American Indian Law Review Volume 27 | Number 1 1-1-2002 "With a Very Great Blame on Our Hearts": Reparations, Reconciliation, and an American Indian Plea for Peace and Justice William Bradford Follow this and additional works at: https://digitalcommons.law.ou.edu/ailr Part of the Indian and Aboriginal Law Commons, and the Legal Remedies Commons Recommended Citation William Bradford, "With a Very Great Blame on Our Hearts": Reparations, Reconciliation, and an American Indian Plea for Peace and Justice, 27 Am. Indian L. Rev. 1 (2002), https://digitalcommons.law.ou.edu/ailr/vol27/iss1/1 This Article is brought to you for free and open access by University of Oklahoma College of Law Digital Commons. It has been accepted for inclusion in American Indian Law Review by an authorized editor of University of Oklahoma College of Law Digital Commons. For more information, please contact [email protected]. "WITH A VERY GREAT BLAME ON OUR HEARTS":' REPARATIONS, RECONCILIATION, AND AN AMERICAN INDIAN PLEA FOR PEACE WITH JUSTICE William Bradford I.Introduction In a post-September 1lth era riven by ethno-nationalism, territorial revanchism, and religious terror, the United States has assumed the mantle of leadership in articulating the moral, political, and legal norms that will inform reconstruction of global security architecture.2 Defense of human rights,3 whether motivated by its contribution to the calculus of national 1. The Lakota Indian, "American Horse," commented on the December 29, 1890, Massacre at Wounded Knee where U.S. Army troops of the 7th Cavalry slaughtered over 300 peaceful Indian women and children after a fruitless search for weapons in their encampment: The women as they were fleeing with their babes were killed together, shot right through, and the women who were very heavy with child were also killed. All the Indians fled in these three directions, and after most all of them had been killed a cry was made that all those who were not killed or wounded should come forth and they would be safe. Little boys who were not wounded came out of their places of refuge, and as soon as they came in sight a number of soldiers surrounded them and butchered them there. Of course we all feel very sad about this affair. I stood very loyal to the government all through those troublesome days, and ...being so loyal to it, my disappointment was very strong, and I have come to Washington with a very great blame on my heart .... WHEN SORRY ISN'T ENOUGH: THE CONTROVERSY OVER APOLOGIES AND REPARATIONS FOR HUMAN INJUSTICE 253 (Roy L. Brooks ed., 1999) [hereinafter BROOKS]. * Chiricahua Apache. LL.M., 2001, Harvard Law School; Ph.D., 1995, Northwestern University; J.D., 2000, University of Miami. Assistant Professor of Law, Indiana University, Indianapolis, Indiana. The author is grateful to Eric Yamamoto, Mari Matsuda, Joe Singer, Rebecca Tsosie, David Wilkins, Rhonda Magee Andrews, Brian Hehir, and Robert Westley for reviewing and commenting on earlier drafts. The author takes full responsibility for all opinions and errors expressed herein. 2. Whereas bipolarity rendered forcible humanitarian intervention practically moot, with every major post-Cold War deployment the United States has proclaimed defense of human rights a moral and legal imperative. See, e.g., David Hoffman, Crisis in the Gulf, Iraq's Invasion of Kuwait, WASH. POST, Aug. 8, 1990, at Al; Ann Devroy, Clinton Lobbies for Troops, WASH. POST, Nov. 26, 1995, at A29. 3. A precise definition of"human rights" is elusive. However, the "International Bill of Rights" is a term informally employed to denote the various instruments that recognize a series of rights legally enforceable against state and, arguably, non-state actors. The core components are the U.N. Charter, which commits member-states to promote "economic and social... development.., without distinction as to race, sex, language or religion," U.N. CHARTER art. Published by University of Oklahoma College of Law Digital Commons, 2002 AMERICANINDIAN LA WREVIEW [Vol. 27 interests or as an independent ethical objective,4 is invoked by the United States and its allies as a basis for ever-more frequent forcible interventions in the affairs of sovereign states,' and although the world remains beset with a multitude of oppressions, with intervention by intervention the United States gives agents of tyranny pause while reinforcing its claim as moral, as well as political and military, hegemony.6 Ironically, by virtue of its self-anointment as Global Lord Protector of the oppressed,7 the United States has fashioned itself an increasingly appropriate 55, 56; Universal Declaration of Human Rights, G.A. Res. 217(11 1)(A), U.N. Doc. A/810 (1948) [hereinafter UDHR], which amplifies the Charter; International Covenant on Civil and Political Rights, Dec. 19, 1966,999 U.N.T.S. 171 (1966) [hereinafter ICCPR], which prohibits states from denying ethnic, religious, or linguistic minorities the "right ... to enjoy their own culture, to... practice their own religion, or to use their own language," id. art. 27; International Covenant on Economic, Social, and Cultural Rights, G.A. Res. 2200, U.N. GAOR, 21st Sess., Supp. No. 16, at 49-52, U.N. Doc. Al6316. 993 U.N.T.S. 3, 6 I.L.M. 360 (1966) [hereinafter ICESCR], which recognizes that "(a)ll peoples have the right . to freely pursue their economic, social and cultural development," id. art. 1. 4. The history of U.S. interventionism is marked by brief periods of messianic zeal calculated to radically reshape the geopolitical landscape on the premise that "right is more precious than peace," separated by long stretches of isolationism and aloofness that comport with the warning, delivered by President George Washington in his Farewell Address, to steer clear of "entangling alliances." THE LIMITS OF MILITARY INTERVENTION, 19 (Ellen P. Stem, ed., 1977). 5. The U.N. Charter explicitly provides that "[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state" and that nothing authorizes the U.N. "to intervene in matters which are essentially within the domestic jurisdiction of any state[.)" U.N. CHARTER, art. 2, para. 4, 7. However, Articles 1, 55, and 56, read together, establish a primary purpose to promote, protect, and defend human rights. U.N. CHARTER, art. I (stating, in preamble paragraph, the purpose of the U.N. to "reaffirm faith in fundamental human rights"); U.N. CHARTER, art. 55 (stating the U.N. "shall promote ...universal respect for, and observance of, human rights"); U.N. CHARTER, art. 56 (pledging members to act "for the achievement of the purposes set forth in Article 55."). Given the freedom of maneuver the text presents, arguments defending and criticizing humanitarian intervention abound. See, e.g., Marc Weller, The Rambouillet Conference on Kosovo, 75 INT'L AFF. 211 (1999) (positing arguments for and against intervention); FERNANDO R. TEsON, HUMANITARIAN INTERVENTION: AN INQUIRY INTO LAW AND MORALITY (1988) (same). 6. See generally ROBERTO. KEOHANE, AFTER HEGEMONY: COOPERATION AND DISCORD INTHE WORLD POuTICAL ECONOMY (1984) (discussing the concept of"hegemony," or systemic dominance, in international relations). 7. U.S. intervention can be framed as building nations in its own divine image inasmuch as American missionaries of the secular faith of liberalism are dispatched to Bosnia and Kosovo to save heathen ethnonationalists with the blessed sacraments of democratic institutions, legal regimes, and free markets. William Bradford, What America Has Written: WashingOur Hands in the Balkans With Dayton and the Kosovo Peace Plan, 7 COLUM. J. E. EUR. L. 350 (2002). https://digitalcommons.law.ou.edu/ailr/vol27/iss1/1 No. 1] AMERICAN INDIAN REPARATIONS subject for scrutiny.' Even as the progressive development and codification of human rights norms keeps pace with the increasing frequency of its humanitarian interventions, the United States clings tenaciously to a cabined interpretation of the rights inhering in individuals and groups.' Even more challenging to its elevated moral posture is the dawning sense that, rather than auto-immunizing treatment of its own domestic ethnic, racial, and political groups, each successive intervention raises the bar of expectations"° Linkages between aid and improvement in human rights protection to U.S. legislated-standards force conversion to the modem secular religion of liberalism. See EDWIN M. YODER JR., THE HISTORICAL PRESENT: USES AND ABUSES OF THE PAST 56 (1997) ("M~e ... preach on the subject of basic human rights to those elsewhere who still sit in darkness. It is among our great American susceptibilities to cherish our myths of exceptionalism and special virtue."). 8. Perceptions of inconsistency have attached to U.S. management of human rights issues as evidenced by the ejection of the United States from the United Nations Human Rights Commission. Marc Lacey, US. Attacks Rights Groupfor Oustinglt,N.Y. TIMES, May 5,2001, at A4. 9. Although they clearly accept that civil and political rights have penetrated the "veil of domesticity" that long preserved sovereign prerogatives and denied non-states standing as subjects of international law, Western states resist rights proliferation beyond the conceptual boundaries of"first-generation" civil and political rights to "second-generation" economic and social rights and "third-generation" group rights. See Dean B. Suagee, Self-Determinationfor Indigenous Peoples at the Dawn of the Solar Age, 25 U. MICH. J. L. REFORM 671, 683-84 (1992) (describing eighteenth-century diminution of state sovereignty to tap individuals as subjects of international law, post-World War II introduction of civil and political rights secured by state nonintervention, and late-twentieth century affirmative protection of group rights); see also CATHERINE BROLMANN ET AL., PEOPLES AND MINORITIES IN INTERNATIONAL LAW 121 (1993) (enumerating self-determination, development, and health as third-generation rights); Feisal Hussain Naqvi, People'sRights or Victims' Rights: Reexamining the Conceptualization of Indigenous Rights in International Law, 71 IND.