Memory in native American land claims

Political Theory

Volumn 33, Issue 6, 2005, Pages 763-785

  Hendrix, Burke A ^a  

^a Cornell University ^*  (United States)

Author keywords

Cultural rights; Equality; Memory; Nationalism; Native Americans; Property

Indexed keywords

EID: 29144475393     PISSN: 00905917     EISSN: None     Source Type: Journal    
DOI: 10.1177/0090591705280658     Document Type: Article

References (84)

1. I will often use the term Native to refer to Native Americans. This is not a mere shorthand on my part but reflects conventional usage of the term in Native communities, where it is preferred to the cumbersome Native American. It is functionally equivalent to Indian, both being terms of contrast with members of the European-derived majority culture. Specific Native individuals will generally identify themselves by their tribe or nation when this contrast is not invoked.
2. See, for example, the discussion of treaties in Robert E. Goodin, "Waitangi Tales." Australasian Journal of Philosophy 78 (2000): 309-33.
3. See, for example, the complexities discussed in Imre Sutton, ed., Irredeemable America: The Indians 'Estate and Land Claims (Albuquerque: University of New Mexico Press, 1985).
4. For a thorough but accessible overview of treaties, see Francis Paul Prucha, American Indian Treaties: The History of a Political Anomaly (Berkeley: University of California Press, 1994).
5. I am not entirely comfortable with the terminology of "mainstream" American citizens, but I have used it rather than White, which is by now a problematic term of contrast in this context. Non-Native is more accurate but also cumbersome, and for that reason I have used it sparingly.
6. Although the meaning attached to this "firstness" is not without its ambiguities. See Jeremy Waldron,"Indigeneity? First Peoples and Last Occupancy," New Zealand Journal of Philosophy (2003): 55-82.
7. For a very strong version of such claims, see Ward Churchill, Struggle for the Land(Winnipeg, Manitoba: Arbeiter Ring, 1999), 367-402.
8. See, for example, Sutton, Irredeemable America;
9. and Russell Lawrence Barsh, "Indian Land Claims Policy in the United States," North Dakota Law Review 58 (1982): 7-82.
10. See, among many others, David Lyons, "The New Native Claims and Original Rights to Land," in Reading Nozick, ed. Jeffery Paul (Totowa, N.J.: Rowman & Littlefield, 1981);
11. Jeremy Waldron, "Superseding Historic Injustice," Ethics 103 (1992): 4-28;
12. and A. John Simmons, "Original Acquisition Justifications of Private Property." Social Philosophy and Policy 11 (1994): 63-84.
13. The classic argument for this position is, of course, Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974).
14. Waldron, "Superseding Historic Injustice."
15. I find the discussion in A. John Simmons, The Lockean Theory of Rights (Princeton, N.J.: Princeton University Press, 1992), particularly useful in this regard.
16. The notion of voting on these kinds of goods is borrowed from David Friedman, The Machinery of Freedom (Chicago: Open Court, 1989), 131-32.
17. This position is forcefully advocated in Waldron, "Superseding Historic Injustice."
18. Waldron, "Superseding Historic Injustice." Ibid.
19. Although this example is not without ambiguity. See the description of these occupiers as Natives with an "ethnic" rather than "tribal" identification in Vine Deloria Jr. and Clifford Lytle, The Nations Within (New York: Pantheon, 1984), 236-37. Deloria and Lytle argue that the pan-Indian identity of the occupiers had shallow roots and lacked a strong historical connection to ongoing tribal cultures. If so, we should reasonably expect their connections to particular lands to be attenuated as well.
20. Ward Churchill, who is as aggressive as anyone in calling for the return of lost lands, objects that fears of massive displacement are wildly overstated and that Native land claims are caricatured for political effect: Do you really foresee Indians standing out on the piers of Boston and New York City, issuing water-wings to long lines of non-Indians so that they can all swim back to the Old World?? Seriously, one can search high and low, and never find an instance in which Indians have advocated that small property owners be pushed off the land in order to satisfy land claims. The thrust of every single case has been to recover land within national and state parks and forests, grasslands, military reservations, and the like. In some instances, major corporate holdings have also been targeted. (Churchill, Struggle, 382-83) This is actually an overstatement: there are in fact cases where individual landholders have been threatened in land claims. Still, Churchill's portrayal of the issue illustrates the broad plausibility these limitations have for many Native writers.
21. For example, over Grand Island in New York. See Gus P. Cordebella and Mark S. Puzella, "The Landowner Defendants in Indian Land Claims: Hostages to History," New England Law Review 37 (2003): 585-92.
22. See also the discussion in John C. Christie Jr., "Indian Land Claims Involving Private Owners of Land: A Lawyer's Perspective," in Sutton, Irredeemable America. My sense is that such claims are usually strategic attempts to bring governments to the negotiating table.
23. I have tried to deal with the question of contemporary property rights and individual culpability in another context. See Burke A. Hendrix, "Moral Minimalism in American Indian Land Claims," American Indian Quarterly 29, no. 4 (2005).
24. Will Kymlicka, Liberalism, Community, and Culture (New York: Oxford University Press, 1989);
25. Will Kymlicka, Multicultural Citizenship (New York: Oxford University Press, 1995);
26. and Will Kymlicka, Politics in the Vernacular (New York: Oxford University Press, 2001).
27. There have been many concerns raised about Kymlicka's arguments, particularly in regard to his rather monolithic view of "culture" - see, for example, Joseph Carens, Culture, Citizenship, and Community (New York: Oxford University Press, 2000), ch. 3;
28. and Duncan Ivison, Postcolonial Liberalism (Cambridge: Cambridge University Press, 2002), 33-39, 64-68.
29. For an extended discussion of the dangers of regarding cultures as monoliths, see Michele Moody-Adams, Fieldwork in Familiar Places (Cambridge, Mass.: Harvard University Press, 1997). These arguments rightly suggest that "cultures" are more amorphous things than Kymlicka allows, but none seems to undermine his core contentions about how and why culture matters.
30. For concise critiques of such positions, see Allen Buchanan, Secession: The Legitimacy of Political Divorce from Fort Sumpter to Lithuania and Quebec (Boulder, Colo.: Westview, 1991), 52-56;
31. and Juha Räikkä, "The Moral Relevance of Cultural Disadvantage," Australasian Journal of Philosophy 78 (2000): 374-90.
32. See, for example, Kymlicka, Multicultural Citizenship, 83-86.
33. See, for example, Jeremy Waldron, "Minority Cultures and the Cosmopolitan Alternative," University of Michigan Journal of Law Reform 25 (1992): 751-93;
34. Brian Barry, Culture and Equality (Cambridge, Mass.: Harvard University Press, 2001);
35. Kwame Anthony Appiah, The Ethics of Identity (Princeton, N.J.: Princeton University Press, 2005), ch. 4;
36. and Russell Hardin, "Group Boundaries, Individual Barriers," in Boundaries and Justice: Diverse Ethical Perspectives, ed. David Miller and Sohail H. Hashmi (Princeton, N.J.: Princeton University Press, 2001). Such arguments seem to me to greatly overestimate the actual neutrality of existing liberal states, but I cannot argue for that claim here.
37. Kymlicka, Multicultural Citizenship, 113.
38. Kymlicka, Multicultural Citizenship, Ibid., 34-48.
39. See also the discussions of additional strategies for protection in Jacob Levy, The Multiculturalism of Fear (New York: Oxford University Press, 2000).
40. See, for example, Kymlicka, Multicultural Citizenship, 43-44;
41. and Kymlicka, Politics in the Vernacular, 146-151.
42. Of course, most tribes already have such rights legally protected to at least some degree, but Kymlicka's argument suggests that such rights should be protected even where treaty arrangements do not clearly include provisions for them. See Multicultural Citizenship, 116-20.
43. For some concerns about resource-expensive lifestyles, see Kymlicka, Politics in the Vernacular, 133-51.
44. See, for example, Vine Deloria Jr., God Is Red: A Native View of Religion, 30th anniversary ed. (Golden, Colo.: Fulcrum, 2003);
45. and see also the voluminous testimony collected in Canada's Report of the Royal Commission on Aboriginal Peoples (Ottawa: Canada Communications Group, 1996).
46. See, for example, Christie, "Indian Land Claims";
47. and Waldron, "Superseding Historic Injustice."
48. Ward Churchill argues that territories equal to all unceded Native lands could easily be returned from public holdings in the United States. See Churchill, Struggle, 383.
49. The best way to ensure that lands returned for this reason really do have this significance is probably to require that they remain forever after in their natural state or be returned to it if they have been developed. See Hendrix. "Moral Minimalism."
50. Kymlicka, Politics in the Vernacular, 147.
51. Buchanan, Secession, 52-56.
52. See, for example, the worries raised in Hardin, "Group Boundaries."
53. See Carens, Culture, 61-64.
54. Although it is tempting to interpret the odds of survival charitably, this may not be the best approach if we are merely delaying the day of reckoning for later generations. See Hardin, "Group Boundaries."
55. It is tempting to generate a list of particular tribes here, but doing so would be far too controversial to be engaged in lightly and is at any rate unnecessary if the essay's strategic argument is correct.
56. The canonical work in this regard is, of course, Benedict Anderson, Imagined Communities (New York: Verso, 1993).
57. My discussion here and in following paragraphs is deeply indebted to David Miller's concise discussion in On Nationality (New York: Oxford University Press, 1995).
58. See, for example, Anthony D. Smith, Myths and Memories of the Nation (New York: Oxford University Press, 1999), 174-80.
59. For example, Anderson, Imagined Communities, 199-206;
60. and Miller, On Nationality, 36-40.
61. Sometimes, national narratives will even pretend that reconciliation with the mistreated group has occurred even when it has not. Indeed, many citizens of the United States seem to believe this to be true in regard to Native nations.
62. For a brief but particularly effective discussion of competing narratives about "the pioneers," see William Cronon, "A Place for Stories: Nature, History, and Narrative," Journal of American History (1992): 1364-67.
63. Duncan Ivison argues that conditions must be fostered in which Native peoples can feel "at home" with the political structures under which they live. See Ivison, Postcolonial Liberalism;
64. and Duncan Ivison, "Political Community and Historic Injustice," Australasian Journal of Philosophy 78 (2000): 360-73.
65. I do not mean to suggest by this that Native nations may not have claims for full independence from the United States - but even if Native nations were to achieve this, they would still need to interact with the United States throughout the long term, and the same concerns would therefore remain relevant. For Native views on the viability of Native micro-states, see Churchill, Struggle, 19-26;
66. and Vine Deloria Jr., Behind the Trail of Broken Treaties: An Indian Declaration of Independence (New York: Delta Books, 1974), 161-86.
67. For an interesting attempt to think through the limits of such processes, see Farid Abdel-Nour, "Responsibility and Memory: Israel and the Palestinian Refugee Problem," International Journal of Politics, Culture, and Society 17 (2004): 339-63.
68. Farid Abdel-Nour, "National Responsibility," Political Theory 31 (2003): 693-719.
69. Robert Sparrow, "History and Collective Responsibility," Australasian Journal of Philosophy 78 (2000): 346-59.
70. For an argument that outlines this kind of "misremembering" of the present in regard to African Americans, see Thomas McCarthy, "Coming to Terms with Our Past, Part II: On the Morality and Politics of Reparations for Slavery," Political Theory 32 (2004): 750-72, esp. 758-64.
71. See, for example, the way in which competing accounts of history are carefully laid out in Canada's Report of the Royal Commission. The Royal Commission's attempt to start a wider process of reconciliation fell far short of its goals but at least provides a template for how such a process can proceed.
72. Cf. Thomas McCarthy's arguments in this regard for African Americans in "Vergangenheitsbewältigung in the USA: On The Politics of the Memory of Slavery," Political Theory 30 (2002): 623-48, especially 635-35.
73. For an argument that liberal theories put a special emphasis on justification in this way, see Ivison, Postcolonial Liberalism, ch. 1.
74. For an exploration of what it might mean to take consent seriously, see A. John Simmons, Moral Principles and Political Obligations (Princeton, N.J.: Princeton University Press, 1979);
75. and A. John Simmons, On the Edge of Anarchy (Princeton, N.J.: Princeton University Press, 1993).
76. See, for example, Taiaiake Alfred, Peace, Power, Righteousness (Don Mills, Ontario: Oxford University Press, 1999), 140.
77. In Canada, indigenous concerns have been able to piggyback off the more explosive debates about Quebec's future - an option that is clearly not available in the United States.
78. Cf. McCarthy, "Coming to Terms," 765-68.
79. As Duncan Ivison (in Postcolonial Liberalism, 74) and many others have noted, even the most ardent of skeptics about morality usually end up deploying moral arguments themselves. Indeed, it is probably not possible to be a thoroughgoing skeptic about morality and still live a functioning human life.
80. Cf. Miller, On Nationality, 35-37.
81. Cf. Kymlicka, Multicultural Citizenship, 20-22.
82. During the activist years of the late 1960s and early 1970s, many Natives worked hard to distance their claims from those of African Americans. Rather than seeking a fuller inclusion, Natives were seeking to retain or regain elements of their historical separation, but such arguments were a hard sell given the current of the times. See Deloria, Broken Treaties, ch. 2.
83. I have considered elsewhere the question of how Natives should argue in these circumstances. See Hendrix, "Moral Minimalism."
84. One of the most concise treatments of this perennial question is Michael Walzer, "Philosophy and Democracy," Political Theory 9 (1981): 379=-99.