary to fully grasp the sinister intentions and motivations of United States policy at that time. Further, knowledge of how settler colonialism is implemented and operates in settler societies is key to a more complete appreciation of “the Indian problem,” why it is not a real problem, and why therefore has no “solution.” The “Indian problem” is created by the United States as a pursuit of its own interests and in service to whiteness. To understand the complex processes of settler colonialism in North America, the intersections of “multiple ” must be theorized (Upadhyay, 2019) and, therefore, I will examine white supremacy, colonialism/capitalism, and orientalism to demonstrate their interconnectedness in the formation of settler colonialism

The United States is a settler colonial nation. The relationship among the colonial , and later the United States government, with the Indigenous nations of

North America, is one founded on dispossession. Settler colonialism is not a historical event or feat rendered to the past. While many people today would like to believe that

Indian killing, conquest, and land dispossession is a thing of the past, the reality is that settler colonialism is structural. It is an ongoing process that is temporally and spatially regenerative (Glenn, 2015). It is a permanent occupation of a by removing its

Indigenous inhabitants with the intent of settling a community ethnically distinct from that of the disposed peoples (Veracini 2010; Elkins and Pedersin, 2005, Pasternak,

2013). 20

Some scholars argue that settler colonialism is akin to zombieism in that the colonizers seek to take over the mind, body, spirit, and soul of the colonized (Villanueva,

2018). Settler colonialism thus creates “living-dead” specimens. They are physically alive by existing within a settler colonial white state, but they are dead in the sense of the cultural death of Indigenous nations. Other scholars argue that colonized subjects can never be “alive”, meaning human, under settler colonialism and that even an oscillation between life/death, human/subhuman for indigenous people is not possible in any meaningful way (Smith, 2020). Additionally, a byproduct or consequence of settler colonialism sometimes termed domestic colonialism (Chidester, 1996), (Calderon-Zaks, 2010), or a “ within a nation” (Hayes, 2017), is the governing of conquered people as “foreign.” To be a foreigner within a settler colonial regime is to be peripheral to the state, despite being physically and spatially located within the state (Calderon-Zaks, 2010).

Finally, colonial settlings that occupy Indigenous territory create what Gloria

Anzaldúa has termed “Borderlands,” which are socially constructed, geographic terrains between sovereigns that are undetermined spaces designed to distinguish “us” and

“them” (1987, 2012). Borderlands are created in previously defined geographic spaces through the expulsion of its original inhabitants, which transforms the space into an unknown and ill-defined transient territory. In other words, Borderlands work to otherize the expelled indigenous population and force them into a constant state of transience and occupation of a now forbidden territory. This imposed occupation as 21 foreign becomes internalized by colonial subjects as self-punishment for the imposed differences on which settler colonialism relies (Martínez, 2013). Borderlands create discursive spaces of subjugation that alter the lens of identity through which original occupants understand themselves and how they navigate the world (Rodríguez, 2003).

Finally, Borderlands are resisted when subjected others exercise agency in these spaces to reclaim a disposed identity that was once, and becomes again, inherent to the land

(Alarcón, 1996).

Understanding settler colonialism as a continuing process, one that is constantly transforming and reconfiguring its development that is conditional upon geographic, assimilative, and other white interests of a given historical context is the primary step in confronting its devastating effects. Rather than being a phenomenon of the past,

“settler colonial invasion of Indigenous lands…is continually reproduced throughout the history and present of settler societies such as the United States, , , New

Zealand, and ” (Bruynell, 2020 p. 145).

Origins: Colonialism and Capitalism

An earlier iteration of settler colonial theory, although such terminology was not used or common of the time, can be found upon a close examination of the work of Karl

Marx and Friedrich Engels, specifically in The Communist Manifesto (1998). Observing and reflecting upon more than two hundred years of European colonial pilfering, the philosophers warned against rapid globalization and developments in technology that precipitously expanded production of commercial goods, as the result would be a “need 22 of a constantly expanding market for its products” which would send capitalists “over the whole surface of the globe” to “nestle everywhere, settle everywhere, establish connections everywhere” (p. 39). The never-ending chase of markets for goods and products demonstrated a type of transnational, colonial intervention in geographies and cultures that reached all corners of the —resulting in the creation of a “world market” (Veracini, 2010).

It is in the global pursuit of capital that colonialism is born—constituting the long-held belief that the economic system of capitalism arose with and alongside colonial , i.e., colonialism. Settler colonialism is in many ways derivative of colonialism and, therefore, a brief definition of colonialism and its origins is appropriate for our purposes. Colonialism is a process of domination that occurs through the geographic settlement of any quantity of colonists—small or large—that is for the economic profit of the (Ciccariello-Maher, 2015). But more than just pilfering geography for profit, European imperial expansion was a means of worldmaking— literally creating, in Marx’s words “a world after its own making” (Getachew, 2019).

Emerging around the same time as enlightenment ideology and its various principles, European worldmaking placed strong value on the soon-to-be liberal foundation of private property, most especially land (Bhandar, 2019). However, land acquisition, market-chasing, and capital accumulation alone were not sufficient justifications for invading foreign lands and colonizing sovereign peoples—such projects would be blatantly contradictory to other enlightened principles of that period: 23 freedom, liberty, consent, among others. Thus, another justification was necessary to establish European imperial pursuits as legitimate.

Colonialism, White Supremacy, and the Ideology of Whiteness

The solution to the incongruity of worldmaking resided not in the recreation of

Europe after its own image, but the recreation of after its own ideology— particularly, an ideology of European whiteness that is produced through globally consolidating previously independent white settler polities into a settler colonial network of “white men’s countries” (Lake and Reynolds, 2008; Veracini, 2018).

European religious ideologies and beliefs held a primary position to implementing a global ideology of whiteness by employing whiteness and mapping pre-existing notions of race into the colonial world and onto colonial subjects (Maldonado-Torres, 2014). The ethnic intermixing that occurred during and under resulted in religion being the pretext for categorizations of difference.

Indigenous peoples that did not worship or practice religion in ways comprehensible to European whiteness were demonized as “other” —subhuman, exotic creatures that were thought to be evil because of the color of their skin. Fanon refers to this notion as the “racial epidermal scheme” (Fanon, 1952, 2008, p. 92), by which he means the physical embodiment of racial oppression, specifically the darkened color of skin (Song, 2017). Black skin alone, by which I interpret to mean non-white, is a signifier that colonial subjects are worthy of their domination as a type of white saviorism.

Europeans believed whiteness—by which I mean literal white skin as well as whiteness 24 as a religious ideology-- to be righteous and therefore worthy to be spread through colonial projects. Writing during the post- period, French philosopher Jean-Paul

Satre observes of colonialism: “[t]he white man---white because he was man—white like daylight, white like truth, white like virtue—lightened up the creation like a torch….We think we are essential to the world—suns of its harvests, moons of its tides”

(1948, 1964, p. 13-14).

In addition to racial mapping, another racialized tool of domination—a tool of colonialism—that white colonizers wield against savage others is gendered, sexual violence. Gendered violence, including rape, is a product of European colonialism:

“gender violence is not simply a tool of patriarchal control, but also serves as a tool of and colonialism. That is, colonial relationships are themselves gendered and sexualized” (Smith, 2005, p. 1). Sexual violence in the European colonies was racialized because it was an imposition of a subhuman identity onto colonial subjects, bodies that the settler imagination believed to be riddled with sexual sin, crafted through an ideology of whiteness, and was one of the primary tools of subordination utilized by

Europeans (Smith, 2003).

Indigenous women’s bodies were marked by colonial discourse as subject to white male pleasure, a uniquely racialized, colonized, sexualized, and gendered marking that characterized indigenous subjugation (Green, 1975). In this light, it becomes apparent that sexual violence is integral to the development of colonialism and is in fact compelled by it (Finley, 2011). Indigenous feminist legal scholar Sarah Deer (2019) 25 argues that European patriarchy produced gendered violence writ large and that it transfixed native gender relations. Prior to settler contact, Native American men and women held equal spaces of power in tribal politics that, after contact, shifted dramatically towards a patriarchal structure. It is a form of biopolitics in which subject bodies become a primary focus of power, control, and colonial organization (Foucault,

1978-1979).

Thus, European worldmaking required not only chasing markets around the globe but also implementing European systems of force and power everywhere that it imperially expanded. This occurs modernly in the settler context through what Dylan

Rodriquez has termed “white reconstruction” of the “white being” (2020). European worldmaking necessitated the subjugation of European colonial subjects as foreign, a subhuman “other” that could be declared uncivilized and wasteful of their land resources. Racializing native peoples as justification for land grab and settlement demonstrates what American legal scholar Cheryl Harris has termed “whiteness as property” (Harris, 1993). Violence and dispossession against Indigenous peoples are masqueraded through the discourse of racism and white supremacy, legitimating colonial actions that would otherwise be obvious against humanity (Jalata, 2013).

Under all forms of colonialism, native bodies become racialized in the minds of settler as well as through the force of law (Garroutte, 2001), usually by regulating the mobility of native peoples in the occupied territories. A pervasive component of settler colonialism is that colonizing forces distinguish themselves as the superior race in native 26 environments (Cohen, 1945). Genocide becomes the necessary logic of white supremacy, then, because indigenous people must be continuously disappearing from the land for white settlers to rightfully claim ownership of it. (Smith, 2012). The sub- humanization of indigenous people as exotic and foreign “others” generates a constant threat to the empire that becomes the justification for a whole host of dispossession tactics.

In this way, then, white supremacy becomes inherently about land, both of which incessantly shape and inform settler colonialism, what Alyosha Goldstein has called “expectation as property” (2018, p. 127). The subjugation of colonial subjects as foreign others residing in occupied territory is largely predicated upon what

Anthropologist Patrick Wolfe has termed “regimes of difference” (Wolfe, 2001)—of culture, governance, and appearance—i.e., non-white—that is carried out through mechanisms of violence and erasure, including sexual violence. Racialized sexual violence was also a tool of disrupting indigenous family networks, which colonial powers believed to be threatening to settler projects (Vasquez-Tokos, 2021). Prior to colonization, the organization of native life was centered around and not marriage

(Driskill, 2016). Indigenous familial, clan, and kinship structures were often provided as evidence by colonial authorities of Native uncivilization and further vindicated

Indigenous disappearance. Thus, instituting patriarchal heteronormative nuclear family structures in colonized spaces was integral to European worldmaking and served as one of its most powerful tactics in indigenous dispossession. Native scholar Andrea Smith 27 demands a queer theory critique of heteronormative family structures in occupied spaces as a means of “unsettling settler colonialism” (Smith, 2016).

As Europe entered the age of Enlightenment and embarked on its quest to make the world after its own image, it sought to weave specific ideologies into its global projects (Roediger, 2008). Enlightenment contractarian thinkers such as Hobbes and

Locke were especially influential in the development of European colonial worldmaking

(Negrón-Muntaner, 2017). Philosopher Charles Mills argues that whiteness was the organizing principle on which enlightened liberalism was predicated and which was necessary to sustain -building. He calls this “the racial .”

Discussing various contractarian philosophers and their theories of liberalism, Mills states that “The Racial Contract…has the best claim to being an actual historical fact. Far from being lost in the mists of the ages, it is clearly historically locatable in the series of events marking the creation of the modern world by European colonialism and the voyages of discovery” (1998, p. 20).

Despite revisionist historical interpretations and theories of moral philosophy to the contrary, Mills notes the undeniable fact that “we live in a world which has been foundationally shaped for the past five hundred years by the realities of European domination and the gradual consolidation of global white supremacy” (p.20) (emphasis

Mills). Some indigenous philosophers go a step further than Mills, arguing that not only is Anglo liberalism predicated on a racial contract, but that liberalism requires native dispossession to flourish. This has been termed the settler contract, which is the idea 28 that traditional liberal thought purposefully excludes conquest from its analysis as a means of sustaining itself (Pateman, 2007; Nichols, 2013; Love, 2014; Dahl 2016).

Thus, the project of colonialism was not only concerned with chasing capital accumulation and the pilfering of resources in already occupied geographies but was also about producing and maintaining European white supremacy everywhere European hands touched. Bringing the conversation back to Marx and Engle’s, situating their work in conversation with the work of Mills’ is essential to demonstrate that the foundations of colonialism, as is true of settler colonialism, exist in the remaking of geography, culture, and place for the progression of capital and for the reproduction of a European ideology (whiteness). Colonialism facilitated the spread of European whiteness through the actions and policies of the state, resulting in what Michael Omi and Howard Winant call “racial projects” (1994) that demand “an ongoing and intensive policing of racial boundaries” for the purpose of establishing them into the very core of our beings (2015, p. 145). The underlying logic of colonialism is division through the installation of hierarchy along racial lines (Memmi, 2003). In other words, the insidious goal of state- sanctioned racial projects is the long-term colonization of the cognizance that seemingly naturalizes racial hierarchy.

Settler Colonialism

While colonialism and settler colonialism are familial, their major differences must be articulated to understand the distinct effects of settler colonialism on its subjects and its specific undertakings. First, and foremost, the directives of colonialism 29 are ones of forced labor and production for the metropole. The directives of settler colonialism are the opposite, as they are ones of disappearance (Veracini, 2011).

Colonialism is about marking distinct differences of hierarchy between the colonists and the colonized. Settler colonialism is not about forming ethnic distinctions among the native and settler populations but erasing distinctions altogether. It was the institutional and scholarly failure to meaningfully differentiating the two that has in the last decade produced the development of settler colonial studies as a formal discipline of scholarship, with dedicated journals on major university presses, both within and outside of North America (Carey & Silverstein, 2020). The discipline was established out of rejection by scholars to the idea that the world was in a “post-colonial” state, which had become the predominant thinking in the post-colonial scholarship because many of the world’s colonies are not detached from the metropole—they reside within it.

Scholars have institutionalized this concept as the “Fourth World” to bring attention to the limitations of anticolonial politics (Sexton, 2020).

Anticolonial, or postcolonial, analytic frameworks are singular and unsharpened instruments insufficient to fully capture unique colonial formation in which settlers

“came to stay”, warranting a separate and distinct inquiry (Edmonds & Carey, 2013).

Projects of decolonization—the feature of postcolonial thought—are primarily concerned with liberation struggles in the post-war European colonies, with self- determination of the formerly colonized subjects being the end goal (Maldonado-

Torres, 2016). Settler colonialism is also concerned with self-determination, but here 30 liberation from the colonial power is near-impossible because the was constructed in, around, and through Indigenous societies.

Another limitation to post-colonial thought is that the of anticolonial and postcolonial study fails to meaningfully engage in a critique of familial structures that settler colonialism imposed on colonized subjects as an effort to erase indigeneity (Smith, 2009). The inability of post-colonial studies to adequately address settler societies is part of a larger revisionist effort that is determined to remove the stains of colonization from public memory. Such revision is itself a tactic of control over the psyche and memory that is necessary to sustain settler societies.

Finally, there has been a debate within the discipline of settler colonial studies regarding the extent to which and to whom the charge of “settler” should be applied.

Some scholars argue that immigration and other diasporas to the United States, celebrated as , is a function of maintaining settler colonial dispossession and genocide (Sebastian, 2018). The discourse of and inclusion encourages the continual incorporation of more people into the cultural and legal landscapes of the settler state, constituting further native dispossession (Arvin, Tuck, & Morrill, 2013). A particularly controversial debate in this is whether enslaved Black people in the

United States historically are to be considered contributors to native dispossession (Day,

2015). This is not a question of willfulness or voluntary complicity (Wolfe, 2013), but rather a complex consideration of the depth of the structure of Native dispossession. 31

The question of the depth of dispossession and slavery presents a challenge to the idea that egalitarianism is the solution to confront whiteness (Smith, 1997).

A question that is implied and tangential to the one of its depth is: does settler colonialism have the capacity to meaningfully address white supremacy within its limits?

Are struggles against white supremacy grounded in settler colonial thinking? Resisting anti-Blackness must take into account settler notions of inclusion or otherwise risk further dispossession of indigeneity through a pursuit of inclusion (Rifkin, 20019). I believe that struggles against white supremacy can be grounded in settler decolonization, and that struggles against settler colonialism can have its roots in combating white supremacy, but I bring up the point to demonstrate that there is still much debate about the origins, responsibilities, and possibilities of settler colonialism

(Lawrence and Dua, 2005).

Settler colonial studies are predominantly concerned with the practices of governmentality that structure unending dispossession of indigenous land through the attempted or actual eradication of indigenous peoples. All of that is to say, settler colonialism is centered on land, power, and indigenous corporeality (Snelgrove,

Dhamoon, & Corntassel, 2014; Pretince, 2005). Unlike the franchise-colonial relationships of the , French-Indochina, or , which sought to extract capital and resources for the empire through colonized labor, the settler colonial relationship is one that seeks to replace natives on their land through a 32

“logic of elimination” that permanently transfers indigenous lands to settlers (Wolfe,

2001).

Some scholars situate settler colonialism as an elaborate form of colonialism which involved continuous migration of European descended populations for perpetual settlement on dispossessed Native lands, implementing an infrastructure of institutions that permitted the political dominance of a heterogeneous society over the class, ethnicity, and culture of the dispossessed group (Stasiulis & Yuval-Davis, 1995). Defined in this way, settler colonial relations can be understood to constitute a spectrum rather than a fixed structure, in which settler dominance must be reactive and regenerative to produce, beyond geographic and corporal dispossession, but cultural, spiritual, and ethnic dispossession as well. Further, the long-term effectiveness of settler colonialism relies on individual non-state actors and outside government apparatuses, making intellectual and cultural determinations about who and what constitutes “indigenous” as native erasure becomes more widespread (Jacobs, 2018). It is this reactionary and reformative aspect that makes settler colonialism an ongoing process.

Settler societies do not only consist of Indigenous and European-descendant dominant groups. Racialized groups deemed societal “others” are extended provisional settler status in the state, making them unwilling participants in the settler project. The result of situating quasi-settler groups within the settler colonial state is a racialized triangulation that is in constant need of administration and maintenance (Veracini,

2010). Further, settler colonialism is a historical circumstance that reconstitutes itself 33 during moments of racial conflict as a service in favor of negotiating group inequalities that most benefit white society (Goldstein, 2008). The social and legal positions of outgroup members in relation to the dispossessed natives continuously fluctuate, contingent upon the needs and interests of whiteness (settlers) at any given historical moment.

In this light, it becomes apparent that settler colonialism cannot be disaggregated from white supremacy, which is why a relational examination of subjugation is crucial to understanding oppression. Thus, the predominant understanding of settler colonialism must not be that it is derivative of a central location or source, but rather that it is reactionary and regenerative to multiple relations of force, specifically a constant state of possibility for whiteness. In this way, settler colonialism is not unlike the similar, yet distinct, concepts of Afropessimism (Wilderson

III, 2020) and the “ of slavery”, (Patterson, 1982).

Orientalism and Knowledge

The intellectual and cultural determinations made by state and non-state actors about what constitutes indigenous and indigeneity, rationality and reasonableness, civilized and uncivilized, in ongoing settler colonial spaces, indicates that Orientalism is a necessary element of settler colonialism. Orientalism is a system of knowledge production that is associated with literary critic and scholar Edward Said’s theory of the orient (1978). Said is also widely considered the founder of postcolonial theory, which I briefly surveyed above. Despite its limitations, the postcolonial theory of Orientalism is 34 useful for its insight into knowledge and knowledge production. As I earlier stated, the long-term project of settler colonialism is regenerative and, as such, a certain production of colonial knowledge is necessary to ensure the ongoing-ness of settler projects and to reinforce settler logics.

This thesis attempts to situate Said’s theory of knowledge and Orientalism within the settler colonial relationship that the United States has with Indigenous nations and people. Said’s work positions Orientalism within the colonial relationships of Europe and their colonies, and within his personal own of Palestinian oppression (Katz & Smith,

2003). I argue the concepts of Orientalism can be extended and applied to the settler colonial relationships between the United States and Indian nations.

Orientalism, to Said (1978) is a process. It is a cultural, political, social, geographic, and legal process that constructs the “orient” or the “other” based on a system of knowledge. Specifically, Said defines Orientalism as “a style of thought based upon an ontological and epistemological distinction made between ‘the orient’ and

(most of the time) ‘the occident’’ (p. 2). In other words, orientalism is the colonial thought process created by the knowledge produced through relations of force over the colonized subject, the orient.

Knowledge to Said is “surveying a from its origins to its prime to its decline—and of course, it means being able to do that. Knowledge means rising above immediacy, beyond self, into the foreign and distant….to have such knowledge of a thing is to dominate it, to have authority over it. And authority here means for ‘us’ to 35 deny to ‘it’—the Oriental” (p. 32). In the colonial context, Said argues that

European colonial powers, in their infinite, western, liberal wisdom, knew foreigners

(the subjects they colonized) so well as to know foreign cultural, political, and geographical ways of life were wrong.

Of colonial knowledge, (1963, 2004) writes: “[T]he colonist and the colonized are old acquaintances. And consequently, the colonist is right when he says he

‘knows’ them. It is the colonist who fabricated and continues to fabricate the colonized subject. The colonist derives his validity, i.e., his wealth, from the colonial system” (p. 2).

The knowledge of the “other” as uncivilized provided justification for British colonization in places such as and South , as well as the American colonization of Hawaii, the , and Puerto Rico. Orientalism, while specific to colonialism in its origins, can be extended to the settler colonial relationships of the United States. I will now explain my theory of orientalism and how it is essential to settler colonial logics and undertakings.

Because settler colonial projects are ongoing projects of permanent dispossession, a knowledge of the disposed subjects is necessary to justify their disposal. In the contexts of the United States, the knowledge of the “orient”—

Indigenous populations—is colonially produced through the categorization of

Indigenous peoples as “savages” in need of “civilization.” In this way, then, knowledge production in settler occupied spaces becomes a tool of surveillance—surveilling the orient as well as the geography (Phelan, 1993). For example, indigenous religious 36 practices, which were surveilled by and perceived as foreign to Europeans, were transformed from difference to threatening by a colonial a knowledge production with the ultimate goal of erasure (Sullivan, 1994).

Settler colonialism, through an intense white gaze, transforms the original inhabitants of the land into mysterious others, creating a racialized geography in need of retrieval from its savage occupants. As colonizers settle the invaded land, a European topography renovates the landscape, all of which is a segment of the imposition of knowledge—the way of life, the structure of society, the state and government apparatuses—with the purpose of bringing the unrefined being out of nature and into civil society. Cameroonian philosopher Achille Mbembe reveals how “the West”

(Europe) manufactured the notion of civilization through its colonial endeavors:

In its avid need for myths through which to justify its power, the considered itself the center of the earth and the birthplace of reason, universal life and the truth of humanity. The most ‘civilized’ region of the world, the West alone had invented the ‘rights of people.’ It alone had succeeded in constituting a civil society of nations understood as a public space of legal reciprocity” (2017, p. 11).

The rescue of geography from its longstanding inhabitants is celebrated under a guise of paternalism, the “Great White Father” (as, in fact, the United States government will come to be known in its native-colonial relations as this father) extending care and protection over “his wards”, Indigenous children. This functions as an illusion or mystification, similar to a funhouse mirror distortion of colonization-as- care that works to produce and reproduce a knowledge of the orient as a people in 37 constant need of salvage—from themselves, their culture, their language, from entire modalities of life. Every proposed and attempted “solution” to the “Indian problem” by the colonial government requires a produced knowledge to vindicate and rationalize the chosen “solution.” The specifics of the knowledge of the orient will be contingent upon the interests of the colonial power (whiteness) at any given time.

As we will see in the context of the United States, the knowledge of the Indian is produced pursuant to governmental and white settler interests of a given historical moment. I will explore this argument in much greater detail later in this thesis, but the following is an example of colonial knowledge production of the orient that demonstrates that the knowledge produced is contingent upon the interests of white settlers at specific historical moments. Early Nineteenth-Century white settlers “knew”

Indians to be wasteful beings. They knew this in many ways, one being in their “failure” to domesticate livestock such as Europeans had done for centuries (Jennings, 1975;

Larson 1978). Additionally, European settlers also knew Indians to be wasteful through their observation that Indians failed to cultivate the resource-rich soil of the southern tidewater regions for financial gain, primarily in the form of cotton (and slavery).1

This knowledge of the “wasteful Indian” was produced in and through a western gaze of wealth accumulation and the American myth of the yeoman farmer. The knowledge produced was following the settler interests of that moment, which were

1 We know this to be untrue, as there is plentiful evidence of tribes in this region practicing agrarianism and, more to the point, enslaving Black people (famously, the ). 38 agricultural. Because Indians in that region were not harvesting individual plots of land as yeoman farms for agrarian wealth, white settler knowledge transformed Indians into wasteful and uncivilized beings who were unworthy of the Tidewater’s land and its resource-rich soil. Therefore, to ensure that the land was not being wasted, the only rational “solution” to this “Indian problem” was indigenous removal from the region altogether.

As I will explain in the following chapter, the legal structure of the relationship between the United States and its Native Nations is one sinisterly predicated on a form of knowledge production: conquest. To justify its pillaging of, and settling on, already inhabited land and instituting domain over entire nations of sovereign peoples, the early

United States government had the need to exonerate its otherwise clearly illegal actions. The main way this exoneration occurred was by implementing a legal framework to govern and institute dominance over Native Americans. Tribal nations at the time of “conquest” (and at most times) predicated their legal systems on oral traditions and sacrosanct ceremonies that had been passed down for millennia. These legal systems were incomprehensible to the early Americans, whose understanding of the law and legal systems was derivative of English . American ignorance of tribal law became shaped into a knowledge of Indians, specifically that Indians were uncivilized savage’s incapable of governing themselves, which in the minds of the setters warranted their conquest (Deer, 2015). 39

Thus, the legal system governing US-Indian relations was established through the illegitimate doctrine of conquest. Because the United States had “conquered” the U.S. territory of North America, which included its original peoples, it “knew” that Native

Americans should be subjugated and that they deserved their inferior status. The knowledge of conquest suggests that because they were conquered, Indians lost the enjoyment of full and were subjected to a complex quasi-sovereign legal status, with ultimate belonging to the United States. Here, the knowledge of conquest was produced in favor of the colonial interest at that moment, which sought a legitimate validation for its settler colonial pursuits. The “solution” to that moment's

“Indian problem” was the implementation of legal infrastructure that was masqueraded as legitimate with respect to Indigenous peoples.

As both of the examples above demonstrate, the “Indian problem” reconstitutes itself across time and space, a feature that ensures the ongoing-ness of settler colonialism as a continuing process and project, which is usually one of violence (Temin,

2019). The “solution” to any given moment’s “Indian problem” is subject to the historical context of that period and is contingent upon whatever the interests of the colonial government (whiteness) are in that moment. The “solution” to the “Indian problem” is crafted from the production of a knowledge of the Indian that is always beneficial to the settler and to the peril of the colonial subject. The knowledge produced is then expended to rationalize the irrational, to justify the unjustifiable, and to solve 40 the unsolvable, resulting in a perpetual cycle of violence and subjectivity that is constantly evolving and is constantly resisted.

If settler colonialism is a project of disappearance, if its directives are legitimate claims to indigenous lands through their erasure, then the perpetual-ness of the “Indian problem” demonstrates the illogic of settler colonialisms. Settler colonialism creates the very problems that it is trying to “solve.” Martinican Francophone and politician Aimé

Césaire believes the irrationality of colonialism—settler or otherwise—is that the violent and barbarous nature of it has the greatest impact not on the colonized, but on its perpetrators (Kelley, 2000).

For Césaire, it is an irony with devastating consequences, which is the fundamental alteration of the meaning of civilization. Quoting Cêsaire: “A civilization that proves incapable of solving the problems it creates is a decadent civilization” (1972,

2000, p.32), which is to say that colonialism and civilization are incompatible. It is precisely for these reasons that settler colonial orientalism is continually reorienting itself to produce knowledges in favor of white colonial interests, and that orientalism is a vehicle of violence that not only requires the United States to be in a constant state of war against indigenous peoples but requires that the United States be war (Hahn, 2005).

This is the most haunting aspect of settler society because it demonstrates that war is not only inevitable in the settler state, but also required for its existence.

41

Conclusion

Settler colonialism must be understood as an ongoing process, usually one of violence, that is not centrally located or consequential of a singular source. Settler colonialism is produced, maintained, and regenerated by its relations of force to other systems of oppression, with the recognition that such systems are diffuse. Settler colonialism was initially born out of colonialism, which attempted to remake the world in Europe’s image and ideology of whiteness. Colonialism arose alongside capitalism, demonstrating that the pillaging of land and resources for the monetized interests was its primary goal. Further, to justify colonialism and settler colonialism against the contradictions of classical liberalism, the colonial powers created categories of difference between the Indigenous and the settler by transfixing racial meaning to the physical, cultural, and religious characteristics of indigeneity. Thus, colonialism and settler colonialism deceitfully became a of both people and land, a guise of “white saviorism” to erase indigenous topographies from the newly settled territory.

The birth of settler colonialism occurred through the changed relationship between the metropole and the colonized subjects. While the initial relationship between the two may have been concerned with labor for the extraction of wealth and resources at the benefit of the metropole, that relationship evolves with the settlement, and the primary interest of the colonial power becomes one of land and Indigenous erasure. It cannot be overstated: settler colonialism is about land. It is when the 42 metropole is permanently transplanted onto indigenous geographies that the relationship between the colonial and subjugated shifts—the shift being one to sustained dispossession. The purpose of colonization is thus modified. It becomes one of cultural, as well as physical, deprivation in its pursuit of the total transformation of geography. For the permanent settlement to achieve its purposes, and continue to be an ongoing project, certain knowledges about the indigenous subject and the land become necessary. It is a process of Orientalism that produces a knowledge that justifies the violence of settler colonialism.

Through colonial knowledge, the landscape is transformed into a racialized geography, a “no man’s land,” terra nullis, begging to be conquered. This knowledge about the indigenous population of the terra nullis also requires a transformation—a transformation by the settler of the subject into something less than human, an uncivilized orient that is deserve-ed of its dispossession. The knowledge of the subject that is produced from these transformations will always look different depending on the time and context, but it is always one that is for the express benefit of the colonizers and of whiteness. In the following chapter, we will see how the legal infrastructure of the U.S-Native relationship developed through a colonial knowledge production about sovereignty, land, and conquest, with the result being the legalization of the “Indian problem.”

43

Chapter Two: Discovered and Conquered: the Early Years

Introduction

The first section of this chapter provides the historical overview and context of the European doctrines of discovery and conquest that would, eventually, become the foundation of American Indian law and policy. These doctrines have been relied upon through history to justify domination and dispossession of indigenous people, and I demonstrate in this chapter how the doctrines developed in the context of North

American conquest. Once religious principles to justify colonial invasions, discovery and conquest take a secular shift in North America to become the bases for legal authority.

The second section of the chapter goes on to explore the relationship of Indians and Americans during the colonial years and the early years post-. I reveal that of primary concern for both parties was maintaining and protecting the partnership, which was mutually beneficial for economic and other security. The U.S. relied heavily upon trade with the Indians to generate revenue before, during, and after constitutional , as well as to pay down heavy debt loads incurred during the revolution. Some of the first pieces of legislation enacted by the new congress of the new country directly addressed U.S.-Indian relations. This final section of this chapter provides the legal authority granted by the Constitution to the federal government over dealing with Indian affairs and reveals that such authority was initially quite limited.

My goal in this chapter is to demonstrate that, from the outset, the relationship between the United States and its Indigenous inhabitants was intended to be about 44 trade. The constitution recognizes Native Americans as sovereigns, grants limited powers over Indian affairs to the federal government, and provides not authority for the individual states to enact Indian policy. Yet, as will become apparent in the next chapter, the United States transforms the historical fact of conquest and discovery into a legal principle that in turn becomes the basis for ongoing settler colonialism and dispossession. This chapter provides the necessary background of discovery and conquest, as well the constitutional provisions related to Indian affairs, that is necessary to understand how federal Indian law and policy developed to be far more reaching than ever intended.

Discovery and Conquest

Before American independence, Native American dealings with the European powers in North America varied greatly. The French largely recognized Native sovereignty in the gulf regions of what would come to be known as Louisiana and

Mississippi, demonstrating government-to-government relations with, and respect for, at least six tribes that today informally comprise of a group known as the Tunica’s

(Klopotek, Lintinger, & Barby, 2008). The Spanish did not have governmental relations with the Indigenous groups of “the ”—the Spanish name meaning “wild ones” and “runaways” that was given to Natives of what is now southeast Georgia and because they were constantly avoiding Spanish contact (Weisman, 2007). Early English colonists had transactional relations with tribes such as the Plymouth colony with the

Wampanoag (Silverman, 2019), and the Croatoan with the Roanoke colony (Pajer- 45

Rogers, 2005), but such relations were premised on the bilateral reliance of goods and not on direct political acknowledgment. Further, there is little evidence of any British colony speaking of the legal status or relationship of Indians during this time (O’Brien,

1991). Thus, there were no uniform dealings between European colonies and Indians on the North American continent at that time.

What was uniform, however, was the European understanding of the Doctrines of Discovery and Conquest. What might have been what is known today as , the doctrines of discovery and conquest date at least to the Crusades of 1096, although it is likely that the doctrine was introduced earlier by the Catholic church as the papacy mandated the legal obligation to spread across the globe to create a “universal Christian commonwealth” (Pagden, 1995). The doctrine was later vindication of “conquest on behalf of Christianity” as European such as sought to colonize places like the Canary Islands in the early fifteenth century. The

Portuguese persuaded the Church that Christian conversion was necessary for

Indigenous populations of the Canaries that they believed to lack a common set of or religious principles, had no legible social intercourses, and “lived like animals”

(Prestage, 1933, 2007). The religious practices of indigenous peoples in the Americas at the time of European “discovery” can generally be organized by two separate identifications: Agricultural societies, such as the Aztecs, or hunter-gather societies, as was common of the tribes in modern day United State and Canada (Walker Jr., 1991), neither of which were familiar to Europeans. It was common for European explorers to 46 experience religious indigenous traditions and practices that they were not accustomed to, and then report back to the metropole that the indigenous peoples of the

“discovered” land lacked a religion and therefore were justified in their pillage (Doty,

1998).

The doctrine of discovery further developed towards the end of the medieval era as the , building from the Portuguese, sought to manifest the papal decree of bringing all humankind under the Christian umbrella. However, the Spanish encountered mass resistance to among the first Indians they encountered of central America, mainly the Aztecs. The Aztec’s resistance was declared by the Spanish to be aggression, not defense, and therefore under Christian law, the

Spanish could wage war against the Indigenous population who were “hindering” the spread of Christianity. Thus, the doctrine of discovery birthed the doctrine of conquest, which was emboldened by European powers to bring within its jurisdictional and geographic limits any indigenous territories and peoples that were believed to be actively hindering the spread of Christianity (Dörr, 2013-2014). The assertion of Aztec resistance to Christian conversion as an aggressive hindrance demonstrated a colonial knowledge production that was necessary to validate Spanish conquest under Christian law. This produced knowledge of resistance as a hindrance would be validation for the

European conquering of indigenous peoples and land of Central, South, and soon North

America. 47

Discovery and conquest were also bolstered by the theory of civilization, which, after Christianization, became the primary guise of colonization, the shift being a secular one. Civilization as a concept has its roots in early enlightened liberalism, as philosophers such as Hobbes, Locke, and Rousseau supported the concept of an of civilized nations. Under this concept, all non-European communities were determined to be uncivilized, existing within a state of nature. The idea of the international community of civilized nations thus required the conquest of uncivilized states to bring them out of the natural world and into the civilized one. Thus, what was once primarily about spreading Christianity, conquest became a project of international law and community, a means to institute Western cultural and scientific- technological achievements across the world.

Finally, the last major validation of conquest and discovery concerns the western concept of , the Latin phrase translating to “nobody’s land.” The principle of terra nullius proclaims that the “discovery” of “nobody’s lands” allows the discovering sovereign to assert sovereign ownership of the territory (Lind, 2020). Terra nullius was espoused to be a natural right of all civilized nations during the enlightenment era, meaning that it was consistent with the spread of liberalism. In the Americas, Locke believed Indian lands to be terra nullius because, as has been and will be further shown,

Indians did not utilize the lands in ways Europeans believed to be productive. Therefore, to Europeans, the inhabited territory did not constitute property. The Enlightenment era legal philosopher Emer de Vattel’s treatise The Law of Nations affirmed that “all 48 mankind” has the “equal right to things that have not yet fallen into the possession of anyone” and that these things rightfully belong to the “person[s] [that] first take possession of them.” Vattel goes on to write that when a nation “finds a country uninhabited and without an owner, it may lawfully take possession of it” (1758, 2008, pp. 215).

Colonies, the Constitution, and the Early Years of Federal Indian Law and Policy

Initially, English colonists enacted laws concerning and dealing with Indian affairs on behalf of the British government, which was believed to be the rightful sovereign of the North American territory (Miller, 2008). However, riddled with debt after the

French and Indian war in 1763, the British Crown became directly involved in exercising its sovereign authority over Indian affairs as it related to trade, leveling taxes and other burdens on the colonists that had dealings with Indians (Jones, 1982). The exercise of its discovering authority by the Crown and King George III led to increased tensions between the British metropole and the colonists, which often resulted in conflicts between the settlers and Indians in the colonies (Clinton, 1989). Thus, the doctrines of discovery and conquest, as well as the concepts of civilization and terra nullius, were the primary legal mechanisms of Indian affairs up to this point. Terra nullius became a staple of American liberalism that, as I will demonstrate in the next chapter, became enshrined in American law to later justify America holding title to occupied Indian lands.

Following independence, the Framers grappled with how to deal with Indians in the newfound country. It was decided that dealings with Native Americans were to be 49 limited to the federal government, with no authority of Indian affairs granted to the individual states and was to be based around a government-to-government relationship.

Thus, the constitutional provisions providing for this relationship are quite limited.

Article one, section eight confers to Congress the power to regulate commerce with

Indian tribes. Specifically, the constitution reads: “Congress shall have the power to regulate commerce with foreign nations, and among the several states, and with the

Indian tribes.”2 Relegating Congress’s ability to regulate Indian affairs to its commerce power is telling for several reasons. One apparent consequence of this is that the individual states seemingly do not have the authority to interact with Indians in this capacity (Ablavsky, 2014).

At the time of ratification of the constitution, the founders were most concerned with their ability to conduct trade and other monetary relations with Indian tribes, as the preceding war left the young country in massive debt (Clinton, 2002). Indeed, by the time of ratification, economic systems built upon nonindigenous-indigenous trade had been widely established and thriving for centuries. Europeans had become particularly dependent upon these trade relationships for both economic viability as well as physical survival, particularly as it related to the (Cornell, 1988).

Further, Article II of the constitution grants the federal government treaty-making authority with Indian tribes, and the of the constitution dictates that

2 Art 1, §. 8, U.S. Const. 50 treaties are to be the law of the land. Together, these three constitutional provisions

(Commerce, Treaty, and Supremacy clauses) grant the federal government complete authority over Indian affairs (Riley, 2017).

The framers seemingly adopted the same position that King George III and the

Crown held when it came to Indian dealings, which was that the national government should hold the sole authority of regulating Indian affairs. This is a curious position, given that the Crown’s prohibition of the individual colonies to enact trade and land sales with Indian tribes was a major source of tension leading up to the revolution

(Blumm, 2011). This position reveals that trade with Indians was understood to be lucrative and that it is likely the young federal government believed trade and land transactions with tribes to be one of its primary funding sources. Further, the fact that the primary dealings with Indians concerned monetary transactions and that they were a major source of revenue for this new project of democracy demonstrates the inherent connectedness of capitalism and settler colonialism.

The trade relationship that the United States had with Indian tribes cannot be overstated in its importance. The relationship was the basis for all of its initial dealings with Indian tribes, carried out through centuries of treaty-making, first from the British

Crown and later through the U.S. Congress (Wilkins, 1998). It was understood by both the British colonies and the new American nation that this relationship would need to be protected from not only the individual settlers and the several states, but also other

European colonial powers on the North American continent, primarily France and . 51

The distinction of Indian tribes from “foreign nations” and “several states” in the

Commerce Clause of the Constitution indicates that the framers believed Indians to occupy some sort of status as a sovereign, but the extent of that sovereignty was yet to be determined.

The U.S. did not consider tribes to be of the same sovereign status as foreign nations and did not want Indians located within the physical boundaries of the country to enter trade relationships with foreign nations, mainly Spain, Britain, or France (Singer,

2018). The same was true about the thirteen original states. The new nation wanted to be the only entity trading with Indian tribes, demonstrating the importance of that trade relationship to the larger settler colonial project of the United States. Such importance of the trade relationship reveals that American federal Indian law is, like many other historical realities, predicated on at least one fundamental contradiction: colonization in the face of constitutional principles of limited government (Frickey, 1993). Further, just because the new government relied on trade relations for its economic viability in the early years does not mean that U.S-Indian relations at this time were civil; they were anything but. As the country eagerly sought westward expansion past the Alleghany

Mountains, which the British Crown prohibited under the Proclamation of 1763,

President famously instituted a policy paradigm of the “savage as the wolf” to encourage and justify the expansion of the country into the uncivilized frontier occupied by the “war-loving savage” (Calloway, 2018). 52

To ensure that no other foreign nations or individual states would enter trade relationships with Indian nations, the young Congress passed the Indian Nonintercourse

Act of 1790.3The act required individuals to obtain a license from the federal government to legally trade with Indians at federal trading posts. Further, the law prohibited any individual or state from purchasing or selling land with Indian tribes, notwithstanding express permission from the Congress. Finally, the law granted the federal government criminal over any crimes committed by in

Indian territories, effectively stripping tribal criminal jurisdiction over white people in

Indian country (Skibine, 2017).

The three provisions of the Act highlight just how serious the federal government was about protecting its trade relationship with Indians, and also that it did not believe tribal legal systems to be sufficiently adequate for dealing with white people. The of 1790 is still in use practically and remains contested to this very day. The Supreme Court as recently as 2005 decided a tribal sovereignty issue between the city Sherrill in New York and the Oneida Nation in City of Sherrill v.

Oneida Indian Nation of New York4 and the outcome of hinged on the application of that law. The fact that the Act is to this day contested in federal courts at all levels demonstrates that Federal Indian Law and Policy is as complicated and complex today as it was at its outset.

3 25 U.S.C. §177. 4 544 U.S. 197 (2005). 53

Conclusion

Thus, the early years of affairs between Indians and the United States were primary centered on exercising and protecting the trade relations between the two sovereigns. For the most part, the US recognized the sovereign authority of tribal nations, as such a recognition was necessary for a viable and legitimate trade partnership. However, by the 1820s, as we will see, the interests of the United States shifted from one of trade to one of land. Therefore, the Indian problem shifted as well;

Native Americans and the various tribes were occupying resource rich and valuable lands in the Southeastern regions of the United States. As the country sought to expand its slaveocracy and capitalize off the land, it needed a legal “solution” to the “Indian problem” that would justify acting over, instead of alongside, Indians. Thus, the next chapter details how legal relationships between Native Americans and the United States were shifted through the legal production of knowledge about discovers and conquest, primarily its codification into American law.

54

Chapter Three: Legalizing the Settler State: the Marshall Trilogy, Domestic-Dependent

Nations, and the Doctrine of Discovery at the Supreme Court.

“Federal Indian policy, is, to say the least, schizophrenic.”

—Clarence Thomas, Associate Justice of the Supreme Court of the United States, concurring opinion, U.S. v. Lara (2004)5

Introduction

Federal Indian law in the United States is a mess (2016). It is in a constant paradoxical state that waffles on Indian land and , subject to whomever heads the Department of Interior, sits on the federal bench, and holds the oval office

(Wildenthal, 2002). Since the first contact, North American colonial governments, and later the government of the United States, have operated a piecemeal legal relationship with Native Americans that is seldom consistent and always contingent upon the larger policy aims of the colonial government: The United States. This chapter is about three

Supreme Court cases that were decided between 1823-1832, all of which categorized the legal status of Native Americans and for the first time defined tribal sovereignty in

American law. The cases, known as the “Marshall Trilogy” for being authored by Chief

Justice , are to this day the authority on tribal sovereignty. The consequences of this trilogy of cases have historically be devastating to Native

Americans.

5 541 U.S. 193, 219. 55

This chapter demonstrates that by 1820, the “Indian problem” came to be defined by conflict between the federal government, the several states, and the numerous tribes in the eastern regions of the young country. While the primary relationship between the U.S. and tribes had been one of trade, it is shown in this chapter that the relationship shifts to become one of dominance. The “solution” to this new “Indian problem”—how to settle the conflict among the three sovereigns—was to be found in the twisted logic and extralegal-ness of the doctrines of discovery and conquest. By 1832, Chief Justice Marshall had successfully legalized discovery and conquest in American law, not through neutral and solid principles of constitutional law, as had been and still is custom in the U.S., but rather through racist imagery, language and ideas about indigenous peoples. We will see that a legal knowledge about indigenous peoples had to be manufactured by Marshall to rationalize the otherwise irrational and illogical decisions the three cases in that era relied upon.

But first, this chapter begins with two examples of modern day federal Indian law issues that demonstrate: (1) the themes of land, conquest, and discovery that are the long-lasting foundation of federal Indian law, and (2) the contemporary consequences of the incomplete and often incoherent Indian law and policy of the past.

I hope to show that these two current examples demonstrate the negative ramifications of the Marshall Trilogy cases and the long-lasting legal effects that, to this day, impact tribal sovereignty and Native Americans as individuals. These examples demonstrate that, just as in Marshall’s day, the legal relationship between Indians and the United 56

States always satisfies the interests of the United States before those of tribes or their members, often under the guise of a twisted, racist, and extralegal logic about conquest and discovery. The two examples that follow demonstrate that the messy legal reasoning that forms the basis of Indian law determines both the outcome of judicial cases and congressional exercise of authority concerning American Indians today.

Federal Recognition, Contemporary Federal Indian Law and the Case of Native

Hawaiians: A Look to the Present for Understanding the Past

As it stands today, the official policy of the U.S. government as it relates to

Indian affairs is one of self-determination (Littleaxe, 2020). There are currently 574 federally recognized sovereign and independent American Indian and Alaskan Native tribes that maintain a government-to-government relationship with the United States

(Paschal, 1991). This means that the federal government recognizes the legal and political obligations that it has to these tribes as “domestic-dependent” sovereigns

(, 2021). This term will be explained at length later in this chapter, as it is a crucial distinction in maintaining indigenous subordination, but for now, suffice it to say that the domestic-dependent status and sovereign-to-sovereign legal relationship is one predicated on the history of conquest.

The process by which the Bureau of Indian Affairs grants federal recognition to a particular tribe is tenuous, bureaucratic, and largely beyond the scope of this thesis6.

6 See 25 CFR Part 83 for the administrative process that the Department of Interior, through the Bureau of Indian Affairs, uses to determine federal recognition status. 57

For our purposes, the important thing about federal recognition is that it is premised on the legal, political, and military history between the United States and each individual tribe as it relates to land. The current federal recognition process reflects part of the history of U.S.-Indian relations that is the subject of this thesis. One of the elements that a tribe must satisfy when it petitions the Bureau of Indian Affairs for federal recognition status is that it has consistent ties to a landmass or other geographic regions that the

United States has unlawfully interrupted. The tribe must demonstrate that it has been politically organized as a sovereign in the demonstrated regions since time immemorial

(Mckinney, 2006). Demonstrated proof of political existence on land as a pre- constitutional sovereign, meaning before the United States was officially formed, is the key element in federal recognition inquiries (Roessel, 1989).

Noticeably absent from the federally recognized tribes list are Native Hawaiians

(Van Dyke, 1998). This is not an oversight or for lack of Hawaiian Natives seeking recognition. Rather, the refusal of the United States to federally recognize Hawaiian

Natives as a political sovereign indicates the much larger point that I wish to make in this chapter, which is that the legal relationship between what is today the United

States and Native Americans/Alaskan Natives centers on land, and specifically the

“discovery” and “conquest” of land by all of the various configurations of the United

States government since the first contact. The exclusion of Hawaii from federally recognized tribal status is exemplary of the notion that American Indian law centers on land theft (discovery) and domination (conquest/settler colonialism). 58

When the Supreme Court of the United States ruled in Rice v. Cayetano (2000)7 that the Office of Hawaiian Affairs, a state agency created to institute Native Hawaiian self-governance, restriction that only Native Hawaiians would be eligible for a position on its board of governors violated the Fifteenth Amendment’s prohibition of race-based voting criteria, it signaled both explicitly and implicitly that Native Hawaiians were not legally “Indians” under the federal recognition definition (Pino, 2020). Legally, federally recognized Indian tribes are not “racial groups” for the purpose of strict scrutiny judicial analysis, nor are they to be classified as a racial group in any of the reconstruction amendments (Garcia, 2010).

This determination was made in Morton v. Mancari (1974)8 and upheld in U.S. v.

Antelope (1977)9, wherein both instances the Court’s legal analysis rested upon the

“special relationship” of Native Americans as political groups with the United States, and not racial groups such as Black and Latinx populations are considered. As a political classification, any state action or legislative classification taken by or made on behalf of federally recognized Native Americans only needs to meet rational basis judicial scrutiny to pass constitutional muster.

Thus, when the Supreme Court applied strict scrutiny analysis to the 15th

Amendment challenge to the Office of Hawaiian Affairs board member eligibility

7 528 U.S. 495. 8 417 U.S. 535 9 430 U.S. 641 59 requirement in Rice, it juridically classified Native Hawaiians not as an indigenous political group, but rather as a distinct racial and ethnic community (Mcgregor, 2017).

The Court’s relied on a selective reading of the Mancari rule to determine whether the United States has a “special relationship” with Native Hawaiians such as it does with its continental tribes, or whether the relationship with Hawaiians was somehow different. The Court neglected to find the “special relationship” between the

Native Hawaiians and the U.S. government, it implies, because the United States did not

“discover” and “conquer” Hawaiian lands and peoples as it did American Indian lands and tribes.

Rather, when the United States forcibly overthrew the Kingdom of Hawaii in

1893, the Kingdome was a recognized member of the international community, with consulates and ambassadors the world over (Kēhaulani, 2005). Hawaii could not have been “discovered” in the traditional sense because it had a presence and was an active participant on the world stage. Shortly after Queen Liliuokalani was removed at gunpoint and the Kingdom’s was dissolved, the U.S. Minister to Hawaii, John

Stevens, hastily and illegally instituted a provisional government, the of Hawaii

(Merry, 2000). Subsequently, the Republic of Hawaii, at the behest of Stevens, signed a

Joint Resolution with the United States government ceding “all former crown 60 government, and public lands to the United States”10 and was annexed as a U.S. territory in 1898.

Therefore, because there was a joint resolution “voluntarily” agreed upon to cede the Kingdom of Hawaii, no matter that it was a of duress, its does not constitute a “conquest” in American legal jurisprudence that would have otherwise extend both the Mancari classification and federal recognition status to

Native Hawaiians. Further, the Rice court implied that, because of the “willful” transfer of sovereignty, Native Hawaiians could not satisfy the federal recognition element that an indigenous group remains politically organized after U.S. settlement. Thus, logically under the court’s dishonest rewriting of the U.S.’s imperial past, the transfer of sovereignty in 1898 disrupted political organization, negating the “special relationship” status that carries the obligations and responsibilities federally recognized tribes are entitled to.

If the decision in Rice seems to be a grave injustice, that’s because it is. Justice

Anthony Kennedy, who authored the majority opinion, prefaced the Court’s ruling by all but admitting the revisionist historical narrative of Hawaiian colonization that he relied upon to reach his decision:

[H]istorians and other scholars who write of Hawaii will have a different purpose and more latitude than do we. They may draw judgments…more laundry…than the ones to which we refer. Our more limited role, in the

10 Rice, 528 U.S. at 505. 61

posture of this particular case, is to recount events as understood by the lawmakers…”11

Additionally, Justice Stevens dissented in the case and scorned the “painful irony”12 of declaring a state agency election process unconstitutional because of race-based classification, a process that aimed to implement Native Hawaiian sovereignty at the state level (2020). Judicial and other legal revisionist histories of indigenous colonization such as the one above occurs frequently in American law and politics to vindicate U.S. policy goals or to wipe clean America’s blood-stained hands.

This is yet another example of a colonial legal knowledge production that is necessary to maintain U.S. settler colonialism. I emphasize this point throughout the thesis. Finally, while the Rice decision did not specifically address the federal recognition process as it relates to Native Hawaiians, who had been for many years petitioning for recognition, this case answered the previously ambiguous legal question that always befell Native Hawaiian recognition petitions. To round out the story of Native Hawaiian federal recognition, Congress has tried multiple times since Rice to legislatively grant the group federal recognition status, but each time the efforts have been killed in the

Senate.

So, what does Hawaii have to do with the Marshall Era and why is this chapter raising the issue of the current federal recognition process? Why is the current federal

11 Id at 500. 12 Id at 535. 62

Indian law and policy of self-determination relevant in a thesis that ends with assimilation, and why is the context of these complex legal decisions necessary? For two reasons. The first is to solidify the point that the current self-determination era is young in the arena of federal Indian law and policy. Self-determination has been the exception to the rule of much longer and more sinister eras of official Indian law and policy, eras such as assimilation that are often lost in the public memory. As we will see in this chapter as well as throughout the thesis, most of the policy decisions made by the

United States towards Native Americans were historically, and currently, done so for cynical purposes related to whiteness and land.

The second reason for the brief examples above is to center the reader’s attention to the connection of land, and therefore property, to the legal status of

Indigenous people in the U.S. As is demonstrated in this chapter, the entire basis of the

United States’ legal relationship with Indigenous peoples is derived from “discovery” and “conquest” (Pommersheim, 1995). These are two extralegal concepts that have been juridically established and legally codified by the United States as a means of vindicating its genocidal policies towards Native Americans, as well as for its infringements of tribal inherent sovereignty. This thesis hopes to show that it is a common practice to masquerade grave injustice committed towards Indigenous peoples through the illusion of law while utilizing legal and political vocabulary to perpetuate violence under the guise of justice (Deloria, 1989). Thus, legalese and the complexities 63 of the law become a pretext for dark “emotionally important social symbols” (Arnold,

1962).

Pulling from the first chapter, the masquerading of injustice as law constitutes the sinister production of a legal knowledge that English philosopher Alfred North

Whitehead might term a fallacy of misplaced correctness (Whitehead, 1925, 1997).

Here, the fallacy of misplaced correctness refers to injustices committed towards

Indigenous people being cloaked in the legitimacy of law. When the dominant group creates fallacies about marginalized groups through law, meaning fabricated narratives told of people to achieve a desired legal end, the legitimacy that is extended to the law serves to naturalize the status of the subordinated group (Delgado, 1989). These points are crucial whenever analyzing or thinking about legal, political, and policy decisions that concern Indian affairs.

The Marshall Trilogy: Conquest, Discovery, and “Domestic-Dependent” Status

The entire basis of Federal Indian law and policy is grounded in what is known today as “The Marshall Trilogy”, a set of three cases decided between 1823-1832 by

Chief Justice of the Supreme Court John Marshall. The opinions are “the house in which

American Indian advocates, leaders, and policymakers rise each morning—and it is a house dilled with an iron cold of the deepest hour” (Fletcher, 2006, p. 628). The cases to this day define the legal relationship between the U.S. and Native American tribes, as well as the legal status of both individual Indians and tribal nations inside the territorial limits of the United States. Although Marshall is probably most remembered for his 64 creation of in Marbury v. Madison (1803)13, his legacy in Indian law is no less important. The Marshall Trilogy line of cases has been continuously developed since

1832 and has been vindicated as in support for some of the most egregious actions the United States has taken against Indigenous people, as we will soon see.

As previously described, the doctrine of conquest and discovery found its roots in Christianization, the Catholic church, and European common law. Up until 1823, the doctrine of discovery had not been a formal legal principle in Anglo-American law and had never been tested in courts as a legal “case and controversy” (Blumm, 2004).

Between the passage of the Nonintercourse Act in 1790 and the first case of The

Marshall Trilogy in 1823, states and individuals alike were refusing to cede total authority over Indian affairs to the federal government. Individual states, such as

Georgia, believed that they, not the federal government, inherited authority to conduct trade and other affairs with Indians via independence from Great Britain (Robertson,

2014; Wardell, 1938). Southern states were most interested in obtaining Indian lands for purposes of cultivation and the expansion of slavery, and had enacted statutes legalizing the killings of Indians as a means to land grab (Strickland, 1986), which definitely interfered with the federal governments trade interests. As has been stated, the land is always the primary interest of the settler power.

13 Marbury v. Madison, 5 U.S. 137 (1803). 65

Individual American citizens thought it was an outrage that the federal government, whose members had just sought independence from Great Britain in part due to the restrictions on Indian trade and settlement expansion, would similarly impose such limits on Indian dealings (Bowes, 2016). The legal issue of who and to what degree were properly able to trade and deal with Indians was a popular debate that garnered national attention alongside abolition and slavery in the nation’s newspapers and pubs (Kerber, 1975). The contestation of authority over Indian trade and affairs from both the individual states and individual citizens of the United States ripened into a legal issue that could no longer be ignored. Thus, by 1823 the Supreme Court granted certiorari in the case of Johnson v. M’Intosh.14

Johnson v. M’Intosh (1823)

The Supreme Court first addressed the contested issues of Indian, state, and federal land title and possessory rights in Johnson v. M’intosh. Hailed as the first “Indian law” case to reach the Supreme Court, the Johnson case is widely accepted within the field to be the foundation of all federal Indian law and policy (Miller, 2008). Here, the issue before the Court concerned who was the rightful owner of lands purchased from the Piankesaw Nation. A private citizen, William Murray, alleged to have purchased two large tracts of land in the area of what is now Indiana and Illinois.

14 21 U.S. 543 (1823). 66

Between 1803-1809, the United States government, acting as the sole purchasing authority under the Nonintercourse Act of 1790, alleged to have acquired through treaty large swaths of land from the Piankesaw Nation that included the same tracts of land purchased by William Murray several decades prior.

The federal government then sold the land in question in 1818, including the title, to

William M’Intosh, who became the plaintiff in the case. Thus, the Court was tasked with discerning who was the rightful owner of the land in question, and under what authority did the rightful owner lay claim to the land. This was a complex case at the time because the Court had to sort out Murray’s land transaction that occurred pre-independence, technically under the British Crown, and before the enactment of the Nonintercourse

Act, and the of the United States to purchase and subsequently sell Indian land, which involved the constitutionality of the Act. At the risk of oversimplification, these are the facts of the Johnson case that were in front of the Court in 1823.

Chief Justice Marshall stated that the legal issue before the Court was “the power of Indians to give, and of private individuals to receive, a title which can be sustained in the courts of this country.”15 Thus, Marshall was tasked with determining the legal rule to apply to the facts of this case, as well as a general legal rule about land and property that would be sustained going forward, a means of nullifying complex issues of title, occupancy, and transfer of formally Indian lands that arose all over the

15 Id at 567-569. 67 country. To develop a means for the United States to legitimately lay claim to stolen land, and to reconcile it with the Lockean principle of first occupancy ownership,

Marshall evoked the doctrine of discovery as the legal reasoning upon which the case rests (Seifert, 2004).

By evoking the , Marshall declared that upon colonial contact, the British Crown held absolute title to in Indian land, while the rights of Indians to the land had been reduced to mere occupancy. Upon independence, Marshall reasoned, absolute title to the North American land gained by virtue of discovery had been transferred to the United States. Specifically, Marshall wrote: “discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession.”16

Further, “it has never been doubted, that either the United States, or the Several States, had a clear title to all the lands…subject only to Indian right of occupancy, and that the exclusive power to extinguish that right, was vested in that government which might constitutionally exercise it.”17 Finally, Marshall’s opinion in this case, as well as all the trilogy cases, is riddled with racist language and imagery about Native Americans:

the tribes inhabiting this country were fierce savages whose occupation was war and whose substance was drawn chiefly from the forest. To leave them in possession of their country was to leave the country a wilderness. To govern them as a distinct people was impossible….European policy, number and skill prevailed. As white population advanced, that of the Indians necessarily receded. The

16 Id at 573-574. 17 Id at 584-585. 68

country in the immediate neighborhood of agriculturists became unfit for them. The game fled into thicker and more unbroken forests.18

Marshall’s rhetoric about the savage Indian prone to war and the notion that white supremacy “prevailed” over the Indian “game” (likening Indians to waterfowl or other similar animals that humans hunt) produced a racist imagery that was crucial to the colonial project of America and was repeated in both judicial and congressional decisions to vindicate native dispossession and to legitimate land theft as the United

States expanded both westward and imperially.

Marshall’s invocation of European to conclude the Johnson case is unique, as statutory law has long been held, including at that time, as the preferred and more legitimated legal means to an end in the United States legal system (Kades, 2000).

This deviation from preferred and legitimate mechanisms of law in favor of long-held subordinate rulemaking demonstrates the knowledge production necessary to sustain

American expansion at the cost of native dispossession. Thus, the informal international practice of discovery that had previously provided Europeans automatically acquired property rights in native lands and which gave Europeans political and commercial authority over indigenous peoples was now settled U.S. law and future judicial precedent (Miller, 2011).

18 Id at 590-591. 69

The legal rules established in this case that are important for the purposes of this thesis are: (1) The United States held absolute title overall indigenous lands, (2) that

Indigenous people held only occupancy rights in the land, (3) occupancy rights to Indian lands can only be sold to the dominant sovereign (known as preemption) and (4) conquest and discovery are the legal principles that legitimate what would otherwise be understood as illegal land theft. These four legal rules of the doctrine of discovery are foundational to all Indian law enacted from that point onward and have been upheld hundreds of times in federal courts (Miller, 2008).

Cherokee Nation v. Georgia (1831)

The second case that comprises the Marshall trilogy is Cherokee Nation v.

Georgia (1831).19 This case was filed directly in the Supreme Court by the Cherokee

Nation, alleging that the state of Georgia had been unlawfully encroaching on their sovereignty by subjecting Cherokee citizens to Georgia state law, exercising jurisdiction where it had none. The Cherokee argued that the Supreme Court had original jurisdiction in the case because the constitution granted such jurisdiction over cases and controversies that involved the individual states and foreign nations. It is important to note that this case was filed and argued after President and Congress passed the Act (1830), which subjected the Cherokee and other tribal nations in the South to “voluntary’ removal westward, which is covered at length in the

19 30 U.S. 1 70 following chapter. This is noted now because it is relevant to know that Georgia was seeking to exercise jurisdiction pursuant to the Removal Act and that conflict between that state and the Cherokee had been ongoing for several years. Indeed, the governor of

Georgia in 1824, George Troupe, wrote to Secretary of War John C. Calhoun arguing in favor of removal of the Cherokee and other tribal nations from the region, as he believed Indians to be of the same status as enslaved Black people and, therefore,

Indian incorporation into white southern society was not “practicable” (McLoughlin,

1974, p. 377).

The legal issue presented in the Cherokee case was whether the Cherokee

Nation (and by virtue all Indian nations) was considered a “foreign nation” for purposes of the constitution. While this case may on its surface seem to have been about a legal technicality, it is useful for Indian law because of the insight that it sheds on the Court’s thinking about tribal sovereignty and federal supremacy, and the legal precedent it cements in place regarding the legal status of tribes. In a set of three separate, scattered, and incoherent opinions, a six-justice majority determined that the Cherokee nation did not constitute a “foreign state” as the constitution understood the term, and therefore the Supreme Court did not have original jurisdiction to hear the case.20 The justices reasoned that if the framers intended for tribal nations to be of the same

20 Id at 20. 71 sovereign status as “foreign nations”, such as France or Spain, they would not have differentiated the two in the commerce clause and other instances in the constitution.21

Much more than the technical jurisdictional issues of the case, the important legacy of this case, and why it remains infamous, is the language the chief justice used to describe Indian nations. For it is Marshall’s descriptions of Indians their relationships to the United States that will become the basis of how Indians are defined from that moment through today (Babcock, 2005). At the outset of the opinion, Marshall describes Indian tribal status in the United States as the following:

It may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases; meanwhile, they are in a state of pupilage. Their relations to the United States resemble that of a ward to his guardian. They look to our Government for protection, rely upon its kindness and its power, appeal to it for relief to their wants, and address the President as their Great Father.22

This passage is quoted at length because it is the description of tribes as “domestic- dependent nations” comprising Indian “pupil[s]” whose relationship with the United

States “resemble that of a ward to his guardian” that provides the permanent legal status of both individual Native Americans as well as tribal nations. By once again claiming that the United States holds the title of all Indian land, Marshall legally

21 Id at 18. 22 Id at 2. 72 reasserts and provides the precedent for the doctrine of discovery as a body of law that was found nowhere else in the world. Indeed, as Marshall states in the paragraph of the opinion preceding the one quoted above, the condition of the Indians to the United

States is “perhaps unlike that of any other two people in existence” and the relationship between the two is a “peculiar and cardinal distinctio[n] which exists nowhere else.”23

Here, we can see Marshall performing legal gymnastics to produce a lawful rationale for an otherwise obvious demarcation of Native Nations as foreign states.

Marshall’s finding that the relationship between the two is wholly unique in the world is one of his own creation; as with his legalization of the discovery doctrine within the physical boundaries of the nation, Marshall basically invented this classification to support the United States’ interests in land. He produced a colonial, legal knowledge that was necessary for the settler colonial project, which vindicated the otherwise egregious actions and behaviors of the United States. Marshall, an obviously forward constitutional thinker, likely understood that his classification, for the first time, of the legal relationship of Indians as analogous to pupils and wards of the paternal United

States ensured the demise of tribal sovereignty forever. After describing the inferior status of Indian nations and cataloging the numerous reasons as to why they were not foreign nations for original jurisdiction purposes the case was dismissed from the Court.

However, upon dismissal, Marshall hinted that the Court would eagerly grant certiorari

23 Id. 73 to a case with proper jurisdiction to address the legal issue of the exercise of state jurisdiction and encroachment into . This would be heard by his Court the following year.

Georgia v. Worcester (1832)

The final case completing the Marshall Trilogy of Indian Law cases is Georgia v.

Worcester (1832).24 No sooner than Cherokee Nation had been handed down did a proper case make its expedited way to the Marshall Court. The facts of this case are straightforward: in 1830, the state of Georgia enacted a law requiring that any non-

Indian (white) person purchase a license from the state to enter and do business or have relations in the Cherokee Nation. The penalties for violating the licensing law were particularly harsh:

All white persons residing within the limits of the Cherokee Nation…without a license or permit from his the Governor…shall be guilty of a high misdemeanor, and…shall be punished by confinement to the penitentiary at hard labour for a term not less than four years.25

Samuel Worcester, a white Christian missionary from the state of Vermont, had express permission from the Cherokee to reside in the Nation to spread the gospel and teach scripture to Cherokee citizens.26 In violation of the 1830 law, Worcester was arrested for refusing to obtain the requisite permit to have dealings within the boundaries of the

24 31 U.S. 515. 25 Id at 516. 26 Id at 529. 74

Cherokee Nation. In September of 1831, he was subsequently convicted and sentenced by the Gwinnett County Superior Court to four years hard labor at the state penitentiary.27The Georgia high court upheld Worcester’s conviction in October of 1831, and the Supreme Court of the United States granted cert. They heard the case a few months later in January of 1832.28

Before going into the legal issue presented and the legal rule decided in the

Worcester case, it is important to note two irregularities presented in this caase. First, the harshness of the penalty for violating the licensing law is telling. Four years of hard labor at the state penitentiary for committing a regulatory infraction, indeed a victimless infraction at that, was highly unusual for even that period (Dolan, 1940). This indicates that there was money to be made in the Cherokee Nation, and the state of Georgia sought to capitalize from its citizens’ business dealings and other relations in the nation by extending both its civil regulatory and criminal adjudicatory jurisdiction into the nation. Second, the swiftness with which this case was tried, appealed, and granted cert for hearing at the Supreme Court—about six months—is unprecedented. That all parties involved were eager to settle the controversial legal issue regarding the exercise of state law and jurisdiction in Indian country indicates that this was one of, if not the legal issue of the day, right alongside the question of slavery. The historical context in which legal

27 Id at 532. 28 Id 533. 75 decisions are rendered is of the utmost importance when examining the extent and consequence of their legacy.

Upon appeal, the legal issue before the Marshall Court was: did Georgia’s laws apply to Cherokee Lands located within the boundaries of the state (O’Brien, 1989)? The

Cherokee argued that as a sovereign tribal nation under the U.S. Constitution, the State of Georgia could not legally exercise its laws within the boundaries of the Nation because the regulation of intercourse with Indians was patently reserved for the federal government pursuant to the Indian Commerce Clause. Marshall agreed and handed down the following holding: “Indian nations [are] distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is…guaranteed by the United States…” (Pevar,

2012).

Further, the court reasoned that “The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights as the undisputed possessors of the soil from time immemorial” (Wilkins,

2002). Subsequently, Georgia had violated the Supremacy Clause of the constitution, and therefore exercise of state criminal and other jurisdiction in the Cherokee Nation— and all tribal nations—was reserved solely for the United States by both the constitution and inherent tribal sovereignty.

Marshall’s invocation of inherent tribal sovereignty since “time immemorial” to nullify state jurisdiction in Indian country is curious. Not even a decade prior, Marshall 76 legalized the doctrine of discovery into the American judicial cannon, the result being that Indian nations occupied a quasi-sovereign status because they were conquered.

Further, just one year previous, in 1831, Marshall ruled that Indians were akin to pupils and wards of the United States and not foreign nations in the international understanding of that word. Rather, Indians were something different altogether, occupying an entirely “unique” position unlike that of any other indigenous peoples in the world. Marshall’s evolving legal reasoning in the aforementioned cases, a complicated legal reasoning that established the foundation of Indian law no less, demonstrates that the sovereign status of Native Nations, self-determination, and all other inherent rights associated with sovereignty remain contingent upon the interests of the United States. Sovereignty in the United States is never guaranteed and has never been defined consistently (Hannum, 1990). In sum, the interest is always about or related to land, and Marshall produced a legal knowledge consistent with the land interests of the United States to continue its settler project.

Conclusion

The Marshall trilogy continued a long colonial history of legalizing exploitation and racism. It also, however, represented something new in western : a legalized social structure that incorporated domination, appropriation, and exploitation of an entire group that was justified through religious, scientific, and political means which resulted in a new racial awareness for the time (Williams Jr., 2005). By the conclusion of the Marshall trilogy, Native Americans were understood to be racially 77 inferior beings, incapable of sufficiently governing themselves entirely, and occupying a childlike status in both the eyes and laws of the government. Yet, for purposes of state jurisdiction, tribes were understood to be distinct political communities since time immemorial. Although the problematic reasonings of the Marshall trilogy cases are many, what is apparent is that indigenous peoples were distinct in their social, racial, and legal status from white citizens of the numerous states, as well as enslaved and even freed Black people. Indeed, they came to occupy a blurry, triangulated status in the racial hierarchy of that historical moment.

This murky grey area of racial inferiority would be replicated by the United States time and again as various populations entered the country. Native Americans, however, would continue to be, in many ways politically, socially and legally distinct from other racial groups under their settler colonial status. In this chapter, we see how the “Indian problem” is created by the state—the exercise of their inherent tribal sovereignty is causing jurisdiction issues for the federal government and the several states—and that the “solution” implemented by the United States was one that served their overarching interests in land and whiteness—the domestic-dependent status given to tribes meant that the U.S. could claim absolute title to the land while racializing indigenous people as inferior through the legalization of discovery and conquest.

The distinct legal status of Indians as domestic-dependent groups was created and solidified by John Marshall in the 1820s and has been the cornerstone of indigenous oppression in the U.S. ever since. The modern federal recognition process and the legal 78 designation of Hawaiian natives as racial groups and not political groups demonstrate the impact conquest and discovery has and continues to have on indigenous peoples in this country. The following section will demonstrate that the devastating effect of occupying the unique domestic-dependent position in the American legal and racial hierarchy was a violent confrontation for land and as a “solution” to the “Indian problem.” The constant violence that occurred during removal and westward expansion that followed the Marshall years ultimately leads the federal government to make a most sinister decision by 1870: assimilation or extermination of the Native?

79

Chapter Four: To the Rez: Removal, Relocation and Westward Expansion: 1830-1870

Introduction

By the conclusion of the Marshall years, Congress and President Andrew Jackson had already passed and signed the infamous of 1830. The removal act signifies that the “Indian problem” had shifted once again, and by now the problem was one of occupation. As this chapter details, white settlers and the U.S. government sought land in the Southeastern region of the country for the expansion of slavery and for access to the resource rich soil in the tidewater regions that was necessary for cotton production. Additionally, as the pressure over enslavement intensified and the

United States inched closer to , the various tribes were getting involved as both allies and foes, depending on which side of the mason Dixon line you fell. Further,

Indians were thought to be unfit for civil, white life and that their “savagery” was threatening to the white, Christian livelihood of the South.

Thus, the “solution” to the “Indian problem” became removal from the southeastern region of the United States and relocation to organized systems out in the western territories of , Nebraska, and , what comes to be known as Indian Country. The idea was to segregate Native Americans from white people by creating pockets in the middle of the country for Indian settlement, where white and Indian conflict would not take place and the “Indian problem” could finally be settled. However, as we shall see, this era of federal Indian law and policy was marked by extreme violence at every turn. No sooner had the eastern tribes been removed from 80 their ancestorial did white settlers also began heading westward. White settlers were fueled by the racist fantasies of Manifest Destiny, the discovery of Gold in

California and the Black Hills, which necessitated land to construct the Transcontinental

Railroad, and finally the expansion of slavery further and further west as the nation as on the brink of civil war. As westward expansion exploded in the 1840s and 1850s, settlers and tribes clashed in extremely deadly ways, requiring the U.S. military to get involved, which only resulted in more death and bloodshed.

I should note that the “Indian problem” in this chapter refers to the resistance

Indigenous people posed to colonizers as they invaded North America, pursuing land for their capital projects. It also refers to the problem Indians posed to white settlement once they had been forcibly removed to the west, and the problem of the mass violence that ensued upon arrival in the west. This problem has no viable “solution” because it is regenerative; so long as land is necessary for colonial projects, the problem will always persist. Settlers did not understand this never-ending struggle for land because of the

Lockean-liberal tradition on which the young nation was formed, which valued private property (land) above all else. Indeed, the primary function of the liberal state was the protection of private property, most especially land (Locke, 1689, 1980). As a result, settlers did not understand, and in fact could not possibly conceive of, the relations of indigenous people to land, which was communal in its configuration.

Because most Indians did not “own” their property in the private, European sense of the word, white settlers decided that the land was “wild” and therefore up for 81 land grabs. The ignorance of settler understanding of Indigenous geographies did not inhibit their efforts of acquiring land; it motivated them. Indeed, a knowledge about

Indians being wild and untamed was produced to obfuscate the otherwise obvious native dispossession of this time (Solnit, 2021). Settler “solutions” to the “Indian problem” in the nineteenth century have been categorized into two distinct efforts

(Pevar, 2012). One “solution” to the “Indian problem,” in the early and middle periods of the century was the removal and relocation of Native American Nations in favor of white expansion and settlement. The second “solution” to the “Indian problem” in the latter half of the century was allotment, assimilation, and Indian “civilization”, which is the subject of the following chapter. The following history of the failed federal Indian law and policy that was being implemented during this period is crucial to understanding the logic of assimilation that was to proceed it, and why the United

States so abruptly shifted its Indian policies by 1870.

Removal and Relocation: The Need for Land

This period of federal Indian law and policy can be characterized as one of constant physical violence and confrontation, and that the “solutions” to the “Indian problem” that the federal government sought during this period failed miserably.

Military and political leaders cynically believed they could dispossess the Indigenous people of North America through seemingly natural causes or historical trends, such as disease and conquer (Ostler, 2019). That fantasy, of course, has proven that to be a false hope. White Americans sought land as property in the West as a means of protecting 82 and expanding their vested interests in the capitalist economy (Roberts, 2019). This demonstrates my earlier point about Marx’s observations; the constant expansion of markets for capital accumulation necessitates a relentless struggle for land. Because of this struggle, Americans and Native Americans clashed constantly and violently for

Indigenous occupied land (Rivers, 2020). These clashes furthered the “Indian problem” and, as a result of the continued resistance and resilience of American Indian Nations, the United States sought political and military solutions to this conflict in the Nineteenth and early Twentieth century (Prucha, 1986). This is another demonstration of United

States creating the very problem that it sets out to solve, evidencing the necessary ongoing-ness of the settler colonialism.

As the U.S. population grew at a rapid pace into the 1830s, Congress was under increased pressure to solve the “Indian problem” by whites who were desperate for land to cultivate and capitalize. While first championed the federal policy idea of Indian removal to the west from the southeastern United States in 1803

(Roberts, 1995), a widespread, federally organized and implementation of such a policy did not come to fruition until a generation later under the Jacksonian Democratic-

Republican party (Miller, 2008).

After decades of sporadic and disorganized regional attempts to displace Indian nations from their territory, the federal government sought to enact a coherent, nationalized policy of Indian removal in 1830 with the passage of the Indian Removal

Act (herein IRA, Act). The IRA was also an important effort to meet white settler 83 demands for land in the east, particularly the tidewater regions of the south that are rich in nutrients necessary for cotton production, which of course included the expansion of slavery (Beckert, 2014). One of the main purposes of the Act was to remove eastern Indian nations from their ancestral lands specifically, and from white society broadly. Under the Act, removal of tribal nations to the west was to be

“voluntary” and affected nations were to be compensated by the federal government for the land and their removal. History, of course, has proven “voluntary” and

“compensation” to be gravely untrue.

As discussed previously, the State of Georgia had been seeking to illegally expand its law and jurisdiction into the Cherokee Nation and over its people, creating murky conflicts of law by breaching the sovereignty of that independent Indian political community (Anderson et al., 2015, Cherokee Nation v. Georgia, 1831). By 1832, the

Supreme Court had ruled that Georgia (or any other state) could not exercise criminal or other jurisdiction within the Cherokee Nation because to do so would be a violation of

Indian sovereignty. Further, the Court reasoned that by implementing its law and jurisdiction within the Cherokee Nation, Georgia was violating the Supremacy Clause of the Constitution, which maintained that US law would reign supreme should any conflict of law between the federal government and an individual states arise. The federal government had entered treaties with the Cherokee nation (and many other Indian nations) and therefore those treaties supersede Georgia state law in this regard. 84

While it is ambiguous and disputed among historians about whether President

Jackson famously declared “John Marshall has made his decision; now let him enforce it!”, what is true is that Jackson publicly disagreed with the Worcester decision, leading various southern states to ignore the new Supreme Court precedent and encroach into

Indian territory. The result was that many eastern tribes were reluctantly coerced into signing their removal treaties, including the historically controversial 1837 treated signed by the Cherokee nation (Anderson, 1991).

The Indian nations most heavily affected by the IRA are known as the “Five

Civilized Tribes:” Muskogee, Cherokee, , , and (Dunbar-

Ortiz, 2014). To remove these tribes from the eastern frontier of the United States, however, Jackson first had to contend with a flagrant contradiction: the five tribes were not “savages” in a sense that most Americans would understand (hence, the popular preface of “civilized”). The tribes were quite the opposite: their agrarian use and production of the land were in line with that of the yeoman farmer fantasy that

Jefferson and the newly formed Democrat party valued (Young, 1958). The Cherokee

Nation implemented a written constitution in 1827 that was premised from the United

States Constitution (Anderson, 2016). Further, it was widely known at the time that the

Iroquois confederacy form of government had greatly influenced the founders at the constitutional in 1787 (Schaaf, 1988), particularly the “great law of ”

(Jacobs, 1991). 85

Finally, perhaps the most American characteristic of all, some sovereign tribal nations at the time of removal owned enslaved Black people and operated complex institutions of racialized slavery, most notably the Cherokee Nation (McLoughlin, 1974),

Thus, under Jacksonian logic, the founding leaders of this country were either “savages” just like their Indian counterparts, or they founders knew of the wisdom and genius of indigenous people, and probably celebrated slave holding tribes for partaking in this

American form of chattel property ownership. It is the latter, and not the former, that I contend to be true.

Further, far from being only oratory peoples (an accusation leveled at the time to demonstrate that Indians were “savages” and “uncivilized”), Indigenous populations had written language and other similar communicatory systems at that time. For example, the Cherokee Nation had implemented a full alphabet by 1828, known as the

Cherokee syllabary (Summit, 2012), and people all over the country knew about this ingenuity. A reprint of a letter to the editor from the Cherokee Phoenix, the first written

Indigenous newspaper in the U.S. (Riley, 1976) appeared in a September 26, 1828 edition of the Christian Advocate & Journal & Zion’s Herald in . In the letter, a person with the initials G.C. proclaimed that “the invention of the Cherokee alphabet may not be altogether uninteresting to your readers” and that “this astonishing discovery certainly entitles Mr. Guess to the warmest gratitude of his country.” G.C. goes on to describe that “[s]everal persons immediately determined to try to learn; they succeeded in a few days, and from this it quickly spread all over the 86 nation” (G.C., 1828). The reference to Mr. Guess in the letter likely refers to George

Guess, also known to as George Gist or by his Cherokee name , the Cherokee member who is credited with inventing the (Smithers, 2015).

Despite native nations having written language, journalism, and similar to the U.S. model, Jackson nonetheless portrayed Native Americans as unworthy of white society. Speaking to a joint session of Congress on December 6, 1830, six months after he signed the IRA, Jackson proclaimed:

[w]hat 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, 1830).

Thus, Jackson had to produce a certain knowledge about Indians that was counter to the logic in front of his and most other white people’s faces, which he attempted to do by creating the image of the savage and portraying it to anyone who would listen. Here, we can see settler colonialism at work. Jackson first had to create the “Indian problem”— that they were savages and unfit for white life—and then implement the solution that would achieve his and the country’s interest in whiteness and land—removal (Rasband,

2001). However, Jackson’s disingenuous attempts to categorize Indians as subhuman did not masquerade their ingenuity to the American public or national legislators.

Confronted with the cognitive dissonance that the people of these tribes were not the

“savages” that Jackson proclaimed them to be, many northern members of Congress 87 voted against the IRA in May 1830, with the final House of Representative vote 102 yeas to 97 nays (Bartlett, 2020).

Notwithstanding the obvious contradiction that indigenous peoples were perfectly capable of governing themselves, the U.S. ultimately sought to implement through treaty a reservation system of land in the region of the newly acquired Kansas/Nebraska/Oklahoma territories (Olster, 2004), which would soon come to be known as Indian territory. This forced Indian tribes to live segregated from whites on the camps after embarking on death marches known as the (Ellis,

2001). Part of the rational for implementing the reservation system at this time seems to be one of genuine morality, at least on its surface: removing Indians to reservations in the west was the quickest and safest method of protect them from deadly white settlers who would undoubtedly kill them for land (Sterling, 1964). I say this is only facially moral because, of course, the more wholistically moral solution to this problem could have been criminalizing and addressing white settler violence against Native Americans at this time.

Contrary to popular belief, reservations are not lands that the federal government set aside or “gave” to Indian nations. They are lands that indigenous people reserved (hence the name) in treaties with the government. These are lands that indigenous nations retained aboriginal possession of through treaty (Biolsi, 1995) by refusing to cede it to the United States. But much more than that, reservations are place. They are “a physical, human, legal and spiritual reality that embodies the history, 88 the dreams, and the aspirations of Indian people” (Pommersheim, 1989, p. 246) that constitute possibility and survival. Spatially, reservations are also places of what

Foucault terms “subjection”: the construction of physical spaces that allow human persons to fully participate in social and civic life of the nation (1983). In this light, the reservation system constituted, at least in the early years, a mode of resistance that allowed Indigenous to exercise agency within their political communities, even if such participation is limited to the physical space deemed permissible by those in power

(Foucault, 1979), i.e., the American government.

The issue with the removal of the civilized tribes from the east to Indian country was that the IRA sought to remove these eastern tribes onto reservation lands of other

Indigenous nations in that territory. The Plains region of Indian country had been, and continues to be, home to nations such as the , , and the since time immemorial. After removal, however, eastern tribes, with whom had little in common, were being forcibly located in their territory. This further demonstrates that there is no “solution” to the “Indian problem” because all of the land is indigenously occupied, and the settler state creates the problems it aims to solves.

The plight of Indian removal did not go unnoticed around the world; French diplomat marveled at how well the United States had been able to

“philanthropically” and “legally” remove the Five Tribes without “spilling blood” during his sojourn across North America (Tocqueville, 2002). It seems that Tocqueville has a selective understanding of “philanthropically” and “legally,” however, given that the 89

Supreme Court found Georgia’s encroachment into Cherokee territory, which initiated their removal detriment, unconstitutional in Worcester v. Georgia, 31 U.S. 515 (1832), the same year that the revered diplomat was visiting the American South.

The Military Solution of Removal and Relocation

The Removal Act as a “solution” to the “Indian problem” was twofold: Whites settled on traditional Native lands in the South, extracting and capitalizing the land for resources and enslavement, while also removing Indians from white society altogether

(Pevar, 2012). Most colonists believed that Indians were not “civilized” enough to live among the white population; forcing Indians westward would ensure that white purity and white life would remain intact. Situated within Said’s theory of the orient and knowledge, whites believed they “knew” the Indians so well as to know that Indigenous ways of life were uncivilized and unworthy of white society. American efforts to extend their interests into new regions and territories gave rise to mass violence between

Native peoples and white settlers (Legg, 2019). The discovery of gold in California by

1849 massively increased the white settler invasion of the Indian Territory in the Great

Plains as they made their way west (Starr, 2005). Apprehensive of the seemingly endless wagon trains, tribes would protect themselves and their territory by raiding the wagons to obtain already scarce resources such as flour and gunpowder. Continued violent tension throughout the Great Plains was bad for American business, forcing the government to intervene militarily (Treuer, 2019). 90

While the Indian Removal Act was formally a political undertaking, it was also informally a military campaign to carry out the forced removal of Indian nations and to end the violence towards white settlers. Further, as the Removal policy forced the Five

Tribes west, new military conflicts were created between eastern tribes, white settlers, and those tribes already situated in Indian territory, particularly the Sioux Nations

(Deloria Jr., 1988). President Andrew Jackson, as Commander and Chief, utilized the full force of the U.S. cavalry to crush Indian resistance to removal during a series of bloody conflicts loosely known as the . The U.S. government expended vast resources during this war that exacerbated economic anxiety in the antebellum era. The

Third Seminole War of 1855-1858 effectively halted the entire economy of central and southern Florida, pushing Secretary of War Jefferson Davis, the future president of the

Confederacy, to force the removal of these Indian Nations at whatever bloody cost necessary (Covington, 1966).

Further, the Seminole Wars created great unease and concern among whites about the state of Indian and race relations during this period; runaway enslaved people often joined Indian tribes in the battle to resist white removal policies (McLoughlin,

1974). Eurocentric powers, including the Spanish colonial rulers in Florida and their

American counterparts after Floridian independence, believed Seminole solidarity with the escaped enslaved people to be a great act of betrayal (Laduke, 1999). The result of these racial conflicts and perceived acts of betrayal was the Seminole and other wars that caused the near genocide of the five tribes (Dunbar-Oritz, 2015; Churchill, 1997). 91

The utilization of the cavalry to implement federal removal policy demonstrates that the

IRA was not only a political attempt at solving the “Indian” problem, but also a military

“solution” as well. American military forces often exploited the impoverishment of tribes living under settler colonialism, coercing them to abandon treaty guaranteed land in exchange for much need resources and under the fear of death (Prakash, 2004).

“The West is the Best” (Place for Violence): Manifest Destiny, Westward Expansion, and the Expansion of Slavery

Relocation and westward expansion during the 1840s-1850s exploded, in part inspired by “Manifest Destiny,” a racist and imperialist ideology white people embraced as a means of “making it on their own” in the west (Brauer, 1996). A significant motivation of whites for frontier settlements was what some scholars have termed

“columbusing”: the idea of using a rhetoric of origin when embarking on journeys to

“discover” the “wild” of territory believed to be unknown (Tatonetti, 2018). Motivation was also found in what Frederick Jackson Turned described as the “”: the idea that frontier and settlement (and thus Native dispossession) was fundamental to democratization, is what set Americans apart from their Anglo-

European ancestors, and that frontierism was a patriotic civic duty (1893, 2014). For many, “frontier democracy” exhibited American exceptionalism that set the country apart and ahead of others in the world (Ford Jr, 1993). Excitement about frontier exceptionalism was further sparked by literary heroes of the romance era, particularly 92

Henry David Thoreau who advocated for interacting with “nature” and the “wilderness” to create new meanings of relation and the self (Arsic, 2014).

The perpetual-ness of settler colonialism is on full display in the above example of the frontier. We see that the concepts of the frontier, manifest destiny and American exceptionalism that fueled westward expansion and contributed to the “greatness” of

America demonstrate that our understandings of democracy and democratization at this time, and to this day, required native dispossession and the transformation of indigenous geographies into “wilderness” spaces to be conquered and “experienced.” It is in this way that democracy creates, and in fact requires, settler colonial logics.

Finally, relocation and expansion occurred simultaneously to increased tensions over slavery between the Northern and Southern states. As the nation inched toward civil war, US policymakers sought to ease the tensions of whites in both the north and the south. Abraham Lincoln won the 1860 presidential election, in part, by attempting to appease white anger and promising his supporters “free soil.” These three reasons constitute some of the primary motivations of frontier settlement during the relocation and removal period. The free-soilers, as Lincoln’s supporters came to be known, were land- Americans that demanded the government open up Indian country in the west for settling. Land in Indian territory was resource-rich, and white settlers believed this land was being wasted during a crucial period of economic anxiety for most of the country (Ellinghaus, 2017). These impoverished whites were often in competition with immigrant labor in the east, and enslaved labor in the south, 93 manifesting in rising class tensions. Amidst these rising tensions and the early stages of the Civil War, Lincoln made good on his campaign promise to the free-soilers in 1862 when congress passed a series of laws that opened land in the west for settling, breaking numerous government treaties with Indian tribes.

At Lincoln’s urging, the Republican Congress passed The Homestead Act, The

Morrill Act, and The Pacific Railroad Act, opening millions of acres of Indian lands for settling west of the (Nelson, 2020). Additionally, Congress authorized the United States Emigrant Escort Service in March of 1861 to provide armed military escorts for white settlers heading west, ready for war against any tribal nations that resisted their invasion (Greenhill, 2020). Formally, the United States government had treaties with hundreds of sovereign Indian Nations west of the Mississippi River.

Informally, the U.S. ignored these treaties as Lincoln desperately sought to end the Civil

War at whatever cost necessary. For Lincoln, reclaiming western territory settled by

Indians following relocation was central to his military strategy of defeating the traitorous Confederacy (Nelson, 2020). No sooner had the five tribes settled in the west after forced relocation did poor, angry whites violently confront the American Indians claiming entitlement to the “new” land promised by Lincoln. (Dunbar-Ortiz, 2015). The constant shuffling of Indians around Indian country to meet white interests and demands for land demonstrates the ongoing-ness of settler colonialism as racialized projects of geography. 94

As white men, women, and families flocked west during and after the Civil War, it became increasingly clear that removal policy was not a viable “solution” to the

“Indian problem.” Regional cavalry units, under the leadership of U.S. military officials, often preceded white expansion westward to eradicate Indians from their land in preparation for white settlement. Rather than peacefully uphold, enforce, or renegotiate existing treaties between the U.S. government and sovereign Indian nations, the calvary protected white intruders from, and ultimately eliminated, Indian resistance. One particularly cruel slaughter occurred in November of 1864 when a calvary brigade pillaged and sought to exterminate entire villages of the and

Arapaho tribes in the Colorado territory (Brown, 1970).

The violent encounters following the 1862 land expansion legislation demonstrate that the United States was simultaneously involved in two civil wars during the 1860s: the battle between the Union and Confederacy over slavery and the battle between the United States and formally sovereign tribes over settler colonialism

(Clampitt, 2015, Barba, 2020). To phrase the circumstances another way, the Plains

Indians were fighting for independence from settlers at the same time as the

Confederacy was fighting for independence from the Union. Additionally, the battle between the Union and Confederacy crept into Indian territory, displacing thousands of

Indians from tribal lands. The Wichita, , , Penateka Comanche tribes were particularly affected by the U.S. Civil War, fleeing the Wichita Agency on which they resided (Smith, 2015). Ultimately, the twenty-five-year Plains Indian Wars would 95 result in the death of over twenty thousand Indians from almost every tribe in the Great

Plains (Treuer, p. 92).

Still another source of violent tension between American Indians and whites was the expansion of the railroad system through the construction of the first transcontinental railroad in 1863-1869. The Union Pacific Railroad was constructed at lightning speed, largely on the backs of immigrant labor, carving up and through

Indigenous lands (White, 2011). Native American communities resisted this expansion, causing headaches and economic loss for the railroad companies. Indian communities of the southwest, particularly the Pueblos, were severely threatened and engaged in violence with whites as the completion of the railroad to Las Vegas resulted in the influx of white occupation in that city, as well as Albuquerque and Santa Fe (Gómez, 2018).

Some military officials, including Union Army “hero” General William Sherman, were hellbent on the construction of the railroad system at whatever cost necessary to the

“thieving Indians” (Fellman, 1997). Another Union General, Grenville Dodge, proposed enslaving Plains Indians as a means “doing the grading” of the railroad projects

(Dilorenzo, 2010). To white colonizers, the “Indian problem” was most severe when

Indians stood in the way of their capital accumulation (Estes & Dhillon, 2019).

Conclusion

The culmination of the Indian Removal Act in 1830, westward expansion legislation in 1862, railroad building in 1863, and the discovery of gold and other resources in the Dakota territories in 1869 resulted in a continued and constant violent 96 conflict between the U.S military, white settlers, and Indigenous people. These violent confrontations indicated that removal and relocation policy was not an effective

“solution” to the “Indian problem” but rather resulted in what can only be described as genocide, enabled by legal apparatuses (Echo-Hawk, 2010). At the height of the removal period, some 88,000 Indians were forcibly dispossessed from ancestral lands east of the

Mississippi River (Ostler, 2019). The following section provides an overview of the assimilation era, the polices of that time, and two major legal decisions that resulted in

Congress as the sole branch of government having plenary authority over Indian affairs.

97

Chapter Five: The End of the Frontier: Assimilation, Allotment, Treaty-Making, and

Plenary Power

“The proper treatment of the original occupants of his land, the Indian, is one deserving of carful study. I will favor any course towards them which tends to their civilization, Christianization, and ultimate citizenship.”—President Ulysses S. Grant, Inaugural Address, March 4, 1869.

“From the foundation of the Government to the present the management of the original inhabitants of this continent—the Indians—has been a subject of embarrassment and expense, and has been attended with continuous robberies, murders, and wars….No matter what ought to be the relations between such settlements and the aborigines, the fact is they do not harmonize well, and one of the other has to give way in the end.”—President Ulysses S. Grant, First Annual Message to Congress, December 6, 1869.

Introduction

The two quotes above from Union Civil War general turned President Ulysses S.

Grant demonstrates that, by 1870, it was widely apparent to all parties involved that removal and relocation had been an unsustainable policy failure. Defined by constant war, violence, and death, the removal of Indians to the Kansas, Nebraska, and Oklahoma territories did not prevent contact between whites and Indians as intended. Quite the opposite occurred, largely in part due to white westward expansion. Further, the United

States had just ended a bloody and deadly civil war over the issue of slavery, and the southern states were in the years-long process of transitioning back into the Union through reconstruction. Needless to say, there was little appetite in the country for additional bloodshed. Yet, as Grant states, it was simply not possible for Indians and whites to live among one another, at least not in that moment. 98

This chapter focuses on the early years of the Assimilation era to demonstrate that, after relocation and removal, the “Indian problem” once again was redefined.

Whereas the previous era’s “Indian problem” had concentrated on protecting white society, this era’s “Indian Problem” centered on the need for Western lands. Not long after the Eastern tribes had been removed to the west was the United States seeking to grab the lands promised to tribes in their removal treaties. This chapter demonstrates that the “solution” to the “Indian problem” following removal and relocation was assimilation.

The interests that the United States had in assimilation were threefold: (1) end treatymaking as the primary method of administering Indian affairs and replace it with one-sided unilateral authority vested in Congress, (2) break up tribal landmasses and parcel it into individual plots of land controlled by the U.S. and sold to homesteaders, and (3) assimilate Indians into mainstream American white culture and social life through forced education at boarding schools. This chapter covers the first two goals of the United States at that time, with my conclusion that by 1903 the United States had gained the land necessary to close the frontier and thus dispose of tribal sovereignty altogether. The following chapter will focus on the third interest the United States had during this period, which was the of Native American children in

Boarding schools.

By 1870, there were two competing proposed “solutions” to the “Indian problem” concerning land. Some policymakers advocated for the outright extermination 99 of Native Americans, given the nature of the deadly conflicts during the previous several decades. Other groups, such as the “Friends of the Indians”, believed civilization and assimilation to be the best “solution” for the U.S. to undertake moving forward, both morally and politically (Cobb, 2015). Influential politicians of the time proposed an ultimatum: “either butcher them or civilize them” (Smith, 2004). Thus, tasked with the sinister paradigm of extinction or assimilation, Grant pursued the latter as the formal policy of the United States, believing that assimilation was the less cruel endeavor

(Landry, 2016).

The assimilative approach to the “Indian problem” marked a complete policy reversal. What had previously been a strategy of isolation of Indians from white society would now become a policy of integration of Indians into white society (Dippie, 1982).

Grant sought to transform Indians into citizens that would one day be able to live among white citizenries. Further, not only did Grant believe whites and Indians could live together peacefully, but he also believed that U.S. citizenship for Native Americans could be achieved as well. Grant’s assimilation policy towards Native Americans has been historically dubbed the “Peace Policy” because of its seemingly less violent approach to Indian affairs as compared to the preceding era (Graber, 2014).

While there were many components to this policy, the important thing to note about Grant for this thesis is that he sought to redirect the operation of Indian affairs away from military commanders and towards control. Because the military conflict between the U.S. and Indians on the frontier contributed to the failures of the 100 previous Indian policy, Grant’s new approach to Indian affairs was to place Indian policy making in the hands of religious institutions, most notably the Quakers and the Friends of the Indian groups (Waltman, 1971). Grant consigned members of these religious alliances to the head of Indian superintendencies in the western territories and authorized them to install Indian agents at their discretion. They were given large budgets to carry out their tasks. While the purported aim of the Peace Policy and assimilation was to avoid the violence of the previous decades Indian policy, this era was certainly not free from military conflict. Famously, in 1890 the U.S. calvary descended upon Wounded Knee and massacred hundreds of Indians who had been reported to be performing the outlawed Ghost Dance, a ceremony that politicians and “Friends of the

Indians” alike believed to be satanic and inhibitive of civilization (Treglia, 2013),

To achieve the transformation of Indians into civilized people suitable for white life, and ultimately U.S. citizenship, it was necessary to first create total Indian dependency on the United States federal government, which was a primary initial goal of assimilation (Brandzel, 2016). This was to be undertaken through three significant policy implementations: (1) Allotment of tribal lands, (2) the formal end of treatymaking between the U.S, both of which are the focus of this chapter, and (3) Boarding school education, which is the subject of the following chapter. This chapter will conclude by detailing how two important Supreme Court decisions during the assimilation era enabled Congress to have near-total control over Indian affairs, subject to little if any, judicial oversight. These legal have contributed to the continued 101 subordination and of Indians and tribal sovereignty through the present day.

The End of Treaty-Making

The first major policy initiative of the assimilation era was to formally end treatymaking between the United States and individual tribes. While the United States had been informally ignoring or breaching treaties with the various western tribes for decades, a formal end of treatymaking would be necessary to transform the legal landscape and status of tribes as sovereigns to Individual Indians as citizens. The eradication of a tribal system of government and life was necessary to achieve this goal.

Ely S. Parker, an enrolled member of the Seneca Nation and the first indigenous person to serve as Commissioner of Indian Affairs, expressed support for ending treaty-making in two separate 1869 Annual Reports of the Commissioner of Indians Affairs:

The treaty system should be abandoned, and as soon as any just method can be devised to accomplish it, existing treaties should be abrogated. The legal status of the uncivilized Indians should be that of wards of the government…elevate them to the rights of citizenship, and sustain and clothe them until they can support themselves (Parker, November 1869, 2000)

A treaty involves the idea of a compact between two or more sovereign powers, each possessing sufficient authority and force to compel a compliance with the obligation incurred…. It is time that this idea should be dispelled, and the government ceases the cruel farce of this dealing with its helpless and ignorant wards (Parker, December 1869, 2000).

The disparagement of Indians as “helpless and ignorant wards” in the December report demonstrates that government leaders already viewed Indians to be dependent 102 upon the United States, and the formal end of treatymaking would simply codify that dependence. Further, the November report makes clear that government officials did not believe Indians to be capable of self-governance. Rather, what is implied in the

November report is that the treaty system was prohibiting Indian advancement. One can see the settler logic and knowledge production in action here; force Indian dependence upon the government by ending the treaty system and subsequently enact assimilative policies to be vindicated as “civilizing” dependent Indians. Once again, the

United States created the “Indian problem”, this time the problem of dependency, and then implemented corrective policies that ultimately protect and regenerate settler colonialism. Finally, while it may be striking that the first indigenous Commissioner of

Indian Affairs would have such views towards his fellow peoples, Parker’s condemnation of tribal life indicates the colonization of the mind that occurs through native dispossession.

The Republican-led Congress answered Parker’s call to abolish treatymaking between the federal government and tribal nations in 1871 with an obscure rider outlawing treatymaking that was attached to the annual Indian Appropriation Act of that year (Prucha, 2000). This action of Congress marked the formal end of recognition of tribal sovereignty by the United States. although federal recognition of tribal sovereignty would be reestablished in 1934 during the , this marked a sixty- year period where there was no legal relationship between the United States and most of its Indian nations. Its significance cannot be overstated cannot be overstated. 103

Although the Supreme Court juridically analogized Indian’s as “wards” of the United

States “guardian” in the 1823 case of Johnson v. M’Intosh (Fletcher, 2006), as detailed in

Chapter Three, the congressional designation of ward status formally marked the shift in relationship in 1871.

By designating Native Americans as wards, federal and state resources would become available to care for Indians just as they would for fostered children or other incapacitated “wards of the state.” There would be no meaningful legal distinction between those groups in the law. Thus, by marking American Indians as wards of the state, the federal government legally, as well as psychologically, made it official policy that all natives were either children or mentally deficient persons in need of public caretaking, (i.e., “civilizing”). The ward designation was so strict that, in many instances,

Indians could not leave the physical perimeters of their reservations without the express permission from the designated Indian agent on that reservation (Wunder, 1994). Thus, while some scholars argue that the assimilation era of federal Indian law and policy begins a decade and a half later with the passage of the (Pevar, 2012), I contend that the assimilation era should be recognized as commencing at the end of

1869 with Parker’s call to end treatymaking and Congress’s action to that effect just more than one year later.

Allotment: “a mighty pulverizing engine to break up the tribal land mass”

In addition to ending the recognition of tribal sovereignty, the United States sought to force Indian dependency on the federal government and to expedite the 104 assimilation process by introducing liberal notions of property ownership into Indian country and society. Many politicians and other opinionmakers believed that American ideals of and labor could be taught to Indians through the tilling and farming of individual land plots. In other words, this was a method of civilization through agrarian toil (Bergeron, 2020). Because private property was considered a hallmark of an enlightened, “civilized” society (Deloria, 1989), its introduction into

Native American life served to diminish tribal identity, of which communitarian lifestyle and land usage were common (Berger, 2009). Policy makers and the Friends of the

Indians groups believed that Native Americans could learn individualism and other similar “American” values by maintaining agriculture. Further, many hoped that allotting individual land plots to all Indians would disrupt communal family organizations in favor of a nuclear family structure.

Commonly known as the “Dawes Act”, for its primary sponsor Henry Dawes

(Bobroff, 2001), the 1887 General Allotment Act had the goal of allotting tribal landmasses into individual parcels of land to be held in federal trust until each individual

Indian was deemed “competent” enough to be transferred full title of the allotment

(Drippel, Frye, & Leonard, 2020). In his 1901 State of the Union Address, President

Theodore Roosevelt described the allotment process as “a mighty pulverizing engine to break up the tribal mass. It acts directly upon the family and the individual” (Roosevelt,

1901). 105

The 1887 General Allotment Act sought to end tribal ownership of land altogether by terminating tribal ownership of lands and allotting fee simple ownership of lands to individual tribal members (Guedel & Colbert, 2016). As alluded to in

Roosevelt’s State of the Union Address, the primary goal of allotment was to break up tribal cultures based on communal land practices (Clinton, 1981) and to institute

“American” style individualism with its emphasis on the nuclear family. American values of that time included performing physical labor, mainly agrarian, and living as individual nuclear family units on separate tracts of land (Stremlau, 2005). Allotment was to be carried out in as an expedient manner as possible. It was understood that the process of

“Americanizing” Indians would not be instantaneous and, because the goal was cultural erasure, would most likely be a generational process.

Under the original Allotment Act, tribal lands were to be partitioned into 160- tracts and given to each individual Indian. The land title would be held in federal trust for a period of twenty-five years, upon which the title of the land would be transferred to the individuals in fee simple absolute (Akee, 2020). Any “excess” lands left over after Indian allotments were given out would be offered by the federal government for sale as surplus land to white homesteaders as an incentive to inhabit former Indian country. The twenty-five-year designation indicates that allotment was to be a generational project after which Indians were expected to have become

“Americanized” by having lived and worked alongside white families who homesteaded the surplus lands. Marriage and the family unit were important institutions of civic life at 106 this time (Lowe, 2015) and it was believed that, through allotment policy Indians would willingly join white marriage and family practices.

The emphasis on physical labor as a means of cultural erasure of indigenous lifestyles is interesting. The idea that physical, agrarian labor as integral to assimilation into American culture and life had long been popular, made most famous probably by

Thomas Jefferson’s quintessential fantasy of transforming Indians into republican yeoman farmers (Hellenbrand, 1985). Further, it was a common belief of the time that reservation Indians were “lazy” because they “refused to work” in the fields (Berthong,

1992) and that, out of boredom, they were more prone to engage in violent conflict with white settlers. A Chicago Tribune editorial arguing in favor of allotment makes this point: “[I]n almost every case it is only the non-laboring tribes that go upon the war- path” and that instituting manual, physical labor in Indian country would be one way to avoid “mischief” (1881). Additionally, other news reports of the time described the material consequences of, and natural resources to be had, by allotting Indian occupied territories and reservations. A New York Times news report during that period described a proposed allotment bill as “simply a scheme for putting all of the timber of the three reservations into the market, and for selling about one-quarter of the land”

(1880).

Thus, allotment appears to have had three main purposes: “Americanizing”

Indigenous peoples through agrarian work, folding them into white life through residential and labor proximity to white families, and federal obtainment of Indian lands 107 for sale and settlement. This thesis suggests it is the latter point that captures the true aims and interests of the United States in carrying out assimilation through allotment. It was not an especially disguised motive either; as demonstrated above, popular news outs at the time understood and reported on the economic gains to be had from allotment. Further, there were debates on the floor of the among members about the potential effect that allotment legislation could have on

Indians. Colorado Senator Henry Teller allegedly chastised the motivations of his colleagues in 1881 for not being in the interests of Indians, but “of the men who are clutching up this land” and warned that in “thirty years thereafter there will not be an

Indian on the continent, or there will be very few, at least, that will have any land”

(Parman, 1994, p. 3). Teller’s quote above is evidence that Congress knew exactly what the legacy of allotment would be.

By all verifiable measures, allotment was a failure (Carlson, 1981). As if to predict its inevitable failure, Congress essentially re-wrote the General Allotment Act with the passage of the in 1906, named for Senator Charles Burke. The primary component of the legislation, and perhaps its most devastating component, was the introduction of a “competency” clause that allowed for the issuance of “fee patents” to Indians deemed “competent” before the twenty-five-year trust period expired. Alternatively, the competency commissions could determine some Indians to be “unassimilable” which meant the government could indefinitely hold Indian land in trust (Flynn, 1988). 108

The “competency commissions” established at Indian agencies in and around the allotted territories gave individual Indian agents the formal authority to make competency determinations (Kauanui, 2008). These commissions served dual U.S. interests—expediting the assimilation of Indians it deemed worthy of “civilization” while also permanently keeping lands that it had previously aggreged to hold in trust for eventual transfer, essentially converting the land to the surplus status that allowed it to be eligible for . Ultimately, the competency commissions were determined to be a major failure because they drove Indians further into destitution, not assimilation.

They were subsequently dissolved in 1920 (McDonnell, 1981). By the end of allotment in 1934, tribes lost approximately 90 million acres of land to federal trust.

Twenty-Seven million, or about one third, of that land was designated surplus status and sold to homesteaders (Royster, 1995). The negative repercussions of allotment and the subsequent fractionation of trust, homesteaded, and fee absolute land is apparent more than ever to this day. Federal courts regularly have to sort out the rightful ownership of bequeathed and inherited land that is the result of the “checkerboard” property status of former Indian country (Shoemaker, 2003).

Lone Wolf, Kagama, and Congressional Plenary Power

Finally, it is important to discuss two Supreme Court decisions during this era that allowed Congress to carry out allotment and assimilation policies. These legal decisions extended and further defined congressional power when it came to Indian 109 affairs and demonstrates the legal knowledge production that was necessary to get around an otherwise clearly unconstitutional act of Congress. These cases reinforced not only the doctrines of discovery and conquest, but they also reproduce the settler colonial state by granting congressional plenary authority over Indian affairs through extralegal principles. This further solidified the illegitimacy of federal Indian law and policy. The legal precedents established by these two major Supreme Court decisions have been devastating to both tribal sovereignty and individual Indian rights, as both cases are still regularly relied upon in Indian law cases.

In United States v. Kagama (1886)29, the Supreme Court addressed the constitutionality of a piece of assimilationist legislation that Congress enacted the year prior, the Major Crimes Act (1885) (herein MCA). Under the MCA, federal courts and prosecutors were authorized to exercise criminal jurisdiction over Indians who committed enumerated crimes in Indian territories, or within the jurisdiction of the individual states. The list of enumerated crimes that warranted the interjection of federal authorities were , mostly violent felonies, such as rape, murder, robbery, arson, and others. The Supreme Court struggled to find the constitutional authority granting Congress the power to exercise federal jurisdiction in the several states and tribes when it came to Indian affairs. Doing so would effectively diminish but state and tribal sovereignty. As discussed earlier, the constitutional authority over

29 118 U.S. 375. 110

Indian affairs is primarily related to trade and commerce, and nothing else. Indeed,

Justice Miller, writing for the majority of the Kagama Court, worried:

we think it would be a very strained construction of this clause [commerce] that a system of criminal laws for Indians living peaceably in their reservations, which left out the entire code of trade and intercourse laws justly enacted under that provision, and established punishments for the common law crimes of murder, manslaughter…without any reference to their relation to any kind of commerce, was authorized by the grant of the power to regulate commerce with the Indian tribes.30

Additionally, citing Cherokee Nation v. Georgia, Justice Miller rejected the idea that the constitutional authority for congressional enactment of criminal codes regulating

Indians is derivative of the “foreign nations” clause, which grants that body control of dealings with countries abroad. He notes that “But these Indians are within the geographical limits of the United States. The soil and the people within these limits are under the political control of the United States.”31

Justice Miller and the Court both seemed to be at a legal crossroads. It was clear that the constitution did not confer onto Congress the authority to enact criminal regulations over Native Americans. Yet, the United States was well into the period of assimilation, in which the primary goal was to rid the country of tribal sovereignty, culture, in order to fold Indians into the wider American society and legal system.

Rejecting congressional authority to exercise such regulations over Indians would

30 Ibid at 378-79. 31 Ibid at 379-80. 111 impede assimilation. Therefore, the majority of the Court relied on the logic of Marshall, extrapolating congressional authority over Indian affairs from the fictitious doctrine of discovery and conquest. The majority state that “The power of the General Government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection….It must exist in that government, because it never existed anywhere else.”32 The logic of Justice Miller here is astonishing, so much so that it bears abbreviating: the power of the government to enact laws over Indians must be derivative by the very existence of the government itself because such power has never existed anywhere else, including and especially in the constitution.

The manufacturing of legal authority demonstrated above is perhaps an extreme case of the knowledge production necessary to grant otherwise blatantly obvious illegitimate power. The Court does not even deny or try to hide the fact that the power of congressional authority over Indian affairs is a false one. Rather, the Court rationalizes this by evoking the racist imagery and language about Indians that it repeatedly falls back upon when it is backed into a constitutional corner. Further, the

Court’s Kagama decision transforms Marshall’s wording of the guardian-ward relationship found in the Johnson case from analogy to fact, giving it legal heft: “These

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

32 Ibid at 384. 112

United States. Dependent largely for their daily food. Dependent for their political rights”33 (emphasis added).

The transformation of the guardian-ward distinction from analogy to legal precedent further elevated the illegitimate doctrines of discovery and conquest to that status of legal reasoning and logic. What had been dicta was now law. The Kagama

Court legalized the analogy of the United States as a guardian articulated in Johnson to authorize to congress the broad and plenary power (Harvey, 1982) over Indians for their own “protection.” The Supreme Court manipulated and exploited the guardian-ward analogy and peppered it with racist imagery (“weak” and “diminished”) to cynically and viciously achieve its ultimate aim of assimilation. This extralegal practice of manipulation and evoking white supremacy where the law is insufficient is not unique or even an exception to jurisprudence in Indian law; it is the rule (Fletcher, 2020).

Further, when this legal ruling is examined through the lens of settler colonialism, we can see the Indian problem being manufactured and that the “solution” was created from the problem itself. The “Indian problem” here is that the “weak” and

“diminished” Indians need the protection of the government, exercised through legislation. However, Justice Miller neglects to note that Indians have been “diminished” by the United States government, the very entity that is now seeking to extend its

“protection” to Native Americans. The “Indian problem” here was also in alignment with

33 Ibid at 383. 113 the overarching interest of the United States at the time, which of course was assimilation and the end of tribal sovereignty. The extent to which the Kagama ruling is so far outside of the neutral principles of law and methods of legal reasoning that the system of American law is theoretically built upon cannot be overstated (Eid and Doyle,

2010). A power which Congress did not maintained and was not intended to maintain, plenary authority over Indian affairs, was given to them by the Court as a means of perpetuating the assimilationist interests of that time. The United States colonial interests have changed throughout history, but the “Indian problem” remains because the problem, and more significantly its “solution”, is necessary for the advancement of

U.S national interests.

The saga of Kagama continued just over a decade later when the Court heard the case of Lone Wolf v. Hitchcock (1903)34. Here, the court further defined the scope and type of the power Congress now had as a result of Kagama, essentially rendering it unlimited (Nagle, 2011). At issue, in this case, was the Medicine Lodge Treaty of 1867, which was a series of three treaties signed between the United States federal government and many Plaines Indians tribes, including the Kiowa and Comanche. Acting with its newfound plenary authority, Congress knowingly and willingly violated the 1867 treaties when it sent the Jerome Commission in 1892 to pressure and coerce the Kiowa to sell land guaranteed by the treaties (Garrison, 1996). The U.S. wanted the land so

34 187 U.S. 553. 114 they could sell it for white settlement, which would ultimately advance its interest in westward expansion, manifest destiny, and the diminishment of tribal lands (Echo-

Hawk, 2010).

While the case was seemingly about congressional treaty obligations, the larger issue presented by Lone Wolf went to the heart of the assimilation era, the General

Allotment Act, and whether Congress could break up tribal lands, most of which had been guaranteed to the various tribes by treaty, parcel the land into individual units, and hold it in trust for indeterminate periods (Pommersheim, 2004). Essentially, the whole of the assimilation era’s goals and interests were at stake in the case. The two major issues in this case were: can congress abrogate treaties that it lawfully signed with tribes, and, if so, did congress have the authority to make public previously guaranteed treaty land for the homesteading of white settlers?

The court never got to address or answer the legal issues presented because it determined the case to be nonjusticiable, classifying its issues as a “political question” which the Court had no business or authority opining upon (Frickey, 2005). Specifically, writing for the majority, Justice White stated “[p]lenary authority over tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial department of the government.” 35 Remarkably, the Court determined that not only

35 Id at 565. 115 does Congress have the plenary power to act on Indian affairs, but that such power is not even subject to judicial review (another legacy of John Marshall’s) as a separation of powers matter:

We must presume that Congress acted in perfectly good faith in the dealings with Indians of which complaint is made, and that the legislative branch of the government exercised in its best judgement in the premises. In any event, as Congress possessed full power in the matter, the cannot question or inquire into the motives which prompted the enactment of this legislation. If injury was occasioned, which we do not wish to be understood as implying, by the use made by congress of its power, relief must be sought by an appeal to that body for redress and not to the courts.36

The Court sidestepped the legal issue in Lone Wolf, primarily the legality of allotment, by classifying it as a political question. The devastating consequence of this abrupt decision for the Court to no longer hear Indian law cases should they concern

Congress in any way has meant that Congress alone can take any actions or make any decisions related to “Indian affairs” as they see fit, especially decisions to honor or abrogate long-established and relied upon treaties (Goodwin, 1997). Further, the

Court’s legal reasoning allows for the presumption that Congress is acting in the best interests of Indians when legislating their fate and that the Court will not question that judgment. Any harm caused to Native Americans by a Congressional act, including constitutional harm, must be redressed by Congress. The notion that the body that harmed one is the body that now must provide relief is blatantly unjust and inconsistent

36 Id at 568. 116 with the foundations of American law. It is akin to seeking an appeal to one’s abuser for harm caused by their abuse. Further, the extraordinary plenary power leveraged by

Congress towards Indians is inconsistent with America’s commitment to liberalism and the principle of separation of powers (Riley, 2007). It demonstrates that not only is settler colonialism inconsistent with democracy, but rather democratization in America requires settler colonialism.

As in Kagama, the Court evoked racist language and imagery to justify its decision and to produce the colonial knowledge necessary to rationalize further extending congressional plenary power and circumscribing its powers of judicial review.

Citing the prior case of Beecher v. Wetherby (1877)37, the Court notes “it is to be presumed that in this matter the United States would be governed by such considerations of justice as would control a Christian people in their treatment of an ignorant and dependent race.”38 The Court’s invocation of the Christian versus ignorant race paradigm draws on long-held racist beliefs, as described in Chapter Two, of the religion-less savage Indians that need to be civilized and thus are warranted in their dispossession and maltreatment at the hands of whites, all under the guise of the white savior.

Thus, it is clear that the Court's selective imploring of its powers or limiting the powers of other branches of government is determined by its interests in whiteness,

37 95 U.S. 517. 38 187 U.S. 565. 117 which in this era was the assimilation and cultural erasure of American Indians. It is also apparent that Lone Wolf was influenced mainly not by the legal question presented, but the historical and political context in which it was presented, assimilation (Skinner,

1996). Giving Congress the power to act over Indian affairs in totality and free from judicial scrutiny or oversight was devastating to both tribal sovereignty and the well- being of individual Indians. Not surprisingly, the Lone Wolf decision has been described as the “Dred Scott” of Indian Law (Riley, 2011). Finally, while not discussed in this chapter or thesis, it is important to note that the Supreme Court ruled in 1896 that the

Constitution does not apply to Indians or in Indian country (Tribes Can Prohibit

Abortions, 2021).39 This is important for our purposes because it demonstrates the incoherence of assimilation. Native Americans were extended citizenship-like status when it benefited the U.S. interests in whiteness and land, while being restrict from the same status when it would grant protections.

Conclusion

Overall, what does the Kagama, Lone Wolf, the end of treaty-making, and allotment all mean? When taken together, one can see that, by 1903, the United States had effectively closed (conquered) the “frontier” and its already limited partnership with Indians that had once been necessary for land grabs (treaties) was now no longer useful. The United States' interest in westward expansion was completed and so the

39 Talton v. Mayes, 163 U.S. 376 (1896). 118

“Indian problem” once again redefined (Wolfe, 2012). Native Americans were now deemed to be a nuisance and burden, as demonstrated by the shift in language from the

Supreme Court opinions of the Marshall Era to the Allotment Era. Once viewed as semi- independent nations with at least some level of tribal autonomy, Indians were now viewed to be lazy, weak, savages in need of civilization and Americanization. The following chapter will show how the U.S. sought to solve this new Indian problem—the lazy Indian—through educational endeavors, specifically the boarding school experience.

119

Chapter Six: Kill the Indian, Save the Child: Education as Assimilation at the Carlisle

Indian Industrial School

Introduction

This chapter analyzes the policy of forced Indian boarding school education that the federal government adopted during the assimilation era, which was one of its three

“solutions” to the “Indian problem” at this time. The boarding school program is considered by many to be the only “successful” policy of assimilation during that period, and many of the boarding schools operate in some shape, form, or legacy to this day.

Far from being a nonviolent policy “solution” in the wake of the violent removal and relocation period, assimilation through the boarding school experience inflicted multiple sites of violence upon children.

“Educating” Indian children into whiteness was central to assimilation policy and to maintaining the United States’ interest in white supremacy against the backdrop of the diversifying nation of the early Twentieth century. Increasing Native American proximity to whiteness as a group provided a buttress to non-white immigration at the time. This was done through the forced and coerced removal of Native children from their homes and relocated to federally operated boarding schools across the country, where they could be “civilized” into white American life. The ultimate goal of the boarding school system was the eventual generational erasure of tribal culture and indigenous ways of life. 120

This chapter opens with a brief history of Indian education in the United States to make the point that various attempts of “educating” Native American children has historically been one of the most common and popular “solutions” to the “Indian problem”, although such efforts were attempted through private endeavors.

Educational undertakings were usually carried out by private religious institutions and other religious affiliates, with the express goal of Christianization. However, by the late

1870s the federal government adopted education as formal assimilation policy. These policies were largely carried out in off-reservation residential boarding schools across the United States. The location of the boarding schools far away from reservations was crucial to the boarding school experiment. Additionally, the government operated boarding schools marked for the first the that the widescale education of Native

Americans would become the responsibility of the federal government and implemented through formal law and policy.

The bulk of the chapter is devoted to one boarding school in particular, which is the Carlisle Indian Industrial School located in Carlisle, Pennsylvania. This chapter examines the Carlisle school because it was considered by many to be the premier

Indian boarding school of its time and was a model for Indian boarding schools in the

United States and into Canada. Heralded as the most “successful” Indian Boarding

School, Carlisle signified that Indian education was crucial to the government’s assimilationist policies and mission. In fact, education was the only “successful” assimilation policy that the United States pursued. It can be deduced that boarding 121 school education was the most “successful” assimilation policy, in terms of achieving the country’s assimilation goals, because of its legacy and the length of time in which it was operated.

This chapter uses archival research methods and primary documents to shed insight into three areas of the school: (1) the experiences of Indian children at Carlisle,

(2) the criteria for admission to the school, its curriculum, and the methods of instruction, and (3) the operation of the school from an administrative perspective.

These documents demonstrate that residential boarding schools of this time produced a knowledge of second-class citizenship status about Native Americans (the “Indian problem”) which was necessary to meet the assimilation era goals of the United States, and that the problem could be rectified through only one “solution”—boarding school education of indigenous youth. What these documents will show is that assimilation, far from being a peaceful policy, is an inherently violent process. The forced education of

Native American children inflicted multiple forms of violence that reverberate across

Indian communities to this day. This chapter extends the scholarship of Native

American assimilation by analyzing American Indian boarding schools as spatiality’s of subjugation through the examination of the mechanisms by which these schools

“educated” children.

A Brief History of Indian Education in the United States

Education of Indigenous people has been one of the most frequently implemented “solutions” to “the Indian problem” since the early days of settler 122 colonialism in the Americas (Treuer, 2012). While not covered in much detail for this thesis, Europeans in North America have been trying to “civilize” native peoples under the guise of education since first contact. Native people were subject to educational experimentation by the at Jamestown in 1621 (Bordewich, 1996).

Some years later, The Society for Propagation of the Gospel in New England led one of the more “successful” Indian education efforts. This group financially funded and established an Indian college at Harvard University during the 1650s, purchasing and distributing translated Bibles and other religious texts that could be taught in native languages. Additionally, the group largely funded teachers and ministers to convert and educate Indigenous peoples, who were believed to be “heathens.” The mission of this

London based organization was to educate Indians in “knowledge and goodness”

(Bordewich, 1996, Morrison, 1998).

By 1701, The Society for the Propagation of Gospel in Foreign Parts, an English based missionary organization, had established over 150 missions throughout the

American colonies, sparking a wave of missionizing and education efforts as the number of colonizers expanded and invaded Indian land (Bolt, 1987). During the mid-Eighteenth

Century, the founder of Dartmouth College, Eleazer Wheelock, made it his mission at heart to the “nativeness” out of the students attending Dartmouth

(Bordewich, 1996). As the colonies grew, so too did the “Indian problem.” Here, the

“Indian problem” of “heathens” in the colonies was created by the colonists through their invasion of indigenous lands. The “solution” to this problem became education as 123 civilization, as white missionaries were sure would be a welcome effort by the colonists in the invaded territories. Whites believed Native Americans to be savage and subhuman, the cure to which was religious education. Only through the religious teachings of Christ would Indian “creatures” become civilized humans suitable for life in the colonies. Thus, the “solution” to the “Indian problem” during the early years that was implemented served to further white European and colonial interests of

Christianization through the façade of education. This is a tactic that would repeat itself in the boarding schools of the assimilation era.

By the mid-Nineteenth century, the religious education of American Indians shifted away from the efforts of organized religious institutions and societies. Rather, religious education at this time occurred primarily in the homes of individual missionaries, particularly Quakers, who held more of a moral conviction about the plight of Indians. The federal government had not yet expended major resources on Indian education initiatives, primarily focusing its efforts on the boiling tensions of slavery in the antebellum period and the violent clashes between Indians, white settlers, and the cavalry in the western territories. However, after the Civil War, Native American education campaigns were once again championed by organized religious groups such as “The Society of Friends of the Indian”, as part of President Grant’s Peace Policy that was detailed in the previous chapter. Once again, these efforts were often affiliated with the Quaker religion and sought to educate Native Americans in their strict, pacifist teachings. The federal government believed Quakers could best educate American 124

Indian’s out of their “primitive” and “violent” tendencies through teachings that stressed peace and (Hagan 1976), while also demonstrating the highest level of “humanity” and “morality” towards Indian children.

The United State government had given much thought and debate to the subject of federally managed Indian education programs by the time assimilation was adopted in 1871 as official government policy. Of primary concern in these early stages of assimilation was whether government managed Indian education should look like. Until

1882, the U.S. government subsidized religious education for Native Americans on

“home missions”, which were religiously organized schools in Indian country, primarily run by presbyterian and quakers (Dussias, 1997). One of the primary goals of the home missions was not only instilling Christian religious principles into Native Americans, but to actively erase indigenous religious practices such as ghost and other dances, as these practices were believed to actively promote “heathenism” and “savagery” (Wenger,

2011)

However, by the late 1870s, the national and political conversation around

Indian education shifted to be about whether such education should take place on the reservations, or if it should be carried out far from Indian country and away from the influences and temptations of Indigenous and tribal life. The latter strategy became the most popular approach to Indian education, as it was thought best to carry out the larger assimilation era goal of breaking up tribal family organizations (Eagle Staff, 2020) that was discussed in the prior chapter. The main motivation for placing Indian boarding 125 schools away from reservations and Indian country was to disrupt indigenous child- rearing practices and to break up indigenous families (Harjo, 1999).

Further, the forced boarding school program and the separation of families was part of a more sinister strategy at this time that was thought to expediate government access to land through allotment agreements. This sinister strategy aimed to make life as miserable as possible for Native Americans during the assimilation process, which included removing children from their homes and communities to re-education camps, in hopes of coercing Native cooperation with allotment polices by speedily signing over tribal land masses (Tinker, 2004). Thus, the boarding schools contributed to making life so difficult for native Americans that they “willingly” ceded their land for homesteading and allotment.

The Carlisle Indian Industrial School

There was much debate during the Assimilation period regarding the greatest way to “civilize” Native Americans. Generally, there were three methods of “civilization” that whites advocated, including Christianization of the Native, education of the Native, and indoctrination of and into private property (Grinde, 2004). This chapter argues that forced Indian boarding education was the most essential vehicle of the federal government’s assimilation policy of native cultural and spiritual dispossession, as demonstrated by the longevity of the schools and by their continued, mostly negative, legacies. It was not enough to remove native children from their community, tribes, and 126 land. The missions had to obliterate Indian identity, a process that many scholars, myself included, have determined to be genocidal (Elinghaus, 2009).

Forced Indian education in boarding schools demonstrates what Beth Piatote has termed disciplinary paternalism: the idea that policymakers and implementers affirmatively acknowledge the violence of a policy and understand that the justification for such a policy must come from public sentiment to be considered legitimate (2013).

What Piatote describes is a form of knowledge production about the Native that was produced through propaganda and other methods of publicity. This demonstrates that the United States constructed the Indian problem of that time—ignorant, savage children—by exploiting popular culture of the time that portrayed Native American adults and children in racist rhetoric and imagery, most famously as the “noble savage”

(Berny, 2020). Most notably, boarding schools would sell postcards and other photographs of “before” and “after” snapshots of Indian children, as well as subscriptions to English newspapers and other digests written in English by Indian children as a means of demonstrating the “success” of the schools. (Enoch, 2002). The commodification of “progress” at the school as a form of public entertainment for white consumption helped to bolster and increase support for the schools.

The use of racist imagery and culture in popular culture was not specific to

Native Americans at this time. D.W. Griffith’s Birth of a Nation was released during the assimilation era and, like such images of Native Americans, negatively influenced public policy and law enacted towards Black people (Jay, 2000). “Rescue” narratives about 127

Native Americans were popular during assimilation as well, including the white savior story of Pocahontas and Captain John Smith (King, 2012) which lent public legitimacy to real life “rescue” efforts, such as Indian education. Thus, one of the “solutions” to the

“Indian problem” of lazy, ignorant and uncivilized Native Americans that the U.S. implemented was boarding school education, which enjoyed broad support as a means to further the nation’s interest in assimilation.

Public sentiment in favor of Native family separation and boarding school education was achieved through racist imagery and rhetoric about Indian primitiveness and the necessity of civilization. This was a production of a racist knowledge about

Native American children. Further, Indian boarding schools were necessary to the longevity of assimilation policy because they indoctrinated into the wider public racist mythologies about Indians, which ultimately reinforced the necessity of the schools. We see here the Indian problem reconstituting itself and the necessity of ongoing settler colonialism to the larger project of American democracy. This indoctrination is central to the racist imagery being internalized by the subject, manifesting generationally, and sustaining settler colonial projects indefinitely (Fanon, 1952, 2008).

Government education facilities such as the Carlisle Indian Industrial School became the central and most important vehicle for carrying out “civilization” and assimilation policy, which culminated in 1924 with the passage of the Indian Citizenship

Act (Wald, 1992). Federal seizure of Native American education from religious societies gave the government a direct hand in Indian education and allowed it to implement 128 curriculum and policies that stressed “American” values (Blackhawk, 2019). The curriculum implemented at the schools furthered assimilation goals that were not only detrimental to Indian culture but were physically fatal as well. Thus, we can see here again that the “solution” to the “Indian problem” pursued by the United States during the assimilation era was boarding school education. The government created the

“Indian problem” that it sought to solve. It produced knowledge about Indian children as being ignorant yet capable of being salvaged—and then implemented a “solution” that furthered the overarching interests of the United States, such as land grabs and indigenous erasure.

The site chosen for the Carlisle Indian residential school experiment is no accident (Adams, 1995). Quite the opposite, in fact, there was a nationwide search in early 1879 for a location that could be home to the “experiment” that was to become the first government operated boarding school (Child, 2018). Government managed

Indian boarding schools all over the country were opened within a few years of Carlisle, including in places such as , Oklahoma and New (Davis, 2001). The extensive planning and implementation of boarding schools in such a short amount of time indicates thinking about such schools was a priority of assimilation policy.

Ultimately, Carlisle, Pennsylvania was chosen as the site for the first government run school in large part because of the Carlisle Barracks. A February 1879 letter from the

Secretary of the Smithsonian Institute in Washington D.C. to the Secretary of the 129

Interior at that time, Carl Schurz, describes there being “no better spot” to open an

Indian boarding school than the Carlisle Barracks (Baird, 1879).

The Carlisle Barracks are a 500-acre military campus that was built in 1757 and had originally served as an army base for the British Red Coats during the colonial era. It then became a Union army training camp during the Civil War and would eventually become the home to the U.S. Army War College in 1901 (Waddell, 1995). The Indian

School shared a campus with the war college for a period of about 15 years and by

1918, the Carlisle Indian Industrial School was shut down to provide its portion of the campus as an army hospital during I (Gavin, 2006). Curiously, while Grant and others in his administration stressed that assimilation policies should be carried out by and should not be military endeavors, the Carlisle school seems to be an exception to that policy, given that its location was historically a military base and training site, shared a campus with the Army War College, and that its long-term superintendent was a Union army general, Richard Pratt. The militarization of Indian boarding school education sheds insight into the way the boarding schools were expected to operate and foreshadows the violent experiences that were to be incurred by Native American children at the school.

Thus, on the evening of October 6, 1879, General Richard Pratt arrived in

Carlisle, Pennsylvania with eighty-two American Indian children (Morton, 1962) having forcibly stolen them from the Rosebud and Pine Ridge reservations in the . Pratt’s arrival to Carlisle on that Autumn evening in 1879 marked the initiation 130 of the boarding school “experiment” that would become one of the longest executed assimilation era polices. The school was operated for nearly forty years, mostly by Pratt, subjecting several generations of American Indians to its treacherous practices of deculturalization.

A former Union general during the Civil War, Pratt also led cavalry units against military conflicts with Native Nations in the West, becoming a self-anointed

“expert” of the Indian (Fear-Segal & Rose, 2016). Additionally, Pratt gained notoriety for his “educational experiments” on Native captives after the Civil War at Fort Marion,

Florida (Lomawima & Olster, 2018). His work in Florida, as well as being the mastermind of federal boarding school policy, earned him the nickname the “father of Indian education.” By leading the boarding school experiment, Pratt’s “knowledge” of the

Indian, meaning knowledge that they must be civilized through education, demonstrates orientalism in that his knowledge production was the result of his military slaughter of Native Americans.

October 6, 1879, marked the darkness that is the beginning of the federal government’s forced Indian boarding school experiment at Carlisle. Ten Thousand,

Seven Hundred children would attend the school by the time it transitioned into a military hospital in 1918. (Bell, 1998; Navarro-Rivera, 2006). The Carlisle facility was the largest government-funded, off-reservation Indian boarding school in the country, becoming a blueprint for dozens of more off-reservation schools later in the assimilation era (Bell, 1998). Further, it was no coincidence that Pratt had traveled over one- 131 thousand miles to the Dakota Territory to forcibly bring native children to Carlisle for his experiment, what essentially amounted to a kidnap. The United States military suffered many humiliating defeats at the hands of the Lakota, Dakota, and other Sioux peoples in the decade leading up to Pratt’s arrival in the Great Sioux Nation and it is quite possible he was extracting revenge in this way (Olster, 2010).

Based on his military experience and his previous military defeats in the Dakota territory, Pratt believed the to be the most militaristic of Indians, and therefore in urgent need of civilizing. It is not inaccurate to assume that Pratt understood Lakota Indians to be “militaristic” based on his very limited interactions with the tribes; most interactions between the federal government and Plains Indians during this time involved the military in some capacity (Estes, 2019). Pratt, a military general who believed Lakota people to be too militaristic, and therefore in need of civilization, reveals his white supremacist logics through a hypocritical Irony. Pratt produced a knowledge of militant Indians, which created the “Indian problem” that he then sought to “solve” by removing children from their community, tribe, land, language, and ancestors for educational indoctrination. This demonstrates, again, that the “Indian problem” and its “solution” are determined by the interests of colonial power in any given historical moment.

The separation of Indian children from family, tribe, and culture to institute the forced boarding school experience was a form of psychic violence that caused Indians to

“suffer[ed] through Orwellian boarding schools meant to erase any vestiges of native 132 culture or loyalty in their children” (Hutton, 2019). The removal of native children from their language, culture, ancestors, spirits, traditions, lands, and tribes’ amount to a form of genocide that is no “lesser” than genocide carried out with gun powder and lead

(Churchill, 2004, Scudder et al., 1982).

“Undue proportion of white blood” Admission Criteria to the Carlisle School:

Much insight about who belonged—and who did not—at the boarding schools can be gleaned by reading above and between the lines of the official correspondences of school officials. While the mission of the school was relatively straightforward— education as assimilation—what is less clear is to whom should the government subject to the boarding school “experiment”, and by what manner was such a determination made? This consideration was more complicated than simply admitting any and all who might be considered Indians. Unlike Black people at this time, Indians were not subject to the so called “one-drop” blood rule of (Hickman, 1997), but they were subject to some and regulations, albeit not as strictly defined or enforced as the “Black codes” (Oakley, 2010).

Nonetheless, it is possible to gather insight into the thinking of who belonged at the school through the correspondences of Pratt and other school administrators. Thus, by examining primary documents from the school, the criteria for admitting students at

Carlisle can be both confirmed and inferred. For instance, a telegram sent by Pratt to the Indian agent of the Osage agency in the Pawhuska, Oklahoma territory, dated

August 29, 1900 reads: 133

I omitted to say to you yesterday to please be careful not to bring students who have an undue proportion of white blood; they should be at least half Indian and as much full blood material as you can possible get….There may be one or two others but there are very few who are eligible for admission. The element of character you will understand is also important (Pratt, 1900).

What Pratt means by “the element of character” is unclear, but what is clear is that

Pratt worried greatly about the exposure of “white blood”—meaning white children—to the boarding school experience. Indeed, Pratt stresses that as much “full blood material as you can possibly get” is the preferred standard when admitting children to Carlisle, signifying that the boarding school process would be harmful to even small amounts of

“white blood.”

Just as he did on the Sioux reservation in 1879, Pratt actively recruited Indian children to come to Carlisle, particularly those deemed “excellent” “candidates”. A May

1900 letter from Pratt to the Commissioner of Indian Affairs demonstrates Pratt’s recruitment process as he sought to bring to Carlisle children from the Klamath Agency in eastern Oregon. Pratt was so invested in “recruiting” Native American children to the school that he was willing to travel cross country to meet the children in person, not an easy feat in 1900, to be sure:

Agent Applegate and I have been in correspondence about a party of pupils from his agency for just about a year. The agent has had a great many difficulties to meet, but has at last got a party of nine on the way. He says there are excellent students there to be had, and thinks it will be practicable during vacation to make up another and more considerable party. Satisfied that Carlisle can help these Indians largely by this means, I wish to meet the agent and aid him in every way I can…

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Prat goes on to describe that he has been made aware of two Indian leaders on the agency that are opposed to sending the children to Carlisle, to which Pratt suggests:

I respectfully suggest that both these men be written to thru the agent and informed that the Office has been made acquainted with their opposition to sending children away to school, and that they be warned to desist from such nonprogressive interference. I do not think Rev. Kirk should be given away in the matter, nor is it necessary; but an office letter thru Agent Applegate I am sure will have a repressive influence (Pratt, 1900)

There is much insight to be gleaned in this letter. First, it is unclear if in this case Pratt believes “excellent student” to mean “full blooded”, indicating there was “more” Indian to kill within the child, but what is clear is that Pratt undoubtedly enjoyed the challenge of killing the Indian inside of children, as indicated by his preference for as “close to full

[Indian] blood” children as possible. Second, we learn that Indians employed by the agencies risked losing their jobs and other reprimand should they be outspoken or resist sending Indian children to Carlisle, demonstrating the negative effects of Indian boarding schools on children and their families, but also on the economic and other livelihoods of their tribe and community.

While Pratt was enthusiastic about recruiting Native children for the school, there are other instances in which Pratt was more reluctant to admit children to Carlisle.

An example of Pratts reluctance to admit some children is evident in the case of children from Puerto Rico. In a 1900 letter to a person inquiring about sending children from the

Puerto Rican colony, Pratt writes: “[F]rom my experience with the Porto (sic) Rican boys already here I am not very greatly encouraged in this direction” but goes on to say of 135 the potential for Puerto Rican girls at the school “we would expect the girls to be better material. They should be thoroughly examined as to health and I would prefer that none were under fourteen years of age. So far we have five Porto (sic) Rican boys and it will balance matters to have Porto (sic) Rican girls” (Pratt, 1900). It is curious as to why Pratt indicates that Puerto Rican boys are not well suited for the school, why girls from the colony were expected to be of “better material” and even more curious yet as to why

Pratt felt the need to “balance matters” between the two. One reason for Pratt’s reluctant admission of Puerto Rican boys to the school may have to do with money.

By 1900 the United States had had overthrown the Spanish regime on the island of Puerto Rico and instituted a colonial government, much like it had done in Hawaii only seven year prior (Cabán, 2002). Indigenous children from the “organized territories” that the U.S. controlled at this time—Hawaii, Puerto Rico, Alaska—were often considered for boarding school admission (Cook, 1934). Although colonized subjects from these territories were not Native American in the sense that most

Americans and governmental officials would understand at that time, such children were sent to the school and presented as such because the operating budgets and overall funding for the school was contingent upon enrollment (Stein, 2016). If nothing else, Pratt saw revenue in the Puerto Rican children. Further, subjecting children from

Puerto Rico or the other “acquired” colonies of the Pacific and Caribbean islands to boarding school education reveals the white supremacy inherent to and motivating for assimilation. That these children did not belong to the continental land masses that 136 were the subject of allotment and assimilation did not matter. That their bodies were not white did matter.

Other criteria for admission to the school include age and health status, as well as the number of years of eligibility a student would have at the school. The school did not typically take Indian children enrolled in public schools (presumably state operated),

“neither do we accept for a three years term, the conditions being five years unless the pupil graduates sooner.” School administrators also inquired about the health of potential students: “In regard to the girl you speak of, I would like also to know whether or not she has a healthy condition” (Standing, 1900). Similarly, when replying to an inquiry about a potential student, Pratt notes “you do not tell me how old he is, nor whether he belongs to any other school, nor whether he is full-blood Indian, nor whether he has good health” (1900). Thus, from these correspondences when can glean that Pratt preferred healthy Indian children of at least half-blood status that can spend at least five years at the school. The five-year residency requirement is interesting in that it infers Pratt believed the education-to-assimilation process to be one of significant length.

“Nothing talk sioux”: Violence as Curriculum at Carlisle

The curriculum implemented at Carlisle was nothing short of violent, not only physically, but psychologically, culturally and spiritually as well. Because the purpose of the boarding schools was to indoctrinate a generation of children into American 137 whiteness, the goal being that such indoctrination would be passed down generationally, all aspects of indigenous life, culture and spirt had to be erased.

Further, the education curriculum at the Carlisle school was especially cruel to

Indian children who did not speak or understand any (Treuer, 2020).

Luther , a member of the Sioux Nation and one of the inaugural students at Carlisle, demonstrates the harshness of the school’s English only policy in an

1882 letter sent to his father. “We are trying to speak only English, nothing talk

Sioux….but I could not do it at first…I have been speaking only English about 14 weeks now I have not said any Indian words at all” (Standing Bear, 1882). Luther-Bear’s experience of Sioux language expulsion demonstrates the organizing philosophy of

Carlisle, which was “Kill the Indian, Save the Man” (Molina, Hosang, & Gutiérrez, 2019).

Native language dispossession was considered one of the most important tactics of terminating the “Indian” and saving the man, which was a mythological white being that was believed to be buried deep within Indigenous peoples.

Similarly, General Pratt’s 1880 Carlisle First Annual Report of the school to

Commissioner of Indian Affairs R.E. Trowbridge exhibits the emphasis placed on English language education in the early years of the school:

object teaching is subordinate to the study of language. This is the first point, the mastery of the English language….Drill in elementary sound aids in securing the correct pronunciation….For beginners we use no text books. ‘Keep’s first lessons for the deaf and dumb’ has been serviceable…to an extent we have followed this method (Pratt, 1880).

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The above primary accounts highlight the extent of importance the Carlisle school believed English language education, and more importantly, the eradication of tribal languages was to the assimilation project. Further, the English language only curriculum at Carlisle fit within the larger Native American literacy education efforts of the federal government at that time (Round, 2015). The school expressly forbade students to speak native languages, often housing students from different tribes together to ensure the silencing of the native tongue, forcing English language communication (Fear-Segal &

Rose, p. 5). Language repression, as demonstrated in the letter and report above, was central to the mission of “killing the Indian.” It amounts to a practice that is widely understood to be linguistic and (Roche, 2019). This government campaign of language genocide has been detrimental to the preservation of native languages in the one-hundred years following assimilation, signaling the lasting

“success” of assimilationist policies (Crawford, 1995).

Additionally, themes of orientalism are present in the 1880 report. The use of the textbook “Keep’s First Lessons for the Deaf and Dumb” to teach the English language to Indian children reinforces the settler colonial knowledge that Indian culture was childlike and mentally deficient or slow. To “know” Indian people in the orientalist sense is to know that they are less advanced in their mental capacity than white people.

White people did not believe that any rational human being should ever choose to live

“primitively” and, therefore, thought “civilizing” Indians was necessary for their continued existence. The dis-recognition of Indian identity as not being capable of 139 autonomy or of self-determination is a form of violence. The identity of human beings is rooted in recognition by other self-determinative groups (Taylor, 1994, Coulthard,

2014). The individual and collective character of members in a political group is fundamental to self-determinative identity (Habermas, 1994). Thus, by failing to recognize Native Americans as autonomous peoples capable of self-determination and self-governance, the United States not only depoliticized Native American groups but visited violence and erasure onto native identities.

The mission of the Carlisle school was to instill into Indian children “American” values of self-sufficiency, individualism, property ownership, citizenship, and

Christianity, while extracting from them their Indigenous values of community and tribe.

The curriculum frequently taught boy’s manual and farming labor, while teaching the girls domestic work such as sewing, ironing, cooking, and washing (Smith 2004). In this way, the boarding schools more resembled forced labor camps rather than educational institutions (Trennett, 1988). This curriculum also imposed onto native children standards of white European patriarchy by teaching gendered labor roles and practices.

In this way, the boarding schools as a “solution” to the “Indian problem” served the governments interests in preserving and reproducing white patriarchy.

A 1911 report of the Carlisle School, prepared for the Bureau of Indian Affairs

(BIA), describes the “new” American Indian:

He is rapidly taking his proper place with the white man as a good citizen, a true patriot, a self-respecting and self-supporting workman, and a Christian. There is a great gap between the aboriginal…with primitiveness and savagery surrounding him, and the Indian of today, putting aside 140

petty warfare and inter-tribal strife, forsaking the roaming from place to place for the farm and the workshop, and building a permanent home, which is each year better furnished and sanitary. He is now mingling with the neighboring whites on terms of amity, and becomes each year more integrally a part of American citizenry….it is generally accepted that by means of thorough education, and because of its influence as a developing factor, the Indian is being redeemed from the old ways of indolence and superstition, to a capable, self-sustaining individual, differing little except in physical characteristics from the white man.

This report demonstrates the belief by Pratt and the BIA that Indian children can become “white” or “citizens” only through formal boarding school education. Before coming to the Carlisle school, Indians were believed to be subhuman, as evidenced by the language of “superstition,” “primitiveness”, and “savagery” in the 1911 report. It seems to have been the view of the BIA that Indian children could be transformed, however, into self-respecting, individually minded patriots who were well on their way to becoming citizens by the time they left the school.

The 1911 report signifies the eradication of Indigenous identity in several respects. First, the administrators of the Carlisle School believed the Indigenous culture of communality to be primitive and in need of civilization. Here, one can see the theory of the orient on display; white officials at Carlisle “know” the Indian so well as to know that “roaming from place-to-place” was unacceptable for self-supporting workmen. The curriculum at the school taught the children white, “civilized” notions of domesticity, forsaking the roaming from place to place for “the farm and the workshop, and building a permanent home.” Additionally, the report makes clear that BIA leaders believed that only through Indian education can the larger goal of assimilation policy be obtained. It 141 was believed by those at the school that white education transforms Indian children into citizens who are essentially white, save for their actual, physical characteristics. The forced erasure of Indigenous values of communal life and culture is psychic violence that had permanent effects. Many native children did not return to their communities or tribes after the forced boarding school process, running away to larger cities and never seeing their community again.

Finally, one of the more sinister aspects of the Carlisle curriculum was the

“outing system.” The outing system was an “apprenticeship” program at the school in which wealthy white families across the country could “rent out” Indian children from the school during the summer months and on holiday breaks (Trennert, 1983). The children would perform domestic, agrarian, and other labor in the homes of white families (Lomawaima, 1995). This forced labor was presented as an assimilation tactic of

“learning opportunities” to teach Indian children the values of hard work and other

“American” characteristics (Trennert, 1982). The outing system reflects the sentiment discussed in the previous chapter that proximity to whiteness and manual labor was one way to expediate assimilation. More than anything, however, the Outing system contributed a significant amount to the operating and other expenses of the school: the net amount of revenue from Outing in 1900 at Carlisle was $24,692.66 (Pratt, 1900), what would be upwards of $1,000,000 today.40In this way, Native American children

40 This calculation is based on an estimate from the CPI Inflation Calculator managed by the Bureau of Labor statistics. https://data.bls.gov/cgi-bin/cpicalc.pl?cost1=660&year1=191301&year2=202102 142 were indentured servants to the United States government, paying down their debt of indigeneity towards their principal of whiteness.

The Outing system was not always successful. Many students misbehaved or ran away when they were “Outed” or rented. A 1900 correspondence from Pratt informs the Pawhuska territory Osage Indian Agent that a Carlisle student from Osage escaped while on a summer Outing: “John Aiken was farm failure and brought in from the country, and would have been sent home but for his taking matters into his own hands and running away on July 29th” (Pratt). What this letter illustrates is that some children resisted this indentured servitude disguised as education and were willing to weight the risk of the unknown of the streets against more labor by choosing to run away. Further, the letter illustrated that running away or misbehaving while on an “Outing” was deemed insubordination and could lead to expulsion from the school. The Outing system reveals the BIA’s economic interests in boarding school education. School depended on the Outing system for revenue streams and students who disrupted that stream could be expelled from the school all together.

Graduation at the Carlisle School was nothing short of a spectral. Elaborate celebrations were planned in the spring each year to honor Indian students who had

“successfully” completed the school curriculum (Carlisle Indians’ Graduation,1902).

Politicians, legislators and the Presidents of local and national colleges would attend the ceremonies from all over the country (“Graduation Day, 1895). Additionally, the Carlisle school graduations were frequently covered by The New York Times, among other 143 newspaper outlets, indicating that Indian education at the time was a hot button issue.

The graduation ceremonies in the springtime were elaborate operations, revealing an almost reveal propagandistic aura to the school and its programs. The 1913 graduating class was boasted as the largest in the school’s history that attracted legislators, politicians, college presidents, religious leaders, and members of the public to flock to the school for a five-day graduation celebration (“Carlisle Indian School”, 1913). The children would perform “ceremonies” to demonstrate their new “American” identities by performing the labor that they learned at the school for spectators to see for themselves that it was indeed “possible” to “kill the Indian” and make honest, hardworking Americans out of Indian children.

Certificates of completion and of acquired skills such as stenography were presented to the graduating student’s, often by the Commissioner of Indian Affairs himself, indicating that they were now ready and expected to enter the American workforce and cultural life as freshly minted members of the citizenry. The spectacle of graduation and the fact that it was widely attended and reported on indicate that the

Indian boarding school programs were a popular means of assimilating Native

Americans. It was likely determined to be compassionate and far less cruel than previous campaigns of violence and removal that resulted in death and wars. Members of the public, as well as politicians, could see and read firsthand of the “successes” of assimilation, and was probably seen as a welcome break from the decades of violence that marked Indian affairs previously. Of course, deculturalization and dispossession are 144 violent processes in many ways, and often resulted in the physical death of student’s as well as other forms of death.

Assimilation to the Grave: Physical Death and the Death of Identity and Spirit at

Carlisle

The forced Indian boarding education at Carlisle also led to physical violence and illness of Native American children (Bear, 2008). Standing Bear, reflecting upon his time at Carlisle near the end of his life in 1933, feared death before attending the school. He stated that “I remember when we children were on our way to the Carlisle School, thinking that we were on our way to meet death at the hands of white people, the older boys sang brave songs so we would all meet death according to the Lakota code— fearlessly” (Standing Bear, 1933).

Lakota children were correct to anticipate death by the hands of the white people when General Pratt arrived in the Dakota territory, dressed in full military garb, demanding that children be placed in his care to be transported to the boarding school over 1,000 miles away. Many of these children had experienced first-hand the slaughter and violence inflicted upon their tribes and community by the military during the expansionist period only a few years prior (Ostler, 2010). Standing Bear confirmed the death of students at Carlisle, writing that “The change in clothing, housing, food and confinement combined with the lonesomeness was too much, and in three years nearly one-half of the children from the Plains were dead….in the graveyard at Carlisle most of the graves are those of little ones” (Standing Bear, 1933). General Pratt confirmed that 145 there were deaths in the first year of the Carlisle School, stating that “We have lost by death six boys, and have heard of the death of four of those returned to their agencies”

(Pratt, 1880).

The very first action of the indoctrination campaign of assimilation was to strip native children of their Indian names and replace them with a white, usually Christian, name. The renaming campaign constituted the first act of violence inflicted upon Indian children, occurring even before they arrived at the Carlisle school. Stripping a person of their name is tantamount to shredding a person of their heritage, culture, language, and identity. The shredding of identity and removal from one’s community is a genuine violence to people whose identity, soul, and spirit are tightly connected to the land.

When a person loses their name, they become anonymous. Further, granting a name to someone is a powerful act that produces a certain knowledge (Halberstam, 2018) further demonstrating orientalism in the settler colonial state. The knowledge produced by erasing indigenous names for replacement by white names indicates the second-class status of Native Americans to whites. Some names, and therefore identities, are valued more than others.

First Nations poet Dionne Brand makes the connection between name and place and the effect of separating the two by observing that “[h]aving no name to call on was having no past; having no past pointed to the fissure between the past and present”

(Brand 2001). Having no name is to have no being and is to be nonexistent (Momaday,

2016). To be anonymous is to be unknown, is to be uncared for, and is to be erased. To 146 be unknown is to be disposable (Hartman, 2019). Being unknown is to be subject to the unknown. In the case of American Indians, being unknown meant being subject to unknowing of their ancestors, their place, and their language, as well as being subject to the unknown Boarding school horrors.

For Indigenous people, land and water form the backbone of identity. In the

Native American context, contests for land are contests for life (Wolfe 2006). Plains

Indians, including Lakota and , believe that social, political, and cultural identity is shaped through relationships with Mni Sose, the Mississippi River. The Lakota have a saying that demonstrates the vitality of water in their communities: Mni Wiconi; water is life (Estes, 2019). Thus, removing Indigenous children from their land (their life) and then stripping them of their linguistic identity (their name) is among the strongest action one can take against Native Americans. These specific practices constituted orientalism, in that the U.S. colonizers' knowledge of the native (the orient) was so powerful that American officials “knew” Indigenous identity of land and language to be a dangerous threat to assimilation, and thereby warranted immediate genocidal action.

One of the more harrowing consequences of stripping native children of their

Indigenous names and replacing them with generic Christian names was the inability to identify the children upon their death at the Carlisle school. All graveyards are haunting spaces, to be sure. The graveyard at Carlisle is particularly haunting due to the sheer number of “unknown” markers that indicate children who died at the school (Landis,

2016). These are graves of unknown children. Staying true to assimilationist policy, the 147 school did not always attempt to reunite murdered children's spirits with their land but opted to dump them in a graveyard with no identifiable markers. This method of burial seemed to be common in American culture at the time for people who were disposed of home and family. As some historians have noted, western civilization has practiced death and the remembrance of life in often hastily, contradictory ways to Indigenous practices of death and ancestry (Carse, 1982; Aries, 1981).

For many westerners, the burial of loved ones and ancestors in death is not as strongly tied to the land as it is for Indigenous people. Many native cultures hold burial grounds to be sacred sites, their sanctity being indefinite (Riding In, 1992). Thus, by dumping dead American Indian children in unknown graves and on lands foreign to native ancestry, school officials performed a final act of dispossession by disregarding the connection to environment and land that is integral in indigenous life and death. In this way, the graveyard becomes an eternal spatiality of violence that indicate no one, including the dead, can escape the cruelties of white supremacy (Blow, 2020). Even in death, assimilation posthumously inflicted spiritual violence upon the stolen children.

While the total number of Indian deaths at the school may never be known, but a particularly horrifying statistic sheds light on the realities of Indian death at the school: only 600 of the more than 10,700 children who attended the Carlisle school graduated

(Bell, 1998). Though many of the ungraduated children are believed to have run away to urban centers or to have returned to their families in Indian country, the lack of knowledge about the children’s fates has haunted Native American communities for 148 over a century (Brown & Estes, 2018). Further, the existence of a graveyard at the

Carlisle school demonstrates that the purported mission of the school, far from being one of assimilating Indian children into white society, was more likely erasing Indian children from white society. Literally and symbolically.

Conclusion

The Carlisle school leaves a legacy of kidnapped children and the separation of communities during the Assimilation period of U.S federal Indian policy. Under the purpose of education and assimilation, the United States worked to create a knowledge of laziness and savagery about Native American children that justified the boarding school’s policy. These literal kidnappings demonstrate the violent nature of assimilation and the forced nature of Indian boarding school education. Assimilation, far from being a peaceful process, inflicted physical, psychic, spiritual, and linguistic violence upon stolen children that then were lost. The death of these youths was common during this period. The experiences and trauma incurred at the Carlisle Indian Industrial School exposed forced residential Indian school education to be a violent experience, shaped by renowned Indian murderer General Richard Pratt. The linguistic genocide inflicted upon these children had the devastating, long lasting consequence of lost native languages, which now have to be preserved, especially by the Lakota people. There are entire graveyards at Carlisle, experienced firsthand by Luther Standing Bear, filled with the bones and haunting memories of children who died at the school. Even in death, 149 assimilation inflicted spiritual violence onto these children who were never reunited with their land, ancestors, and identity.

The United States has never fully acknowledged its forcible child removal policy and separation of Indigenous families during the Assimilation era, at Carlisle, or elsewhere (Jacobs, 2018). Unlike the settler colonial counterparts of Canada and

Australia, the United States has not held hearings, created commissions, or established tribunals to cement this horror into public memory. In Australia, the history of state- sanctioned child removal has become so integrated into public memory that the

Aboriginal children separated from their families are commonly known as the “Stolen

Generations” (Read, 1981). In Canada, the collective remembrance of state sanctioned

First Nation family separation took center political stage through a Truth and

Reconciliation Commission from 2009-2015 (Niezen, 2013). While there has been some movement recently in Congress to establish a “Truth and Healing” commission to document, investigate, and acknowledge the cultural genocide of the Indian Boarding

School policy, these efforts have been stagnant for decades (Haaland, 2020). The Carlisle

Indian Industrial School must be critically examined and recognized as a site of eternal, spiritual, violence inflicted upon thousands of native children.

150

Conclusion: “A Living Testament” to the failure of the “Indian Problem”

In the opening paragraph of this thesis, I made the claim that the United States has an “Indian problem”, meaning the constant grappling by this country about what to do with the original inhabitants of the land. I wrote this in the same provocation of, and have been greatly influenced by, W. E. B. Du Bois’ concept and thinking about the Negro

Problem, which of course for him meant what would the United States do with and about Black people post emancipation. Indeed, as I hope to have shown in this thesis, any “problem” that the United States proports to have—be it historically the negro,

Indian, or woman “problem, or more contemporarily the “Trans” problem as it relates to healthcare, institutional access, and military inclusion—is a problem of its own creation. The creation of a “problem” is necessary for dominant group intrusion, subjugation, and action to achieve a “solution” to the very problem it created. The creator of the problem—meaning those who define it, label it, and determine it threatening and therefore in need of solving—is primarily the federal government and is carried out through policy.

However, the creators of any “problem” can also be dominant group non-state actors, such as was the case of colonial and early American religious missionaries that created the “Indian problem” of religion-less original North American inhabitants, or the white supremacists of Jim Crow that created the “negro problem” of the Black male sexual prowess. What is always true, however, regardless of the persons or entity defining the “problem”, is that its “solution” is always one that serves dominant group 151 interests and is often a “solution” of violence. The “Indian problem” is not inherent to indigenous peoples, but rather is inherent to the colonial power—colonial here meaning federal government, white supremacists, misogynic men, heteronormative structures, etc. Thus, what this thesis hopes to accomplish is to show that, in fact, the inverse is true of the “Indian problem”, and that this provocation is flipped: Indians have a United

States problem. Black people have a United States problem.

The theoretical framework of this thesis is an interdisciplinary examination of settler colonialism. Settler colonialism as an analytical lens was created from the inability of postcolonial thought and theory to analyze the unique dispossession that settler colonialism implements. The four components of settler colonialism are orientalism, colonialism, capitalism, and white supremacy. These structures must be understood as relational, meaning that they are produced, maintained, and reproduced alongside of and through one another. Because dispossession of land, property, and persons is antithetical liberalism, more than just physical dispossession is necessary.

Occupied territories must also be disposed by ideology. In settler colonialism that ideology is whiteness, which is implemented by otherizing indigenous practices and bodies as foreign.

Settler colonialism is most concerned about the permanent occupation of land through native dispossession. Because colonial occupation is permanent, native dispossession is required at all times, making settler colonialism an ongoing process of violence. Continuous native dispossession is achieved through a knowledge production 152 about the orient that is defined as the “Indian problem” whose “solution” is necessary to advance colonial interests. In this way, the “Indian problem” and its various

“solutions” are not only permanent, but are necessary for the preservation of the settler state. The “Indian problem” and its “solution” will always be redefined to meet and further dominant interests at any given historical moment.

This thesis explored the “Indian problem” through four historical eras of federal

Indian law and : (1) colonial, pre-constitutional, and post ratification, (2) the

Marshall Trilogy years of 1823-1832, (3) the removal and relocation period, 1830-1870 and (4) allotment and assimilation, 1870-1930. I do not mean to suggest that the “Indian problem” disappeared or was non-existent after those eras. The “Indian problem” will always exist in settler colonial states. Rather, I chose those four periods of U.S./Indian affairs to demonstrate that the “Indian problem” and its “solution” is not relegated to military campaigns, public policy implementations, legal decision making, or other singular vehicles of dispossession. Rather, the “Indian problem” is instituted and sustained in all areas. The current era of federal Indian law and policy that the United

States is formally committed to is self-determination, but as I have hoped to show, the

“Indian problem” lives on, both through the legacies of past federal Indian law and policy eras as well as in its modern iterations.

The initial relationship between the United States and tribal nations was predicated on trade. The U.S. acknowledged and respected at least some level of tribal sovereignty at this time, as demonstrated by its protecting of the trade relationship. 153

Tribal sovereignty was not clearly defined in the early years, but there was recognition of the mutual benefits of maintaining sovereign relations. The “Indian problem” here was the trade dealings between tribes and the several states as well as foreign nations.

The “solution” to lucrative Indian trading that early Americans instituted was the crafting of the U.S. constitution to center Indian affairs and tribal sovereignty around commerce, and the implementation of the Trade and Intercourse Act of 1790 to further the federal government’s economic interests by restricting who tribes could trade with and over whom they could exercise sovereign jurisdiction. The native dispossession that resulted from the “Indian problem” and “solutions” of this era was the diminishment of sovereignty and the financial and economic squeezes forced onto tribes.

The U.S and Indian relationship shifted during the Marshall years. The shift was away from trade and towards domination. The “Indian problems” created at this time were multifold, including the prohibition of tribes and states engaging in land sale and other trade. Another “Indian problem” was state regulation and jurisdiction in Indian country, which threatened the financial interests of the federal government A third

“Indian problem” that the United States created was native land ownership despite their status as conquered groups. The “solutions” to these “Indian problems” came from the Marshall Court through the legalization of doctrines of discovery and conquest. The creation of the new property status of aboriginal property and the power of preemption resulted in the U.S. owning all Indian lands in fee absolute, with Indians only obtaining the property right of possession and the ability to sell those possessory rights only to 154 the United States. Another “solution” created by the Court was that of the domestic- dependent status of tribes that diminished tribal sovereignty. The three “solutions” of the Marshall Court solidified the United States status as the superior sovereign and furthered its economic and land related interests.

The “Indian problem” during the removal and relocation period shifted to being about land. White settler’s wanted access to tribal lands in the Tidewater region to expand slavery and cotton production. Further, Indians were deemed incompatible with and threatening to white society, needing to be isolated from white people. The “Indian problem” produced here was that of the wasteful Indian occupying lucrative land. The

“solution” to the “Indian problem” was the military removal of Eastern Tribes to reservations in the western territories, segregated from white people and conflict. The

“Indian problem” shifted again as removed Indians blocked westward expansion that was fueled by the Transcontinental Railroad, the racist ideology of Manifest Destiny, and the discovery of gold on the west coast and in the Dakota Territories. Additionally,

Eastern tribes were removed to territories already occupied by Indigenous people. The result of all this was violent and deadly conflict among various tribes, white settlers, and the cavalry before and during the Civil War. The “solution” implemented was one of mass violence as the U.S sought to militarily crush Indian resistance. The U.S. created this “Indian problem” through removal, and then sought to “solve” it with the military.

By 1870, the “Indian problem” became once again about land, but the

“solutions” were vastly different. The “Indian problem” created was the lazy, savage 155

Indian. Another “Indian problem” produced was that of the tribal land mass that inhibited white settlement. A final “Indian problem” was continued tribal sovereignty.

All three “problems” threatened U.S. interests in whiteness and expansion. Thus, the

“solutions” that were created was allotting tribal landmasses, formally ending treaty making, and the implementation of the Indian boarding schools. All three “solutions” advanced white interests of assimilations. Other “solutions” included Supreme Court decisions that produced legal knowledge to justify extralegal rulings that gave Congress plenary authority of Indian affairs. This “solution” provided constitutional protection and legitimacy to otherwise illegal actions. This furthered the U.S. interests of assimilation.

The Carlisle Indian Industrial School was a long-lasting “solution” to the “Indian problem” of dependent and lazy Indians. The school served to further U.S. economic interests, as well as its interests in Americanizing Native Americans through assimilation.

The boarding school policies are considered to be the only “successful” assimilation era policies, as demonstrated by their longevity and by their widespread support by both white and Indians at the time. For Indians, the legacies of the schools are marked with trauma from the multiple forms of violence inflicted there. Many children physically died at the school, and many more children experienced spiritual and cultural deaths.

Yet, many students resisted the school and its curriculums of violence by running away and other means. 156

The “Indian problem” will always exist in the United States because it is necessary for its expansion and the maintenance of its settler-colonial position. The

“Indian problem” will always also always be present because Indigenous people are strong, resilient, and resistant peoples motivated by connections to the land, ancestors, and all forms of life. The total dispossession of Indigenous people will never be possible in the United State. Thus, what ensues if a cycle of dispossession, resistance, and violence that has no ending short of the United State of America becoming a post- colonial nation.

This thesis draws attention to the inadequacies in the discipline of political science of confronting settler colonialism and embarking on the difficult inquires that entails. Settler colonialism is complex and awkward for political science, because it seriously challenges the foundations of the discipline. Liberalisms traditional promises of equality, multi-racial democracy, private property, and the commitment to the require the dispossession of indigenous people and culture. That is the reality of settler colonial societies. Further, America’s international status as a beacon of liberty and democracy to be replicated and instituted the world over necessarily means that settler colonialism is spread through , foreign policy, and international law, all of which are staples in political science. Even in the post-colonial countries, where calls for liberalization are plenty and are often embraced by Indigenous leaders, settler colonial logics and ideologies of dispossession can take hold through democratizing efforts. 157

Why has American political science been hesitant to acknowledge settler colonialism? One reason may be the focus of American politics on egalitarianism, diversity, and individual rights. All of these are worthwhile commitments, to be sure.

Yet, these commitments also require further dispossession of indigenous life, culture and politics. As the United States population grows and becomes more diverse, fulfills its commitment to multiculturalism, and embraces more inclusive immigration, naturalization and refugee practices, it does so at the peril of Indigenous people.

Multiculturalism encourages ongoing dispossession, which is where the discipline of political science falls short in its critique of liberalism. The civic inclusion narrative and the individual rights framework promotes the pervasive interconnectedness between democratization and colonization (Temin, 2017). I make these points to show that settler colonialism is not the result of a specific politics or resigned to one party. Rather, the reality of settler colonialism is that it is inevitable, no matter how well intentioned or inclusive policies and politics may be. It is the product and natural result of democracy.

Another reason that American political science may be hesitant to embrace settler colonialism is that it is often contrary to values and principles that we hold mostly noble in this country. For instance, a commitment to constitutional democracy and all of the principles, rights, and ideas found therein are shown to be hollow once we apply the lens of settler colonialism. As I have shown throughout the thesis, constitutional principles go out the window when it comes to federal Indian law, policy 158 and affairs. Separation of powers does not truly exist in this realm of the law as congress exercises plenary authority as guardian over tribes. The Supreme Court has time and again willingly and admittedly ruled in favor of settler colonial interests when it does not have the authority to do so. When it comes to Indian law cases, it has made up legal principles by which to be guided by, such as that discovery and conquer, and ignored the limits imposed by the constitution, such as the Commerce Clause. It does not apply neutral principles of law or sound legal reasoning when deciding Indian affairs cases, if it chooses to decide them at all. It is not infrequent for the Supreme Court to render moot legal issues in Indian law cases by evoking the political question doctrine.

I do not intend to be so grim by implying that settler colonialism is unavoidable in the political composition and operation of most of the world, although that is what I mean to imply. Rather, a main takeaway from this thesis that I wish to convey is that

American Political Science can, should, and must be honest about its maintenance and perpetuation of settler colonialism. My critique of the discipline is not a methodological one (although such critique should be undertaken), but rather it is to challenge political science to be honest about its settler colonial logics and not to masquerade itself in the curriculum of the main subfields of the discipline. The field should and must take these contentions serious regardless of how uncomfortable or awkward such an acknowledgement is.

While American politics has in the last several decades addressed the tensions between democracy and anti-Black racism, gender inequality, and oppression of 159 sexuality, it has not adequately addressed such tensions of democracy and settler colonialism. Failure to do so results in a both a revisionist history and present that works to wipe clean the blood-stained hands of colonization. This is a dereliction of duty and amounts to malpractice.

What can political science as a discipline do to better incorporate issues of indigeneity and settler colonialism within its scope? One can begin from the premise that there are in fact three sovereign entities in the United States: The federal government, the governments of the several states, and tribal governments. Injecting this often-forgotten truth in the scholarship and in the classrooms of major fields of the discipline—constitutionalism, law and politics, American political development, federalism, political theory, for example—can at the very least get students and scholars thinking about the role of settler colonialism in the development of these fields. Political theory can fold into discussions of contractarianism the role that indigenous dispossession played in the creation of the liberal state. As I discussed in chapter’s one and two, the actions of the colonial government against Native peoples were in direct conflict with the foundations of liberal thought, and the colonial powers at the time knew this to be true. Therefore, an ideology of whiteness needed to be implemented to produce knowledge about indigenous life that could legitimate their dispossession as in line with liberalism through the settler contract.

Similarly, any scholarship, discussion, or teaching of American constitutionalism must incorporate the understanding that its development, and the development of the 160

American legal system, relied upon the extralegal doctrines of discovery and conquest.

The Supreme Court knew that the actions the U.S. had been taking against Native

Americans were outside the bounds of the constitution and it has admitted as much, as demonstrated in the Kagama case. Yet, because the Court had developed within an ideology of whiteness—as did the whole of the U.S. government—they produced a legal knowledge that would legitimate the ongoing dispossession of native peoples; the domestic-dependent status that required the United States to act as the “guardian” to the Indian “wards.” Constitutionalism can also incorporate into its discussion of equality and citizenship the contention that both often required the assimilation of Native

Americans, which I have shown to be violent and necessary, to further the U.S.’s white settler interests.

American federalism must be understood to include issues of tribal sovereignty.

The legal nation-to-nation relationship of the United States with Indian tribes must be stressed in this field, as does the status of tribes as political groups. As the coronavirus has demonstrated, tribal governments have implemented responses to the crises in unique and effective ways that are only possible because of their status as sovereigns. The Nation, for example, has vaccinated more people per capita than most states, despite the fact that 40% of its population lack running electricity and water and live in extremely remotes desert territories. The Cherokee nation has had similar success with its vaccination plans and efforts. 161

All of this is notwithstanding the abysmal funding shortfalls and patchwork healthcare that the Indian Health Services provides (Kaur, 2021). State and federal governments would be wise to take tribal systems of government and politics seriously to address some of the issues that are associated with traditional understandings of federalism. Issues of tribal sovereignty can and should be taught in American politics courses. Many, if not most, people in the United States do not know of the existence or the extent to which Indian tribes and individual Indian’s exercise sovereignty.

Additionally, any discussion of traditionally “American” characteristics such as manifest destiny, American exceptionalism, or melting-pot assimilationist rhetoric must include discussion of their embrace of and contributions to settler colonialism and native dispossession.

Further, the field of law and politics must address jurisdictional issues and limitations when thinking, teaching, writing, or discussing the role of courts in the development of law and its effects on the ground. The Missing and Murdered

Indigenous Women crisis, for example, demonstrates the dark reality of complex jurisdictional limits, yet most people are unaware of this crisis because many do not even know that tribal governments, courts, and law enforcement exist, let alone know of their complexities. Tribal courts have limited jurisdiction in Indian country as it relates to both Indians and non-Indians. Federal courts address the lion’s share of conflicts between Indians and non-Indians, both within and outside of Indian country. Most state courts have little to no jurisdiction over Indians, except in the few states where congress 162 has explicitly delegated state jurisdiction. Law and politics must do better across the board if we are to take tribal sovereignty seriously and to address the unique issues that

Native Americans face as a result of incoherent federal Indian law and policy

Federal Indian law must be better taught and recognized in legal education and practice as well. While many political science students motivated by injustice and committed to equality go onto law school, the reality is that most will leave law school not having learned a single thing about federal Indian law and its complexities. Further, many federal judges, who oversee all legal challenges involving Indians and Indian law, are woefully unaware of federal Indian law and are inadequately equipped to be addressing and deciding such complex legal questions and issues. Federal Indian law is a huge body of law that is far more complex, and older, than the doctrinal cannon that is the focus of traditional legal education— law, , contract law, constitutional law, and —and yet is not treated as such or with distinction.

While Indian country may have found a champion of tribal sovereignty and rights in

Justice Gorsuch on the Supreme Court, such mastery of Indian law is uncommon on the high bench and Gorsuch’s can be attributed to his coming to the Court as a federal judge in the Tenth Circuit (also uncommon) where Indian law is the subject of much litigation

(Dossett, 2017).

All of this said, American politics does seem to finally be taking Native American issues seriously. The disproportionate effects of Covid-19 in Indian Country have been widely covered in the mainstream media, as has been the success of tribal governments 163 in addressing the virus and vaccinating its members. Tribal communities such as the

Navajo Nation have demonstrated that indigenous cultural values like clanship have been instrumental to the success of combating the virus, and local and state governments would be wise to take note of such success (Begay, 2021). Further, tribal nations such as the Ogala Sioux and the Cheyenne River Sioux tribes powerfully and successfully exercised tribal sovereignty on the national stage in highly publicized clashes with South Dakota governor Kristi Noem, who has been hostile towards tribes as they instituted COVID19 regulations and restrictions (Ortiz 2020,). The Sioux tribes reminded Americans that there are, in fact, three inherent sovereigns in this country to be respected (Fletcher, 2020). The passage of the third covid relief bill in March 2021, the American Rescue Plan, amounts to one of the largest ever federal economic packages and investments in Indian country by allotting $31 Billion to the federally recognized tribes, much of which is unfettered relief that recognizes tribal self- determination (Trahant, 2021).

Historically a hostile opponent to tribal nations, there is renewed hope for the acknowledgement of tribal sovereignty and Indian dignity at the Supreme Court as well.

In July of 2020, the Supreme Court in McGirt v. Oklahoma (2020)41 ruled the State of

Oklahoma had for over one hundred years illegally encroached on and exercised jurisdiction in the sovereign territory of the Creek Nation, including in the

41 140 S.Ct. 2452 164 entire city of Tulsa since its creation (Barnwell, 2020). The Court acknowledged that the

United States has a long and dark history of breaking promises to its original inhabitants but signaled a change in attitude is on the horizon. In ruling that the United States and the State of Oklahoma must honor the 1856 removal treaty that forced the Creek nation to Oklahoma territory in the first place, Justice Gorsuch powerfully stated: “on the far end of the trail of tears there was a promise. Forced to leave their ancestral lands in

Georgia and the creek nation received assurance that their lands in the west would be secure forever….We hold the government to its word.”42

The decision reverberated throughout Indian country, is hailed as the most important Indian law cases in generations and was determined to be a “once-in-a- century- kind of victory” for Native American rights (Dagher, 2020). Some of the leading legal scholars of Indian law have noted that the McGirt decision indicates, finally, that the Supreme Court “acknowledges and respects….tribal governments as full partners in the American polity” (Fletcher, 2022). Indeed, the McGirt decision indicates the future of Indian law at the Supreme Court appears to be headed towards one of respect, acknowledgement and adherence to tribal sovereignty (Hedden-Nicely & Leeds, 2021).

Further, with freshman Justice Amy Coney Barret newly appointed to the Supreme

Court bench, there is cautious optimism that her jurisprudence of textualism will, much

42 Ibid at 2459. 165 like Gorsuch’s, yield positive results for Indian country and demonstrate a returned adherence to Indian law (Barrett, 2010).

Finally, the greatest sign that the relationship between Native Americans and the federal government is taking a turn for the better is found in President Joe Biden’s nomination of Deb Haaland, an enrolled member of the Pueblo of Laguna Nation, to be the Secretary of the Department of Interior. Haaland’s confirmation as the first

Indigenous person to lead the Department of the Interior has been dubbed as “Indian

Country’s Obama Moment” because for the first time a Native American will head the department that oversees the vast majority of Indian policy and federal trust Indian land

(Fonesca, 2021.) The significance of Haaland’s nomination and confirmation cannot be overstated: for the first time, the department that has for centuries visited violence and even genocide onto native peoples in this country will finally be headed by one of its own and provide a national platform for Native people all over the country (Fears,

2021).

Once known as “The Great White Father” for its paternalistic approach towards

Indians, the Department of the Interior and the Bureau of Indian Affairs may very well come to be known as “The Great Mama Bear” under Haaland’s leadership, an homage to the historical importance of women as protectors in matrilineal Indigenous culture and the acknowledgement and respect of non-human living beings as equals that many

Native cultures hold (Tsosie, 1996). Haaland recognized her role as protector in a recent interview with The Guardian: “I’ll be fierce for all of us, for our planet, and all of our 166 protected land” (Lakhani, 2020). Indeed, Haaland’s successful confirmation to the role of secretary yielded the hashtag #BeFierce to trend in Indian country and beyond, demonstrating the expectations that native communities have for her role as protector.

For all of the horrors that indigenous peoples have faced and continue to face as colonized peoples in a settler state, there is hope on the horizon for a better future for

Native Americans in this country. Change is possible and issues of indigeneity have come a long way since the days of the Carlisle school. Perhaps no one understands the brightness of indigenous futures better than Haaland herself. Speaking directly to Native

Americans on national television, through choked back tears while accepting her nomination, Haaland gave a message of hope and perseverance rebuking the darkness of assimilation: “This moment is profound when we consider the fact that a former

Secretary of the Interior once proclaimed it his goal to, quote, ‘civilize or exterminate’ us. I’m a living testament to the failure of that horrific ideology” (Haaland, 2020).

167

References

Ablavsky, G. 2014. The Savage Constitution. Duke Law Journal, 63(5): 998-1089.

Adams, D. 1995. Education for Extinction: American Indians and the Boarding School Experience, 1875-1928. Lawrence: University Press of Kansas.

Aloha aina: Native hawaiian land restitution. (2020) Harvard Law Review, 113(6): 2148- 2171.

Akee, R. 2020. Land Titles and Land Dispossession: Allotment and American Indian Reservations. Journal of Economics, Race, and Policy, 3(2): 123-143.

Alarcón, N. 1996. Anzaldúa’s Frontera: Inscribing Genetics In Lavie, S., & Swedenburg, T. (Eds) Displacement, Diaspora, and Geographies of Identity. Durham: Duke University Press. pp: 41-53.

Annual Report of the Commissioner of Indian Affairs, H. Exec. Doc. No. 1, 41st Cong., 2d Sess. 448 (Dec. 23, 1869), reprinted in Documents of United States Indian Policy, 133-134 (Francis P. Prucha ed., 3d ed. 2000).

Anderson, R. T., Berger, B. R., Krakoff, S., & Frickey, P. T. 2015. American Indian Law: Cases and Commentary (3rd ed.). St. Paul: West Academic Publishing.

Anderson, W. 2016. Native American Reservation Constitution. Constitutional Political Economy, 27(4): 377-398.

Anzaldúa, G. 1987, 2012. Borderlands/ La Frontera: The New Mestiza (4th ed.). San Francisco: Aunt Lute Books.

Anderson, W. 1991. : Before and After. Athens: University of Georgia Press.

Aries, P. 1981. The Hour of Our Death. New York: Alfred Knopf.

Arnold, T. 1962. The Symbols of Government. New York: Harcourt, Brace & World.

Arsic, B. 2014. Our Things: Thoreau on Objects, Relics, and Archives. Qui Parle, 23(1): 157-181.

Arvin, Tuck, & Morrill. 2013. Decolonizing : Challenging Connections between Settler Colonialism and Heteropatriarchy. Feminist Formations, 25(1) 168

Babcock, H. 2005. A Civic-Republican Vision of "Domestic Dependent Nations" in the Twenty-First Century: Tribal Sovereignty Re-Envisioned, Reinvigorated, and Re- Empowered. Utah Law Review, 2: 443-572.

Baird, F. (1879, February 14). [Letter to Carl Schurz]. National Archives and Records Administration (RG 75, M234, roll 480, frames 228-229), Washington D.C.

Barba, Paul. 2020. “A War For Settler Colonialism” The Journal of the Civil War Era, 3 March 2020, Accessed July 28, 2020. https://www.journalofthecivilwarera.org/2020/03/a-war-for-settler- colonialism/#_ftn2

Barnwell, A. 2020. McGirt v. Oklahoma. Public Land & Resource Law Review, 0(2): 1-6. https://scholarship.law.umt.edu/plrlr/vol0/iss13/2?utm_source=scholarship.law.u mt.edu%2Fplrlr%2Fvol0%2Fiss13%2F2&utm_medium=PDF&utm_campaign=PDFCo verPages

Barrett, A. 2010. Substantive Canons and Faithful Agency. Boston University Law Review, (90)1: 109-182.

Bartlett, Bruce. 2020. “Donald Trump Truly Is The Heir To The Legacy of Andrew Jackson” The New Republic, 3 August 2020. Accessed September 8, 2020. https://newrepublic.com/article/158698/donald-trump-legacy-andrew- jackson?utm_source=newsletter&utm_medium=email&utm_campaign=tnr_weekly

Bear, Charla. 2008. “American Indian Boarding Schools Haunt Many, NPR Morning Edition. 12 May 2008. Accessed on 11/30/2019. https://www.npr.org/templates/story/story.php?storyId=16516865

Beckert, S. 2014. Empire of Cotton: A Global History. New York City: Penguin Books.

Beecher v. Wetherby 95 U.S. 517 (1877).

Begay, J. 2021. How Navajo Physicians Are Battling the Covid-19 Pandemic. Smithsonian Magazine. March 2021. Last Access March 8, 2021. https://www.smithsonianmag.com/science-nature/healers-navajo-nation- pandemic-covid-19-180976994/

Bell, G. 1998. Telling Stories Out of School: Remembering the Carlisle Indian Industrial School, 1879-1918. United States: Stanford University.

169

Berger, B. 2009. Red: Racism and the American Indian. UCLA Law Review 56(3): 629, 591-656.

Bergeron, D. 2020. Philosophy and Allotment: John Locke’s Influence on Henry L. Dawes. : Springer Publisher.

Berny, M. 2020. The Hollywood Indian : The Cinematic Othering and Assimilation of Native Americans at the Turn of the 20th Century. Angles: New Perspectives of the Anglophone World [Online], 10. https://journals.openedition.org/angles/331

Berthong, D. 1992. The Cheyenne and Ordeal: Reservation and Agency Life in the Indian Territory, 1875-1907. Norman: University of Oklahoma Press.

Bhandar, B. Property Abolitionism: Race, Colony, Body, Land. The Disorder of Things Blog. 10 May 2019. Accessed on 2/21/21. https://thedisorderofthings.com/2019/05/10/property-abolitionism-race-colony- body-land/

Biolsi, T. The Birth of the Reservation: Making the Modern Individual among the Lakota. American Ethnologist, 22(1): 28-53.

Blackhawk, M. 2019. Federal Indian Law as Paradigm Within Public Law. Harvard Law Review 132(7): 1797, 1787-1877.

Blow, Charles. 2020. “My Brother Died And Reminded Me Of These Lessons.” The New York Times, 14 October 2020. Last accessed 10/15/2020. https://www.nytimes.com/2020/10/14/opinion/brother-death- lessons.html?action=click&module=Opinion&pgtype=Homepage

Blumm, M. 2004. Retracing the Discovery Doctrine: , Tribal Sovereignty, and Their Significance to Treaty-Making and Modern Natural Resources Policy in Indian Country. Vermont Law Review, 28(3): 713-778.

Blumm, M. 2011. Why Aboriginal Title is a Fee Simple Absolute. Lewis & Clark Law School Legal Studies Research Paper No. 2011-24, 1-19.

Bobroff, K. 2001. Retelling Allotment: Indian Property Rights and the Myth of Common Ownership. Vanderbilt Law Review, 54(4): 1557-1624.

Bolt, C. 1987. American Indian Policy and American Reform: Case Studies of the Campaign to Assimilate the American Indians. New South : Allen & Unwin. 170

Bordewich, F. 1996. Killing the White Man’s Indian: Reinventing Native Americans at the End of the Twentieth Century. New York City: Anchor Books.

Bowes, J. 2016. Land Too Good for Indians: Northern Indian Removal. Norman: University of Oklahoma Press.

Brand, D. 2001. A Map to the Door of No Return: Notes on Belonging. Toronto: Penguin Random House Canada Limited.

Brandzel, A. 2016. Against Citizenship: The Violence of the Normative. Urbana: University of Illinois Press.

Brauer, K. 1996. Review of Manifest Destiny: American and the Empire of Right. The Journal of American History 83(1): 207–207.

Brown, A., Estes, N. 2018. “An Untold Number of Indigenous Children Disappeared at U.S. Boarding Schools. Tribal National Are Raising The Stakes In Search Of Answers.” The Intercept. 25 September 2018. Accessed 10/11/2019. https://theintercept.com/2018/09/25/carlisle-indian-industrial-school-indigenous- children-disappeared/

Brown, D. 1970. Bury My Heart at Wounded Knee: An Indian History of the American West. 1st ed. New York: Holt, Rinehart & Winston.

Bureau of Indian Affairs. 2021. Mission Statement. https://www.bia.gov/bia

Cában, P. 2002. Puerto Rico: State Formation in a Colonial Context. Caribbean Studies, 30(2): 170-215.

Calderon-Zaks, M. 2010. Domestic Colonialism: The Overlooked Significance of Roberts L. Allen’s Contributions. Black Scholar 40(2) 39-48.

Calloway, C. 2018. The Indian World of George Washington. New York: Oxford University Press.

Carey, J., Silverstein, B. 2020. Think with and beyond settler colonial studies: new histories after the postcolonial. Postcolonial Studies 23(1) 1-20.

Carlisle Indians’ Graduation Exercises. (1902, February 7). The New York Times, p. 9. Retrieved from https://timesmachine.nytimes.com/timesmachine/1902/02/07/issue.html 171

Carlisle Indian School Holds Its Annual Commencement Exercises This Weekend— Fifteen to be Graduated. (1913, March 30). The New York Times, p. 9. Retrieved from https://timesmachine.nytimes.com/timesmachine/1913/03/30/100613526.html?p ageNumber=95

Carlson, L. 1981. Land Allotment and Decline of American Indian Farming. in Economic History, 18(2): 128-154.

Carse, J. 1982. Reviewed Work: The Hour of Our Death. History and Theory 21(3): 399- 410.

Césaire, A. 1972, 2000. Discourses on Colonialism (2nd edition). New York: Monthly Review Press.

Cherokee Nation v. Georgia, 30 U.S. 1 (1831).

Chidester, D. 1996. Savage Systems: Colonialism and Comparative Religion in . Charlottesville: University Press of .

Child, B. 2018. The Boarding School as Metaphor. Journal of American Indian Education, 57(1): 37-57.

Churchill, W. 1997. A Little Matter of Genocide: Holocaust and Denial in the Americas 1492 to Present. San Francisco: City Lights Books.

Churchill, W. 2004. Kill the Indian, Save the Man: The Genocidal Impact of American Indian Residential Schools. San Francisco: City Lights Books.

Ciccariello-Maher, G. 2015. Colonialism. The Encyclopedia of Political Thought.

City of Sherrill v. of New York, 544 U.S. 197 (2005).

Clampitt, B. 2015. The Civil War and Reconstruction in Indian Territory. Lincoln: University of Nebraska Press.

Clinton, R. 1981. Isolated in Their Own Country: A Defense of Federal Protection of Indian Autonomy and Self-Government. Stanford Law Review, 33(6): 979-1068.

172

Clinton, R. (1989). The proclamation of 1763: Colonial prelude to two centuries of federal-state conflict over the management of indian affairs. Boston University Law Review, 69(2), 329-388.

Clinton, R. (2002). There is No Federal Supremacy Clause for Indian Tribes. State Law Review, 34(1): 113-260.

Cobb, D. 2015. Say We Are Nations: Documents of Politics and Protest in Indigenous America Since 1887. Chapel Hill: The University of Press.

Cohen, F. 1945. Colonialism: A Realistic Approach. Ethics, 55(3): 167-181.

Collins, P. 2008 [1990]. Black Feminist Thought. London: Routledge Press.

Cook, K. 1934. Education Among Native and Minority Groups in Alaska, Puerto Rico, Virgin Islands, and Hawaii. The Journal of Negro Education. 3(1): 20-41.

Cornell, S. 1988. The Return of the Native: American Indian Political Resurgence. New York: Oxford University Press.

Coulthard, G. 2014. Red Skin, White Masks: Rejecting the Colonial Politics of Recognition. : U of Minnesota Press.

Covington, J. 1966. An Episode in the Third Seminole War. The Florida Historical Quarterly, 45(1) 45-59.

Crawford, J. 1995. Endangered Native American Languages: What is to be done, and why?. The Bilingual Research Journal, 19(1) 17-38.

Crenshaw, K. 1991. Mapping the Margins: Intersectionality, Identity Politics, and of Color. Stanford Law Review, 43(6): 1241-1299.

Dahl, A. 2016. Nullifying Settler Democracy: William Apess and the Paradox of Settler Sovereignty. Polity, 0(0): 1-26.

Dagher, V. 2020. Three Questions with Scholar Sarah Deer on Empowering Tribal Nations to Protect Native American Women. The Wall Street Journal, 31 July 2020. Accessed March 8, 2021. https://www.wsj.com/articles/three-questions-with- scholar-sarah-deer-on-empowering-tribal-nations-to-protect-native-american- women-11596204577

173

Davis, J. 2001. American Indian Boarding School Experiences: Recent Studies from Native Perspectives. OAH Magazine of History, 15(2): 20-22.

Dawson, M. 1995. Behind the Mule: Race and Class in African-American Politics. Princeton: Princeton University Press.

Day, Iyko. 2015. Being or Nothingness: Indigeneity, Antiblackness, and Settler Colonial Critique. Critical 1(2) pp. 102-121.

Deer, S. 2015. The Beginning and End of Rape: Confronting Sexual Violence in Native America. Minneapolis: University of Minnesota Press.

Deer, S. 2019. (En)Gendering Indian Law: Indigenous Feminist Legal Theory in the United States. Yale Journal of Law and Feminism, 31(1): 1-34.

Delgado, R. 1989. Storytelling for Oppositionists and Others: A Plea for Narrative. Michigan Law Review, 87(8): 2411-2441.

Deloria, V. 1988. Custer Died For Your Sins: An Indian Manifesto. Norman: University of Oklahoma Press.

Deloria, V. 1989. Laws Founded in Justice and Humanity: Reflections on the Content and Character of Federal Indian Law Arizona Law Review 31(2) 203-2240.

Dilorenzo, Thomas J. “Indian Genocide and Republican Power.” Consortium News, October 7, 2010. https://www.consortiumnews.com/2010/100610b.html.

Dippie, B. 1982. The Vanishing American: White Attitudes and U.S. Indian Policy. Lawrence: University of Kansas Press.

Dipple, C., Frye, D., and Leonard, B. 2020. Property Rights Without Transfer Rights: A Study of Indian Land Allotment. National Bureau of Economic Research. Working Paper 27479. https://www.nber.org/system/files/working_papers/w27479/w27479.pdf

Dolan, P. 1940. The Rise of in the Period 1830-1860. Journal of Criminal Law and Criminology, 30(3): 857-864.

Dörr, D. 2013-2014. The Background of Theory of Discovery. American Indian Law Review, 38(2): 477-499.

174

Dossett, J. 2017. New Horizons in Indian Country: Justice Gorsuch and Federal Indian Law. Magazine, American Bar Association Blog, 43(1). September 7, 2017. Last Access 3/15/2021. https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_h ome/vol--43/vol--43--no--1/justice-gorsuch-and-federal-indian-law/

Doty, W. G. 1998. We Are All Relatives: The Significance of Native American Religions. Soundings, 81(3-4): 513-551.

Driskil, Q-L. 2016. Asegi Stories: Cherokee queer and two-Spirit memory. Tucson: University of Arizona Press.

Du Bois, W.E.B. 1998 [1935]. Black Reconstruction in America: 1860-1880. New York: Free Press.

Dunbar-Ortiz, R. 2014. An Indigenous People’s History of the United States. Boston: Beacon Press.

Dussias, E. 1997. Ghost Dance and Holy Ghost: The Echoes of Nineteenth-Century Christianization Policy in Twentieth-Century Native American Free Exercise Cases. Stanford Law Review, 49(4): 773-852.

Eagle Staff, P. 2020. Settler Colonial Curriculum in Carlisle Boarding School: A Historical and Personal Qualitative Research Study. Dissertations and Theses. Paper 5549. https://pdxscholar.library.pdx.edu/open_access_etds

Echo-Hawk, W. 2010. In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided. Golden, Colorado: Fulcrum Press.

Edmonds, P., Carey, J. 2013. A New Beginning in Settler Colonial Studies. Settler Colonial Studies , 3(1): 2-5.

Eid, T., Doyle, C. 2010. Separate but Unequal: The Federal Criminal Justice System in Indian Country. University of Colorado Law Review, 81(4): 1067-1118.

Elkins, C., and Pedersin, P. 2005. Settler Colonialism in the Twentieth Century: Projects, Practices, Legacies. New York: Routledge.

Ellinghaus, K. 2009. Biological Absorption and Genocide: A Comparison of Indigenous Assimilation Policies in the United States and Australia. and Prevention 4(1): 59–79.

175

Ellinghaus, K. 2017. Blood Will Tell: Native Americans and Assimilation Policy. Lincoln: University of Nebraska Press.

Ellis, J. 2001. Walking the Trail: One Man’s Journey Along the Cherokee Trail of Tears. Lincoln: University of Nebraska Press.

Engels, F., & Marx, K., 1998. The Communist Manifesto. London: Verso Books

Enoch, J. 2002. Resisting the Script of Indian Education: Zitkala Ša and the Carlisle Indian School. College English, 65(2): 117-141.

Estes, N., and Dhillon, J. 2019. Standing with Standing Rock: Voices from the #NODAPL Movement. Minneapolis: University of Minnesota Press.

Estes, N. 2019. Our History is the Future. Brooklyn: Verso Books.

Fanon, F. 1952, 2008. Black Skin, White Masks. New York: Grove Press

Fanon, F. 1963, 2004. The Wretched of the Earth. New York: Grove Press

Fears, D. 2021. “Haaland confirmed by Senate as first Native American to lead Interior.” The Washington Post, 15, March 2021. Accessed 3/16/2021. https://www.washingtonpost.com/climate-environment/2021/03/15/haaland- interior-secretary/

Fear-Segal, J., & Rose, S. (Eds.). 2016. Carlisle Indian Industrial School: Indigenous Histories, Memories, and Reclamations. Lincoln: University of Nebraska Press.

Fellman, M. 1997. Citizen Sherman: A Life of William Sherman. Lawrence: University of Kansas Press.

Finley, C. 2011. Decolonizing the Queer Native Body (and Recovering the Native Bull- Dyke): Bringing “Sexy Back” and Out of Native Studies’ Closet. In Driskill, Q., Finley, C., Gilley, B., & Morgensen, S., (Eds) Queer Indigenous Studies: Critical Interventions in Theory, Politics and Literature: 31-42.

Fletcher, M. 2006. The Iron Cold of the Marshall Trilogy Law Review, 82(3) 627-696, 640.

Fletcher, M. 2020. Indian Lives Matter: Pandemic and Inherent Tribal Powers. Stanford Law Review Online, 73: 38-47.

176

Fletcher, M. 2020. Politics, Indian law, and the Constitution. California Law Review, 108(2): 495-556.

Fletcher, M. 2022. Forthcoming, Muskrat Textualism, Northwestern University Law Review, 115(4). https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3767096

Flynn, S. 1988. Western Assimilation: Charles H. Burke and the Burke Act [Master’s Thesis, Tech University] https://ttu-ir.tdl.org/handle/2346/9747?show=full

Fonseca, F. “Indian Country gripped by Haaland hearing for top US post.” The Washington Post, 23 February 2021. Accessed 2/27/2021. https://www.washingtonpost.com/climate-environment/deb-haaland-hearing-is- indian-countrys-obama-moment/2021/02/23/00c67184-7595-11eb-9489- 8f7dacd51e75_story.html/

Foucault, M. 1978, 1990. The History of Sexuality: An Introduction. New York: Random House.

Foucault, M. 1978-1979. The Birth of Biopolitics: Lectures at the College de France. New York: Macmillan.

Foucault, M. 1979. Discipline and Punish: The Birth of the Prison. New York: Vintage Books.

Foucault, M. 1983. The Subject of Power. In Dreyfus, H., Rabinow, P. (Eds), Michel Foucault: Beyond Structuralism and Hermeneutics (2nd edition) pp. 208-226. Chicago: University of Chicago Press.

Freccero, C., and Kim, C. 2013. Introduction: A Dialogue. American Quarterly, 65(3) Special Issue Species/Race/Sex: 461-479.

Frickey, P. 1993. Marshalling Past and Present: Colonialism, Constitutionalism, and Interpretation in Federal Indian Law. Harvard Law Review, 107(2): 381-440.

Frickey, P. 2005. (Native) American Exceptionalism in Federal Public Law. Harvard Law Review, 119(2): 433-490.

Friedman, M. 1911. Annual Report: United States Indian School Carlisle, Pennsylvania. Carlisle: The Carlisle Indian Press.

G.C. (1828, September 26). Invention of the Cherokee Alphabet, Christian Advocate & Journal & Zion’s Herald. 177

Garcia, R. 2010. Who is Hawaiian, What Begets Federal Recognition, and How Much Blood Matters? Asian-Pacific Law and Policy Journal, 11(2): 85-162

Garrison, T. 1996. The Nadir of Native American Sovereignty. Reviews in American History, 24(2): 265-270.

Garroutte, E. 2001. The Racial Formation of American Indians: Negotiating Legitimate Identities within Tribal and Federal Law. The American Indian Quarterly 25(2): 224- 239.

Gavin, L. 2006. American Women in : They Also Served. Boulder: University of Colorado Press.

Getachew, A. 2019. Worldmaking after Empire: The Rise and Fall of Self-Determination. Princeton: Princeton University Press.

Glen, E. 2015. Settler Colonialism as Structure: A Framework for Comparative Studies of U.S. Race and Gender Formation. of Race and Ethnicity 1(1) 52-72.

Goldstein, A. 2008. Where the Nation Takes Place: Property Regimes, Antistatism, and U.S. Settler Colonialism. South Atlantic Quarterly 107(4): 833-861.

Goldstein, A. 2017-2018. By Force of Expectation: Colonization, Public Lands, and the Property Relation. UCLA Law Review Discourse, 65, pp. 124-141.

Goldstein, A. 2019. Entangled Dispossessions: Race and Colonialism in the Historical Present. In N. Molina., Hosang, D., Gutiérrez, R., (Eds.), Relational Formations of Race: Theory, Method, and Practice, (pp. 60-79) Oakland: University of California Press.

Gómez, L. 2018. Manifest Destinies: The Making of Mexican American Race (2nd ed). New York: New York University Press.

Goodwin, A. 1998. Lone Wolf v. Hitchcock: Treaty Rights and Indian Law at the End of the Nineteenth Century. Western Legal History: The Journal of the Ninth Judicial Circuit Historical Society, 11(1): 97-99.

Graber, J. 2014. “If a War It May Be Called”: The Peace Policy With American Indians. Religion and American Culture: A Journal of Interpretation, 24(1): 36-69. 178

Graduation Day at Carlisle (1895, March 1). The New York Times, p. 7. Retrieved from https://timesmachine.nytimes.com/timesmachine/1895/03/01/103363067.html?p ageNumber=7

Grant, Ulysses S. 1869. First Annual Address. Retrieved from The American Presidency Project, University of California Santa Barbara. Accessed 9/26/2020 https://www.presidency.ucsb.edu/documents/first-annual-message-11

Grant, U. 1869. Inaugural Address of Ulysses S. Grant President of the United States March 4, 1869. Siam Repository,1(4): 249-250.

Green, Rayna. 1975. The Pocahontas Perplex: The Image of Indian Women in American Culture. Massachusetts Review, 16(4): 698-714.

Greenhill, Stefanie. 2020. “A White Man’s Empire: The United States Emigrant Escort Service and Settler Colonialism During The Civil War” Journal of the Civil War Era, 28 July 2020. Accessed 9/28/2020 https://www.journalofthecivilwarera.org/2020/07/a-white-mans-empire-the- united-stated-emigrant-escort-service-and-settler-colonialism-during-the-civil-war/

Grinde, D. 2004. Taking the Indian out of the Indian: U.S. Policies of Through Education. Wicazo Sa Review, 19(2):25-32.

Haaland, D. 2020. “Haaland, Warren Seek Healing for Stolen Native Children and Their Communities.” Indianz, 29 September 2020. Accessed 11/6/2020 https://www.indianz.com/News/2020/09/29/bipartisan-bill-establishes-truth-and- healing-commission-on-indian-boarding-school-policy/

Haaland, D. (2020, December 19.) Acceptance of Sec. of the Interior Nomination [Speech video recording] ABC News. https://abcnews.go.com/Politics/video/deb-haaland- accepts-nomination-1st-native-american-cabinet-74822699

Habermas, J. 1994. Struggles for Recognition in the Democratic Constitutional State. In Taylor, C., Gutmann, A. (Ed.), Multiculturism: Examining the Politics of Recognition, (pp. 107-149) Princeton: Princeton University Press.

Hagan, W. 1976. The Reservation Policy: Too Little and Too Late. In Smith, J., & Kvasnicka, R., (Eds.) Indian-White Relations: A Persistent Paradox. Washington, DC: Howard University Press.

179

Hahn, S. 2005. A Nation Under Our Feet: Black Political Struggle from Slavery to the Great Migration. Cambridge: Harvard University Press.

Halberstam, J. 2018. Trans*: A Quick and Quirky Account of Gender Variability. Oakland: University of California Press.

Hannum, H. 1990. Autonomy, Sovereignty, and Self-Determination. : University of Pennsylvania Press.

Harjo, Suzan S. 1999. The Native American Experience.” In McAdoo, H. (Ed.) Family Ethnicity: Strength in Diversity (2nd ed.) Thousand Oaks: SAGE Publications

Harris, A. 1990. Race and Essentialism in Feminist Legal Theory. Stanford Law Review. 42(3):581-616.

Harris, C. 1993. Whiteness as Property. Harvard Law Review, 106(8): 1707-1791.

Hartman, S. 2019. Wayward Lives, Beautiful Experiments: Intimates Histories of Riotous Black Girls, Troublesome Women, and Queer Radicals. New York: W. W. Norton & Company, Inc.

Hatton, Paul. 2019. “ A uniquely American tale of Native American resilience.” The Washington Post, 31 January 2019. Accessed 9/2/2019 https://www.washingtonpost.com/outlook/a-uniquely-american-tale-of-native- american-resilience/2019/01/31/f1d04056-1835-11e9-8813- cb9dec761e73_story.html

Harvey, I. 1982. Constitutional Law: Congressional Plenary Power over Indian Affairs: A Doctrine Rooted in . American Indian Law Review, 10(1): 117-150.

Hayes, C. 2017. A Colony in a Nation. New York: W.W. Norton & Company

Heden-Nicely, D.; Leeds, S. 2021. A Familiar Crossroads: McGirt v. Oklahoma and the Future of the Federal Indian Law Cannon. Law Review, 51(1). Forthcoming https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3780116

Hellenbrand, H. 1985. Not “to Destroy But to Fulfil”: Jefferson, Indians and Republican Dispensation. Eighteenth-Century Studies, 18(4): 523-549.

Hickman, C. 1997. The Devil and the One Drop Rule: Racial Categories, , and the U.S. Census. Michigan Law Review, 95(5): 1161-1265.

180

Indians In Congress: Bills Affecting Their Condition and Property. Opening A Corner of the Indian Territory—Criminal Laws For Reservations—Timber Coming Into Market—Protecting the . New York Times. April 4, 1880. Last Access March 7, 2021. Retrieved from https://timesmachine.nytimes.com/timesmachine/1880/04/05/98893655.html?pa geNumber=2

Introduction. (2016) Harvard Law Review, 129(6): 1653-1661.

Jackson, Andrew. 1830. “Speech to Congress on Indian Removal” retrieved from https://www.nps.gov/museum/tmc/manz/handouts/andrew_jackson_annual_mes sage.pdf

Jacobs, M. 2018. Seeing Like A Settler Colonial State. Modern American History, 1(2):151, 257-270.

Jacobs, R. 1991. Iroquois Great Law of Peace and the United States Constitution: How the Founding Fathers Ignored the Clan Mothers. American Indian Law Review, 16(2): 497-532.

Jalata, A. 2013. The Impacts of English Colonial Terrorism and Genocide on Indigenous/Black Australians. SAGE Open. https://doi.org/10.1177/2158244013499143

Jay, G. 2000. “White Man’s Book No Good”: D.W. Griffith and the American Indian. Cinema Journal, 39(4): 3-26.

Jennings, F. 1975. The Invasion of America: Indians, Colonialism, and the Cant of Conquest. Chapel Hill: University of North Carolina Press.

Johnson v. M’Intosh, 21 U.S. 543 (1823).

Jones, D. 1982. License for Empire: Colonialism By Treaty in Early America. Chicago: University of Chicago Press.

Kades, E. 2000. The Dark Side of Efficacy: Johnson v. M’Intosh and the expropriation of American Indian Lands. University of Pennsylvania Law Review, 148(4): 1065-1190.

Katz, C., &Smith, N. 2003. An interview with Edward Said. Environment and Planning D: Society and Space, 21: 635-651.

181

Kaur, H. “Tribal health providers have figured out the key to Covid-19 vaccine success. Here’s their secret.” CNN. Accessed 2/27/2021. https://www.cnn.com/2021/02/09/us/tribal-health-providers-covid-vaccine- trnd/index.html

Kauanui, J. 2005. Precarious Positions: Native Hawaiians and US Federal Recognition. The Contemporary Pacific, 17(1): 1-27.

Kauanui, J. 2008. Hawaiian Blood: Colonialism and the Politics of Sovereignty and Indigeneity. Durham: Duke University Press.

Kelley, R. 2000. A Poetics of Anticolonialism. In Césaire, A. Discourse on Colonialism. New York: Monthly Review Press, 7-28.

Kerber, L. 1975. The Abolitionist Perception of the Indian. The Journal of American History, 62(2): 271-295.

King, T. 2012. The Inconvenient Indian: A Curious Account of Native People in North America. Canada: Anchor Books.

Klopotek, B., Lintinger, B., & Barby, J. 2008. Ordinary and Extraordinary Trauma : Race, Indigeneity, and Hurricane Katrina in Tunica-Biloxi History. American Indian Culture and Research Journal, 32(2) : 55-77.

Laduke, W. 1999. All Our Relations: Native Struggles for Land and Life. Cambridge: South End Press.

Lake, M., Reynolds, H. 2008. Drawing the Global Colour Line: White Men’s Countries and the Question of Racial Equality. : Melbourne University Press.

Lakhani, N. 2020. “‘I’ll be fierce for all of us’: Deb Haaland on climate, Native rights and Biden.” The Guardian. 27 December, 2020. Accessed 2/27/2021. https://www.theguardian.com/environment/2020/dec/27/deb-haaland-interview- interior-secretary-native-americans

Landis, B. 2016. Death at Carlisle: Naming the Unknowns in the Cemetery. In Fear-Segal, J., Rose, S. (Eds.) Carlisle Indian Industrial School: Indigenous Histories, Memories, and Reclamations (pp. 185-197) Lincoln: University of Nebraska Press.

Landry, Alysa. 2016. “Ulysses S. Grant: Mass Genocide Through ‘Permanent Peace’ Policy.” Indian Country Today. Accessed 8/26/2020. 182

https://newsmaven.io/indiancountrytoday/archive/ulysses-s-grant-mass-genocide- through-permanent-peace-policy-Ing8OYiNuU6hw6ZgulRA9Q

Larson, R. 1978. The Invasion of America: Indians, Colonialism, and the Cant of Conquest. The Annals of , 44(3): 237-238.

Lawerence, B., & Dua, E. Decolonizing Anti-Racism. Social Justice, 32(4): 120-43.

Legg, J. 2019. White Lies, Native Revisions: The Legacy of Violence in the American West. Great Plains Quarterly 39(4): 331–40.

Littleaxe, D. 2020. Green Aspirations: Complex Issues Surrounding Marijuana Legalization in Tribal Contexts and the Discussions that Follow [Unpublished master’s thesis]. University of Oklahoma.

Locke, J. 1690, 1980. The Second Treatise On Civil Government. C.B. McPherson (Ed) Indianapolis: Hackett Publishing Company.

Lomawaima, T. 1995. They Called it Prairie Light: The Story of Chilocco Indian School. Lincoln: University of Nebraska Press.

Lomawaima, T., & Olster, J. 2018. Reconsidering : Cultural Genocide and Native Liberation in an Era of Racial Oppression. Journal of American Indian Education, 57(1): 79-100.

Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).

Love, N. 2014. “You Are Standing on the Indian”: The Settler Contract, Terra Nullius, and White Supremacy. APSA 2014 Annual Meeting Paper, 1-43. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2452609

Lowe, L. 2015. The Intimacies of Four Continents. Durham: Duke University Press.

Lowndes, J., Novkov, J., and Warren, D. Race and American Political Development. New York: Routledge Press.

Maldonando-Torres, N. 2014. Religion, Conquest, and Race in the Foundations of the Modern/ Colonial World. Journal of the American Academy of Religion 82(3) 636- 665.

183

Maldonando-Torres, N. 2016. Césaire’s Gift and the Decolonial Turn. In Elia, N., Hernández, D., Kim, J., Redmond, S., Rodríguez, D., & See, S. (Eds) Critical Ethnic Studies: A Reader. Durham: Duke University Press. 435-462.

Martínez, E. 2013. On Making Sense: Queer Race Narratives of Intelligibility. Pal Alto: Stanford University Press.

Mbembe, A. 2017. Critique of Black Reason. Durham: Duke University Press.

McDonnell, J. 1981. Competency Commissions and Indian Land Policy, 1913-1920. South Dakota State Historical Society. Retrieved from https://www.sdhspress.com/journal/south-dakota-history-11-1/competency- commissions-and-indian-land-policy-1913-1920/vol-11-no-1-competency- commissions-and-indian-land-policy-1913-1920.pdf

McGirt v. Oklahoma, 140 S. Ct. 2452 (2020).

Mcgregor, D. 2017.Recognizing Native Hawaiians: Reality Bites. In Negrón-Muntaner, F (Ed.) Sovereign Acts: Contesting Colonialism Across Indigenous Nations and Latinx America. Tucson: University of Arizona Press. 125- 150.

Mckinney, T. 2006. Race and Federal Recognition in Native New England. In Miles, T., & Holland, S., (Eds) Crossing Waters, Crossing Worlds: The African Diaspora in Indian Country. Durham: Duke University Press. 57-79.

McLoughlin, W. 1974. Red Indians, Black Slavery and White Racism: America’s Slaveholding Indians. American Quarterly, 26(4):370, 367-385.

Melamed, J. 2011. Represent and Destroy: Rationalizing Violence in the New Racial Capitalism. Minneapolis: University of Minnesota Press.

Melamed, J. 2015. Racial Capitalism. Critical Ethnic Studies, 1(1):76-85.

Memmi, A. 2003. The Colonizer and the Colonized. 4th ed. New York: Routledge Press.

Merry, S. 2000. Colonizing Hawai’i: The Cultural Power of Law. New Jersey: Princeton University Press.

Miller, R. 2008. Native America, Discovered and Conquered: Thomas Jefferson, Lewis and Clark, and Manifest Destiny. Lincoln: University of Nebraska Press.

184

Miller, R. 2011. American Indians, the Doctrine of Discovery, and Manifest Destiny. Law Review, 11(2): 329-350.

Mills, C. 1998. The Racial Contract. Ithica: Cornell University Press.

Molina, N., Hosang, D., Gutiérrez, R. 2019. Relational Formations of Race: Theory, Method, and Practice. Oakland: University of California Press.

Momaday, S. 2016. The Stones at Carlisle. In Fear-Segal, J., Rose, S. (Eds.) Carlisle Indian Industrial School: Indigenous Histories, Memories, & Reclamations. Lincoln: University of Nebraska Press. 43-53.

Morrison, D. American Indian Studies: An Interdisciplinary Approach to Contemporary Issues. New York City: Lang.

Morton v. Mancari, 417 U.S. 535.

Morton, L. 1962. How the Indians Came to Carlisle. Pennsylvania History: A Journal of Mid-Atlantic Studies, 29(1): 53-73.

Nagel, M. 2011. Standing Bear v. crook: The case for equality under waxxe’s law. Creighton Law Review, 45(3): 455-502.

Navarro-Rivera, P. 2006. Acculturation Under Duress: The Puerto Rican Experience at the Carlisle Indian Industrial School 1898-1918. CENTRO Journal, 18(1):225, 223- 259.

Negrón-Muntaner, F. 2017. Introduction. Sovereign Acts: Contesting Colonialism Across Indigenous Nations and Latinx America. Tucson: University of Arizona Press. 3-36.

Nelson, Megan. 2020. “Today’s Republicans Are Like Lincoln in Only One Way” New York Times Opinion. 13 February 2020. Last accessed 10/20/2020 https://www.nytimes.com/2020/02/13/opinion/abraham-lincoln-native- americans.html

Nelson, M. 2020. The Three-Cornered War: The Union, the Confederacy, and Native Peoples in the Fight for the West. New York City: Scribner Books.

Nichols, R. 2013. Indigeneity and the Settler Contract Today. Philosophy and Social Criticism, 39(2):165-186.

185

Niezen, R. 2013. Truth & Indignation: Canada’s Truth and Reconciliation on Indian Residential Schools. Toronto: University of Toronto Press.

O’Brien, S. 1989. American Indian Tribal Governments. Norman: University of Oklahoma Press.

O’Brien, S. 1991. Tribes and Indians: With Whom Does the United States Maintain a Relationship. Notre Dame Law Review, 66(5): 1461-1494.

Oakley, K. 2010. Defining Indian Status for the Purpose of Federal Criminal Jurisdiction. American Indian Law Review, 35(1): 177-210.

Omi, M., & Wiant, H. 1994. Racial Formation in the United States: From the 1960s to the . New York: Rutledge.

Omi, M., & Wiant, H. 2015. Racial Formation in the United States: From the 1960s to the 1990s (3rd edition). New York: Rutledge.

Ortiz, E. 2020. Dispute over South Dakota tribal checkpoints escalates after Gov. Kristi Noem seeks federal help. NBC News. 21 May 2020. Last Access March 8, 2021. https://www.nbcnews.com/news/us-news/dispute-over-south-dakota-tribal- checkpoints-escalates-after-gov-kristi-n1212161

Olster, J. 2004. The Plains Sioux and U.S. Colonialism from Lewis and Clark to Wounded Knee. New York: Cambridge University Press.

Ostler, J. 2010. The Lakotas and the Black Hills: The Struggle for Sacred Ground. New York: Penguin Books.

Ostler, J. 2019. Surviving Genocide: Native Nations and the United States from the to . New Haven: Yale University Press.

Ostler, Jeffrey. 2020. “The Shameful Final Grievance of the Declaration of Independence” The Atlantic Magazine, 8 February 2020. Last accessed 10/13/2020 https://www.theatlantic.com/ideas/archive/2020/02/americas-twofold-original- sin/606163/

Pagden, A. 1995. Lords of All the World: Ideologies of Empire in Spain, Britain, and France 1500-1800. New Haven: Yale University Press.

Pajer-Rogers, I. 2005. The Politics of Survival: Indian and European Collaboration in Colonial North America. Inquiry Journal. 9. https://scholars.unh.edu/inquiry_2005/9 186

Parker, E. 1869. Report of the Board of Indian Commissioners, November 23, 1869. In Prucha, F., (Ed) Documents of United States Indian Policy (pp. 130-133). Lincoln: University of Nebraska Press.

Parker, E. 1869, 2000. Annual Report of the Commissioner of Indian Affairs, December 23, 1869. In Prucha, F., (Ed) Documents of United States Indian Policy (pp. 133-134). Lincoln: University of Nebraska Press.

Parman, D. 1994. Indians and the American West in the Twentieth Century. Bloomington: Indiana University Press.

Paschal, R. 1991. The Imprimatur of Recognition: American Indian Tribes and the Federal Acknowledgement Process. Washington Law Review, 66(1): 209-228.

Pasternak, S. 2013 On jurisdiction and settler colonialism: The Algonquins of Barriere Lake against the Federal Land Claims Policy. Doctoral dissertation, Department of Geography, University of Toronto.

Pateman, C. 2017. The Settler Contract. In Pateman, C., & Mils, C., (Eds.) Contract & Domination (pp. 44-78). Cambridge, UK: Polity Press.

Patterson, O. 1982. Slavery and Social Death: A Comparative Study. Cambridge: Harvard University Press.

Pevar, S. 2012. The Rights of Indians and Tribes. Fourth. New York City: Oxford University Press.

Phelan, P. 1993. Unmarked: The Politics of Performance. London: Routledge Press.

Piaote, B. 2013. Domestic Subjects: Gender, Citizenship and Law in Native American Literature. New Haven: Yale University Press.

Pino, L. 2020. Colonizing History: Rice v. Cayetano and the Fight for Native Hawaiian Self- Determination. The Yale Law Journal, 129(8): 2574-2605.

Pommersheim, F. 1989. Reservation as Place: A South Dakota Essay. South Dakota Law Review, 34(2): 246-270.

Pommersheim, F. 1995. Braid of Feathers: American Indian Law and Contemporary Tribal Life. Berkeley: University of California Press.

187

Pommersheim, F. 2004. Lara: A Constitutional Crisis in Indian Law. American Indian Law Review, 28(2): 299-306.

Prakash, S. 2004. Against Tribal Fungibility. Cornell Law Review 89(5):1097, 1069-1120.

Pratt, R. 1880. First Annual Report of the Indian School, Carlisle Barracks. Carlisle.

Pratt, R. (1990, May 12) [Telegram to Commissioner of Indian Affairs] National Archives and Records Administration. (RG 75, Entry 91, box 1785, 1900-#23414), Washington, DC. http://carlisleindian.dickinson.edu/documents/pratt-informs- office-efforts-recruit-klamath-agency

Pratt, R. (1900, August 29) [Telegram to S.L. Driven] National Archives and Records Administration. (RG 75, Series 1323) Washington, DC. http://carlisleindian.dickinson.edu/lists/letters-sent-aug-28-sep-25-1900

Pratt, R. (1900, August 31) [Telegram to the Commissioner of Indian Affairs] National Archives and Records Administration (RG 75, Series 1323) Washington, DC. http://carlisleindian.dickinson.edu/lists/letters-sent-aug-28-sep-25-1900

Pratt, R. (1900, August 31) [Telegram to O.A. Mitscher] National Archives and Records Administration (RG 75, Series 1323) Washington, DC. http://carlisleindian.dickinson.edu/lists/letters-sent-aug-28-sep-25-1900

Pratt, R. (1900, September 4) [Telegram to William Guiamma] National Archives and Records Administration (RG 75, Series 1323) Washington, DC. http://carlisleindian.dickinson.edu/lists/letters-sent-aug-28-sep-25-1900

Pratt, R. (1900, September 5) [Telegram to Jean Aukrom] National Archives and Records Administration (RG 75, Series 1323) Washington, DC. http://carlisleindian.dickinson.edu/lists/letters-sent-aug-28-sep-25-1900

Prentice, C. 2005. The corporeality of colonial experience. Journal of Literature 23(2): 109-118.

Prestage, E. 1933, 2007. The Portuguese Pioneers. Edinburgh: Johnston Press.

Prucha, F. 1986. The Great Father: The United States Government and the American Indians. Lincoln: University of Nebraska Press.

Prucha, F. 2000. Documents of United States Indian Policy (3rd Ed.). Lincoln: University of Nebraska Press. 188

Rasband, J. 2001. The Rise of Urban Archipelagoes in the American West: New Reservation Policy? , 31(1): 1-94.

Read, P. 1981. : The Removal of Aboriginal Children in New South Wales, 1883-1969. Surrey Hills: New South Wales Department of Aboriginal Affairs.

Rice v. Cayetano, 528 U.S. 495 (2000).

Riding In, J. 1992. Without Ethics and Morality: A Historical Overview of Imperial Archaeology and American Indians. Arizona State Law Journal, 24(1): 11-34.

Rifkin, M. 2009. Indigenizing Agamben: Rethinking Sovereignty in Light of the “Peculiar” Status of Native Peoples. Cultural Critique, 73(1):88-124.

Riley, A. 2007. (Tribal) Sovereignty and Illiberalism. California Law Review, 95(3): 799- 848.

Riley, A. 2011. The Apex of Congress’ Plenary Power Over Indians Affairs: The Story of Lone Wolf v. Hitchcock. In Goldber, C., Washbur, K., and Frickey, P (Eds) Indian Law Stories. New York: Foundation Press, 189-228.

Riley, A. 2017. Native Nations and the Constitution: An Inquiry Into Extra- Constitutionally. Harvard Law Review, 130(6): 173-199.

Riley, S. G. (1976). The Cherokee Phoenix: The Short, Unhappy Life of the First American Indian Newspaper. Journalism Quarterly, 53(4), 666–671.

Rivers, D. 2020. Grizzly Country: Settler Worlding and the Politics of Species on the California Frontier. American Quarterly, 72(2): 351-376.

Roberts, D. 2019. Abolition Constitutionalism. Harvard Law Review 133(1): 1, 52.

Roberts, M. 1995. Jefferson’s quest for a virtuous republic: the political economics of Indian removal [Master’s thesis, San Jose State University]. San Jose State University ScholarWorks. https://scholarworks.sjsu.edu/etd_theses/1177?utm_source=scholarworks.sjsu.ed u%2Fetd_theses%2F1177&utm_medium=PDF&utm_campaign=PDFCoverPages

Robertson, L. 2014. Lecture 8: State Criminal Jurisdiction, Part 2. Criminal Jurisdiction in Indian Country Video Lecture Series, Norman: University of Oklahoma College of Law. 189

Robinson, C. 1983. Black Marxism: The Making of the Black Radical Tradition. London: Zed Press.

Roche, G. 2019. Articulating language oppression: colonialism, coloniality and the erasure of ’s minority languages. Patterns of Prejudice, 53(5): 487-514.

Rodríguez, J. 2003. Queer Latinidad: Identity, Practices, Discursive Spaces. New York: New York University Press.

Rodríguez, D. 2020. White Reconstruction: Domestic Warfare and the Logics of Genocide. New York: Fordham University Press.

Roediger, D. 2008. How Race Survived U.S. History: From Settlement and Slavery to the Eclipse of Post-Racialism. New York: Verso Books.

Roessel, F. 1989. Federal Recognition—A Historical Twist of Faith. Native American Rights Fund Legal Review. 14(3): 1-15.

Roosevelt, T. 1901. State of the Union Address. December 3, 1901. Indigenous Knowledge Commons. Last visited January 15, 2021. http://indigenousknowledge.org/discussion/native-conversations/big-question-1- does-tribalism-have-a-valid-role-in-modern-life/post/teddy-roosevelt/

Round, P. 2015. America’s Indigenous Reading Revolution. In S. Sleeper-Smith, J. Barr, J.M. O’Brien, N. Shoemaker, & S. M. Stevens (Eds.), Why You Can’t Teach United States History without American Indians. Chapel Hill: University of North Carolina Press. [VitalSource Bookshelf]. Retrieved from https://bookshelf.vitalsource.com/#/books/9781469621210/

Royster, J. 1995. The Legacy of Allotment. Arizona State Law Journal, 27(1): 1-78.

Said, E. 1978. Orientalism. 1st ed. New York: Pantheon Books.

Satre, J. 1948, 1964. Black Orpheus. The Massachusetts Review, 6(1): 13-52.

Schaaf, G. 1988. From the Great Law of Peace to the Constitution of the United States: A Revision of America’s Democratic Roots. American Indian Law Review, 14(2): 323- 331.

Scudder et al,. 1982. No Place To Go: Effects of Compulsory Relocation on . Philadelphia: Institute for the Study of Human Issues. 190

Sebastian, J. 2018. Already Something More: Heteropatriarchy and the Limitations of Rights, Inclusion and the Universal. Abolition Journal Blog. https://abolitionjournal.org/already-something-more/

Seifert, J. 2004. The Myth of Johnson v. M’Intosh, UCLA Law Review, 52(1): 288-332.

Sexton, J. 2020. The Vel of Slavery: Tracking the Figure of the Unsovereign. In King, T., Navarro, J., Smith, A (Eds) Otherwise Worlds: Against Settler Colonialism and Anti- Blackness, (pp. 94-117). Durham: Duke University Press.

Shoemaker, J. 2003. Like Snow in the Springtime: Allotment, Fractionation, and the Indian Land Tenure Problem. Law Review, (4): 729-788.

Silverman, D. 2019. This Land is Their Land: The Wampanoag Indians, Plymouth Colony, and the Troubled History of Thanksgiving. London: Bloomsbury Publishing.

Skibine, A. 2017. Indians, Race, and Criminal Jurisdiction in Indian Country. Albany Government Law Review, 10: 49-87.

Skinner, R. 1996. Review of Lone Wolf v. Hitchcock: Treaty Rights and Indian Law at the End of the Nineteenth Century by Blue Clark. Great Plaines Quarterly, 1141.

Singer, J. 2018. Indian Nations and the Constitution. Maine Law Review, 70(2): 199-210.

Smith, A. 2003. Not an Indian Nation: The Sexual Colonization of Native Peoples. Hypatia 18(2): 70-85.

Smith, A. 2004. Boarding School Abuses, Human Rights and Reparations. Social Justice 31(4):89, 90.

Smith, A. 2005. Conquest: Sexual Violence and American Indian Genocide. Durham: Duke University Press.

Smith, A. 2010. Queer Theory and Native Studies: The Heteronormativity of Settler Colonialism. GLQ: A Journal of Lesbian and Gay Studies, 16(1-2):42-68.

Smith, A. 2012. Indigeneity, Settler Colonialism, White Supremacy. In HoSang, D., LaBennett, O., Pulido, L. (Eds) Racial Formation in the Twenty-First Century (pp. 66- 90). Berkeley: University of California Press.

191

Smith, A. 2016. Queer Theory and Native Studies: The Heteronormativity of Settler Colonialism. n Driskill, Q., Finley, C., Gilley, B., & Morgensen, S., (Eds) Queer Indigenous Studies: Critical Interventions in Theory, Politics and Literature: 43-65.

Smith, A. 2020. Sovereignty as Deferred Genocide. In King, T., Navarro, J., Smith, A (Eds) Otherwise Worlds: Against Settler Colonialism and Anti-Blackness, (pp. 118-132). Durham: Duke University Press.

Smith, Matthew. 2016. “Settler Colonialism and U.S. Home Missions” in Oxford Research Encyclopedia of Religion. Retrieved 28 May. 2020, from https://oxfordre.com/religion/view/10.1093/acrefore/9780199340378.001.0001/a crefore-9780199340378-e-39

Smith, R. 1997. Civic Ideals: Conflicting Visions of Citizenship in U.S. History. New Haven: Yale University Press.

Smith, T. 2015. “The Most Destitute” People in Indian Territory: The Wichita Agency Tribes and the Civil War. In B. Clappit (Ed.), The Civil War and Reconstruction in Indian Territory. Lincoln: University of Nebraska Press.

Smithers, G. 2015. The Cherokee Diaspora: An Indigenous History of Migration, Resettlement, and Identity. New Haven: Yale University Press.

Snelgrove, C., Dahmoon, R, K., Corntassell, J., 2014. Unsettling settler colonialism: The discourse and politics of settlers, and solidarity with Indigenous nations. Decolonization: Indigeneity, Education & Society 3(2) 1-32.

Solnit, R. 2021. “John Muir in Native America” Sierra Magazine. 2 March 2021. Accessed 3/5/2021. https://www.sierraclub.org/sierra/2021-2-march-april/feature/john- muir-native-america

Song, S. 2017. Bridging Epidermalization of Black Inferiority and the Racial Epidermal Schema: Internalizing Oppression to the Level of Possibilities. DiGest. Journal of Diversity and Gender Studies, 4(1): 49-61.

Standing, AJ. (1900, August 29) [Telegram to Gus H. Beaulieu] National Archives and Records Administration (RG 75, Series 1323), Washington, DC. http://carlisleindian.dickinson.edu/lists/letters-sent-aug-28-sep-25-1900

Standing Bear, Luther. 1882 School News.

192

Standing Bear, L. 1933. Land of the Spotted Eagle. Cambridge, MA. Riverside Press. Reprint, Lincoln: University of Nebraska Press, 1978, 2006.

Starr, K. 2005. California: A History. New York: Modern Library Publishing.

Statsiulis, D., Yuval-Davis, N., 1995. Introduction: Beyond Dichotomies—Gender, Race, Ethnicity and Class in Settler-Societies. In D. Statsiulis, & N. Yuval-Davis (Eds.), Unsettling Settler Societies: Articulations of Gender, Race, Ethnicity and Class, (pp. 1-38) London: Sage Publications.

Stein, I. 2016. Lift the Red, Stay the Black: The Public and Private Economies of Race Ideas at the Carlisle Indian School, 1879-1904. Chicago Journal of History, 7(1): 69- 89.

Sterling, E. 1964. Temporizing, Transitional Compromise: The System on the North Central Plains. The Magazine of Western History 14(2): 92- 100.

Stremlau, R. 2005. “To Domesticate and Civilize Wild Indians”: Allotment and the Campaign to Reform Indian Families, 1875-1887. Journal of Family History, 30(3): 265-286.

Strickland, R. 1986. Genocide-at-Law: An Historic and Contemporary View of the Native American Experience. University of Kansas Law Review, 34(4): 713-756.

Sullivan, L. 1994. Song and Dance: Native American Religions and American History. Religion and American Culture: A Journal of Interpretation, 4(2): 255-273.

Summit, A. 2012. Sequoyah and the Invention of the Cherokee Alphabet. Santa Barbara: Greenwood Publications.

Tadiar, N. 2016. Decolonization, “Race,” and Remaindered Life under Empire. In Elia, N., Hernández, D., Kim, J., Redmond, S., Rodríguez, D., & See, S. (Eds) Critical Ethnic Studies: A Reader. Durham: Duke University Press. 395-415.

Tantonetti, L. 2018. The Indigenous Erotics of Riding Bareback, or, the West Has Always Been Queer. Western America Literature, 53(1): 1-10.

Taylor, C. 1994. “The Politics of Recognition” in Multiculturalism: Examining the Politics of Recognition. Guttman, Amy (Ed.) Princeton: Princeton University Press.

193

Temin, D. 2017. Custer’s Sins: Vine Deloria Jr. and the Settler-Colonial Politics of Civic Inclusion, Political Theory, 00(0): 1-23.

Temin, D. 2019. “Nothing much had happened”: Settler colonialism in Hannah Arendt, European Journal of Political Theory, 0(0): 1-25.

Tinker, G. 2004. “Tracing a Contour of Colonialism: American Indians and the Trajectory of Educational ” in Kill the Indian, Save the Man: The Genocidal Impact of American Indian Residential Schools. Churchill, Ward. San Francisco: City Lights Books.

Tocqueville, A. 2002. Democracy In America (H.C. Mansfield, D. Winthrop, Eds.). Chicago: University of Chicago Press. (Original work published 1838).

Trahant, M. 2021.”31 billion coronavirus solutions" Indian Country Today. 10 March 2021. Accessed 4/1/2021. https://indiancountrytoday.com/news/31-billion- coronavirus-solutions

Trennert, R. 1982. Educating Indian Girls at Nonreservation Boarding Schools, 1878- 1920. Western Historical Quarterly, 13(3): 271-290.

Trennert, R. 1983. From Carlisle to Phoenix: The Rise and Fall of the Indian Outing System, 1878-1930. Pacific Historical Review, 52(3): 267-291.

Trennert, R. 1988. The Phoenix Indian School: Forced Assimilation in Arizona, 1891-1935. Norman: University of Oklahoma Press.

Treuer, A. 2012. Everything You Wanted to Know about Indians But Were Afraid to Ask. St. Paul: Minnesota Historical Society Press.

Treuer, A. 2020. The Language Warrior’s Manifesto: How to Keep Our Languages Alive No Matter the Odds. St. Paul: Minnesota Historical Society Press.

Treuer, D. 2019. The Heartbeat of Wounded Knee: Native America from 1890 to the Present. New York: Penguin.

Tribes Can Prohibit Abortions in Indian Country (February 10, 2021) Harvard Law Review, 134(4): 1477-1498.

Treglia, G. 2013. The Consistency and Inconsistency of Cultural Oppression: American Indian Dance Bans, 1900-1933. Western Historical Quarterly, 44(2): 145-166.

194

Tsosie, R. 1996. Tribal Environmental Policy in an Era of Self-Determination: The Role of Ethics, Economics, and Traditional Ecological Knowledge. Vermont Law Review, 21(1): 225-334.

Turner, F. 1893, 2014. The Significance of the Frontier in American History. Eastford: Martino Fine Books.

Upadhyay, N. 2019. “Can you get more American than Native American?”:drag and settler colonialism in RuPaul’s Drag Race. Cultural Studies, 33(3): 480-501.

U.S. v. Lara, 541 U.S. 193 (2004).

U.S. v. Antelope, 430 U.S. 641 (1977).

Van Dyke, J. 1998. The Political Status of Hawaiian People. Yale Law and Policy Review, 17(1):95-147.

Vattel, E., Kapposy, R., Whatmore, R (Eds.) 1758, 2008. The Law of Nations. Indianapolis: The Liberty Fund.

Vasquez-Tokos, J. 2021.The racialization of privacy: racial formation as a family affair. Theory and Society: Renewal and Critique in Social Theory: 1-24.

Veracini, L. 2010. Settler Colonialism: A Theoretical Overview. New York: Palgrave Macmillan.

Veracini, L. 2010. The Imagined Geographies of Settler Colonialism. In Mar, T., & Edmonds, P (Eds.), Making Settler Colonial Space: Perspectives on Race, Place, and Identity, 179-197. New York: Palgrave Macmillan.

Veracini, L. 2011. Introducing. Settler Colonial Studies, 1(1): 1-12

Villanueva, E. 2018. Decolonizing Wealth: Indigenous Wisdom to Heal Divides and Restore Balance. Oakland: Berrett-Koehler Publishers.

Waddell, L. 1995. Defending the Long Perimeter: Forts on the Pennsylvania, Maryland, and Virginia Frontier, 1755-1765. Pennsylvania History: A Journal of Mid-Atlantic Studies, 62(2) 171-195.

Walker, D. 1991. Protection of American Indian Sacred Geography. In Versey, C. (Ed) Handbook of American Indian Religious Freedom. Spring Valley: Crossroad Publishing pp. 101-115. 195

Wald, P. 1992. Terms of Assimilation: Legislating Subjectivity in the Emerging Nation. boundary 2 19(3): 77–104.

Wardell, M. 1938. A Political History of the Cherokee Nation: 1838-1907. Norman: University of Oklahoma Press.

Waltman, H. 1971. Circumstantial Reformer: President Grant & the Indian Problem. Arizona and the West, 13(4): 323-342.

Weisman, B. 2007. , Resistance, and Ethnogenesis of the Florida Seminole Indian Identity. Historical Archaeology, 41(4): 198-212.

Wenger, T. 2011. Indian Dances and the Politics of Religious Freedom, 1870-1930. Journal of American Academy of Religion, 79(4): 850-878.

What to Do With Indians (editorial) 1881. November 18, 1881. Chicago Tribune. Last Access March 7, 2021. Retrieved from https://chicagotribune.newspapers.com/search/#query=what+to+do+with+indians &ymd=1881-11-18

White, R. 2011. Railroaded: Transcontinentals and the Making of Modern America. New York: W.W. Norton & Company, Inc.

Whitehead, A. 1925, 1997. Science and the Modern World. New York: Free Press

Wilderson III, F. Afropessimism. New York: W. W. Norton & Company.

Wildenthal, B. 2002. Fighting the Lone Wolf Mentality: Twenty-first Century Reflections on the Paradoxical State of American Indian Law. Tulsa Law Review, 38(1): 113-146.

Wilkins, D. 1998. Quit-Claiming the Doctrine of Discovery: A Treaty-Based Reappraisal, University Law Review,23(2):277-316.

Wilkins, D. 2002. American Indian Politics and the American Political System. Lanham, MD: Rowman and Littlefield Publishers, Inc.

Williams, P. 1992. Alchemy of Race and Rights: Diary of a Law Professor. Cambridge: Harvard University Press.

Williams, Jr. R. 2005. Like A Loaded Weapon: The Rehnquist Court, Indian Rights, and the Legal History of Racism in America. Minneapolis: University of Minnesota Press. 196

Wolfe, P. 2001. Land, Labor, and Difference: Elementary Structures of Race. American Historical Review, 106(3): 866.905.

Wolfe, P. 2006. Settler Colonialism and the Elimination of the Native. Journal of Genocide Research, 8(4): 387-409.

Wolfe, P. 2012. Against the Intentional Fallacy: Legocentricism and Continuity in the Rhetoric of Indian Dispossession. American Indian Culture and Research Journal, 36(1): 3-45.

Wolfe, P. 2013. Recuperating Binarism: A Heretical Introduction. Settler Colonial Studies, 3(3-4): 257-279.

Worcester v. Georgia, 31 U.S. 515 (1832).

Wunder, J. 1994. “Retained by the People”: A History of American Indians and the Bill of Rights. New York: Oxford University Press.

Young, M. 1958. “Indian Removal and Land Allotment: The Civilized Tribes and Jacksonian Justice.” The American Historical Review 64(1): 31-45.

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