Indian Nations, the United States and Citizenship by John Mohawk
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DOCUMENT: INDCITZN.TXT
INDIAN NATIONS, THE UNITED STATES AND CITIZENSHIP
by
John Mohawk -- Seneca Nation
Copyright 1983 Center For World Indigenous Studies
[Ed. Note: This article may be reproduced for electronic transfer and
posting on computer bulletin boards in part or full, provided that no
profit is made by such transfer and that full credit is given to the
author, the Center For World Indigenous Studies and The Fourth World
Documentation Project.]
In the beginning, the question of how to view Indian
nationhood and citizenship wasn't a question at all. We are
reminded that how things came to be the way they are evolved in a
history entirely outside the control, and indeed outside the view,
of the indigenous peoples of the world, and that the evolution of
the idea of citizenship and its application to indigenous peoples
is an idea which has been created and molded to suit the needs of
people other than the subjects.
In some areas of Indian Country, the concept stirs deep
passions. There are many among the Haudenosaunee who deny that
they are citizens of any country other than their own, while some,
notably Oklahoma Indians, assert dual citizenship regularly. Still
others are confused about their citizenship, and regularly reply
that they are United States citizens without thought of their
indigenous nation.
The reason for this state of confusion lies not so much in
the absence of information as in the fact of vagueness about how
and why indigenous peoples of the Americas were confronted with
the idea of citizenship. Citizenship was, and for many Indian
peoples remains, an alien idea, and for good reason.
Lawyers can argue about the exact legal definitions which
cloud the term. Social historians can affirm that at the time of
the Columbian encounter at the end of the fifteenth century,
citizenship was practiced on the European continent was
predictably different from the concept as used today. The world's
indigenous peoples are, of course, a special case, even though
indigenous peoples worldwide suffer similar problems coping with
the intrusions of states. As the history of the European
expansion and subsequent invasions of the Americas, Asia and
Africa (as well as numerous places such as Australia and islands
without number) they encountered peoples all over the globe.
It is extremely enlightening, for the purpose of determining
the identity of the Indigenous nations (as opposed to the extent
of the rights and obligations of *citizenship*), that we begin our
tale at the beginning. The most interesting work on the subject
of European law as it existed during the centuries leading to the
Columbian era is a work by Harold J. Berman entitled _Law and
Revolution: The Formation of the Western Legal Tradition_ (1983).
This work covers a lot of territory but, on the subject of
citizenship, Berman points out that during the centuries prior to
Columbus legal customs had arisen on the continents which spoke to
the issue of citizenship.
In feudal Europe, there arose a peculiar way of viewing the
land. In some sense, land and country were indistinguishable.
England was, in the custom of the day, the sum of its parts, and
its parts were Sussex, Essex, etc.. The people who represented
those parts were the aristocracy, thus York was not only a
geographic area, but also a person. When the king ordered, as he
sometimes did, "Go and fetch York," everyone in the kingdom knew
who he was talking to about. Feudal relationships define humans
as assets which belong to the land, or *go* with the land. The
centuries have blurred our ability to understand that in 12th
century France a person was born to a place, that place was ruled
by an aristocrat and the aristocrat was, at least in theory,
beholden to a sovereign.
Thus, the sovereign owned the kingdom, it was his to do with
as he pleased in theory or as he could get away with in practice.
A serf born to a district was perceived as a person who *went*
with the property. He was, in effect, little better than a
chattel slave, a person owned by a military aristocracy which,
during some periods, held unlimited sway over his life and
property. Beginning about the eleventh century, this began to
change in some parts of Europe.
One of the elements of change was the rise in Europe during
these centuries of cities. The cities were unlike the rural
subdivisions of the kingdom in that gradually they obtained a
degree of autonomy from the system of feudal lords. In time, the
cities came to be, in practice, havens from the arbitrary and
sometimes brutal rule of the aristocrats. A practice arose which
enabled a person who found his way into the confines of a city and
who was able to survive for a year and a day became a *citizen*
(literally from the Greek, meaning a person who lives in a city),
and in time citizenship meant that the city state guaranteed that
person certain rights. Predictably, the first right was against
capture and forced reenslavement at the hands of his former
master. [*This is a very general treatment of this somewhat
complex and highly variable subject, but then this is a short
paper. Berman goes into it at length.*]
Thus far in this story, there are no indigenous peoples.
Although there are numerous distinct peoples on the European
continent, and although at one time in European history it can be
successfully argued that some of these peoples were indigenous in
the sense they occupied the land as a distinct people prior to
some colonization, for our purposes there were no peoples who were
*indigenous* in the modern sense of that word on the European
continent following the Crusades. "Indigenous peoples" is really
a term we were forced to invent to distinguish the peoples which
occupy a land mass at the time of the European invasion from other
peoples, some of whom do not exist at the beginning of that
invasion.
The first modern indigenous peoples were the Gaunches of the
Canary Islands. The Gaunches are almost forgotten in American
history, but certainly belong in the introduction to any history
of the invasion of the Americas. When the Spanish (with some
French assistance) first landed on the Canary Islands in 1402,
there was a population of about 80,000 Gaunches. The wars to
conquer them lasted until 1496 when their final stronghold fell.
They were as much victim to the epidemic diseases of Europe as to
the Spanish arms, but they were unquestionably victims. Some
historians have argued that their descendants can be found on the
Canary Islands and the Azores Islands, but the Gaunches are
extinct as a distinct people. The Gaunches, it can be said, had
no rights.
The history of the indigenous peoples of the Canary Islands
is a very neat package. It has a beginning, a middle, and, for
all practical purposes, an end. The Portuguese discovered an
uninhabited island they named Madieras because it was covered with
forest. They colonized it with some volunteer settlers. Within a
short time they cleared the island by burning it to the ground and
a few years later were raising enough sugar cane to become the
number one exporter of refined sugar in the world. Money flowed
to the Portuguese crown and a very profitable investment called
*colonization* had been born. Before long it became clear that to
make this investment truly profitable there needed to be a source
of cheap labor. The cheapest labor at the time was slave labor
and that's where the Gaunches came into the picture.
The Gaunches were attacked because they possessed islands
which were thought to be potentially profitable possessions and
because they were a source of slave labor. The attack on the
Gaunches was pure theft and slavery. No one, not even the
Spanish, bothered to explain it in terms of advancing Christianity
or bringing the benefits of Civilization to the benighted. In
that regard the history of the Canary Islands is as refreshingly
blunt as in the fact of their conquest and annihilation was
brutal.
Christopher Columbus was married to the daughter of one of
the governors of one of the Azores Islands and is rumored to have
engaged in the slave trade. The Gaunches, as was mentioned
earlier, mostly succumbed to diseases like smallpox and like
indigenous peoples to follow, didn't make satisfactory slaves
because of the death rate. The Spanish quickly adjusted by
importing slaves from Africa where smallpox, chicken pox and a
score of other *childhood* diseases were already known and where
the peoples had developed some immunity to them. A fairly
thorough discussion of the Spanish behavior in these eastern
Atlantic islands is found in Alfred W. Crosby's excellent book,
_Ecological Imperialism: The Biological Expansion of Europe, 900-
1900_ (1986).
From the Canary Islands and the Azores Columbus set sail for
the Asia mainland and landed, instead, on the islands of the
Caribbean where he encountered, we all know, a people he
mistakenly dubbed Indians. A pattern of behavior which had been
established during the war against the Gaunches was then
initiated by the Spanish against first the peoples of the
Caribbean and then the indigenous peoples of the mainland. The
results were, of course, devastating. On some of the islands, the
entire population was wiped out, or at least virtually wiped out,
by the twin demons of European-introduced epidemic diseases and
Spanish cruelty. A pretty good account of that story is found in
Karl Sauer's _The Early Spanish Main_.
The Indians presented an interesting dilemma when a dispute
between the clergy and the military arose around the identity of
the Indians. Bartolome de Las Casas, a priest, circulated
accounts of Spanish cruelty which were published in Western Europe
and eventually became a source of embarrassment to the Spanish
crown. The crowns then ordered a debate before the Council of the
Indies to settle the question whether the American Indians were
indeed human beings possessed of a soul, and therefore, rightfully
the charges of the Holy Roman Catholic Church, or, as some
conquistadors asserted, sub-humans who had no rights whatever.
The conquistadors hired Gines de Sepulveda as their attorney.
He argued forcefully that Indians are sub-humans. Las Casas
argued they had souls and intelligence and can be socialized to be
servants of both the crown and the church. (The best short
telling of this story is found in _Aristotle and the American
Indian_, by Lewis Hanke.) No one argued the Indians are distinct
peoples possessed of rights against both church and crowns, and no
one questioned to whom the lands belonged. All understood under
the doctrines of that time that the land was Spanish land.
Somewhat consistently with this line of thinking, centuries later
when Spanish colonies became states, most of them included the
indigenous peoples as their citizens immediately, in their first
constitution.
The English colonization had a slightly different history
from the Spanish in both flavor and on the subject of citizenship.
The English were watching and envious of Spanish success at
plunder in what they called the "New World." English adventures
across the Atlantic had to wait. By 1565, Spain was the most
powerful country on the Atlantic, commanding an empire greater
than Rome at its zenith. When a French colony was attempted in
Florida, the Spanish arrived and massacred everyone.
The English were undaunted. Beginning about 1565,
entrepreneurs sold stock in London to finance a venture to invade
Ireland. The source of wealth in Ireland was to be the forest
products said to be in abundance there, and the lure to some of
England's landless poor (victims of a growing process known as
enclosure) to an adventure in a foreign land. In Ireland, the
English encountered their first indigenous people. The rural
Irish were Catholic, a folk who continued to possess a number of
cultural traits of their ancestors. Before long the invading
English discovered that the indigenes were seriously flawed in
their national character. They were, according to reports flowing
into London, pagans in spirit, probably not Christians at all, and
rumored to be cannibals.
The purpose of these slanders against the Irish was to
provide an excuse to do violence to them in order to drive them
from their lands. One of the complaints against the Irish was
that they do not improve the land as Englishmen do, and therefore,
of not have as much right to it. If the Gaunches were to provide
Spain with practice in their treatment of the Indians of Latin
America, the Irish provided the English with practice in their
treatment of the Indians of North America. An excellent history
is by Nichoas P. Canny, _The Elizabethan Conquest of Ireland: A
Pattern Established 1565 -1576_.
The English arrived in what they called New England a
generation or so after the defeat of the Spanish Armada in 1588.
They immediately proceeded to take the land in a way which was,
at that point, wholly English. Instead of arguing about whether
Indians were human or not, they concentrated on the land itself.
Indians were basically unfortunately in the way of English
possession of the land. Every conceivable excuse was mustered to
dispossess the Indian of this land, excuses which had worked
during the enclosures in England and the wars in Ireland. Acre by
acre the Indians were driven from the land just as the poor in
England had been (and continued to be) and the Irish had been (and
still are). There was not much discussion in this early phase of
history about citizenship, pro or con. An excellent account of
the English in early New England is found in William Cronon's
_Changes in the Land: Indians, Colonists and Ecology of New
England_.
The invasion of North America is told almost entirely from
the eyes of the invader. During the early years, when the English
and Dutch and Swedes and French were weak the Indians insisted on
treaty relationships, on a separation of law and territory. Thus,
the earliest agreements have the air of treaties, and the earliest
treaties reflect Indian thinking about cultural diversity and the
right to continue as distinct peoples. An early treaty is the now-
famous Two Row Treaty between the Dutch and the Haudenosaunee
(Iroquois) and the original Silver Covenant Chain, both of which
declare that the relationships are equal to equal or, in modern
terms, state to state.
The Europeans were pragmatists. If treaties served to cement
relations, then treaties were to be made. Although it took nearly
two centuries for the colonies to become established enough to
challenge the Indians, English colonists doggedly coveted the
land. Unlike the Spanish, who coveted Indian labor and
subservience, the English coveted mostly land. There are
exceptions, but generally this was the flow. The Spanish debated
whether the Indians were human. The English simply accepted that
the Indians were not English.
Thus, the Indians were not only not seen as citizens, the
idea never really gained much currency among the colonists that
the Indians would ever by English citizens. The Indians belonged
to America, not to England. America was not England, not its land
and not its people. That ideological underpinning of British
governmental organization and ethnocentrism was to be a major
factor which would stimulate the American Revolution.
Pragmatism ruled the day, however, and the English were
pristinely pragmatic when it came to doing whatever was necessary
to liberate the Indian from land. An excellent account of the
transmigration of European thinking to the Americas, especially
North America, is found in Francis Jennings' _The Invasion of
America -- Indians, Colonialism, and the Cant of Conquest_.
It has been argued (see Jennings' early trilogy) that the
Seven Years War was the first world war. Jennings argues that the
English crown claimed France had invaded British territory by
building a fort at Duquesne because the land in question was part
of an Iroquois empire, and the Iroquois empire was British
territory. The crown never claims the Iroquois are British
citizens, however. Land and citizenship are clearly separate
under the conditions created by overseas empires and an evolving
theory of law which finds the states coming to ownership of the
idea of citizenship for their own purposes.
At the time of the American Revolution, there is no question
the Americans viewed the Indians as distinct peoples, and that
they, at least, viewed the Indian nations as distinct nations.
Both the Articles of Confederation and the Constitution of the
United States reflect this reality. The new Constitution was
sought and organized primarily to advance imperialism. It was, on
the one hand, a reaction to tax revolts and to organize an
effective army which could deal with issues surrounding what it
euphemistically calls the "western lands." The Western Lands, let
us be clear, was Indian Country. The first major American
military engagements were against Indians by armies invading
Indian nations.
The history of U.S. treatment of Indian nations during the
19th century is long and complicated because of the number of
different Indian peoples involved, but fundamentally simple in
terms of the process which was repeated hundreds of times across
the United States. The U.S. government deployed military
garrisons on the edge of Indian territories and encouraged
frontiersmen to enter and start conflict with the Indians. When
the conflict arose, the army reacted by attacking the Indians.
The best account of this process I know is found in _A History of
the Indians and the Untied States_ by Angie Debo. The Indians
were attacked and killed, enslaved and abused, their land seized
and their children forced into alien schools solely because they
possessed land other people wanted.
The U.S. Constitution treats Indians as non-citizens, and
Indians remained non-citizens until 1924. From the time of
formation of the United States to the present, the issue of
citizenship for Indians has been dealt with by the U.S. government
entirely to its own interest. With the possible exception of
early court decisions, later ignored, that Indian nations were
legitimate in the eyes of the law, the United States has generally
acted as though Indian nationhood is simply an inconvenient
anachronism of history. Indian nationhood is inconvenient
because, if the Indian nations are legitimate, U.S. designs for
Indian land and labor are not legitimate. Thus, U.S. Indian
policy has ignored Indian nationhood whenever possible, even to
the point of simply declaring Indian nations no longer exist
during the Termination Era.
During the nineteenth century, when the problem of how to
steal Indian land without appearing to steal it was a major
consideration, the United States passed laws which enabled non-
Indians to sue Indian nations for damages arising out of acts of
violence during these conflicts, but denied Indians the standing
to sue non-Indians. Indians were clearly non-citizens during this
century and, so long as an Indian continued to maintain his rights
as an Indian, he was considered a non-person in the eyes of U.S.
law. It was possible for an Indian to become a person. He need
only take an allotment of land and renounce his Indian
citizenship. Once a citizen of the United States, an Indian was no
longer considered an incompetent because he was no longer an
Indian!
The U.S. government even constructed a legal concept that
Indians, as Indians, are incompetent to manage their own affairs
and the federal government has a responsibility to manage their
affairs for them. This insult had the practical application that
it allowed the government to transfer the use of significant
amounts of Indian assets to non-Indian hands. It became the much
vaunted "trust responsibility" theory which some Indian lawyers
seized upon as a way to channel federal dollars to Indians (and
Indian lawyers)during the 1970s and which was put to rest during
the Reagan years. The *trust* responsibility is really an insult.
To benefit from it, Indians are forced to plead diminished
capacity on the basis of race.
Indian nations, on the other hand, have become mystified
about their own legitimacy. Most Indian leaders act unaware that
over the centuries a few states (about 177 at last count) now
claim to own the entire globe. They have a conspiracy among them
that whatever goes on inside the territories they claim is
nobody's business but their own. Thus, Brazil claims as citizens
Indians who have never heard a word of Portuguese and have never
heard of Brazil. Other countries of the world such as Indonesia
and India have been recruited into the scheme of things. Thus
indigenous peoples have no rights in the world because nation
states simply have declared them to be illegitimate and thus have
declared all the theft, murder, dispossession, oppression, cruelty
and coercion directed against indigenous peoples, past and
present, to be legitimate, actions which are wholly the internal
affairs of the state and not a cause for complaint at the
international level.
In addition, citizenship has become the excuse these criminal
states have used to justify their actions. Just as Sepulveda
argued it was acceptable behavior to enslave Indians because
enslavement also brought the benefits of civilization, states
today argue it is acceptable to take Indian land without due
process of law, to deny recognition to an Indian nation as a
nation, and to do whatever it wants, in the name of plenary power
and in the name of international law which effectively bares
Indian nations from bringing actions in international forums for
even the most outrageous crimes. Although the idea of citizenship
may have started as a limitation on the powers of an aristocracy
to seize persons and force them to servitude, by the nineteenth
century the idea of citizenship became solely owned by the states
which were in an international conspiracy to possess the planet at
the expense of all the indigenous peoples.
The question is probably incorrectly drawn when framed around
whether Indians are citizens. The question should not be whether
Indians enjoy the rights under U.S. law, but whether and when
Indians enjoy rights under their Indian nationhood. Indian
nations are denied legitimacy solely because they committed the
crime of owning land somebody else wanted and surviving after the
land was taken. Having failed to physically disappear, the Indian
nation is now urged to disappear legally, culturally, and
psychologically.
The question about citizenship should center around the
rights the Indian nations and citizens (if that's the proper term)
had prior to the colonization and subsequent reservation period.
Certainly Indians enjoyed standing as persons in their
relationships with all peoples prior to that time. Certainly
Indian individuals were viewed as full adults in the eyes of
whatever decision making process they engaged, and even peoples of
different cultures never discriminated against each other in the
fundamental ways Indians suffered discrimination and racism at the
hands of the United States.
The law around Indian citizenship came at a time when the
empires of the world were at their zenith. When the League of
Nations was formed, imperial states were faced with the enormous
problem that they had militarily occupied most of the world's
population, but had not defined membership or nationhood in a
satisfactory way. It became popular to declare that everyone born
in the world is entitled to *citizenship* in some country or
other, an idea embraced by the Wilson administration.
Subsequently, the people of Puerto Rico were granted U.S.
citizenship in 1917. The Indians were even more problematic,
being neither a colony nor a territory from which the United
States had any intention of ever evacuating or withdrawing from
and comprised of peoples who held a potential claim for very large
portions of the claimed U.S. territory.
The obvious answer satisfied both the Indians and the
liberals who wanted to see *better* treatment of the Indians.
Making the Indians citizens opened the road to correcting a long
list of injustices around standing in court and civil rights and
also opened the door to the forced assimilation policy which came
to be known as Termination. The Indian Citizenship Act of 1924 is
worded in such a way it can be construed to confer on Indians the
*RIGHTS* of U.S. citizenship -- specifically rights against
unlawful seizure, the right to due process, habaeus corpus, to
travel overseas, to be a person in the eyes of the law -- but
does not diminish the Indian's individual rights under his Indian
citizenship.
Those rights are not well defended by the Indian leadership
in recent years, and have not been clearly defined as a political
agenda. International forums have debated the issue with very
little input from the legitimate Indians. Indeed, pretenders have
represented themselves as Indian leadership while the legitimate
Indian leadership stayed home. Indians logically have a right to
all the rights and privileges they enjoyed prior to the armed
robbery which characterizes U.S./Indian relations of the past, and
Indian leadership should move to identify those rights and press
for them. Indian leadership needs to understand that when they
stand as Indians for Indian rights they are in direct conflict
with U.S. aspirations, and that an Indian allegiance to the United
States is secondary to their allegiance to their own nations
because the former by nature seeks to eliminate the latter.
=================================================================
John Mohawk is a leading journalist and founder and former
editor of Akwasasne Notes. He is the author of numerous articles
on the Six Nations Confederacy, government, journalism, economics
and politics. He is a member of the Seneca Nation which is a
member of the Six Nations Confederacy.
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