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Colonialism

The government’s exertion of control over Indian Country is rooted in a belief in the racial inferiority of indigenous people – allowing for native sovereignty is the only way to decrease less paternalism that upholds the legacy of colonialism.


Jacques et al 03, Peter Jacques, University of Central Florida PhD, Sharon Ridge, Grinnell College and University of Iowa PhD, and Richard Witmer, Grinnell College PhD, 18 J. Envtl. L. & Litig. q223, “Federal Indian Law and Environmental Policy: A Social Continuity of Violence” Lexis, NN

Currently, federal Indian environmental policy relies on the annulment of treaties that were made in sacred trust between American Indian tribes and the United States government. In the years since signing these agreements, non-Indians have used racial discrimination against Indian tribes to justify their maltreatment and dispossession of Indian land. This injustice became institutionalized over time by unilateral decisions made by the United States Congress and President, and was further supported by numerous Supreme Court decisions. Court rulings that allowed for the abrogation of treaties at the discretion of the United States Congress are perhaps the most egregious of these injustices. One of the most pernicious outcomes of these decisions by the Court and Congress has been to sever full tribal relationships with their land, a central component of the negotiated treaties. This set of broken relationships is at the bottom of an unsustainable and unlivable land management system that has occurred on a number of Indian reservations.¶ The premise of this Article is that the environmental policy of the United States government, because it exerts control over Indian nations' natural resources in violation of specific treaties, is inherently violent. We define violence in this case as a breach of the reciprocal relationship established between Indian tribes and the federal government through treaties. To demonstrate our premise, we first conceptualize and configure the concept of violence as it applies to environmental Indian policy. Second, the violence of broken treaties to gain Indian resources is not a new phenomenon as we demonstrate in an analysis of the Medicine Lodge Treaty, the subsequent Jerome Agreement, and the Lone Wolf v. Hitchcock Supreme Court case that officially instituted congressional plenary power over all Indian nations. n1 Third, we demonstrate how environmental policy operates under visions of racial and ethnic superiority in order to continue colonial control of Indian resources. This vision of racial and ethnic superiority was institutionalized by Supreme Court precedence, and continues to put the control of Indian resources in non-Indian hands. [*225] Finally, we suggest that current environmental policy has not only committed violence against tribes but also against the earth through exploitation of reservations. The way to end such violence and exploitation of Indian people and the earth is to retract plenary power over environmental policy and exploitation, acknowledge treaty relationships as sacred sovereign-to-sovereign promises, and place tribal lands back in tribal hands.¶ I¶ ¶ A Concept of Violence¶ ¶ To draw out the violence embedded in broken treaties we first describe mainstream understandings of violence in the modern era. Such understandings of violence are typically blind to the violence committed by government institutions acting in the name of rationality, progress, or material benefit for the state. Second, we argue that the hierarchical relations, which replaced the reciprocal treaty relations, are inherently violent because they force one party into the role of a ward with compromised agency.¶ The modern understanding of violence, as found in social contract theory and the Post-Westphalian state, is particularly important in the case of American Indian law and policy. Since early discussion of the subject by Greek scholars, in order for an action to be considered violent it must be an illegitimate, irrational behavior of a minority of individuals in society. n2 During the casting of modernity, this became an axiom of the social contract. One purpose of the social contract was to keep violence at a minimum so that people could be free to live their lives without the risk of violence that was thought to exist outside formal social organization. n3 To enter the social contract is to gain civility and the ability to have real property. n4 "What man [sic] loses by the social contract is his natural liberty and an unlimited right to everything he tries to get and succeeds in getting; what he gains is civil liberty and the proprietorship of all he possesses." n5 Thus, the social [*226] contract provides the civility of imposed limits on violent human appetites while providing a system where the possession of real property is possible. Outside the social contract there is no such thing as "private property" to social contract theorists, merely the ability to temporarily use a resource. This is important because, as we discuss below, the doctrine of discovery allotted private property rights to "discoverers." Indian tribes possessed only use rights because they were seen to be outside the social contract, residing in a state of nature. n6¶ Outside the social contract and within the anarchic state of nature, violence is an expected behavior. For this reason, sacrificing some portion of individual liberty to a sovereign who would keep order was a rational decision. n7 Thus, violence within modernity is usually conceived of as the erratic behavior of criminals and has not typically been conceived of as a social continuity perpetrated by rational and civil modernity itself. By definition, the state becomes a protector from violence, not the perpetrator of violence; and, violence that the state does commit is veiled in legitimacy.¶ Legitimacy of the state's use of violence was articulated by foundational sociologists such as Durkheim and Comte who suggest that the state was the source of modern and moral authority. n8 Like all political institutions, the state "is a relation of men dominating men," but this domination serves as a "monopoly of legitimate use of physical force within a given territory." n9 Since the state is the source of legitimacy its actions are not recognized as violent. Or, if they are seen as violent, the violence is not seen as problematic as it furthers the goals of a social contract and modern progress. This concept is also reflected in the roots of Hegel's Philosophy of Right, where the state is the ideological foundation of a good and developing society, an idea Marx would later dismiss. n10¶ [*227] The state's monopoly of the legitimate use of force was the justification for the violence used against American Indians in the establishment and maintenance of the United States. Taking and controlling tribal land was seen as a necessary step in the progress of the state. We reject this thinking, and argue that the state can be an agent of illegitimate force. This is central to our theory of violence because the lens of institutional legitimacy has so far kept the operation of federal Indian environmental policy from foundational criticism. One reason for this is that the same agent (the United States federal government) in the form of the Supreme Court and Congress has been allowed to both rule in its own interest and then sanction that ruling - a clear violation of even mainstream pluralist political theory. n11 In other words, in relying on the agent of violence to define legitimate fiduciary responsibility for the tribes, the Court and Congress are empowered to promote their own interest. In this case, the separation of powers is irrelevant because the interest of the federal government as a whole is uniformly found in the control of tribal land wealth.¶ While the definition of violence has been subject to minimal debate or analysis as a concept, it has an assumed meaning in social science that generally includes physical injury with malicious intent. In this definition of violence, the focus is on the intent of the agent to cause harm. Attempting to define actions as violent from the agent's perspective, here the federal government, becomes very difficult. Melissa Burchard recognized this complexity of violence and discusses the concept in the case of non-stranger rape. n12 An especially appropriate example given by Burchard is the case of non-stranger rape where the rapist often says he did not "mean to do it." n13 As a result, prosecutors have been reluctant to vigorously pursue prosecutions when the perpetrator of the crime suggested no malicious intent. n14 Thus we are left relying on the agent of violence to define (or not) their own violent act. In the case of federal Indian environmental policy, it is unlikely that branches of government acting in collusion will recognize their own violent acts or seek to prosecute them.¶ [*228] This point becomes even more poignant when dealing with an institution or government whose actual intentions could be numerous and complicated to identify. Further, intention and interest may be hidden in the modern rational decision-making process which can promote violence. Through the focus on means-end logic, violence may be justified, considered natural, or simply overlooked as a necessary step in modern "progress." However, the role of this rationality in state-sponsored violence has been ignored "because the social sciences still largely retain the etiological myth - the belief in an emergence from a pre-social barbarity into a civilized and rational society." n15 Consequently, modern institutions are rarely challenged as the root of systemic violence.¶ Intent to cause harm is often obfuscated by the casting of some social groups outside of the social contract as non-rational, primitive, and thus incapable of agency. Ecofeminists specifically point out that social groups associated with the state of nature are tied to a state versus society justification of domination. As a result, they are compelled to conform to the idea of European civilization. Ecofeminist scholars further suggest that the control of tribes and the earth by a dominant society are a related enterprise. n16 This domination is justified by the rhetoric of paternalism. However, the true goal is to produce material wealth and power at the expense of those protected. Thus, the efforts to assimilate American Indians into civilized people disguised the primary goal of taking American Indian land and resources and using them to benefit non-Indians. In fact, the rhetoric of civilizing the "savage" was a consistent element in contemporary American Indian history, including the Allotment era beginning in 1887. During Allotment, tribes were divested of reservation with the promise that agriculture and a change in lifestyle would ultimately lead to a better life. n17 Similarly during the "termination" period starting in 1945, some sovereign tribal governments were terminated with the implication that American Indians would benefit from becoming full-fledged members of the dominant society if their official tribal affiliations were dissolved. n18 [*229] Allotment and termination were not viewed as violent since the rhetoric of the federal government was of aid, not malicious intent. Since mainstream notions of violence do not accurately describe this violence experienced by American Indian tribes, our notion of violence itself must be reformed.¶ Therefore, the notion of violence employed here is the violence that begins in the minds of men and women about "others," specifically those perceived to be outside of the social contract. Violence is, first and foremost, a breach of expectations inherent in a relationship. According to Burchard,¶ ¶ Harm is not only a matter of what damage, physical or otherwise, has been done, however. It is also, when taken in the context of determining whether violence has been done, an evaluative concept which implies that some legitimate expectation about what ought to have been done has been breached. That is, part of the understanding of what actions will be named violence depends on the understanding of the relationships involved in the given context. n19¶ ¶ The focus has now shifted from the subjective intent of the agent and all of its associated problems to the relationship established between the involved parties. Understanding what constitutes violent action is recognizing the expectations inherent in that relationship. Breaching these expectations is the core of understanding whether harm has occurred. n20¶ Harm occurs at the point in a relationship where there is an expectation of an equal relationship, but one of the parties unilaterally assumes a superior position. The essence of this harm is not just that one party has more power, but that one entity changes an established or assumed reciprocal relationship with another party for their own gain. Political realists have observed this phenomenon at least since the time of Thucydides, but typically assert that it is part of an unchanging human nature. Normalizing violence in this way takes an expectation for circular (non-hierarchical, interdependent, and balanced) relations out of the frame of reference and the foundation of violence goes unchallenged.¶ [*230] When groups of people interact with each other, we assume that no group of people will view themselves as justifiably inferior to the other, regardless of relative capabilities. Therefore, on the personal level, even though strangers on the subway or in the alleyway do not have an established reciprocal relationship, this minimal expectation of reciprocity is presumed. When this reciprocity is formalized into sacred treaties, breaking this relationship has even more severe consequences because defenses against exploitation may be relaxed. It is assumed that actions by one party in a circular relationship occur with the consent of the other parties. Thus, non-coercive and non-retributive consent is a minimum requirement to change the expectations of a reciprocal relationship between equals. If consent is not obtained, the unilateral action by one side without consent of the other destroys the equality and replaces circularity with hierarchy within the relationship. This hierarchy results in harm, which then constitutes violence.¶ The establishment of a hierarchical structure is one of the most damaging elements of violence. The power accumulated in hierarchy facilitates the ability of abusers to keep the abused under their reign. This accumulation of power then compromises the potential for resistance. American Indians did not consent to the new hierarchical relationships that replaced the sacred treaty relationships. The United States government unilaterally imposed this hierarchy by threat of force justified by the United States Congress and the Supreme Court.¶ With the original duties and relationships between the federal government and tribes discarded, the federal government was able to exercise plenary control over native land bases for their own gain. This has meant extracting vast surplus value through wanton natural resource extraction from tribal land bases.¶ Two acts of violence are committed when the United States government breaches a treaty with Indian nations that reserve an area for tribal control. The first relationship broken is that between the two peoples, Indian tribes and the United States government who have formed a sacred bond. The second relationship broken is the human/nature relationship between Indian tribes and the land. Important to our understanding of environmental policy, the agents in this relationship (and thus our theory) can include non-humans such as animals, plants, rocks, streams, and mountains. Different societies ascribe agency to [*231] differing entities. For many American Indian tribes, the earth itself was a consistent, active and powerful agent with whom many tribes instituted reciprocal affiliation. While treaties do not spell out how tribes should think of nature, forcing a utilitarian use of nature where a different relationship previously existed is another violent dimension of broken treaties. This can be restored with minimal effort by simply following the agreements that were made.¶ Under the prevailing conception, Western ontologies and epistemologies have not recognized the breach of sacred treaty relationships as a violent action. However, with a new understanding of violence, environmental policy in Indian Country can be recognized for the dysfunction that it continues to serve. We can better understand this conception of violence by profiling a Kiowa experience that was later applied to all federal-tribal relationships.¶ II¶ ¶ Twenty-Five Years Reserved: The Treaty of Medicine Lodge is Allotted¶ ¶ In 1867, the Kiowa and Comanche Nations and the United States government negotiated a treaty at Medicine Lodge Creek, Kansas. Article One reads:¶ ¶ From this day forward all war between the parties to this agreement shall forever cease. The Government of the United States desires peace, and its honor is here pledged to keep it. The Indians desire peace, and they now pledge their honor to maintain it. n21¶ ¶ The 1867 Medicine Lodge peace treaty was forged to end potentially protracted fighting that could have severely damaged both sides. For the United States government, talks were needed to strike a deal with the Kiowas and Comanches so they would not attack the railroad or wagon trains crossing through their territory on the way west. For the Kiowa and Comanche, negotiations for a cessation of fighting were meant to ensure the protection of tribal land from further incursions by non-Indians. In negotiating an agreement, both sides also approved a framework for further agreements. This framework, usually referred [*232] to as the "Indian Consent Rule," stated that the federal government would have to gather the signed consent from three-quarters of the adult males in the tribe before any other land cessions were made. This was an attempt by tribal leaders to avert the loss of any additional tribal land and/or rights to the federal government. The Indian consent requirement was placed in the Treaty "to specifically reassure those Indians who wanted a federal guarantee of their future, undisturbed use and occupancy of their reserved lands." n22¶ Thus, "in exchange for certain land cessions, the federal government explicitly promised the Kiowas that no additional land cessions would be made without their consent." n23 At Medicine Lodge Creek, the Kiowa ceded original tribal lands that spanned from South Dakota to large portions of western Oklahoma in exchange for more than two million acres in present day southwestern Oklahoma. n24 The Agreement is explicit about the extent of control the respective tribes had over this land.¶ ¶ The United States now solemnly agrees that no person except those herein authorized so to do and except such offers, agents and employees of the government as may be authorized to enter upon said Indian reservation in discharge of duties enjoined by law, shall ever be permitted to pass over, settle upon, or reside in the territory described in this article, or in such territory as may be added to this reservation for the use of said Indians. n25¶ ¶ Thus the Medicine Lodge Treaty provides a legal agreement for the permanent residence, use and benefit of a reservation explicitly for the Kiowa and Comanche people. Yet despite the explicit language in the original treaty, the Kiowa reservation no longer exists. Kiowa land holdings are now a "checkerboard" arrangement of personal property (not tribal) and trust land. Tribal members personally retain 1200 acres of discontinuous land and an interest in about 3000 acres of trust land. n26 This represents a loss of 99.7% of the land originally reserved in the Treaty. Some scholars argue this should be considered an act of genocide due [*233] to the attempt to destroy the land base of land-based peoples. n27 Part of this act was the necessary hierarchical relationship and exercise of power to enact these genocidal policies. Moreover, such policies would not have been considered had the original reciprocal duties been honored and genuinely respected.¶ The loss of permanently reserved land occurred for many tribes through "allotment" via the General Allotment Act of 1887. Allotment was a policy to reduce tribal holdings and end tribalism by taking tribal reserved land and allotting it to tribal individuals to be used for farming. Non-Indians advocated the Act under the guise of "civilizing" Indian people by dispossessing tribal land and privatizing it for individual farming. However, it was also done at a time when the federal government was under pressure to release more land to settlers. The "surplus" land left from allotments to tribal members was consequently sold off to non-Indian settlers for less than $ 2.00 an acre. During this period, tribal people lost over 80% of their reserved land (which was already an enormous reduction from previously ceded land). n28 Before Congress ended the policy of allotment, many individuals' allotments were sold to non-Indians, making tribal holdings a "checkerboard" of ownership.¶ For the Kiowa and Comanche, allotment was implemented through the Jerome Agreement of 1892. "Agreement," however, is a contested term in this case because the "Indian consent rule" of the Medicine Lodge Treaty had been broken. It was broken by David Jerome and Warren Sayre, Federal Indian Commissioners, who told the Kiowas, Comanches and Kiowa-Apache that if they did not allot their land, the President would do it by force as had been done to other tribes. The Kiowa protested, but the federal officials forced the matter and left with 456 tribal signatures. n29 The most current census of that time showed that there were 725 adult males on the reservation. In order to be in accordance [*234] with the Medicine Lodge Treaty, Article 12, the federal government needed 543 signatures. n30¶ According to our definition of violence, abrogation of the Medicine Lodge Treaty was an act of violence against the tribes as it abrogated the reciprocal relationship between two sovereigns. Clearly, placing the Kiowa, Kiowa-Apache and Comanche Indians under a hierarchical relationship forced them to subordinate their rights of self-determination and forfeit their ability to determine policy on tribal land. However, this violence was consequently legitimated by the Supreme Court holding in Lone Wolf v. Hitchcock.¶ III¶ ¶ The Violent Institution of Lone Wolf v. Hitchcock¶ ¶ Kiowa Chief Lone Wolf appealed the Jerome Allotment to the Supreme Court, citing the fact that the Agreement failed to get a super-majority from the tribe, thus breaking the Medicine Lodge Treaty. The Kiowa chief lost the case, and the Lone Wolf v. Hitchcock Court ruled that the United States Congress could abrogate this agreement and all treaties as it saw fit. n31 This decision affirmed congressional plenary, or nearly unrestricted, power and gave Congress the ability to make final decisions regarding American Indian lands and welfare. n32 In this decision, Congress is assumed to act as fiduciary to the tribes as a parent acts in the interest of a child; this is the trust doctrine and continues to be a foundation for justification of plenary power today. n33¶ The Court and Congress never denied that, if the Jerome Agreement was ratified, it would break the Medicine Lodge Treaty. In fact, the Secretary of the Interior testified to Congress that the treaty had not been fulfilled. n34 Thus, the issue in the Lone Wolf decision was not whether the treaty was indeed broken - it was - but whether the United States was bound by the relationships of the Medicine Lodge documents and others like it. n35¶ [*235] Perhaps the key to understanding the scope of this violence is to understand what the federal government and the tribes expected out of the treaty relationship. The tribes expected that the treaties had a universal, spiritual, and teleological import. For tribes, treaty making was often viewed as a sacred trust. Treaties were bonds that had utility and were also bonds that held the promise of multicultural unity and connection. Treaties were a way to bring peace and were seen in a larger context than simply the absence of physical violence, because the treaty parties would become joined in trust. "First and foremost with Indians of the Classical Era (and even today) a treaty is a sacred text. It fulfills a divine command for all the peoples of the world to unite as one." n36¶ The views of Indians towards treaties is further explained by a scholar quoting an Indian superintendent, "'in the making of treaties'... 'no people are more open, explicit, and direct.' This was because, according to American Indian traditions of law and peace, treaties created a sacred relationship of trust between two peoples." n37 The relationship forged in treaties could not be more evident. Treaties connected Indian people with the settler people "literally as relatives." n38¶ The federal government, on the other hand, expected more of a business deal than a brotherhood. The federal government apparently saw treaties as a means to an end and an instrumental decision to conclude a conflict and gain resources. This commitment only had rational appeal so long as the agreement was in the government's favor. In 1871, just four years after the Medicine Lodge Treaty, the settler government found themselves in a position of enough power and political will to end treaty-making with the tribes for good. Apparently the convenience had worn off, even if the sacred trust had not.¶ The settler government, instead of respecting the specific circular relationships set up in treaties, would come to generalize its hierarchical relationship over Indian peoples through a universal Indian policy, largely based on plenary power. "As long as we emphasize the generalities, we do violence to the rights of Indians [*236] as they are articulated specifically in the history of the tribe with the federal government." n39 One such generalization is the decision of the Lone Wolf Court.¶ Had the Court reversed Allotment and upheld the relationships of treaties in federal Indian law, it would have had to also remand the purchases made by over 150,000 non-Indian settlers who had bought homesteads at a $ 1.75 per acre. n40 All of these factors were nearly immovably in place despite the fact that the United States very often promised reservation lands would be available for the sole use by the tribes, "as long as the grass is green and the rivers flow." n41¶ Not only did the Lone Wolf Court decide that Congress did not have to abide by its promises in the Medicine Lodge Treaty, but it released itself from all treaties with Indian people.¶ ¶ The power exists to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so. When, therefore, treaties were entered into between the United States and a tribe of Indians it was never doubted that the power to abrogate existed in Congress, and that in a contingency such power might be availed of from considerations of governmental policy, particularly if consistent with perfect good faith towards the Indians. n42¶ ¶ It should be noted that plenary power and the power to abrogate, as it is referred to in the ruling, did not always exist in the form that it does now. To proclaim so denies the reasoning for which the federal government was forced to negotiate treaties with the tribes in the first place. Also, the Court's apparent presumption that abrogation and plenary power would be administered with the best interests of the tribes in mind is not a point that has been fully supported by congressional policy. Yet, the Court famously admits, "We must presume that Congress acted in perfect good faith in the dealings with the Indians of which [*237] complaint is made, and that the legislative branch of the government exercised its best judgment in the premises." n43 With this understanding of the trust, Congress is said to know the interests of the tribes more than the tribes themselves and the abrogation of treaties would be made to benefit them. Under this new relationship, control of the structure of Indian life and resources were placed within the plenary control of Congress. "Furthermore, Congress was judicially authorized to take Indian lands incident to its exercise of guardianship power over the Indian peoples. The Court's action unleashed the federal government's forced Indian assimilation program that was aimed at the systematic dismantling of traditional tribal governance and cultural systems." n44 These colonial inscriptions and the violence inherent in them are the basis for contemporary environmental policy on tribal lands.¶ IV¶ ¶ Colonialism, the Doctrine of Discovery, and Environmental Policy¶ ¶ "The history of man's effort to subjugate nature is also the history of man's subjugation by man." n45 Control of Indian people by controlling Indian land is a poignant example. Given colonial visions of the European superiority in ideas of religion, government, culture and control of the environment, Indian nations were not permitted to have the same control of resources as Europeans. Instead, Indian title was a compromised version of land and resource control that only implied use and occupancy, not mastery of land and resources that the Europeans assigned themselves. Western ideas of title included fee simple property that could be sold. In contrast, "aboriginal title" did not allow similar transfer/sale privilege. n46 Aboriginal title was not determined by examining the governance systems in place - which were complex and largely well-organized in egalitarian and peaceful means n47 - but through race. [*238] This is evident in the Supreme Court's decision in United States v. Sandoval. In Sandoval, Pueblo tribes differed from other Indian nations in that they owned their land in fee title since the time of Spanish contact in New Mexico. n48 Despite this undisputed title, the Supreme Court ruled that Congress could still impose control over the reservation simply because the people were Indian.¶ The people of the pueblos, although sedentary rather than nomadic in their inclinations, and disposed to peace and industry, are nevertheless Indians in race, customs, and domestic government. Always living in separate and isolated communities, adhering to primitive modes of life, largely influenced by superstition and [fetishism], and chiefly governed according to the crude customs inherited from their ancestors, they are essentially a simple, uninformed and inferior people. n49¶ As the Court proclaims, application of the federal trust, plenary power and federal control of environmental policy is based on notions of an inferior race. This theory allows for the perpetuation of an institutionalized, hierarchical relationship where non-Indians control Indian land and may perpetuate violence "in good faith." Further reinforcing European notions of racial difference was the divergent relationships Indian peoples and Anglos had with nature. n50 Anglo conceptions typically viewed nature as an opportunity for material wealth based on the control of nature. n51 This utilitarian relationship to the natural world promoted vast conversions of natural resources into usable commodities and industries. n52 These industries were then transformed into increased industrial and military capacity used to further expansion and to acquire more resources. n53¶ In contrast, many tribal epistemologies did not recognize the ability to own or master an animate nature. n54 Viewing nature as alive restricts the uses of natural resources and severely restricts [*239] commodification and industry as a matter of respect. n55 Conversely, viewing nature as inanimate, as did Anglos, allows for maximum exploitation. n56 Some scholars see this type of world-view as a foundation for imperialism because societies that extract the most short-term energy from natural resources gain dominant social positions and power over those who temper their exploitation. n57¶ A. The Doctrine of Discovery¶ ¶ ¶ The English colonists came up with two justifications for taking the Native Americans' lands. First, they argued that colonists would civilize the Indians and 'cover their naked miserie, with civill use of foode and cloathing.' In royal charters given to the companies organizing the colonization, mention was always made of the obligation to bring Christianity to the 'savages.' The other part of the rationale was that Europeans could put the land to a 'higher use,' making it more productive by intensive cultivation and by bringing in livestock. In 1625, Samuel Purchas argued that God did not intend for the land to remain as 'that unmanned wild Countrey, which [the savages] range rather than inhabite.' n58¶ ¶ From the very beginning, Europeans sought to control the ontology of nature by imposing western norms of separating nature from society. Groups with a communal and cohesive relationship with nature were seen as outside of the social contract and were marginalized as irrational. As such, "savage as the wolf" and "noble savage" constructions were used to imagine American Indian people as inferior. n59 These characterizations become the underlying justifications for domination of people portrayed as "unfortunate children of nature" n60 who need to be controlled, managed and dominated like nature itself under the rubric of Enlightenment civilization. The first version of colonial jurisprudence [*240] to utilize this characterization in the United States was the method of dividing resources for use via title, as understood by discovery tenets.¶ The discovery doctrine gained further legitimacy in United States law through its application by Chief Justice Marshall. According to Marshall this doctrine leads to a natural assumption about 'use' versus 'title' property. He elaborates the point in Johnson v. McIntosh. n61¶ ¶ They [American indigenous people] were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it. n62¶ ¶ Federal trust, in light of its discovery legacy, is a legal tool whose primary use is to compromise the title and claims held by tribes. Moreover, the federal trust is a colonial instrument used from the beginning to divest the natural resources from American Indians. This justification by differences in race and ethnicity places aboriginal people outside of the social contract. If they are placed outside of the social contract, the original, established agreements with the tribes could be broken on the grounds of paternalism. However, the use of the discovery doctrine to legitimize the violence done to American Indians through this unilateral paternalism, even if hidden during treaty making, cannot disguise the harm done to American Indians who were forcefully removed from their lands and denied their traditional relationship with nature.¶ B. Environmental Policy as Colonial Legacy¶ ¶ Federal-tribal environmental land management on reservations reflects the foundational violence committed through colonial-based plenary power. American Indian leaders, scholars and policy experts agree that these environmental policies have been a disaster. n63 We contend that the harm done can be traced to the [*241] forced change in American Indian use relationships with nature that had been protected by treaties. Thus, while tribes and individual American Indian citizens often retain traditional values for relating to nature, they are not allowed to incorporate them into the federal environmental laws that govern policy on tribal lands. As a result, Indian environmental policy, as dictated by various federal environmental laws, places major decisions about resource use and management in the hands of the federal government through application of the trust doctrine and the "good faith" which it is supposed to embody. One function the federal trust affords the federal government, usually the Department of the Interior, is the ability to approve leases for uranium mines, coal mines, timber harvests and other extractive industries. The trust doctrine has had a damaging effect on tribal sovereignty as well as environmental quality. Tribes have been forced to lease out territory for the mining of radioactive material used in civilian and military nuclear facilities. n64 Such operations usually destroy an area in perpetuity and are often abandoned without being cleaned up. n65 "Tribal self-determination requires the ending of the colonial relationship facilitated by the energy companies and the government... ." n66 The federal trust responsibility is used in an abusive fashion to exploit the resources of American Indian people without paying the social costs of doing so. n67 The leases are producing revenue for the tribes, but at a rate far below their market value. n68 Thus, [*242] the tribes are not only denied the right to stop exploitation and treatment of nature in a way counter to their beliefs, they are also cheated out of their share of the profits when resources are extracted.



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