+1(978)310-4246 credencewriters@gmail.com
  

a) The author who wrote about the term/phrase/concept. (You only have to cite ONE author for each concept, but you can definitely cite multiple authors. Citing multiple authors may help you to give a fuller definition of the prompt than only citing one. But you do not have to cite all of the authors who wrote about a particular term.) (0.5 point)

b) The meaning of the term/phrase/concept, as it pertains to the topics covered in this course. (You should plan on writing at least a few sentences to give an adequate definition.) (1 point)

c) A television OR social media example that illustrates the term/phrase/concept. (You only need to write about one example: television show OR episode, OR character, OR plotline from a TV show, OR a block of shows, OR an entire network; a social media platform OR influencer OR a hashtag OR an event or campaign on a platform.). You may give more than one example if you wish but only one is required. Anything that is a serial program (that is, consisting of multiple episodes) on broadcast TV, cable TV, or streaming platforms that you view in your domestic space, like Netflix, Amazon Prime Video, Hulu, HBO Go, CBS All Access, etc., counts as “television.” Feature-length (90-120-minute) programs made exclusively for a streaming platform (e.g., Netflix Originals like “To All the Boys I’ve Loved Before” or “Always Be My Maybe”) also count as “television” as they were made specifically for domestic viewing. Content (including music videos) made for YouTube or another social media site counts as social media, which you can also use for your examples. (0.5 point)

d) How the television or social media example relates to, and illustrates, the term/phrase/concept. Make sure to refer to at least one idea or argument made by the author (whom you named in part a). (You should plan on writing 1 to 2 paragraphs—6 to 12 sentences at least—to explain how your example relates to the term/phrase/concept.) (2 points)

You must format your answer according to parts a, b, c, and d, like this:

1. (term/phrase/concept)

a. (author’s name)

b. (definition of term/phrase/concept)

c. (name of an example)

d. (how the example relates to the term/phrase/concept)

Points will be deducted for poor spelling, grammar, and/or punctuation (up to 1 point). Points will also be deducted for improper formatting – proper formatting = listing out the different parts of each answer as a., b., c., d. (up to 1 point).

Each four-part response to a prompt is worth up to 4 points total.

Assignment 3 Prompts:

“creatures of a particular time/place” (Reading attached)

the “magical Native American” (

http://mercurie.blogspot.com/2009/07/invisible-min…

)

#NODAPL (

https://www.marieclaire.com/culture/a20886254/hash…

)

ACTS OF REBELLION
ALSO BY WARD CHURCHILL
Authored
Fantasies of the Master Race: Literature, Cinema, and the Colonization of American Indians (1992,
1998)
Struggle for the Land: Native North American Resistance to Genocide, Ecocide, and Colonization
(1993, 1999)
Indians ‘R’ Us: Culture and Genocide in Native North America (1994, 2002)
Since Predator Came: Notes from the Struggle for American Indian Liberation (1995)
Que Sont les Indiens Devenue? Culture et génocide chez les Indiens d’Amerique du Nord (1996)
From a Native Son: Essays in Indigenism, 1985–1995 (1996)
Perversions of Justice: Indigenous Peoples and Angloamerican Law (2002)
Co-authored
Culture versus Economism: Essays on Marxism in the Multicultural Arena, with Elisabeth R.Lloyd
(1984)
Agents of Repression: The FBI’s Secret Wars Against the Black Panther Party and the American
Indian Movement, with Jim Vander Wall (1988, 2002)
The COINTELPRO Papers: Documents from the FBI’s Secret Wars Against Dissent in the United
States, with Jim Vander Wall (1990, 2002)
Pacifism as Pathology: Reflections on the Role of Armed Struggle in North America, with Mike
Ryan (1996)
Edited
Marxism and Native Americans (1983)
Critical Issues in Native North America, Volumes 1 and 2 (1989–1990)
Die indigen Nationen Nordamerikas und die Marxistishe Tradition: Debatte über eine revolutionäre
Theorie der Kulture (1993)
In My Own Voice: Explorations in the Sociopolitical Context of Art and Cinema, by Leah Renae
Kelly (2001)
Co-edited
Cages of Steel: The Politics of Imprisonment in the United States, with J.J.Vander Wall (1992)
Islands in Captivity: The Record of the International Tribunal on the Rights of Indigenous Hawaiians,
Volumes 1, 2, and 3, with Sharon H.Venne (2002)
ACTS OF REBELLION
THE WARD CHURCHILL READER
WARD CHURCHILL
ROUTLEDGE
New York London
Published in 2003 by
Routledge
29 West 35th Street
New York, New York 10001
www.routledge-ny.com
Routledge is an imprint of the Taylor & Francis Group.
This edition published in the Taylor & Francis e-Library, 2005.
“To purchase your own copy of this or any of Taylor & Francis or Routledge’s
collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.”
Published in Great Britain by
Routledge
11 New Fetter Lane
London EC4P 4EE
www.routledge.com
Copyright © 2003 by Taylor & Francis Books, Inc.
All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form
or by any electronic, mechanical, or other means, now known or hereafter invented, including
photocopying and recording, or in any information storage or retrieval system, without permission
in writing from the publishers.
Library of Congress Cataloging-in-Publication Data
Churchill, Ward.
Acts of rebellion: The Ward Churchill reader/Ward Churchill.
p. cm.
Includes bibliographical references and index.
ISBN 0-415-93155-X (Hardcover: alk. paper)—ISBN 0-415-93156-8 (Paperback: alk.
paper)
1. Indians of North America—Government relations.
2. Indians of North America— Social conditions.
3. Indians of North America—Land tenure.
I. Title.
E93 .C58 2002
973.0497–dc21 2002002693
ISBN 0-203-44951-7 Master e-book ISBN
ISBN 0-203-45788-9 (Adobe eReader Format)
in memory of Leah Renae Kelly (Kizhiibaabinesik)
February 19, 1970-June 1, 2000
lost love of my life
FOREWORD
I want my words to be as eloquent
As the sound of a rattle snake.
I want my actions to be as direct
As the strike of a rattle snake.
I want the results to be as conclusive
As the bite of a beautiful red and black coral snake.
—Jimmie Durham
Columbus Day
ACKNOWLEDGMENTS
MANY PEOPLE HAVE EXTENDED THEIR SUPPORT AND/OR CONTRIBUTED
ADVICE and criticism as, over the years, I’ve written the essays included in this book.
Among the more consistent have been Faith Attaguille, Aunt Bonnie, Bobby Castillo,
Michelle Cheung, Vine Deloria, Jr., Dan Debo, Don Grinde, Moana Jackson, Elaine
Katzenberger, Lilikala Kame‘eleihiwa, Steve Kelly, Barbara Mann, Barb and Harv
Mathewes, Russ Means, Glenn Morris, Jim Page, Bob Robideau, Mike Ryan, George
Tinker, Haunani-Kay Trask, Jim and Jenny Vander Wall, and Sharon Venne. I owe them
each an eternal debt of gratitude for being there when and how it counted. Many thanks
are also due Natsu Saito for having proofed every page and offered suggestions for
improving most of them. As well, to my editors, Eric Nelson and Vik Mukhija at
Routledge, for their good work and steady encouragement.
CONTENTS
INTRODUCTION: Acts of Rebellion: Notes on the Interaction of
History and Justice
x
PART I. IN MATTERS OF LAW
1.
“THE LAW STOOD SQUARELY ON ITS HEAD:” U.S.
Doctrine, Indigenous Self-Determination, and the Question of World
Order
3
2.
THE NULLIFICATION OF NATIVE AMERICA? An Analysis of
the 1990 American Indian Arts and Crafts Act
21
3.
CONFRONTING COLUMBUS DAY: An Argument Based in
International Law
39
PART II. STRUGGLES FOR LANDS AND LIVES
4.
THE EARTH IS OUR MOTHER: Struggles for American Indian
Land and Liberation in the Contemporary United States
59
5.
A BREACH OF TRUST: The Radioactive Colonization of Native
North America
103
6.
LIKE SAND IN THE WIND: The Making of an American Indian
Diaspora in the United States
131
7.
THE BLOODY WAKE OF ALCATRAZ: Repression of the
American Indian Movement during the 1970s
151
PART III. CULTURE WARS
8.
FANTASIES OF THE MASTER RACE: The Cinematic
Colonization of American Indians
171
9.
LET’S SPREAD THE “FUN” AROUND: The Issue of Sports Team
Names and Mascots
201
10.
INDIANS ‘R’ Us: Reflections on the “Men’s Movement”
205
ix
PART IV. THE INDIGENIST ALTERNATIVE
11.
FALSE PROMISES: An Indigenist Examination of Marxist Theory
and Practice
227
12.
THE NEW FACE OF LIBERATION: Indigenous Rebellion, State
Repression, and the Reality of the Fourth World
241
13.
I AM INDIGENIST: Notes on the Ideology of the Fourth World
251
Permissions/Acknowledgments
275
Notes
277
Index
443
INTRODUCTION
ACTS OF REBELLION
Notes on the Interaction of History and Justice
As ye sow, so shall ye reap.
—Galatians, 6:7
ON SEPTEMBER 11, 2001, A DATE NOW AND FOREVER EMBLAZONED IN THE
shorthand of popular consciousness as a correlation to the emergency dialing sequence, “9–
1–1,” a quick but powerful series of assaults were carried out against the paramount
symbols of U.S. global military/economic dominance, the Pentagon and the twin towers
of New York’s World Trade Center (WTC). About one-fifth of the former structure was
left in ruins, the latter in a state of utter obliteration. Some 3,000 U.S. citizens were
killed, along with 78 British nationals, come to do business in the WTC, and perhaps 300
other “aliens,” the majority of them undocumented, assigned to scrub the floors and wash
the windows of empire.1
In the immediate aftermath, while the identities of the attackers was still to some extent
mysterious, a vast wail was emitted by the American body politic, asking in apparent
bewilderment, “Who are they and why do they hate us?”2 The answer came shortly, in the
form of a videotaped and briefly televised statement by Usama bin Laden, expatriate
Saudi head of al-Qaida, one of a plethora of terrorist organizations spawned by the CIA over
the past half-century to carry out a broad range of “dirty” as-signments for the United
States (al-Qaida parted company with “The Company” during the 1990–91 U.S. war
against Iraq).3
Bin Laden’s message was quite clear:4 The attacks were carried out in response to
blatant and ongoing U.S. violations of the laws of war, together with almost every aspect
of international public and humanitarian law. The matter, as he pointed out, is of no mere
academic concern: over the past decade well upwards of a half-million Iraqi children and
at least a million of their adult counterparts have died as the result of pal-pably criminal
U.S. actions against their country.5 United Nations officials have resigned in protest,
denouncing what one of them, Assistant Secretary General Denis Halliday, was widely
quoted in the press describing as America’s “policy of deliberate genocide” against the
people of Iraq.6 The accuracy of Halliday’s—and bin Laden’s—assessment of the situation
was, moreover, bluntly corroborated on NBC’s 60 Minutes by no less senior a U.S.
spokesperson than U.N. Ambassador, and subsequent Secretary of State, Madeleine
Albright.7
xi
Reaction among average Americans to revelations of the horror perpetrated in their
name has been to all intents and purposes nonexistent. Since it can hardly be argued that
the public was “uninformed” about the genocide in Iraq, its lack of response can only be
seen as devolving upon a condition of collective ignorance—that is, of having information
but ignoring it because it is considered inconsequential8—as profound as it must be
intolerable to those whose children lie murdered en masse. How, under these conditions,
are the victims to claim the attention necessary to impress upon their tormentors the fact
that they, too, count for something, that they are of consequence, that in effect they will
no longer accept the lot of being slaughtered, conveniently out of sight and mind or with
impunity?
It is all well and good to observe, as others have, that those who struck on 9–1–1
should instead have taken their case before “the World Court.”9 Genocide is, without
doubt, the worst of all crimes against humanity. In this instance, it has been effectively
admitted, and the plaintiffs would thus undoubtedly have received a favorable ruling.
These truisms uttered, however, a serious question must be posed: To what effect might
the victims have pursued such an option? The U.S., its lofty rhetoric to the contrary
notwithstanding, self-evidently disdains the rule of law.10 It long ago repudiated notions
that the venerable International Court of Justice (ICJ) holds the least authority over it.11
The same pertains, and more so, to the newly established International Criminal Court
(ICC).12 Plainly, the U.S. is a “rogue state” which,13 like the Third Reich before it,
imagines itself possessed of a “sovereign right” to operate in a manner unfettered by any
but its own customs and conventions of comportment.14
The ICJ might nonetheless have entered a ruling. And then? The issue would
immediately become one of enforcement.15 The means decreed in this regard by the
United Nations Charter and numerous other international instruments are mostly
constrained to imposing economic and/or diplomatic sanctions upon offenders.16 It is
assumed that such embargoes, pressed with sufficient vigor by the world community, will
compel targeted states to correct their behavior. No provision is made, however, for
dealing with violators like the U.S., which exercises not only an undeniable global
economic suzerainty, but formal veto power over U.N. sanctions.17 Other countries are
thereby left in the position of having to elect between attempting to militarily enforce
international law against the “world’s only remaining superpower” or acquiescing in its
ever-expanding pattern of gross illegalities.
There is but one route out of this particular box. It traces the trajectory of an obligation
inherent in the citizens of each country to do whatever is necessary to ensure that their
government complies with the requirements of international law.18 Enunciated as part of
the postwar Nuremberg Doctrine with the Germans in mind, the principle applies no less
to Americans.19 Yet it is precisely this civic/human responsibility upon which Americans
have defaulted so conspicuously in the aggregate of their willful ignorance concerning the
ghastly toll exacted from Iraq.
The question reverts thus to whether, under the conditions at hand, there might have
been some “more appropriate means” by which the victims of U.S. aggression might have
conveyed the consequences of their agony. Posing it may best be left to the moral cretins
who, having done so much to foment the situation in the first place, now revile and seek
xii
to exterminate the messengers, demanding “defense” against the truth of their
statement.20 For the rest of us, the method of communication employed was what it was,
a mere pinprick when measured against the carnage America so routinely inflicts on
others, more akin to a wake-up call than anything else.
In retrospect it will be seen that September 11, 2001, marked the point at which the
U.S. was put on notice that business-as-usual would no longer prevail: if Americans wish
ever again to be secure from the ravages of terrorism, their top priority must at long last
become that of preventing their own government from instigating and participating in
it;21 if, in substance, they desire safety for their own children, they will first have to “stop
killing other peoples babies.”22 While there remain tremendous disparities in the scales of
lethality involved, a nonetheless unmistakable symmetry is embodied in these grim
equations. Some might even call it justice, and from justice there can be no ultimate
escape.
ON THE MATTER OF SELF-CONCEPT
This said, it must be admitted that there remains a considerable potency to the fantasy of a
forum not unlike the Nuremberg Trials in which America’s international criminals would
take their proper place in the defendants’ dock. While the near-term prospect of any such
scenario materializing is virtually nil—absent the unlikely emergence of an alliance among
secondary powers both capable and willing to literally pound the U.S. into submission—
reveries of malignant toads like Henry Kissinger, Madeleine Albright, and Jesse Helms
squatting in the shadow of the gallows are simply too pleasant to be suppressed.23 This
gives rise to more serious contemplation of how such worthy objectives might actually be
attained over the longer run. Fortunately, there are possibilities in this regard.
The trials precipitated by their total military defeat and occupation forced the Germans
into an unprecedented form of self-reckoning. Compelled to face what Karl Jaspers
termed the “Question of German Guilt” because of overwhelming courtroom evidence
concerning their societal responsibility for the crimes of nazism, they were left no viable
alternative but to search for a coherent explanation of their behavior.24 Eventually, the
process led them to collectively embrace an “internationalization of [their] ‘national’
history” as an antidote to the “collective, narcissistic self-exaltation” enshrined in previous
narratives of German identity.25 In this manner, the duality of triumphalism and denial
forming the Germans’ “mass psychology of fascism” was gradually transformed into its
antithesis.26
By 1959, shortly after West Germany regained its autonomy, their psychointellec-tual
denazification had evolved to such an extent that the Germans themselves could undertake
the first of what by 1981 would total nearly 6,000 trials of nazi criminals in their
country’s domestic courts.27 Concomitantly, although its record in this respect remains
far from perfect, Germany has voluntarily paid—in fact, continues to pay—billions of
dollars in compensation to those it victimized during World War II (or, in some cases,
their descendants).28 Imposition of the death penalty has all along been constitutionally
prohibited, as has, until very recently, the deployment for any purpose whatever of
German troops abroad.
One wonders whether the transformative process evident in postwar Germany might
not yield similarly constructive results if undertaken through a reversed sequence in the
xiii
contemporary United States. In theory, rather than international trials serving as the
catalyst for a radical reinterpretation of national history, hence national character, a
reconfigured history might serve to galvanize popular initiatives culminating in
international trials (and/or domestic trials evoking international law).29 A sur-mounting of
America’s well-nurtured public evasion of such “unpleasantness” is of course necessary, as
it so obviously was in Germany, yet it seems possible that the means are already at hand.
Taken together with a growing awareness that there are likely other, much heavier shoes
ready to drop unless Americans show signs of getting their house in order—biochemical
weapons? a nuclear device?—9–1–1 may well have injected the essential element of selfinterested incentive to change.30
Thus must the country at last and in the fullest sense commence the task of coming face
to face with the stark horrors of which its historical burden is comprised: not just what has
been done to the Iraqis, but, as bin Laden himself pointed out, to the Palestinians as
well.31 And, to be sure, there are others: the millions of Timorese,32 Guatemalans,33
Indonesians34 and comparable victims of America’s client regimes since 1945;35 the
millions of Indochinese slaughtered by U.S. troops during the “Vietnam Era”;36 the untold
numbers of Koreans massacred at places like No Gun Ri;37 the million-odd Japanese
civilians deliberately burned alive not just at Hiroshima and Nagasaki, but in the massive
incendiary raids flown against Tokyo and other cities during World War II;38 the
hundreds of thousands of Filipinos butchered during the American conquest of their
homeland at the dawn of the twentieth century.39
To this, still more must be added: the millions lost to the Middle Passage, shipped as
livestock from Africa to fuel the rise of America’s economy through their slavery;40 the
millions of their relatives worked to death as chattel labor, both before and since
“Emancipation”;41 the thousands of blacks lynched during the Klan’s century-long
postreconstruction “festival of violence”;42 the Chinese who stood not “a Chinaman’s
chance” of surviving their indenture while building America’s railroads and sinking its
deep shaft mines;43 the Mexican migrant laborers dead of pesticides in California fields;44
the twelve-million-or-more Third World kids who perish each year of poverty-induced
afflictions, their very subsistence siphoned into providing the cellphones and other
paraphernalia now deemed all-important to the average Americans “quality of life.”45
These are but a few of the highlights—more accurately, the low points—of the history
American triumphalism has sought not only to silence, but to transmute into the opposite
of itself.46 Recasting the country’s narrative self-conception in a form wherein such
matters assume their proper place as defining ingredients would go far towards dispelling
the illusion that the words “innocent” and “American” are synony-mous.47 From there, it
should be possible to break down the intricate codes of disun-derstanding through which
average Americans have come to see themselves, both individually and collectively, as
being somehow entitled to possess, control, and/or consume that which belongs to others
(including even their very lives, “where need be”).48 On this basis, it would at least be
arguable that the U.S. polity had intellectually equipped itself to participate as responsible
citizens within the world community it now purports to “lead.”49
xiv
IN SEARCH OF A METHOD
The question arises of how best to approach the mass of information upon which any
radical (re)interpretation of “The American Experiment” must proceed.50 The sheer
volume of what has been shunted aside in canonical recountings threatens to overpower
the most intrepid of counternarratives, dissolving into a fine mist of contrarian detail.
How then to give shape to the whole, ordering and arranging its contents in ways that
explicate rather than equivocating or obscuring their implications, making the conclusions
to be drawn not just obvious but unavoidable? How, in other words, to forge an historical
understanding which in itself amounts to an open demand for the sorts of popular action
precipitating constructive social change?51
There are several methodological contenders in this connection, beginning with
Howard Zinn’s commendable effort in A Peoples History of the United States to more or less
straightforwardly rewrite Samuel Eliot Morison’s Oxford History of the American People in
reverse polarity, effigizing rather than celebrating the status quo.52 Historical materialism,53
functionalism,54 structuralism,55 hermeneutics,56 and even some of the less tedious
variants of postmodernism offer themselves as alternatives (usually as the alternative).57
So, too, do subgenres of postcolonialism like subaltern studies.58 Each of these “visions of
history,” at least in some of their aspects, are of utility to the development of a bona fide
U.S. historical praxis.59 At face value, however, none are able to avoid the fate of either
descending into a state of hopeless atomization,60 or, alternately, overreaching themselves
to the point of producing one or another form of re-ductionist metahistorical
construction.61
Perhaps the surest route to avoiding these mirrored pitfalls will be found in the
Nietzschean method of “historical genealogy” evolved by Michel Foucault in works such as
The Archaeology of Knowledge.62 This is a highly politicized endeavor in which the analyst,
responding to circumstances s/he finds objectionable in the present, traces its “lineage”
back in time until a fundamental difference is discerned (this “historical discontinuity” is
invariably marked by an “epistemological disjuncture”). Having thus situated the source of
the problem in its emergence from a moment of historical transition, the analyst can
proceed to retrace the unfolding of the specific history at issue forward in time, with an
eye toward what would need to be “undone”—and how—if the future is to be rendered
more palatable than the current state of affairs. In this, whatever set of circumstances
prevailed prior to the discontinuity is mined for its potentially corrective features.63
Instead of condemning the barbarism of pre-modern society, its inhumanity,
injustice, and irrationality, Foucault presents the difference of the pre-modern
system by demonstrating that, on its own terms, it makes sense and is coherent.
The reason for doing so, let it be noted, is not to present a revised picture of the
past, nostalgically to glorify [its] charms…but underline the transitory nature of the
present system and therefore remove the pretense of legitimacy it holds by dint of a
naïve, rationalist contrast with the past.64
Although firmly grounded in Nietzsche, Foucault’s model also incorporates a “poststructuralist strategy of detotalization oriented to the particularity of the phenomena”
xv
studied, and “a structuralist strategy oriented to remove the analysis from the register of
subjectivist humanism.”65 To this might be added occasional forays into a strategy of
immanent critique in which the contemporary order is held strictly accountable to the
standards and ideals it typically claims as being descriptive of its own composition and
character.66 Overall, the object is to reveal in all their squalor the pretensions of
“modern” morés and institutions, “undermining the [illusion of] natu-ralness” in which
they seek to cloak themselves, and to make explicit thereby both the necessity and
tangible possibility of their being dismantled or transcended.67
This book follows Foucauldian procedure. In the U.S., irrespective of which among the
earlier-sketched grotesqueries is emphasized—be it America’s voracious greed and
genocidal disregard for the wellbeing of others, the concomitants of militarism and
virulent racism, or the weird psychic stew in which imperial/racial arrogance has been
blended in equal part with the most sanctimonious professions of peaceful innocence—its
lineage traces to precisely the same source: the invasion(s) of Native North America by
Europeans during the sixteenth and seventeenth centuries.68 Absent that profound and
violently imposed rupture in historical continuity, nothing else that is objectionable in
American history—slavery, for instance—or in contemporary American life
—“globalization,” to name a salient example—would have been materially possible (or, in
the main, conceivable). The relationship between Euroamericans and American Indians is
therefore the most fundamental of any on the continent. It is the bedrock upon which all
else is built, the wellspring from whence all else flows.69
Hence, in tracing the course and temper of Indian-white relations, a considerable light
is shed upon the relationship of the U.S. “mainstream” population and virtually every
other people it has encountered over the past two and a quarter centuries, both
“domestically” and abroad. It might indeed be argued that Euroamerica’s attitude towards
and treatment of the peoples indigenous to the “homeland” it has seized for itself has been
in many respects definitive of those it has accorded all Others, including not least—and in
some cases increasingly—certain sectors of its own nominal racial/ethnic constituency.70
The postinvasion history of Native America thus provides the lens through which all of
American history must be examined if it is to be in any sense genuinely understood. To
put it more personally, it is essential, if one is to truly appreciate the implications of one’s
own place in American society, that one “read” them in terms of U.S./Indian relations.71
It follows that correction of the socioeconomic, political, and other repugnancies
marking modern American life is, in the final analysis, entirely contingent upon rectification of nonindian America’s abecedarian relationship to American Indians. Here,
history provides the agenda concerning what must be done. So long as Native North
America remains internally colonized, subject to racial codes, unindemnified for the
genocide and massive expropriations we’ve suffered—and continue to suffer—geno-cide,
colonialism, racism, and wholesale theft will remain the signal attributes of American
mentality and behavior.72 Insofar as this is so, the U.S. will undoubtedly continue to
comport itself in the world as it has in the past. And this, in turn, will inevitably result in
responses far more substantial than that made on 9–1–1.
xvi
ACTS OF REBELLION
Plainly, there are choices to be made. Arriving at the right choices, however, depends to a
considerable extent upon being able to see things clearly. Acts of Rebellion, then, although
it is a reader, and therefore by both intent and design far from comprehensive, is meant to
facilitate the attainment of the insights requisite to deciding where one stands on many of
the core issues confronting American Indians. Call it, if you will, an exercise in values
clarification. In any event, I flatter myself to think that one cannot read it and, without
entering into active falsehood, afterwards claim “not to know” what has been/is being
done to Native North America. Knowledge, of course, associated as it is with power,
demands action. To possess knowledge and ignore its demands is to nullify claims of
innocence. Ignorance, in effect, equates to complicity, a variety of guilt.73
Since the book is a reader it seeks to accomplish a number of things. Not only does it
cover a fairly broad range of discrete but related topics, for instance, but it does so by
employing a variety of styles. The majority of the essays—“The Law Stood Squarely on Its
Head,” “The Nullification of Native America?” and “A Breach of Trust,” for exam-ple—
are “formal,” at least in the sense that they were originally prepared for publication in
academic journals and rely upon extensive annotation. Others, such as “False Promises”
and “The New Face of Liberation,” have been developed from the transcripts of lectures
delivered at various universities. “Lets Spread the ‘Fun’ Around” was written as an op-ed
piece,74 while “Confronting Columbus Day” was originally prepared as a legal brief. One
object of this “eclectic” arrangement is to demonstrate that in writ-ing—which may in itself
be viewed as a mode of activism75—it is unnecessary to pull one’s punches, regardless of
the venue in which one seeks to publish.
A word on annotation is in order. Mine is almost always extensive, sometimes
notoriously so. There are reasons for this that go well beyond the “scholarly” imperative
of demonstrating “command of the literature” bearing upon whatever topic I may be
writing. Many of my notes amplify points raised in my texts, offering caveats or digressions that would, if incorporated into the body of the essay itself, disrupt its flow. The
notes thus serve in a literal sense as a conscious and deliberate “subtext,” and should be
approached as such. Still, the citations appearing in my notes are quite extensive, and this
is because I want no reader to have to simply “take my word for” anything I say. Anyone
wishing to know more than I observe about anything I mention, or apprehend the
concrete basis upon which I’ve said what I’ve said, is empowered by my citations to
examine things for themselves—without necessarily having to do thirty years of intensive
research in the process—and appreciate for themselves how I’ve “connected the dots.”
Acts of Rebellion is divided into four sections. The first, which concerns the application
of European/Euroamerican legality to North America’s indigenous peoples, is designed to
debunk the smug lie that the U.S. is or ever has been “a nation of laws, not men.”76
Particularly in “The Law Stood Squarely on Its Head,” great care is taken to demonstrate
exactly how both the Law of Nations and the constitutional requirements of U.S.
domestic law itself have been cynically and consistently subverted by American jurists almost
from the inception of the republic, always for purposes of po-litical/military dominance
and material gain. “The Law” has always been used as toilet paper by the status quo where
American Indians are concerned, a circumstance to be heeded by anyone naïve enough to
xvii
believe—or duplicitous enough to argue without really believing—that the problems we
face can somehow be resolved through recourse to the sort of “due process” available to us
in the courts of our colonizers. The lesson should be taken especially to heart by other “out
groups” in American life, all of whom are subject to at least some of the illegitimate
juridical principles articulated by the U.S. judiciary vis-à-vis the continents native
inhabitants.77
The second essay, “The Nullification of Native America?,” explores a specific example
of how legalistic rationalizations have lately been employed to subvert the most intimate
aspect of native self-determination: the question of identity (in both individual and
collective terms). The third and final essay of the first section, “Confronting Columbus
Day,” examines, again in a very specific way, the manner in which the tenets of U.S.
jurisprudence and statutory legality conflict with the requirements of international law.
The latter argument in particular, in that it was successfully employed by the defense in an
actual criminal proceeding, can be mined for its utility to others in similar situations.
As should have become apparent in reading the first section, if it wasn’t already, a
purportedly strict adherence to legality has been absolutely central to the false image of
itself America has persistently projected to the world. Hence, law serves as an ideal
medium by which to perform immanent critique (analyzing, that is, the question of whether
or to what extent the realities of American comportment differ from its enunciated selfdescription).78 The reader will find it regularly deployed for this purpose not only in the
opening section, but throughout the remainder of the book. This is especially true in the
second section, wherein “The Earth Is Our Mother” investigates the historical process by
which Native North Americans were/are dispossessed of some 98 percent of our
property, “A Breach of Trust” examines America’s internal colonial structure in the
specific connection of uranium mining (thus confirming Sartre’s equation of colonialism to
genocide), and “Like Sand in the Wind” discusses the creation of an American Indian
diaspora in North America.
The final essay in this sequence, “The Bloody Wake of Alcatraz,” details the grue-some
counterinsurgency campaign mounted by the Federal Bureau of Investigation and
collaborating military and police agencies during the mid-1970s against the American
Indian Movement on and around the Pine Ridge Reservation in South Dakota. Since many
of the techniques employed by the FBI against AIM were patently illegal, even in terms of
U.S. law, and because the entire operation was undertaken to prevent AIM from asserting
rights held by native people under a host of treaties, covenants, and conventions, the gulf
separating America’s often flowery verbiage on “law enforcement” from the sordid
realities of its practice in this regard have seldom revealed themselves in bolder relief. The
distinctions will, however, be readily appreciated by similarly targeted dissident groups
ranging from the United Negro Improvement Association to the Black Panther Party,79
and should be studied closely by all who set upon the task of forging a positive future.
The third section is devoted to examining the instrumentalities of popular culture
through which the settler society has sought to disguise the conditions it has imposed upon
native people, vigorously denying the reality even (or especially) to itself, meanwhile
degrading its indigenous victims in an ever more ubiquitous and refined fashion. The
centerpiece of this ugly endeavor has been cinema—movies—as is discussed in “Fantasies
of the Master Race.” Film is by no means the sole offender, however, as is brought out in
xviii
“Let’s Spread the ‘Fun’ Around,” which deals with the issue of sports team mascots, and
“Indians ‘R’ Us,” which takes up the matter of the “Men’s Movement” and the question of
“New Age” sensibilities more generally. The moral of the story, so to speak, is that words
and images do hurt, as is witnessed by the fact that nazi propagandist Julius Streicher was
tried at Nuremberg,80 convicted of crimes against humanity, and executed for having
engaged in derogations of Jews no worse than those to which American Indians are
routinely subjected. That criminal activities of the sort engaged in by Streicher are
protected under the rubric of U.S. domestic law is a circumstance imbued with negative
implications for any group suffering the psychic ravages of Euroamerica’s customary racist
discourse.81
To conclude, three essays are offered which explore in various ways the kinds of action
and alternatives pointed to in the preceding three sections. “False Promises” endeavors to
explain in capsule form exactly how and why marxism is an unsatisfactory paradigm for
the attainment of native rights. “The New Face of Liberation” explores the indigenist
alternative from yet another angle, finding more common ground with anarchism than
any other European praxis. The sections—and the book’s—last essay, “I Am Indigenist,”
concerns itself with explaining what the consummation of the indigenist agenda in the U.S.
portion of North America might look like, and why no other progressive program can
succeed unless something of the sort actually occurs. A message on priorities is obviously
embedded therein.
As I said, Acts of Rebellion is far from comprehensive. It should, nonetheless, provide
sufficient stimulation to set at least some readers on what I see as the right track,
empowering them to make contributions of their own. If so, it will have accomplished its
purpose. No more can be asked by an author of any book than that it be put to such use.
PART I
IN MATTERS OF LAW
Although the United States did not have to exercise great legal imagination
in incorporating [indigenous nations] within its boundaries, it made a great
effort to do so. From the recognition of the treaty system as the most
appropriate method of legal dealings with [native peoples], to the earlynineteenth-century “Cherokee cases” that gave the legal system meaning, to
the “plenary power” decisions that ended the century and the notion of tribal
sovereignty, U.S. law helped structure not only U.S. Indian policy but also
Indian-white relations… Law was used to perpetrate murder and land frauds
of all sorts and the legal rights of American Indians were ignored by state and
federal courts. The product of this great concern with the “legality” of
nineteenth century federal Indian policy was genocide: more than 90 percent
of all Indians died, and most native land was alienated, the balance occupied
by Indians “owned” by the United States. Indian people were under the
control of Indian agents, political hacks sent out from Washington to manage
the lives of native people and backed by the army.
—Sydney L.Harring
Crow Dog’s Case
2
1
“THE LAW STOOD SQUARELY ON ITS
HEAD”
U.S. Doctrine, Indigenous Self-Determination, and the
Question of World Order
There’s no precedent in law for the way American jurists, beginning with
Chief Justice of the Supreme Court John Marshall, have elected to assert
their country’s “right” to own territories in which the peoples native to this
continent had resided since time immemorial. Marshall himself quite simply
invented the “legal principles” upon which he based his doctrine of settler
dominion, in the process standing a large portion of existing international
law squarely on its head, and his successors have continued to treat these
distortions as gospel right up to the present moment.
—Glenn T.Morris, 1990
AS ANYONE WHO HAS EVER DEBATED OR NEGOTIATED WITH U.S.
OFFICIALS ON matters concerning American Indian land rights can attest, the federal
government’s first position is invariably that its title to/authority over its territoriality
was acquired incrementally, mostly through provisions of cession contained in some 400
treaties with Indians ratified by the Senate between 1778 and 1871.1 When it is pointed
out that the U.S. has violated the terms of every one of the treaties at issue, thus voiding
whatever title might otherwise have accrued therefrom, there are usually a few moments
of thundering silence.2 The official position, publicly framed by perennial “federal Indian
expert” Leonard Garment as recently as 1999, is then shifted onto different grounds: “If
you don’t accept the treaties as valid, we’ll have to fall back on the Doctrine of Discovery
and Rights of Conquest.”3 This rejoinder, to all appearances, is meant to be crushing,
forestalling further discussion of a topic so obviously inconvenient to the status quo.
While the idea that the U.S. obtained title to its “domestic sphere” by discovery and
conquest has come to hold immense currency among North America’s settler population,
one finds that the international legal doctrines from which such notions derive are all but
unknown, even among those holding degrees in law, history, or political philosophy. The
small cadre of arguable exceptions to the rule have for the most part not bothered to
become acquainted with the relevant doctrines in their original or customary
formulations, instead contenting themselves with reviewing the belated and often
transparently self-serving “interpretations” produced by nineteenth-century American
jurists, most notably those of John Marshall, third Chief Justice of the Supreme Court.4
Overall, there seems not the least desire—or sense of obligation—to explore the matter
further.
4 ACTS OF REBELLION
The situation is altogether curious, given Marshall’s own bedrock enunciation of
America’s self-concept, the hallowed proposition that the U.S. should be viewed above all
else as “a nation governed by laws, not men.”5 Knowledge of/compliance with the law is
presupposed, of course, in any such construction of national image. This is especially true
with respect to laws which, like those pertaining to discovery and conquest, form the core
of America’s oft and loudly proclaimed contention that its acquisition and consolidation of
a transcontinental domain has all along been “right,” “just,” and therefore “legal.”6 Indeed,
there can be no questions of law more basic than those of the integrity of the process by which
the United States has asserted title to its landbase and thereby claims jurisdiction over it.
The present essay addresses these questions, examining U.S. performance and the
juridical logic attending it through the lens of contemporaneous international legal custom
and convention, and drawing conclusions accordingly. The final section explores the
conceptual and material conditions requisite to a reconciliation of rhetoric and reality
within the paradigm of explicitly American legal (mis)understandings. It should be noted,
however, that insofar as so much of this devolves upon international law, and with the
recent emergence of the U.S. as “the world’s only remaining super-power,”7 the
implications are not so much national as global.
THE DOCTRINE OF DISCOVERY
Although there are precursors dating back a further 200 years, the concepts which were
eventually systematized as discovery doctrine for the most part originated in a series of Bulls
promulgated by Pope Innocent IV during the late thirteenth century to elucidate material
relations between Christian crusaders and Islamic “infidels.”8 While the pontiff’s primary
objective was to establish a legal framework compelling “Soldiers of the Cross” to deliver
the fruits of their pillage abroad to such beneficiaries as the Vatican and Church-sanctioned
heads of Europe’s incipient states, the Innocentian Bulls embodied the first formal
acknowledgment in Western law that rights of property ownership were enjoyed by nonChristians as well as Christians. “In Justice,” then, it followed that only those ordained to
rule by a “Divine Right” conferred by the “One True God” were imbued with the
prerogative to “rightly” dispossess lesser mortals of their lands and other worldly holdings.9
The law remained as it was until 1492, when the Columbian “discovery” of what
proved to be an entire hemisphere, very much populated but of which most Europeans
had been unaware, sparked a renewed focus upon questions of whether and to what
extent Christian sovereigns might declare proprietary interest in the assets of Others.10
Actually, the first problem was whether the inhabitants of the “New World” were
endowed with “souls,” the criterion of humanity necessary for us to be accorded any legal
standing at all. This issue led to the famous 1550 debate in Valladolid between Frey
Bartolomé de las Casas and Juan Ginés de Sepúlveda, the outcome of which was papal
recognition that American Indians were human beings and therefore entitled to exercise
at least rudimentary rights.11
As a corollary to the Valladolid proceedings, Spanish legal theorists such as Franciscus
de Vitoria and Juan Matías de Paz were busily revising and expanding upon Innocent’s
canonical foundation as a means of delineating the property rights vested in those
“discovered” by Christian (i.e., European) powers as well as those presumably obtained in
the process by their “discoverers.”12 In the first instance, Vitoria in particular posited the
“THE LAW STOOD SQUARELY ON ITS HEAD” 5
principle that sovereigns acquired outright title to lands discovered by their subjects only
when the territory involved was found to be literally unoccupied (terra nullius).13 Since
almost none of the land European explorers ever came across genuinely met this
description, the premise of territorium res nullius, as it was called, was essentially moot from
the outset (albeit, as will become apparent, the English—and much more so their
American offshoot—would later twist it to their own ends).
In places found to be inhabited, it was unequivocally acknowledged in law that native
residents held inherent or “aboriginal” title to the land.14 What the discoverer obtained
was a monopolistic right vis-à-vis other powers to acquire the property from its native
owners, in the event they could be persuaded through peaceful means to alienate it. On
balance, the formulation seems to have been devised more than anything as an attempt to
order the relations between the European states in such a way as to prevent them from
shredding one another in a mad scramble to glean the lion’s share of the wealth all of them
expected to flow from the Americas.15
Under the right of discovery, the first European nation to discover American [or
other] lands previously unknown to Europe had what is similar to an exclusive
European franchise to negotiate for Indian land within the discovered [area].
International law forbade European nations from interfering with the diplomatic
affairs each carried on with the Indian nations within their respective “discovered”
territories. The doctrine thus reduced friction and the possibility of warfare
between the competing European nations.16
That this principle was well developed in international law and understood perfectly by
America’s “Founding Fathers” is confirmed in an observation by no less luminous a figure
than Thomas Jefferson.
We consider it as established by the usage of different nations into a kind of Jus
gentium for America, that a white nation settling down and declaring such and such
are their limits, makes an invasion of those limits by any other white nation an act of
war, but gives no right of soil against the native possessors… That is to say, [we
hold simply] the sole and exclusive right of purchasing land from [indigenous
peoples within our ostensible boundaries] whenever they should be willing to
sell….17
The requirement that the consent of indigenous peoples was needed to legitimate cessions
of their land was what prompted European states to begin entering into treaties with “the
natives” soon after the invasion of North America had commenced in earnest.18 While
thus comprising the fundamental “real estate documents” through which the disposition of
land title on the continent must be assessed, treaties between European and indigenous
nations also served to convey formal recognition by each party that the other was its equal
in terms of legal stature (“sovereignty”).19 To quote Jefferson again, “the Indians [have]
full, undivided and independent sovereignty as long as they choose to keep it, and…this
might be forever.”20 Or, as U.S. Attorney General William Wirt would put it in 1828:
[Be it] once conceded, that the Indians are independent to the purpose of treating,
their independence is to that purpose as absolute as any other nation… Nor can it
6 ACTS OF REBELLION
be conceded that their independence as a nation is a limited independence. Like all
other nations, they have the absolute power of war and peace. Like any other
nation, their territories are inviolable by any other sovereignty… They are entirely
self-governed, self-directed. They treat, or refuse to treat, at their pleasure; and
there is no human power that can rightly control their discretion in this respect.21
From early on, the English had sought to create a loophole by which to exempt
themselves in certain instances from the necessity of securing land title by treaty, and to
undermine the discovery rights of France, whose New World settlement patterns were
vastly different from those of England.22 Termed the “Norman Yoke,” the theory was that
an individual—or an entire people—could rightly claim only such property as they’d
converted from wilderness to a state of domestication (i.e., turned into town-sites, placed
in cultivation, and so forth).23 Without regard for indigenous methods of land use, it was
declared that any area found to be in an “undeveloped” condition could be declared terra
nullius by its discoverer and clear title thus claimed.24 By extension, any discovering
power such as France which failed to pursue development of the sort evident in the
English colonial model forfeited its discovery rights accordingly.25
The Puritans of Plymouth Plantation and Massachusetts Bay Colony experimented with
the idea during the early seventeenth century—arguing that while native property rights
might well be vested in their towns and fields, the remainder of their territory, since it
was uncultivated, should be considered unoccupied and thus unowned—but the precedent
never evolved into a more generalized English practice.26 Indeed, the Puritans themselves
abandoned such presumption in 1629.27
Whatever theoretical disagreements existed concerning the nature of the respective
ownership rights of Indians and Europeans to land in America, practi cal realities
shaped legal relations between the Indians and colonists. The necessity of getting
along with powerful Indian [peoples], who outnumbered the European settlers for
several decades, dictated that as a matter of prudence, the settlers buy lands that
the Indians were willing to sell, rather than displace them by other methods. The
result was that the English and Dutch colonial governments obtained most of their
lands by purchase. For all practical purposes, the Indians were treated as sovereigns
possessing full ownership of [all] the lands of America.28
So true was this that by 1750 England had dispatched a de facto ambassador to conduct
regularized diplomatic relations with the Haudenosaunee (Iroquois Six Nations
Confederacy)29 and, in 1763, in an effort to quell native unrest precipitated by his
subjects’ encroachments upon unceded lands, King George III issued a proclamation
prohibiting English settlement west of the Allegheny Mountains.30 This foreclosure of the
speculative interests in “western lands” held by George Washington and other members of
the settler élite—and the less grandiose aspirations to landed status of rank-and-file
colonials—would prove a major cause of the American War of Independence.31
Although it is popularly believed in the U.S. that the 1783 Treaty of Paris through
which England admitted defeat also conveyed title to all lands east of the Mississippi River
to the victorious insurgents, the reality was rather different. England merely quitclaimed
its interest in the territory at issue. All the newly established American republic thus
acquired was title to such property as England actually owned—the area of the original
“THE LAW STOOD SQUARELY ON ITS HEAD” 7
thirteen colonies situated east of the 1763 demarcation line—plus an exclusive right to
acquire such property as native owners might be convinced to cede by treaty as far
westward as the Mississippi.32 The same principle pertained to the subsequent “territorial
acquisitions” from European or euroderivative countries—the 1803 Louisiana Purchase
and the 1848 impoundment of the northern half of Mexico through the Treaty of
Guadelupe Hidalgo, to cite two prominent examples—through which the present
territoriality of the forty-eight contiguous states was eventually consolidated.33
As a concomitant to independence, moreover, the Continental Congress found itself
presiding over a pariah state, defiance—much less forcible revocation—of Crown
authority being among the worst offenses imaginable under European law. Unable to
obtain recognition of its legitimacy in other quarters,34 the federal government was
compelled for nearly two decades to seek it through treaties of peace and friendship with
indigenous nations along its western frontier—all of them recognized as sovereigns in
prior treaties with the very European powers then shunning the U.S.—mean-while going
to extravagant rhetorical lengths to demonstrate that, far from being an outlaw state, it
was really the most legally oriented of all nations.35
The fledgling country could hardly peddle a strictly law-abiding image while openly
trampling upon the rights of indigenous peoples. As a result, although George Washington
had secretly and successfully recommended the opposite policy even before being sworn
in as president,36 one of the earliest acts of Congress was to pass the Northwest
Ordinance, in which it solemnly pledged that “the utmost good faith shall always be
observed towards the Indians; their lands and property shall never be taken without their
consent; and, in their property, rights, and liberty, they shall never be invaded or
disturbed.”37 For the most part, then, it was not until the U.S. had firmed up its
diplomatic ties with France, and the demographic/military balance in the west had begun
to shift decisively in its favor,38 that it started to make serious inroads on native lands.
THE MARSHALL OPINIONS
The preliminary legal pretext for U.S. expansionism, set forth by John Marshall in his
1810 Fletcher v. Peck opinion,39 amounted to little more than a recitation of the Norman
Yoke theory, quite popular at the time with Jefferson and other American leaders.40 The
proposition that significant portions of Indian Country amounted to terra nullius, and was
thus open to assertion of U.S. title without native agreement, was, however, contradicted
by the country’s policy of securing by treaty at least an appearance of indigenous consent
to the relinquishment of each parcel brought under federal jurisdiction.41 The
presumption of underlying native land title lodged in the Doctrine of Discovery thus
remained the most vexing barrier to America’s fulfillment of its territorial ambitions.
In the 1823 Johnson v. McIntosh case, Marshall therefore undertook a major (re)
interpretation of the doctrine itself.42 While demonstrating a thorough mastery of the law
as it had been previously articulated, and an undeniable ability to draw all the appropriate
conclusions therefrom, the Chief Justice nonetheless managed to invert it completely.
Although he readily conceded that title to the territories they occupied was vested in
indigenous peoples, Marshall denied that this afforded them supremacy within their
respective domains. Rather, he argued, the self-assigned authority of discoverers to
constrain alienation of discovered lands implied that prepotency inhered in the discovering
8 ACTS OF REBELLION
power, not only with respect to other potential buyers but vis-à-vis the native owners
themselves.43
Since the sovereignty of discoverers—or derivatives like the U.S.—could in this sense
be said to overarch that of those discovered, Marshall held that discovery also conveyed to
the discoverer an “absolute title” or “eminent domain” underlying the aboriginal title
possessed by indigenous peoples. The native “right of possession” was thereby reduced at
the stroke of a pen to something enjoyed at the “sufferance” of the discovering (superior)
sovereign.44
The principle was, that discovery gave title to the government by whose subjects, or
by whose authority, it was made, against all other European governments whose title
might be consummated by possession. The exclusion of all other Europeans
necessarily gave to the nation making the discovery the sole right of acquiring the
soil from the natives, and establishing settlements upon it… In the establishment of
these relations, the rights of the original inhabi tants were, in no instance, entirely
disregarded; but were, to a considerable extent, diminished… [T]heir rights to
complete sovereignty, as independent nations, were necessarily diminished, and
their power to dispose of the soil, at their own will, to whomever they pleased,
was denied by the original fundamental principle, the discovery gave exclusive
right to those who made it… [T]he Indian inhabitants are [thus] to be considered
merely as occupants.45
“However extravagant [my logic] might appear,” Marshall summed up, “if the principle
has been asserted in the first instance, and afterwards, sustained; if a country has been
acquired and held under it; if the property of the great mass of the community originates
in it, it cannot be questioned.”46 In other words, violations of law themselves become law
if committed by those wielding enough power to get away with them. For all the elegant
sophistry embodied in its articulation, then, the Johnson v. McIntosh opinion reduces to the
gutter cliché that “might makes right.” In this manner, Marshall not only integrated “the
legacy of 1,000 years of European racism and colonialism directed against nonwestern
peoples” into the canon of American law, but did so with a virulence unrivaled even by
European jurists upon whose precedents he professed to base his own.47
There were of course loose ends to be tied up, and these Marshall addressed through
opinions rendered in the “Cherokee Cases,” Cherokee v. Georgia (1831) and Worcester v.
Georgia (1832).48 In his Cherokee opinion, the Chief Justice undertook to resolve questions
concerning the precise standing to be accorded indigenous peoples. Since the U.S. had
entered into numerous treaties with them, it was bound by both customary international
law and Article 1§ 10 of its own constitution to treat them as coequal sovereigns.
Marshall’s verbiage in McIntosh had plainly cast them in a very different light. Hence, in
Cherokee, he conjured a whole new classification of politicolegal entity “marked by peculiar
and cardinal distinctions which nowhere else exist.”49
[I] t may well be doubted whether those tribes which reside within the
acknowledged boundaries of the United States can, with strict accuracy, be
denominated foreign nations. They may, more correctly, perhaps, be denominated
domestic dependent nations. They occupy a territory to which we assert a title
“THE LAW STOOD SQUARELY ON ITS HEAD” 9
independent of their will… Their relation to the United States resembles that of a
ward to his guardian [emphasis original].50
“The Indian territory is admitted to compose a part of the United States,” he continued.
“In all our maps, geographical treatises, histories, and laws, it is so considered… [T]hey
are [therefore] considered to be within the jurisdictional limits of the United States [and]
acknowledge themselves to be under the protection of the United States.”51 What
Marshall had described was a status virtually identical to that of a protectorate, yet as he
himself would observe in Worcester a year later, “the settled doctrine of the law of nations
is that a weaker power does not surrender its independence—its right of self-government
—by associating with a stronger, and taking its protection. A weak state, in order to
provide for its safety, may place itself under the protection of one more powerful,
without stripping itself of the right of government, and ceasing to be a state.”52 It follows
that a protectorate would also retain its land rights, unimpaired by its relationship with a
stronger country.53
At another level, the Chief Justice was describing a status similar to that of the states of
the union (i.e., subordinate to federal authority, while retaining a residue of sovereign
prerogative). Yet he, better than most, was aware that if this were so, the federal
government would never have had a basis in either international or constitutional law to
enter into treaties with indigenous peoples in the first place, a matter which would have
invalidated any U.S. claim to land titles accruing therefrom. Small wonder, trapped as he
was in the welter of his own contradictions, that Marshall eventually threw up his hands in
frustration, unable or unwilling to further define Indians as either fish or fowl. In the end,
he simply repeated his assertion that the U.S./Indian relationship was “unique…perhaps
unlike [that of] any two peoples in existence.”54
Small wonder, too, all things considered, that the Chief Justice’s Cherokee opinion was
joined by only one other member of the high court.55 The majority took exception,
Justices Henry Baldwin and William Johnson writing separate opinions,56 and Smith
Thompson, together with Joseph Story, entering a strongly worded dissent which laid
bare the only reasonable conclusions to be drawn from the facts (both legal and
historical).57
It is [the Indians’] political condition which determines their foreign character, and
in that sense must the term foreign be understood as used in the Constitution. It can
have no relation to local, geographical, or territorial position. It cannot mean a
country beyond the sea. Mexico or Canada is certainly to be considered a foreign
country, in reference to the United States. It is the political relation in which one
country stands to another, which constitutes it [as] foreign to the other [emphasis
original].58
Nonetheless, Marshall’s views prevailed, a circumstance allowing him to deploy his
“domestic dependent nation” thesis against both the Cherokees and Georgia in Worcester.59
First, he reserved on constitutional grounds relations with all “other nations” to the
federal realm, thereby dispensing with Georgia’s contention that it possessed a “state’s
right” to exercise jurisdiction over a portion of the Cherokee Nation falling within its
boundaries.60 Turning to the Cherokees, he reiterated his premise that they—and by
implication all Indians within whatever borders the U.S. might eventually claim—
10 ACTS OF REBELLION
occupied a nebulous quasisovereign status as “distinct, independent political communities”
subject to federal authority.61 In practical effect, Marshall cast indigenous nations as
entities inherently imbued with a sufficient measure of sovereignty to alienate their
territory by treaty when-and wherever the U.S. desired they do so, but never with
enough to refuse.62
As legal scholars Vine Deloria, Jr., and David E.Wilkins have recently observed, the
cumulative distortions of both established law and historical reality bound up in Marshall’s
“Indian opinions” created a very steep and slippery slope, with no bottom anywhere in
sight.
[T]he original assumption [was] that the federal government is authorized and
empowered to protect American Indians in enjoyment of their lands. Once it is
implied that this power also involves the ability of the federal government by itself
to force a purchase of the lands, there is no way the implied power can be limited.
If the government can force the disposal of lands, why can it not determine how the
lands are to be used? And if it can determine how the lands are to be used, why can
it not tell Indians how to live? And if it can tell Indians how to live, why can it not
tell them how to behave and what to believe?63
By the end of the nineteenth century, less than seventy years after Cherokee and Worcester,
each of these things had happened. Within such territory as was by then reserved for
indigenous use and occupancy the traditional mode of collective land tenure had been
supplanted by federal imposition of a “more civilized” form of individual title expressly
intended to compel agricultural land usage.64 Native spiritual practices had been
prohibited under penalty of law,65 and entire generations of American Indian youngsters
were being shipped off, often forcibly, to boarding schools where they were held for years
on end, forbidden knowledge of their own languages and cultures while they were
systematically indoctrinated with Christian beliefs and cultural values.66 The overall policy
of “assimilation,” under which these measures were implemented, readily conforms to the
contemporary legal definition of cultural genocide.67
Meanwhile, American Indians had been reduced to utter destitution, dispossessed of
approximately 97.5 percent of our original landholdings,68 our remaining assets held in a
perpetual and self-assigned “trust” by federal authorities wielding what Marshall’s heirs on
the Supreme Court described as an extraconstitutional or “plenary”—that is, unlimited,
absolute, and judicially unchallengeable—power over our affairs.69 Suffice it here to
observe that nothing in the Doctrine of Discovery empowered any country to impose
itself on others in this way. On the contrary, the “juridical reasoning” evident in the
Marshall opinions and their successors has much in common with, and in many respects
prefigured, the now discredited body of law—repudiated first by an International Court of
Arbitration opinion in the 1928 Island of Palmas case,70 then more sweepingly in the 1945
United Nations Charter and the United Nations’ 1960 Declaration on the Granting of
Independence to Colonial Countries and People71—which purported to legitimate the
imperialism manifested by Europe during the early twentieth century.72
“THE LAW STOOD SQUARELY ON ITS HEAD” 11
RIGHTS OF CONQUEST
Although they are usually treated as an entirely separate consideration, conquest rights in
the New World accrued under the law of nations as a subpart of discovery doctrine.
Under international law, discoverers could acquire land only through a voluntary
alienation of title by native owners, with one exception—when they were compelled to
wage a “Just War” against native people—by which those holding discovery rights might
seize land and other property through military force.73 The U.S. clearly acknowledged
that this was so in the earlier-mentioned Northwest Ordinance, where it pledged that
indigenous nations would “never be invaded or disturbed, unless in just and lawful wars
authorized by Congress.”74
The criteria for a Just War were defined quite narrowly in international law. As early
as 1539, Vitoria and, to a lesser degree, Matías de Paz asserted that there were only three:
the natives had either to have refused to admit Christian missionaries among them, to have
arbitrarily refused to engage in commerce with the discovering power, or to have
mounted some unprovoked physical assault against its representatives/subjects.75 Absent
at least one of these conditions, any war waged by a European state or its derivative would
be “unjust”—the term was changed to “aggressive” during the twentieth century—and
resulting claims to title unlawful.76 One searches in vain for an example in American history
where any of the criteria were realized.
A more pragmatic problem confronting those claiming that the U.S. holds conquest
rights to native lands is that, while the federal government recognizes the existence of
approximately 400 indigenous peoples within its borders, its own count of the number of
“Indian Wars” it has fought “number [about] 40.”77 Plainly, the United States cannot exercise
“conquest rights” over the more than 300 nations against which, by its own admission, it has
never fought a war. Yet, as is readily evident in its 1955 Tee-Hit-Ton opinion, the Supreme
Court, mere facts to the contrary notwithstanding, has anchored U.S. land title in a
pretense that exactly the opposite is true.
Every American schoolboy knows that the savage tribes of this continent were
deprived of their ancestral ranges by force and that, even when the Indians ceded
millions of acres by treaty in return for blankets, food and trinkets, it was not a sale
but the conquerors’ will that deprived them of their land.78
Particularly in his McIntosh opinion, but also in Cherokee, John Marshall sought to transcend
this issue by treating discovery and conquest as if they were synonymous, a conflation
evidencing even less legal merit than the flights of fancy discussed in the preceding
section. In fact, the high court was ultimately forced to distinguish between the two,
acknowledging that the “English possessions in America were not claimed by right of
conquest, but by right of discovery,” and, resultingly, that the “law which regulates, and
ought to regulate in general, the relations between the conqueror and conquered, [is]
incapable of application” by the U.S. to American Indians.79
A further complication is that as early as 1672 legal philosophers like Samuel Pufendorf
had mounted a serious challenge to the idea that even such territory as was seized in the
course of a Just War might be permanently retained.80 Although Hugo Grotius,
Emmerich de Vattel, William Edward Hall, John Westlake, and other such theorists
12 ACTS OF REBELLION
continued to aver the validity of conquest rights through the end of the nineteenth
century,81 by the 1920s a view very similar to Pufendorf’s had proven ascendant.
Oddly, given its stance concerning American Indians, as well as its then recent forcible
acquisitions of overseas colonies like Hawai‘i, Puerto Rico, and the Philippines,82 the U.S.
assumed a leading role in this respect. Although the Senate refused to allow the country to
join, President Woodrow Wilson was instrumental in creating the League of Nations, an
organization intended “to substitute diplomacy for war in the resolution of international
disputes.”83 In some ways more important was its centrality in crafting the 1928 General
Treaty on the Renunciation of War, also known as the “Kellogg-Briand Pact” or “Pact of
Paris.”84
With the [treaty], almost all the powers of the world, including all the Great
Powers, renounced the right to resort to war as an instrument of state policy. By
Article 1, “[t]he High Contracting Parties solemnly declare, in the names of their
respective peoples, that they condemn war for the solution of international
controversies, and renounce it as an instrument of national policy in their relations
with one another.” By Article 2, the Parties “agree that the settlement or solution
of all disputes or conflicts, of whatever nature or of whatever origin they may be,
which may arise among them, shall never be sought except by pacific means.”85
In 1932, Secretary of War Henry Stimson followed up by announcing that the U.S. would
no longer recognize title to territory seized by armed force.86 This “new dictum of
international law,”87 shortly to be referred to as the “Stimson Doctrine of
NonRecognition,” was expressly designed to “effectively bar the legality hereafter of any
title or right sought to be obtained by pressure or treaty violation, and [to] lead to the
restoration to [vanquished nations] of rights and titles of which [they] have been unjustly
deprived.”88 Within a year, the doctrine’s blanket rejection of conquest rights had been
more formally articulated in a League of Nations Resolution and legally codified in the
Chaco Declaration, the Saaverda Lamas Pact, and the Montevideo Convention on the
Rights and Duties of States.89 In 1936, the Inter-American Conference on the
Maintenance of Peace also declared a “proscription of territorial conquest and that, in
consequence, no acquisition made through violence shall be recognized.”90 The principle
was again proclaimed in the Declaration on the Non-Recognition of the Acquisition of
Territory by Force advanced by the Eighth Pan-American Conference in 1938.
As a fundamental of the Public Law of America…the occupation or acquisition of
territory or any other modification of territorial or boundary arrangement obtained
through conquest by force or non-pacifistic means shall not be valid or have legal
effect… The pledge of non-recognition of situations arising from the foregoing
conditions is an obligation which cannot be avoided either unilaterally or
collectively.91
By the time the Supreme Court penned its bellicose opinion in Tee-Hit-Ton, the Stimson
Doctrine had already served as a cornerstone in formulating the charges of planning and
waging aggressive war pressed against the major nazi defendants at Nuremberg and the
Japanese in Tokyo (tribunals instigated and organized mainly by the U.S.).92 It had also
“THE LAW STOOD SQUARELY ON ITS HEAD” 13
served as a guiding principle in the (again, effectively U.S. instigated) establishment of
both the Organization of American States and the United Nations, entities which by their
very charters, like the ill-fated League of Nations before them, are devoted to the “the
progressive codification of [international] law… for purposes of preventing war.”93
Correspondingly, Stimson’s “new dictum” found its most refined and affirmative
expression in the charters’ provisos, reiterated almost as boilerplate in a host of
subsequent U.N. resolutions, declarations, and conventions, concerning the “equal rights
and self-determination of all peoples.”94
Contradictory as the Tee-Hit-Ton court’s blatant conquest rhetoric was to the lofty
posturing of the U.S. in the international arena, it was even more so with respect to a
related subterfuge unfolding on the home front. By 1945, the United States was urgently
seeking a means of distinguishing its own record of territorial expansion from that of the
nazis it was preparing to hang for having undertaken very much the same course of action.95
The workhorse employed in this effort was the so-called Indian Claims Commission
(ICC), established to make retroactive payment to indigenous peoples whose property had
been “unlawfully taken” over the years.96 The purpose of the commission was, as President
Harry Truman explained upon signing the enabling legislation on August 14, 1946, to
foster an impression that the U.S. had acquired none of its landbase by conquest.
This bill makes perfectly clear what many men and women, here and abroad, have
failed to recognize, that in our transactions with Indian tribes we have…set for
ourselves the standard of fair and honorable dealings, pledging respect for all Indian
property rights. Instead of confiscating Indian lands, we have purchased from the
tribes that once owned this continent more than 90 percent of our public
domain.97
The game was rigged from the outset, to be sure, since the ICC was not empowered to
return land to native people even in cases where its review of the manner in which the
U.S. had acquired it revealed the grossest sorts of illegality. The terms of compensatory
awards, moreover, were restricted to payment of the estimated value of the land at the
time it was taken—often a century or more before—without such considerations as
interest accrual or appreciation in land values during the intervening period.98 Still,
despite its self-serving and mostly cosmetic nature, the very existence of the ICC
demonstrated quite clearly that, in terms of legality, U.S. assertion of title to/jurisdiction
over Indian Country can no more be viewed as based in “conquest rights” than in “rights of
discovery.” All U.S. pretensions to ownership of property in North America must
therefore be seen as treaty-based.
THROUGH THE LENS OF THE LAW
When Congress established the ICC in 1946, it expected within five years to “resolve” all
remaining land rights issues concerning American Indians.99 The commission was to
identify and catalogue the basis in treaties, agreements, and statutes by which the U.S. had
assumed lawful ownership of every disputed land parcel within its purported domain,
awarding “just compensation” in each case where the propriety of the transaction(s)
documented might otherwise be deemed inadequate.100 By 1951, however, the 200-odd
14 ACTS OF REBELLION
claims originally anticipated had swelled to 852.101 The lifespan of the ICC was extended
for another five years, then another, a process which was repeated until the “third
generation” of commissioners finally gave up in exhaustion.102
By the time the commission suspended operations on September 30, 1978, it had
processed 547 of the 615 dockets into which the 852 claims had been consolidated, none
in a manner satisfactory to the native claimants (nearly half were simply dismissed).103
Title to virtually the entire state of California, for instance, was supposedly “quieted” in
the “Pit River Land Claims Settlement” of the mid-1960s by an award amounting to 47
cents per acre, despite the fact that the treaties by which the territory had ostensibly been
ceded to the U.S. had never been ratified by the Senate.104
Most important, in its final report the ICC acknowledged that after three decades of
concerted effort, it had been unable to discern a legal basis for U.S. title to what the
federal Public Lands Law Review Commission had already described as “one third of the
nation’s land.”105
The fact is that about half the area of the country was purchased by treaty or
agreement at an average price of less than a dollar per acre; another third of a
[billion] acres, mainly in the West, was confiscated without compensation; another
two-thirds of a [billion] acres was claimed by the United States without pretense of
[even] a unilateral action extinguishing native title.106
There can be no serious question of the right of indigenous nations to recover property to
which their title remains unclouded, or that their right to recover lands seized without
payment equals or exceeds that of the United States to preserve its “territorial integrity”
by way of paltry and greatly belated compensatory awards.107 Restitution rather than
compensation is, after all, the guiding principle of the tort provisions embodied in
international public law.108 Nor is this the end of it. Within the area ostensibly acquired
by the U.S. through treaties or agreements, many of the instruments of cession are known
to have been fraudulent or coerced. These must be considered invalid under Articles 48–
53 of the Vienna Convention on the Law of Treaties.109
A classic illustration of a fraud involves the 1861 Treaty of Fort Wise, in which not
only did federal commissioners forge the signatures of selected native leaders—several of
whom were not even present during the “negotiations”—but the Senate altered many of
the treaty’s terms and provisions after it was supposedly signed, then ratified the result
without so much as informing the Indians of the changes. On this basis, the U.S. claimed
to have obtained the “consent” of the Cheyennes and Arapahos to its acquisition of the
eastern half of what is now the State of Colorado.110 Comparable examples abound (e.g.,
the above-mentioned California treaties).
Examples of coercion are also legion, but none provides a better illustration than does
the 1876–77 proceeding in which federal authorities suspended distribution of rations to
the Lakotas, at the time directly subjugated by and therefore dependent upon the U.S.
military for sustenance, and informed them that they’d not be fed again until their leaders
had signed an agreement relinquishing title to the Black Hills region of present-day South
Dakota.111 Thus did the Congress contend that the 1851 and 1868 treaties of Fort
Laramie, in each of which the Black Hills were recognized as an integral part of the Lakota
homeland, had been “superseded” and U.S. ownership of the area secured.112
“THE LAW STOOD SQUARELY ON ITS HEAD” 15
Without doubt, North America’s indigenous nations are no less entitled to recover
lands expropriated through such travesties than they are the territories already discussed.
Although it is currently impossible to offer a precise estimate regarding the extent of the
acreage involved—to do so would require a contextual review of each U.S./Indian
treaty, and a parcel-by-parcel delineation of the title transfers accruing from invalid
instruments—it is safe to suggest that adding it to the 35-odd percent of the continental U.S.
which was never ceded would place something well over half the present gross “domestic”
territoriality of the United States (see Map 4.1, p. 69).113
The U.S. of course holds the power to simply ignore the law in inconvenient contexts
such as these. Doing so, however, will never serve in itself to legitimate its comportment.
Instead, its continued possession of a vast expanse of illegally occupied territory114—an
internal colonial empire, as it were115—can only destine it to remain what it was at its
inception: an inherently criminal or “rogue” state.116 It is through this lens that U.S.
pronouncements and performance from Nuremberg to Vietnam must inevitably be
evaluated.117 So, too, President George Herbert Walker Bush’s 1990 rhetoric concerning
America’s moral/legal obligation to kill more than a million Iraqis while militarily
revoking their government’s forcible annexation of neighboring Kuwait.118
On the face of it, the only reasonable conclusion to be drawn is that the unsavory stew
of racial/cultural arrogance, duplicity, and abiding legal cynicism defining U.S. relations
with indigenous nations from the outset has come long since to permeate America’s
relationship to most other countries. How else to understand Bush’s 1991 declaration that
the display of U.S. military might he’d ordered in Iraq was intended more than anything
else to put the entire world on notice that, henceforth, “what we say, goes”?119 In what
other manner might we explain the fact that while Bush claimed the “New World Order”
he was inaugurating would be marked by nothing so much as “the rule of law among
nations,” the United States was and remains unique in the consistency with which it has
rejected both the authority of international courts and any body of law other than its own.120
For the past fifty years, federal policymakers have been increasingly adamant in their
refusal of the proposition that the U.S. might be bound by customs or conventions
conflicting with its sense of self-interest.121 More recently, American delegates to the
United Nations have taken to arguing that new codifications of international law must be
written in strict conformity to their country’s constitutional and even statutory
requirements, and that, for interpretive purposes, the distortions of existing law advanced
by American jurists such as John Marshall be considered preeminent.122 In effect, the U.S.
is seeking to cast an aura of legitimacy over its ongoing subjugation of American Indians by
engineering a normalization of such relations in universal legal terms.
A salient example will be found in the ongoing U.S. rejection of language in the United
Nations Draft Declaration on the Rights of Indigenous Peoples—and a similar declaration
drafted by the OAS—reiterating that self-determination is guaranteed all peoples by the
U.N. Charter.123 Instead, American diplomats have been instructed to insist that
indigenous peoples the world over must be accorded only a “right of internal selfdetermination” which is “not…synonymous with more general understandings of selfdetermination under international law” but which conforms perfectly with those set forth
in the United States’ own Indian Self-Determination and Educational Assistance Act of
16 ACTS OF REBELLION
1975.124 Most specifically, as was stated in an official cable in January 2001, “the U.S.
understanding of the term ‘internal self-determination’ indicates that it does not include a
right of independence or permanent sovereignty over natural resources.”125
The standard “explanation” offered by U.S. officials when queried about the legal basis
for their government’s position on native rights has been that “while the United States
once recognized American Indian [peoples] as separate, distinct, and sovereign nations, it
long since stopped doing so.”126 This, however, is the same, legally speaking, as saying
nothing at all. According to no less an authority than Lassa Oppenheim, author of the
magisterial International Law, voluntary relinquishment is the sole valid means by which
any nation may be divested of its sovereignty.127 Otherwise, “recognition, once given is
irrevocable unless the recognized [nation] ceases to exist.”128 As always, the U.S. is simply
making up its own rules as it goes along.
As should be obvious, the implications of such maneuvers are by no means confined to
a foreclosure upon the rights of native peoples. The broader result of American
“unilateralism” is that, just as it did with respect to North America’s indigenous nations,
the U.S. is now extrapolating its presumptive juridical primacy to global dimensions. 129
The initiative is especially dangerous, given that the place now held by the U.S. within the
balance of world military power closely resembles the lopsided advantage it enjoyed
against American Indians during the nineteenth century.130 The upshot is that, should the
present trend be allowed to continue, the United States will shortly have converted most
of the planet into an equivalent of “Indian Country.”131 In fact, especially with regard to
the so-called Third World, this has already to all practical intents and purposes come to
pass.132
THE NATURE OF MODERN EMPIRE
“Its an old story, really,” writes Phyllis Bennis, one of “a strategically unchallenged
dominion, at the apogee of its power and influence, rewriting the global rules for how to
manage its empire. Two thousand years ago, Thucydides described how Mylos, the island
the Greeks conquered to ensure stability for their Empire’s golden age, was invaded and
occupied according to laws wholly different from those governing democratic (if slavery
dependent) Athens. The Roman empire followed suit, creating one set of laws for Rome’s
own citizens, imposing another on its far-flung possessions. In the last couple of hundred
years the sun-never-sets-on-us British empire did much the same thing. And then, at the
end of the twentieth century, having achieved once unimaginable heights of military,
economic, and political power, it was Washington’s turn.”133
The American-style fin de 20th siecle law of empire took the form of the U.S.
exempting itself from UN-brokered treaties and other agreements that it demanded
others accept. It was evident in Washington’s rejection of the International
Criminal Court in 1998, its refusal to sign the 1997 Convention against antipersonnel land mines, its failures [to accept] the Convention on the Rights of the
Child, the Law of the Sea, the Comprehensive Test Ban Treaty and more.134
“THE LAW STOOD SQUARELY ON ITS HEAD” 17
Actually, the roots of the current U.S. posture run much deeper than Bennis suggests. As
its record concerning the earlier-mentioned California Indian treaties readily
demonstrates, the United States had by the mid-1850s already adopted a policy of
selectively exempting itself from compliance with treaties to which it asserted others were
nonetheless bound.135 The Supreme Court’s 1903 opinion in “Lone Wolf” v. Hitchcock
effectively extended this procedure to encompass all treaties and agreements with
indigenous nations.136 From there, it became only a matter of time before the U.S. would
begin to approach the remainder of its foreign relations in a comparable manner.137 This
parallels the attitude, first explicated with regard to Indians and now displayed quite
prominently on the global stage, that America is endowed with a plenary authority to
dictate the “permissible” forms of other countries’ governmental and political processes,
the modes of their economies, and so on.138
Legal scholar Felix S.Cohen once and accurately analogized American Indians as a
“miner’s canary” providing early warning of the fate in store for other sectors of the U.S.
populace.139 The principle can now be projected to worldwide proportions. Given the
scale of indignity and sheer physical suffering the U.S. has inflicted—and continues to
inflict—upon indigenous peoples trapped within its “domestic” domain,140 it is selfevidently in the best interests of very nearly the entire human species to forcefully reject
the structure of “unjust legality” by which the U.S. is attempting to rationalize its ambition
to consolidate a position of planetary suzerainty.141 The only reasonable question is how
best to go about it.
Here, the choice is between combating the endless array of symptoms emanating from
the problem or going after it at its source, eradicating it root and branch, once and for all.
Again, the more reasonable alternative is self-revealing. Unerringly, then, the attention of
those desiring to block America’s increasingly global reach must be focused upon
unpacking the accumulation of casuistic jurisprudence employed by the U.S. as a
justification for its own geographical configuration.142 Since, as has been established
herein, there is no viable basis for the United States to assert territorial rights based on the
concept of terra nullius or any other aspect of discovery doctrine, and even less on rights of
conquest, it is left with a legally defensible claim to only those parcels of the continent
where it obtained title through a valid treaty. As has also been shown herein, this adds up
to something less than half its professed North American landbase. To its “overseas
possessions” such as Guam, Puerto Rico, and Hawai‘i, the U.S. holds no legal right at
all.143
Viewed from any angle, the situation is obvious. Shorn of its illegally occupied
territories, the U.S. would lack the critical mass and internal jurisdictional cohesion
necessary to impose itself as it does at present. This is all the more true in that even the
fragments of land still delineated as Indian reservations are known to contain up to twothirds of the uranium, a quarter of the readily accessible low sulfur coal, a fifth of the oil
and natural gas, and all of the zeolites available to feed America’s domestic economy.144
Withdrawal of these assets from federal control would fatally impair the ability of the
U.S. to sustain anything resembling state-corporate business as usual. By every reasonable
standard of measure, the decolonization of Native North America must thus be among the
very highest priorities pursued by anyone, anywhere, who is seriously committed to
achieving a positive transformation of the global status quo.145
18 ACTS OF REBELLION
A major barrier to international coalescence around this sort of “deconstructionist”
agenda, among sworn enemies of the U.S. no less than its allies, has been the exclusively
statist “world order”146—or “world system,” as Immanuel Wallerstein terms it147—in
which both sides are invested. Only states are eligible for membership in the United
Nations, for instance, a conflation which once caused American Indian Movement leader
Russell Means to quip that “the organization would more rightly have been called the
United States, but the name was already taken.”148 Although it may be no surprise to find
a veritable U.S. appendage like Canada citing John Marshall’s McIntosh opinion as “the
locus classicus of the principles governing aboriginal title” in the formulation of its own
judicial doctrine,149 it is quite another matter to find the then still decolonizing countries
of Africa adopting the thinking embodied in Cherokee to ensure that the “national borders”
demarcated by their European colonizers would be preserved in international law.150
This came about during United Nations debates concerning the 1960 Declaration of the
Granting of Independence to Colonial Countries and Peoples. Belgium, in the process of
relinquishing its grip on the Congo, advanced the thesis that if terms like decolonization
and self-determination were to have meaning, the various “tribal” peoples whose
homelands it had forcibly incorporated into its colony would each have to be accorded the
right to resume independent existence. Otherwise, the Belgians ar gued, colonialism
would simply be continued in another form, with the indigenous peoples involved
arbitrarily subordinated to a centralized authority presiding over a territorial dominion
created not by Africans but by Belgium itself.151 To this, European-educated Congolese
insurgents like Patrice Lumumba, backed by their colleagues in the newly-emergent
Organization of African Unity (OAU), counterposed what is called the “Blue Water
Principle,” that is, the idea that to be considered a bona fide colony—and thus entitled to
exercise the self-determining rights guaranteed by both the Declaration and the U.N.
Charter—a country or people had to be separated from its colonizer by at least thirty
miles of open ocean.152
Although the Blue Water Principle made no more sense during the early 1960s than it
had when Justice Smith Thompson rebutted John Marshall’s initial iteration of it in 1831,
it was quickly embraced by U.N. member states and Third World revolutionary
movements alike.153 For the member states, whether capitalist (First World) or socialist
(Second World), adoption of the principle served to consecrate the existing disposition of
their “internal” territoriality, irrespective of how it may have been obtained. For the Third
World’s marxian revolutionaries, it offered the same prospect, albeit quite often with
regard to positions of “postcolonial” state authority to which they were at the time still
aspiring.154 For either side to acknowledge that a “Fourth World” comprised of
indigenous nations155 might possess the least right to genuine self-determination would
have been—and remains—to dissolve the privileged status of the state system to which
both sides are not only conceptually wedded but owe their very existence.156
The stakes embodied in this denial are staggering. There are twenty different
indigenous peoples along the peninsula British colonizers called Malaya (now Malaysia),
380 in “postcolonial” India, 670 in the former Dutch/Portuguese colony of Indonesia.157
In South America, the numbers range from 35 in Ecuador to 210 in Brazil.158 There are
scores, including such large nationalities as the Yi, Manchus, and Miao, encapsulated
within the Peoples Republic of China.159 In Vietnam, two dozen-odd “montagnard tribes”
“THE LAW STOOD SQUARELY ON ITS HEAD” 19
of the Annamese Cordillera have been unwillingly subsumed under authority of what the
Vietnamese constitution unilaterally proclaims “a multinational state.”160 The same
situation prevails for the Hmongs of Laos.161 Not only the Chechens of the south but at
least three-dozen smaller northern peoples remain trapped within the Russian rump state
resulting from the breakup of the Soviet Union.162 In Iraq and Turkey, there are the
Kurds;163 in Libya and Morocco, the Bedouins of the desert regions.164 Throughout
subsaharan Africa, hundreds more, many of them partitioned by borders defended at
gunpoint by statist régimes, share the circumstance of the rest.165 Similar situations
prevail in every quarter of the earth.166
Observed from this standpoint, it’s easy enough to see why no state, regardless of how
bitterly opposed it might otherwise be to the United States, has been—or could be—
willing to attack the U.S. where it is most vulnerable. The vulnerability being decidedly
mutual, any precedent thus established would directly contradict the attacking state’s
sense of self-preservation at the most fundamental level. Hence, the current process of
militarily enforced politicoeconomic “globalization”167—world imperialism, by any other
name168—must be viewed as a collaborative endeavor, involving even those states which
stand to suffer most as a result (and which have therefore been most vociferously critical of
it). It follows that genuine and effective opposition can only accrue from locations outside
“official” venues, at the grassroots, among those who understand their interests as being
antithetical not only to globalization, per se, but to the entire statist structure upon which
it depends.169
RETURNING THE LAW TO ITS FEET
It’s not that native peoples are especially accepting of their lot, as has been witnessed by
such bloody upheavals as Katanga and Biafra since 1960.170 In 1987, cultural
anthropologist Bernard Nietschmann conducted a global survey in which he discovered
that of 125 armed conflicts occurring at the time, fully 85 percent—amounting to a “third
world war,” in his view—were being fought between indigenous nations and states
claiming an inherent right to dominate them.171 Among the sharper clashes have been the
ongoing guerrilla struggles waged by the Kurds, the Nagas of the India/Burma border
region,172 the southern Karins and northern Kachens of Burma (Myanmar),173 the Tamils
of Sri Lanka (formerly Ceylon),174 the Pacific islanders of Belau, Fiji and elsewhere,175 the
so-called Moro peoples of the southern Philippines,176 the Timorese and Papuans of
Indonesia,177 as well as the Miskito and other native peoples of Nicaragua’s Atlantic
coast.178 To this list may now be added the series of revolts in Chechnya179 and the recent
Mayan insurgency in the Mexican province ofChiapas.180
The list extends as well to the venerable states of western Europe. In Spain, the
Basques, and to a lesser degree the Catalans, have been waging a protracted armed
struggle to free themselves from incorporation into a country of which they never
consented to be a part.181 In France, aside from the Basques around Navarre, there are the
Celtic Bretons of the Channel coast.182 The Irish are continuing their eight-century-long
military campaign to reclaim the whole of their island,183 while, on the “English Isle”
itself, the Welsh, Scots, and Cornish—Celtic peoples all—have increasingly taken to
asserting their rights to autonomy.184 So, too, the Celtic Manxmen on the Isle of Man.185
Far to the north, the Saamis (“Lapps”) are also pursuing their right to determine for
20 ACTS OF REBELLION
themselves the relationship of Saamiland (their traditional territory, usually referred to as
“Lapland”) vis-à-vis Norway, Sweden, Finland, and Russia.186 In Greenland, the primarily
Inuit population, having already achieved a “home rule” arrangement with their Danish
colonizers, are pushing for full independence.187 In Canada, there have been armed
insurgencies by native peoples at Oka, Gustafsen Lake, and elsewhere, as well as the
emergence of a tentatively autonomous Inuit territory called Nunavut.188
Those who see dismantlement of the present U.S. territorial/power configuration as
the pivot point of constructive change are thus presented with the prospect of linking up
with a vibrantly global Fourth World liberation movement, one which has never been
quelled, and which cannot be satisfied until what Leopold Kohr once called the
“breakdown of nations”—by which he actually meant the breakdown of states—has been
everywhere accomplished.189 Dire predictions concerning the horrors supposedly
attending “the coming anarchy”190 blink the fact that the hegemony of statism has
generated an estimated fifty million corpses from wars alone over the past half-century.191
Adding in those lost to the “underdevelopment” and “diseconomies of scale” inherent to
the world system as it is now constituted would increase the body count at least twenty
times over.192 Also to be considered is the radical and rapidly accelerating truncation of
fundamental rights and liberties undertaken by all states—the “freedom-loving” U.S. far
more than most of those it condemns as “totalitarian”—in order to concretize and
reinforce their imposition of centralized authority.193 As well, the massive and
unprecedented degree of cultural “leveling” entailed in the systematic and state-anchored
tran…
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