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Beyond Reparations: an American Indian Theory of Justice

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OHIO STATE LAW JOURNAL VOLUME 66, NUMBER 1, 2005 Beyond Reparations: An American Indian Theory of Justice WILLIAM BRADFORD* It is perhaps impossible to overstate the magnitude of the human injustice perpetrated againstAmerican Indianpeople: indeed,the severity and duration of the harms endured by the original inhabitants of the US. may well rival those suffered by any other group past or present, domestic or international. While financialreparations for certainpast transgressionsmay be appropriateto some groups and situations, the historical and ongoing injustices committed against Indians living within the US. cannot be adequately understood in material terms. Although in recent decades various models of justice have been proposed in respect of a series of gross human injustices, incomplete and even erroneous understandingsof the nature of Indian claims and an overly narrow conception of the potential parameters of remedial justice render these approachesineffectual. This Article presents a alternative theory of justice, termed "Justice as Indigenism" (JAI). As applied JAI commits its practitioners to a sequential process consisting of seven distinct stages: acknowledgment, apology, peacemaking, commemoration, compensation, land restoration, legal reformation, and reconciliation. JAI advances the frontiers of thinking about justice on behalf of Indians in that its normative mission is not the award of materialcompensation or the attribution of blame but ratherthe ultimate healing of the American and Indian nations and the joint authorship of a peaceful and harmoniousfuture. TABLE OF CONTENTS I. INTRODUCTION ......................................................................................... 3 II. The Indian Claim for Redress ................................................................ 8 A. Genocide: "The Metaphysics of Indian-Hating"........................ 8 1. Conquest................................................................................... 8 2. Slavery ..................................................................................... 10 * Chincahua Apache and Associate Professor of Law, Indiana University School of Law, Indianapolis, Indiana. The Author would like to thank Rob Porter, Joe Singer, Rob Williams, and George Wright for reading and commenting on earlier drafts. 2 OHIO STATE LAWJOURNAL [Vol. 66:1 3. Ethnic Cleansing..................................................................... 10 B. Land Theft .................................................................................... 13 1. Fraudand Firewater............................................................. 15 2. Conquest by Fiction: Johnson v. M'Intosh ........................... 17 3. Trust Doctrine: Cherokee Nation v. Georgia ........................ 19 4. PlenaryPower: Worcester v. Georgia ................................. 21 5. Allotment to Present............................................................... 24 C. Ethnocide ..................................................................................... 27 1. CulturalLiquidation ............................................................... 28 a. "Kill the Indian to Save the Man ".................................. 28 b. American Crusade:Eradication of Indian Religion .......... 29 2. Suppression ofIndian Self-Government ......... 6..................... 32 a. Legal Imperialism............................................................. 32 b. PoliticalDomination ........................................................ 38 c. EthnodevelopmentalSuppression ................................... 40 3. ForcedAssimilation ............................................................... 46 a. Termination....................................................................... 47 b. Relocation ......................................................................... 49 D. Summary: The Claimfor Indian Redress ................................... 50 IMl. THE INDIAN CLAIM FOR REDRESS: EXISTING THEORIES OF JUSTICE .... 52 A. Justice as Supersession............................................................... 52 B. Justice as Compensation............................................................. 57 C. Justice as Restoration.................................................................. 59 D. Analysis ........................................................................................ 62 IV. JUSTICE AS INDIGENISM: AN AMERICAN INDIAN THEORY OF JUSTICE. 69 A. General TheoreticalPremises ..................................................... 69 B. JAIApplied: The Redress oflndian Claimsfor Genocide, Ethnocide, andLand Expropriation.............................................. 72 1. Acknowledgement: The American IndianReconciliation Commission.............................................................................. 72 2. Apologies ................................................................................ 74 3. Peacemaking......................................................................... 75 a. CulturalHermeneutics ..................................................... 75 b. TribalPeacemaking (TPM)............................................. 77 4. Commemoration .................................................................... 81 5. Compensation ......................................................................... 83 6. Land Restoration .................................................................... 84 7. Legal Reformation ................................................................. 90 a. Indian Self-Determination.............................................. 91 2005] BEYOND REPARATIONS b. Omnibus Indian Rights Act .....................94 c. ConstitutionalAmendments ............................................98 8. R econciliation........................................................................... 100 V . C ONCLUSION ........................................................................................ 102 I. INTRODUCTION "Although wrongs have been done me I live in hopes."' The number of states, corporations, and religious groups formally disowning past records of egregious human injustice is mushrooming. 2 Although the Age of Apology3 is a global phenomenon, the question of reparations-a tort-based mode of redress whereby a wrongdoing group accepts legal responsibility and compensates victims for the damage it inflicted upon them4-ikely consumes more energy, emotion, and resources in the U.S. than in any other jurisdiction. Since the final year of the Cold War, the U.S. and its political subdivisions have apologized or paid compensation to Japanese-American internees, 5 native Hawaiians, 6 civilians killed in the Korean War,7 and African-American victims of 1 Black Kettle, Cheyenne, after the massacre of hundreds of Cheyenne by the U.S. Army at Sand Creek, Colorado, in 1864 at http://www.pbs.org/weta/thewest/progran/episodes/four/whois.htin (last visited Mar. 9, 2005). 2See William Bradford, " With a Very Great Blame on Our Hearts": Reparations, Reconciliation, and an American Indian Pleafor Peace with Justice, 27 AM. INDIAN L. REV. 1, 5-9 (2002/2003) (chronicling the global history of reparations). 3See WHEN SORRY ISN'T ENOUGH: THE CONTROVERSY OVER APOLOGIES AND REPARATIONS FOR HUMAN INJUSTICE 3 (Roy L. Brooks ed., 1999) (coining the phrase). 4 Reparations is a mode of redress "where a guilty party makes up for an injustice by paying or otherwise benefiting a victim." Samuel C. Wheeler III, Reparations Reconstructed, 34 AM. PHIL. Q. 301,301 (1997). 5In 1942 all persons of Japanese ancestry resident in designated military exclusion zones in the Western U.S. were relocated to internment camps. See Korematsu v. United States, 323 U.S. 214,218-23 (1944) (upholding internment based on "the judgment of the military ...that there were disloyal members of [the Japanese American] population"). In 1988 the Civil Liberties Act finally granted each individual who was relocated, interned, or deprived of property $20,000 and an apology from President Bush. Pub. L. No. 100-383, 102 Stat. 903 (1988) (codified as amended at 50 U.S.C. app. 1989(2)&b-4(i) (1988 & Supp. V. 1993)). 6 See Joint Resolution to Acknowledge the 100th Anniversary of the January 17, 1893 Overthrow of the Kindgom of Hawaii, Pub. L. 103-150, 107 Stat. 1510, 1513 (1993) (apologizing for the U.S. role in the forcible overthrow of the Hawaiian monarchy). 7 Richard Pyle, US. Commanders Told Troops to Shoot Korean Civilians, MILW. SENTINEL, Nov. 25,2001. OHIO STATE LA WJOURNVAL [Vol. 66:1 medical experiments, 8 racial violence,9 and lending discrimination.10 A barrage of lawsuits demanding reparations from slavery profiteers is on the dockets of several courts, and more are expected."I In the U.S., circa 2004, reparations is the topic not only of litigation but legislative proposals, academic and popular articles, news editorials, town hall meetings, campus demonstrations, television programs, office water cooler debates, dinner table conversations, and cyberchat groups. If reparations is not a uniquely American remedy, it is no stretch to say that in the U.S. "reparations talk' 12 is very much with us. The phrase "reparations talk" is an understatement. "Reparations debate" better describes current social discourse over what to do about gross historical injustices. Although advocates maintain that reparations is the first step in recovering history and fashioning a more equitable collective future, critics describe a divisive and retrospective 13 movement threatening to widen racial
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