The history of the relationship between indigenous peoples and the United States government is one primarily of conflict. At independence, the United States was a coalition of thirteen separate places bound together by some common ideals and an agreement for limited collective governance. One important aggregate action the new country adopted was the requirement that the formation and continuation of any political or trade relationship with an external government could not be made separately by individual states. Instead, each state was required to be āin congress assembledā with other members of the new union.1 At the time, other governments included the leadership of Indian Nations, the political face of indigenous tribes. The nature of this relationship and the political respect it implied arose from habits inherited by the new politicians in the United States from their former Crown rulers who had interacted with many native peoples as political collectives. The federal government maintained this carried-over posture for less than a decade. While Indian Nations are referred to in the Articles of Confederation as foreign countries, by the time the Treaty of Paris was negotiated into finality (1783), indigenous people in the United States were not mentioned at all. It was as if they had disappeared.
Native Americans re-entered the political mind of the United States very quickly, and when they did they had taken on a different form. While many of the relationships had not been very good between indigenous peoples and the Colonies (and, subsequently, the US government), the rapid westward expansion of the new country accelerated the policies of āIndian Removalā and the creation of reservation spaceāever-shrinking reservation space. The land was needed for white settlers heading west in search of wealth and a better life than the one they left behind in the congesting east. In the competition for land that ensued, white migrants had the full force of an increasingly powerful US government at their backs while Indian Nations saw their political and military power dwindle into nothingness as they were overwhelmed by the unstoppable tide of new American progress. Many Indians fought against the changes that beset them, but there was no real chance of turning back the rushing tide. Their choices were to stand aside or face oblivion.
Indigenous people lost much in their early interactions with the Europeans who began arriving in force on the eastern shores of North America in the seventeenth century. At the most aggregated and collective level, the people lost the freedom to live where they wanted to live in the way they wanted to live. They lost their sovereign space. They lost their land.
This book seeks to describe how different groups of indigenous peoples who have come in conflict with the US government since its inception have fared in their attempts to maintain (or regain) their sovereignty and their land. The groups considered are American Indians (indigenous peoples who traditionally and historically inhabited the contiguous 48 states), Alaska Natives, and Native Hawaiians. While all three of these groups have in common occupancy of geographic space prior to their interactions with outsiders, they have all experienced widely divergent outcomes resulting from their treatment by the US government. The focus of this writing is comparison, in an effort to understand the separate and unique contemporary realities these three groups of people experience today.
1 The Importance of Land
No serious discussion of indigenous people can omit issues related to the collective ownership of land. This is because land is one of the most important, valuable, and versatile assets available to any group. The ability of an indigenous tribe to own and control land enhances its opportunity for economic growth and wealth acquisition in a variety of ways, including through resource extraction, agricultural production, and as use for collateral to finance economic projects. Land also provides a physical place for people to exist momentarily and over time, the latter affording the opportunity for the development of cultural identity and the accumulation of a peopleās history. The value of land, therefore, can be evaluated in many ways and its market value represents only a portion of its meaning to the people who inhabit it. The full value of land, then, is a difficult figure to calculate in any nominal sense. Depending on the land and the people in question, the value of the land could easily be infinite.
In the history of Native Americans, Native Alaskans, Native Hawaiians, and, indeed, all indigenous peoples worldwide, the issue of land is central. Colonial powers usurped land everywhere they went, consequently displacing the people who were already there. Why did the invaders want the land? For plunder, certainlyāto confiscate and otherwise extract the valuable resources that the land could provide. In many cases, they also wanted the land for themselves as a place to inhabit, to further stretch their empires, and to provide an additional space for their own citizens to branch out, accumulating wealth for both those individuals and the Crown. The accounts and evidence of this practice appear throughout the world, perhaps most noticeably from the European colonial period, but also throughout all of known history on every continent. Land, then, on the basis of the observed ceaseless voyages of conquest humans from all over the globe have repeatedly engaged in, has a universally recognized value. Land is desirable and is therefore worth protecting, and, to many nations and people, worth fighting for.
The legal conception of land ownership is one of property rights. The modern Western legal definition of āproperty rightsā is a bundle of rights, which can include different rights in different situations. For example:
The above example describes the private ownership of land, which is not the same as sovereign control over land. Unrestricted sovereign control over land would certainly embrace all the rights listed above in their absolute forms, but partial sovereignty and private ownership do not. For example, private ownership may or may not convey rights to exploit subsurface resources. If the right to remove oil and precious metals, say, were not rights included in the ownership of land then the market value of the land would be greatly diminished. More generally, sovereign control in its broadest form allows for the creation of laws, including taxation, that govern the use of the land, while private ownership requires the owner to comply with existing laws created by the sovereign. It is important to observe that ownership and sovereignty imply different bundles of rights, and that under either circumstance, an outside entity that is powerful enough can place restrictions on the land by changing the content of these bundles of rights.From a legal viewpoint, property is a bundle of rights. These rights describe what people may and may not do with the resources they own: the extent to which they may possess, use, develop, improve, transform, consume, deplete, destroy, sell, donate, bequeath, transfer, mortgage, lease, loan, or exclude others from the property.2
In this book, the concept of land and ownership is taken at an aggregated level, as a starting point, and the analysis focuses on land rights (rights of land use) and ownership of land by political entities rather than individuals. In particular, this research compares the legislative, judicial, and treaty outcomes of the US governmentās acquisition and dispensation of land in North America and Hawaiāi with respect to the people who lived on the land prior to the arrival of Europeans. Because land is such a fundamental asset, differences in land rights settlements among these groups have contributed to differences in observed economic outcomes, both in the past and contemporaneously. At an aggregated level, group differences can be seen in poverty rates and other statistical measures, although there is considerable variation within each group. As hinted earlier, significant corollary issues are sovereignty and the opportunity for self-determination. These concepts relate to land rights in the sense that, if the US government is dealing with sovereign entities, the rights transferred through land ownership are different than those transferred to individuals (or non-sovereign institutions). In addition, in many cases the rights transferred through land ownership (or at least occupancy) have been inhibited by the ātrust relationshipā the US government has declared over recognized indigenous people. Cooter and Ulenās (2008) description of rights to property (including land) quoted above is useful because these acts of acquiring and/or transferring land in the past often included restrictions on its use and title, and therefore on its market value.
2 The Value of Sovereignty
The word sovereignty can be defined in many different ways. Taiaiake Alfred defines political sovereignty as, āsupreme political authority, independent and unlimited by any other power.ā3 Alfred goes on to say, āDiscussions of the term sovereignty in relation to indigenous peoples, however, must be framed differently, within an intellectual framework of internal colonization. Internal colonization is the historical process and political reality defined in the structures and techniques of government that consolidate the domination of indigenous peoples by a foreign yet sovereign settler state.ā4 Both conceptions of sovereignty are relevant here because it is the United States that carries the former version and indigenous peoples within the United States who carry the latter (if at all). A more practical way to think about political sovereignty is as a continuum. For the federal government in the United States, sovereignty exists in its most powerful form. States within the United States have a degree of sovereignty themselves, but they have fewer powers than the federal government. Likewise, the level of sovereignty that Indian tribes possess is a form that is less-than the federal level and similar, though different, to that of states.
It is an absolute necessity for a political entity to have some level of sovereignty in order to engage in any real form of self-determinationāif one is not making decisions for oneself, then someone else is making decisions for you. While āsupreme political authority is not necessary for a degree of self-determination, certainly the ability to make at least some choices that are culturally relevant ...