America: Come for the Civil Disobedience, Stay for the Thunderdome

During the early days of the Black Lives Matter demonstrations, when police departments were freaking out and the White House was clearing a churchyard with smoke grenades and batons, I was reading a book about American Indian law, and I was struck by some unfortunate similarities between what I read on the page and what I saw on the screen.

On Twitter I shared this image with the caption, "America: Come for the Civil Disobedience, Stay for the Thunderdome." In retrospect, though, the image is perhaps more like a scene from the Roman Coliseum than a Mad Max movie. Demonstrators were more like Christians being thrown to the lions than they were like Mel Gibson fighting Tina Turner's goons.

Mad Max: Police Academy?

At the same time, I was reading about a Supreme Court case, United States v Sandoval (1913), in Walter Echo-Hawk's book titled In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided. With that case, and several that Echo-Hawk relates to it, the U.S. government claimed broad guardianship authority over American Indians, authority it did not claim over other Americans. He wrote:

Big Brother can and did "do things" to Indians as their "guardian" that it could never do to regular citizens (202).

That guardian authority included the imposition of some religious beliefs and the denial of others (Native religious practices were explicitly outlawed well into the 20th century); control of property and financial transactions; and unilateral law enforcement and judicial processes.

This guardianship was based on the false assumption that American Indians were inherently inferior to white Americans and needed their guidance, as if they were children. It was also based on the assumption that the guardians were free of any repercussions for harming their wards. (Echo-Hawk demonstrates how this guardianship authority was repeatedly used to abuse rather than protect American Indians.)

I thought of this as I saw police officers swinging batons like baseball bats against unarmed, non-violent demonstrators in downtown Los Angeles. And when I saw a police officer using his shield as if he were Captain America and a photojournalist were Thanos. I thought of it when I saw an armored personnel carrier rolling through a Philadelphia neighborhood.

@ryanvizzions

The militarized police response to the Black Lives Matter demonstrations were very familiar to Indian

Country. In 2016, we all saw the response to water protectors trying to stop the construction of the Dakota Access Pipeline on unceded land belonging to the Great Sioux Nation. South Dakota brought armored cavalry to confront unarmed civilians. The water protectors were attacked by dogs, doused with pepper spray, and blasted with a water cannon on a freezing night. 

I do not know how much of the nation was outraged by the events at Standing Rock. President Obama delayed the construction of the pipeline, but he did not intervene in the violence, saying he would "let it play out for several more weeks," as if the opposing forces were equal in strength and legal justifications.

I think it was easy for many Americans to watch the events and remain unmoved. The events were happening on a fairly isolated reservation, so there were no traffic jams nor curfews to inconvenience people not directly involved. Many viewers may have been undisturbed also because this was a confrontation they were accustomed to: the Cavalry vs. the Indians. Even if their sympathies were with the Native people, they were accustomed, through national mythology, to understand Indians as potential enemies. That is the slippery slope in the guardian relationship between the federal government and Native communities: some times there was little difference between being a ward and being a prisoner of war.

But the violence at the Black Lives Matter demonstrations took place in the center of the nation's largest cities, not on the faraway Great Plains. I thought of this notion of abusive guardianship when I read about curfews that were declared 10 minutes before they were enforced, and when I read about groups of demonstrators who were not allowed to leave public spaces and who were then arrested for violating the curfew. Demonstrators were shot directly with rubber bullets (not how they were intended to be used) and hit with gas canisters. Limbs were broken. Eyes were damaged.

I asked at what point did the police gain such authority over U.S. citizens? When were they given the authority to injure people who were not violating a law and who were not threatening other people? Citizens are not given the authority to protect themselves against this violence. Would the police wield pepper spray with such nonchalance if they knew there was a good chance someone would spray them back? When were they given authority to swing their batons at people's legs simply for "crowd control"?

When did we surrender the right of self-protection?

How were people so easily transformed from citizens to enemies?

A legal scholar can probably tell me when this state of affairs evolved, and I assume it is involved with the concept of "qualified immunity," so perhaps my question is more "why?" or "how?" What is the legal reasoning behind the government declaring that demonstrators have surrendered their right to assemble, their freedom of speech, their freedom of movement, and their right to protect themselves?

And why should we let this continue?

To me, the assumption being made is similar to that articulated in Sandoval. People voicing their displeasure with the government are being considered (without legal or formal declaration) inferior to other citizens and surrender, like minors or children, many rights to their self-declared guardians.

Viewed in the light of an abusive guardian relationship -- the assumption of inferiority and the removal of Constitutional rights -- I think most Americans would agree that it is time to reconsider the authority that federal and state governments claim over their citizens.

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American Indian Studies has important lessons for all U.S. citizens because it considers some fundamental questions of interest to everyone. In this case, what does it mean to be a citizen? What is the right relationship between a person and their government? What responsibilities does the citizen have to their government and their government to them?

It is useful for them to study cases in which the government has for so long denied its obligations and disregarded the rights of individuals. It is useful for them to see how arbitrarily and self-servingly the federal government has conducted its relationship with Native nations, and for them to consider the possibility that their government could do the same with them.

A big reason people in Indian Country were so happy with this week's decision in McGirt v Oklahoma was that the Supreme Court simply followed the rules. It offered simple, clear interpretations of the law and honored a treaty the U.S. government had signed. Indian Country expected the usual contortions of legal and moral reasoning from the Supreme Court to justify the continued dispossession and abuse of Native people. When that did not happen, Native people were elated. The court decision was good news, but its reception is sad, really. It is a commentary on how rare "doing the right thing" can be.

In Canada, the Natives are Restless

"Idle No More" in Ottawa (The Toronto Sun)

There is something going on in Canada that most Americans are not aware of.

Of course, that is true about most of the things going on in Canada.  But this one involves my First Nations friends up there -- First Nations in Canada are what is known as American Indian tribes in the United States.  And these events involve two ideas that I think are important to keep in mind here, South of the Great White North.

1. The legal and Constitutional obligations that exist between those groups in the United States and Canada and their federal governments.

2. The importance of environmental restraints on industrial and commercial development.

My Canadian friends have been waging a campaign called "Idle No More," a grassroots protest against C-45, a bill recently passed by the Canadian government that makes some sweeping changes in environmental protections of the many, many waterways in Canada.  Many of those rivers, streams, and lakes are on First Nations land.  (You can watch a CBC report on "Idle No More" here.  There have been demonstrations in the United States, too.)

In The Mall of America (lastrealindians)

By "sweeping changes," I mean the Canadian government is removing hundreds of waterways from the previous oversight that limited industrial and commercial development.  These changes were made without consultation of the First Nations effected, and many First Nations people feel those changes are a violation of the Canadian Constitution Act of 1982.  That act states, "The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed."

If a treaty between the Canadian government and First Nations group recognizes its right to a river and, for example, the salmon resources in that river, then that First Nations group needs to be included in any regulations that will impact that river.  If rights to that river are unilaterally reduced or removed, then the government has failed to recognize and affirm those legally binding treaty rights.

Although this issue is immediately impacting First Nations, it should be important to all Canadians.  If a government cannot be trusted to keep its word, to obey its own rules, then no group of citizens is safe from abuse or injustice.  

Sometimes my students and friends in the United States express surprise or puzzlement at this idea of "treaty rights."  At times they object to the idea that a group of Americans will get "special treatment" from the federal government.

This is because they are misunderstanding the situation.  They are understanding the situation in terms of ethnicity rather than the rule of law.  They think a group of people are being "granted" special privileges because of their ethnic status.  (This is an easy mistake to make, and I am not criticizing them for this.)

But the rights accorded to federally recognized American Indian tribes are based upon legally binding agreements between the federal government and the governments of those tribes. Those legally binding agreements arise from the Constitution, which states that "Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes."  This grants tribes a status rivaling foreign nations -- or at least the states.  

Those rights recognized in treaties extend to the citizens of those tribes, as defined in part by the tribes and by federal government.  This definition is based largely upon descent; one must be descended from a member of that tribe to be a citizen of that tribe -- in much the same way that American citizenship is extended to the descendants of American citizens.  (A major difference is the lack of naturalization for tribal membership.  Someone might be "adopted into" a tribe -- such as Johnny Depp was recently adopted by the Comanche Nation -- but the rights of citizenship are not extended to that person.)  

I say that citizenship is defined by the tribal government AND the federal government because before those treaties membership in a tribe was often not contingent upon descent.  A person could have been accepted as a participating member of that tribe regardless of descent.  The notion that the rights of tribal citizenship depended upon descent was enforced by the federal government -- as a way of limiting its obligations to the tribes with which it signed treaties.  However, today those tribes have exercised the right to determine the degree of descent required for citizenship.

Actor Adam Beach joins Red Hand Singers in Los Angeles

That is how I am a citizen of the Cherokee Nation of Oklahoma. Most of my ancestry is white, but I am descended from someone (my mother's father) recorded on the federal census for the Cherokee in 1907. Therefore, certain rights and privileges are extended to me that are not extended to other American citizens.  (Since I live in California, I generally cannot take advantage of those rights and privileges.)  The key is not whether I am ethnically white or Cherokee (or Choctaw on my father's side), the key is my legal status as a Cherokee citizen.  

Some people believe it unfair for me to have certain rights and privileges not available to others.  But this is not that much different from the varying rights and privileges available to citizens of different states.  For example, a same-sex couple in Massachusetts can be legally married, whereas a same-sex couple in Oklahoma cannot.  They are all American citizens, but they have differing rights according to their states.  

In Alberta (photo by Blaire Russell)

My friends in Canada are fighting for what they believe to be their Constitutionally guaranteed rights as Canadian citizens AND as First Nations citizens.  These rights are not "special treatment" nor some kind of "welfare" or "charity" extended to First Nations by the federal government.  The treaty rights are real, and they are legal, and they are important so long as Canada wants to be a nation governed by the rule of law.

As for the importance of restraints on "development," which can be another word for "rapid exploitation and degradation of an ecosystem"....

I like to believe that each of the many cultures that compose the United States has an important contribution to make.  I believe the most valuable contribution from American Indian cultures is the respect for the world that surrounds us and from which we are made.  This world includes the land, the sky, the water, the plants, and the animals.  This world is not just something that surrounds us, it is something that feeds us, and therefore it is something that quite literally makes us.  Our  bodies are made up of those things.  The water you drink, the air you breathe, the plants and animals you eat -- they become you.

And when correctly appreciated, this relationship leads to a reciprocation.  Those things contribute to making our lives, and so we should contribute to making theirs.  In this way, we can mutually support each other and contribute to our mutual health.  

Vine Deloria Jr. (1933-2005)

American Indian philosopher Vine Deloria Jr. stated it this way in an interview: "If you see the world around you as a collection of objects for you to manipulate and exploit, you will inevitably destroy the world while attempting to control it.  Not only that, but by perceiving the world as lifeless, you rob yourself of the richness, beauty, and wisdom to be found by participating in its larger design."   

"Idle No More" is fighting for that vital relationship between humans and the world.  "Idle No More" sees that C-45 opens the way for the industrial and commercial exploitation of the land and the water. 

During the recent presidential election in the United States, there was much debate about the kinds of economic policies and  philosophies we should have in government.  There was much simple-minded discussion about socialism vs. capitalism, and there was a lot of chest-thumping from the talking heads on CNBC and Fox News about the virtues of free-market capitalism.

But someone is being truly naive about capitalism (and the industrialization that supports it) if he speaks about its power only in the positive.  Capitalism IS powerful, but capitalism is neither good nor bad; that is determined by how and to what ends its power is used.  The industrialization we have seen unleashed by capitalism in North America has destroyed ecosystems, poisoned rivers, drained aquifers, demolished mountains, wiped out species, and blackened the skies.  Capitalism is too powerful to run loose in the land.  Restraining it is a sign of respect for that power.  I believe capitalism can work with a conscience; but that takes some restraint and humility.

The type of capitalism practiced in North America has too often emphasized immediate, maximum exploitation of a resource -- which ultimately destroys that resource and deprives future generations of its benefits.  It violates that sense of mutual support and respect that I mentioned.

"Idle No More" fears that C-45 will clear the way for the destruction of waterways, especially as corporations work feverishly to exploit the Tar Sands oil reserves. Canada is blessed with many, many rivers, and that means many rivers will need to be crossed by the pipelines needed to get that Tar Sands oil to markets.  "Idle No More" fears that the people behind the Tar Sands see only dollars and not the people and the land that are threatened.