Challenging the False Premises of U.S. History: Native Activism and Federal Indian Policy, 1911-1941
Traditional narratives cast Indigenous peoples to the periphery of United States history. Just as the violent displacement of millions of Native Americans constituted, in the eyes of colonial settlers, a necessary evil in the divine project of Manifest Destiny, so too has their relative exclusion from U.S. historical inquiry played a key role in upholding the ideologies that constitute American identity.
Yale University Professor Ned Blackhawk challenged these narratives at his LSA Annual Meeting plenary address in Denver, CO. Drawing from his award-winning 2023 book The Rediscovery of America: Native Peoples and the Unmasking of U.S. History, Professor Blackhawk illuminated a robust history of Indigenous legal advocacy and activism that shaped federal policy regarding assimilation, self-determination, and cultural autonomy.
Watch the full video below to learn more about how Cornelius Kellogg, Henry Roe Cloud, and their numerous contemporaries established the foundation of an Indian New Deal that would change U.S. sociolegal history forever.
This transcript has been lightly edited for clarity.
Bethany Berger
I’m so honored to introduce Ned Blackhawk, currently the Howard R. Lamar Professor of History and American Studies at Yale University. But since there’s been some “U-Dub” questions in the room, his PhD is from University of Washington. His first tenure home is U-Dub Madison. Because in this setting, Ned’s partner, the brilliant NYU Law Professor Maggie Blackhawk, may be better known, I’m going to briefly tell you a bit more about Ned Blackhawk and why we’re so excited to have him as our plenary speaker.
Ned’s work does exactly what we hope that this annual meeting will do, and what we think of as a core goal of the law and society movement: it unsettles the geographic and ideological territories and categories presented as settled, as natural, as inevitable. And it shows how peoples understood as peripheral to the US law and society were in fact at its center, interacting with and shaping the U.S. in diverse and impactful ways. His talk today is going to be drawn from his 2023 book, The Rediscovery of America: Native Peoples and the Unmaking of U.S. History, which, among about a dozen or so honors, won the 2023 National Book Award for nonfiction, was The New Yorker “Best Book of 2023” and the National Public Radio “Book We Love” for 2023.
I also want to highlight his 2006 book, Violence Over the Land: Indians and Empires in the Early American West. The book also won a bunch of prizes, including the “Frederick Jackson Turner Award” from the Organization of American Historians and the Native American and Indigenous Studies Association (NAISA) “Book of the Decade” award. But equally important for this meeting, it focuses on the place where we are now and the peoples where we are now. The mountain states of Colorado, Nevada, Utah and northern New Mexico and northern Arizona, and the interactions between the settler and indigenous communities of this place, including his own people, the Western Shoshone people of Nevada–just read it!
So I checked out the book room; apparently neither of his books are being sold there, which is probably okay for you because particularly the most recent one is super heavy. You don’t want to travel with it, but you can go on the internet or with your phone and download it. I’ve got two copies, one physical and one on my phone, and they’re so readable. They’re so wonderful. I’m not going to talk more about the other articles and book chapters that are written, or the many other academic prizes he has won, because I don’t want you all to get too depressed, but I just want to note some of his accomplishments in supporting others in academia and outside of it.
While a professor at University of Wisconsin-Madison, he won both the “Outstanding Mentor Award” and served in the Intercollegiate Athletics Faculty Guest Coach program. I don’t know what that means, but it sounds cool. While at Yale, he was founding editor, and is now co-editor, of the Henry Roe Cloud series on American Indians and Modernity at Yale University Press. For several summers, he coordinated a seminar on American Indian History since 1492 for New Haven Public School teachers, and he currently serves as co-director of the NYU-Yale American Indian Sovereignty Program project, which since its founding has submitted multiple briefs to the U.S. Supreme Court to try to get them to get the history of Indigenous peoples in the United States.
Thank you so much, Ned, for being here. My fabulous co-chair will say a few words afterwards. Please come on up.
Ned Blackhawk
Hello. Thank you so much, Professor Berger, for that very kind and generous introduction. I think I might have two mics going, because I would like to try to be a little interactive halfway through this presentation to kind of keep the attention span elevated. It’s really a tremendous honor to be here today.
I’d like to thank, in particular, the program committee for the invitation to offer this plenary or keynote address. This year’s conference theme, “Unsettling Territories: Tradition and Revolution in Law and Society” provides, I hope, an apt framework for engaging the intersecting streams of legal, political, and intellectual activism that characterized the concluding portions of my recent book, The Rediscovery of America: Native Peoples and the Unmaking of U.S. History.
This project, as Professor Berger so generously suggested, examines various forms of U.S. and Native American historical development and attempts to enjoy them. Rather than seeing these fields as separated or disaggregated, this project envisions them as interrelated and relational, and it attempts to highlight, as I hope to show today, the mutually constitutive nature. Denver is appropriately and additionally an important location to interrogate these processes, as many under-recognized forms of legal advocacy and activism have occurred here throughout the late 20th and early 21st centuries.
Such advocacy followed, as your program highlights, waves of 19th century forms of dispossession that have made Colorado relatively unique in having few federally recognized tribal nations within its borders. Of the 46 federally recognized tribal nations within the six Rocky Mountain states of New Mexico, Wyoming, Utah, Idaho, Montana, and Colorado, Colorado has only two: the Southern Ute and Ute Mountain Nations.
These figures are the 46 that are lurking. Those tribes also do not include the 21 native nations of Arizona, including the Navajo Nation, the nation’s largest reservation in America, whose reservation boundaries and thus jurisdiction reach into all four states.
The Rediscovery of America, through attempts to interrogate such broad, sweeping forms of historical development. The book builds upon a generation of studies to make a series of claims about the centrality, as Professor Berger was saying, of Native peoples to the making of America. Drawing upon the numerous works suggests that a new theory may ultimately be needed to understand the contours of U.S. history more broadly.
The book’s front and back cover maps were developed in part to bring the incomparable expanse of this subject together. There have been, some of us may know, few attempted overviews of Native American history more broadly. The field’s incomparable temporality, spatial dimensions, and ethnographic heterogeneity have seemingly discouraged historiographical interpretation, leading to, as I think we may all know, the field’s general invisibility to American scholars and citizens alike.
Starting in the 1990s, however, studies in the field began to resonate so powerfully that they have enabled now scholars to develop new interpretive paradigms, including the field of settler colonialism that has, as some of us may know, origins in the field of Indigenous studies. It has enabled scholars to additionally fashion broad, regionally based histories like those of the Colorado Plateau and Great Basin that are featured in my first work, Violence of the Land. (Thank you, Professor Berger, for that generous plug.) And it has finally also enabled scholars to contribute to what I call a vast rediscovery of major periods, themes, places, and ultimately even communities–a rediscovery that has been particularly transformative in the field of early American and borderlands history. Native American history, in short, has become a flourishing field of inquiry, and its insights unsettle or even make operative assumptions about America.
Notwithstanding this broad trend of professional growth, the field still remains encumbered by many challenges. In particular, the habits of previous generations remain often calcified. When synthetic undertakings of American history continue to exclude Native peoples, the study of America grows ever weakened. To perpetuate visions of North America, all without discussions of dispossession, colonialism, or the dialectics of state formation and Indigenous resistance, reinscribes what I have termed the “iron cage of erasure,” a historiographical habit that elides central dimensions of the North American past. Of course, relegating Indigenous peoples outside of history remains a longstanding practice of U.S. intellectual history, and my talk today draws from the last two chapters of The Rediscovery of America, a book that is divided into two six-chapter halves. The first half is titled “Indians and Empires.” It surveys this kind of borderlands, early American world and focuses upon changing relationships between Indian and imperial powers before 1787. The second half of the book, “Struggles for Sovereignty,” focuses upon changing relationships between the United States and Native nations thereafter. And unlike in some audiences, I believe I don’t have to emphasize why 1787 serves as a key periodization for such divides.
As in the other chapters, the latter sections of part two attempt to move past what I see often as overdetermined analyses of Indigenous victimization and subjection. I emphasize less the power of settler colonial dominion and more the dialectics of Native American activism, exposing here how, after the Civil War, Indigenous peoples responded to and thus refashioned, as we’ll see today, the institutions of federal authority around them, particularly during what is known as the “Reservation Era” when the federal government began systematically attempting to incorporate Native peoples into the body politic of the United States.
As many have illuminated, federal leaders such as Captain Richard Henry Pratt, the founder of the Carlisle Indian Schools, sought to transform Native peoples’ most intimate ties by severing what Professor Cathleen Cahill calls the “affective bonds between Native children and their families.” New laws targeted communal landholdings, and for half a century, removing Indian children from their families and alienated reservation lands defined U.S. policy. Over 75,000 children were moved to federally-funded boarding schools, and 100 million acres of reservation lands became further dispossessed, including the vast majority of the Confederated Ute reservation established here in Colorado by the 1868 Ute Treaty, which was ratified by the U.S. Senate in July of 1868. On the same day, the Senate ratified the historic Navajo Treaty, creating what would ultimately become the largest reservation in America.
By the end of this period, or towards it, Congress had placed Indian communities under their “absolute jurisdiction and control” as Public Law 219 suggested in a legal doctrine that is well known across the field, known as plenary power, that informs numerous studies in the field.
So my talk today draws upon this half-century assimilation campaign, when a generation of Indigenous activists responded to these destructive policies and shaped the contours of federal policy thereafter, particularly during what is referred to as the Indian New Deal, when reformers both reversed assimilation and established new statutory foundations for cultural autonomy and self-determination, codified into congressional statutes. I started in the late 1800s, when the United States experienced unprecedented economic and cultural transformations. 10 million attended the Centennial Exhibition of 1876 in Philadelphia, for example, reveling at its majesty of visions of the American future. And twice as many attended the spectacular White City Exposition held in honor of the 400th anniversary of the Colombian encounter, organized on Chicago’s waterfront, from which the next few images are drawn, even before the 1890 census declared the frontier to be closed, or Chicago held the Columbian Exposition, sweeping new visions of American history were proliferating across the post-Civil War era, making it one of the most kind of formative moments for the ideological foundations of what we would call American history. With each Centennial monument, celebratory parade, and publication, visions of a confident and certain past deepened across the land.
Indeed, throughout the 19th century, new mythologies emerged as everywhere citizens celebrated the origins of the Republic and often equated its history not only with progress, but often providence. Even the nation’s first professionally trained historians shared many popular truisms. They, too, located the nation’s defining characteristics in the colonial era, and believed that the settlement of Indian lands formed the basis of America’s fulfillment.
As I write, in a morality play with foregone conclusions, United States emerged from the conquest of Indian lands and achieved its destiny through expansion. As many here know well, the broad consciousness of this process of interior expansion fueled not only the nation’s historical production, but also even its scholarly infrastructure, which included the establishment in 1907 of the Mississippi Valley Historical Association, which later became the nation’s largest professional history organization.
The organization of the Works of American Historians, whose journal eventually became known as the Journal of American History. Within such studies at the time, Indians are not simply outside of “civilization,” as the slide hopefully can suggest, but antithetical to it. “It is only from the study of barbarous nations that we are able to comprehend man as a progressive being,” summarized the incredibly influential California historian Hubert Howe Bancroft in his five volume series The Native Races from 1883.
From Iroquois in the northeast, to Alaska, across the continent North, scholars sought to identify how native peoples differed from “civilized man.” As Bancroft suggested, for example, among the Alutiiq of Kodiak Island, “their domestic manners are of the lowest order. They have no idea of morality. They live,” he concluded, “simply in filth.”
Within the structure of America’s racial hierarchies, native peoples inhabited the lowest rungs, constituting, in many ways, living object lessons about American racial hierarchies more broadly. They remain members of a vanishing race in need of reform. Unlike the nation more broadly, they too shared a destiny. If they could not assimilate, they were destined to disappear.
Native peoples, as Arizona Senator Carl Hayden argued in the early 1920s, were a “dying race entitled to little else.”
So visions of Native peoples’ presumed disappearance shaped the ideological terrain upon which Native peoples themselves had to navigate life in modern America. Raised with their own distinctive cultural practices, kinship networks, and alternative understandings of landscapes, and the past, a generation of Indian leaders countered these false premises of U.S. history and challenged the assimilation policies and legal systems that often accompanied them.
Educated in the schools designed to assimilate them, this generation articulated alternative understandings of the past, and thus a future. As the Oneida leader Laura Cornelius Kellogg asked in her 1920 work entitled Our Democracy and the American Indian, “But what shall I say to you now, America, of my Americans? Shall I fawn upon you with nauseating flattery, because you are rich and powerful?
“We are dubbed a race of beggars,” she continued, while encouraging native peoples in this text to “refuse to allow” such representations of their inferiority to go unchallenged.
Kellogg was a founding member of the Society of American Indians, the nation’s first intertribal political association, founded in 1911. She and its founders worked within their own and other communities to challenge, not only federal policies, but national myopia.
They wrote books, delivered sermons, held meetings, traveled widely, went to court, and lobbied in Washington. Alternative understandings of politics, law, and history animated their activities. Many, like the Dakota author Zitkala-Sa, also known as Gertrude Bonnin, targeted what she termed the “institutional incompetence of the federal government’s Indian policies and administrative structures established to incorporate Native peoples into the Union.”
As she wrote in her 1921 collection American Indian Stories, government fraud of Indian “lands, mines, oil fields, and other natural resources” was as commonplace as it was illegal. “Such mismanagement, she concluded, “is almost beyond the possibility of comprehension.”
Other society members challenged myths of disappearance by educating children differently. Here are pictures of Cornelius Kellogg, Gertrude Bonnin, an Ojibwe lobbyist and government employee in Washington named Mary Louise Bottineau Baldwin (who appears prominently in Professor Cahill’s recent book Recasting the Vote) and Elizabeth Bender Cloud, also an Ojibwe reformer but from northern Minnesota who, along with her Ho-Chunk Indian partner Henry Roe Cloud, who we’ll hear about shortly, established a preparatory school to educate Indian children differently known as the American Indian Institute in 1915. It offered advanced academics, occupational labor, and culturally enriched pedagogy, and it lasted until the Depression crippled its viability, as well as its plan to attempt to admit women.
So collectively, this generation offered affirmative visions of what many scholars would now refer to as Indigenous futurity or futurities that envision Native peoples, not as objects of victimization, but as agents of historical change.
In doing so, they challenge the grammar of white supremacy while laying the ideological foundations of the reforms of this New Deal era. I focus here on Kellogg, Roe Cloud, and the Hualapai Indian veteran from World War I and deep critic of Senator Hayden named Fred Mahone, whose activism generated new doctrines of what became known as Aboriginal Title throughout a decades long process of legal advocacy and activism that culminated in new Supreme Court rulings and subsequent congressional laws. I excavate their very capacities in order to underscore these dialectics of activism and how they inform the political formations that often came to govern Native peoples, doing so often within unwelcoming and violent institutional settings.
So we’ll come back to Roe Cloud in a minute. But as many of us know, the studies of federal Indian policy have often disproportionately focused upon the actions of government officials, not Native American intellectuals, community members, or activists. Studies of Commissioner John Collier or Interior Solicitor Felix Cohen dominate the broad understanding of the Indian New Deal, and only recently have studies come to gauge the influence of Native activism upon such determinative realignments.
I hope to suggest that analysis of these processes does more than simply recover overlooked forms of agency, and that such an inquiry hopefully can help historicize the mutually constitutive processes that ultimately helped to govern Native communities. And in the process, we might perhaps begin to denaturalize, as Professor Berger was suggesting, some of our normative assumptions about America power, difference, and social change.
On to Kellogg. Laura Cornelius Kellogg spent over two decades lecturing, publishing, organizing, and advocating on behalf of Indian affairs. She notably hosted the Society of American Indians’ first organizational meeting in her Wisconsin Oneida home in June of 1911, and became one of its primary leaders thereafter. She took particular issue with ideas at the time that suggested the need for incremental reforms within Indian communities and the potential adoption of certain assimilationist philosophies. For her, cultural continuity, not assimilation, characterized the necessary strategies for rebuilding the capacities of Native peoples within reservation communities.
After the first World War, she joined a network, for example, of Iroquois leaders fighting for land reforms and founded something called the Six Nations Club that aimed to raise funds from individual tribal members from across the Iroquois communities of North America, who historically have resided largely in upstate New York, but also Canada, Wisconsin, and Oklahoma. She proposed to use such funding for the litigation of ongoing Iroquois land claims.
The claim at the time was a recent decision by the U.S. Circuit Court of Appeal in the Second District called U.S. v. Boland, in which Iroquois leaders had encouraged federal officials in New York to file suit on their behalf over a contested 32-acre parcel of land which Oneida leaders in New York claimed had never been formally dispossessed.
The state had tried to sell it and evict Oneida members upon it, and in the district court ruling, the court held that the lands in question could not be sold as the state lacked jurisdiction over Oneida lands, and only the federal government, through its doctrines going back to the Non Intercourse Act possesses “the sole authority to dispose Indian lands.” The decision was held up without appeal.
She continued her fundraising efforts to secure this victory, and also join reform efforts in New York State, particularly those in 1922 by a state Assemblyman by the name of Edward Everett, who led a commission that aimed to clarify the state’s outstanding Iroquois land claims. Of the 27 Iroquois land sessions that have occurred within the state of New York, the Everett Commission found that only two had a consent order approval from the federal government, thus calling into question the constitutionality of the other 25.
A series of land cases have followed throughout the 20th and 21st centuries, which have exposed the unconstitutional takings. And if we have time, I will come back to this theme to discuss the 2005 case, which is the most recent of these claims, called City of Sherrill v. Oneida.
Roe Cloud took a different philosophical and ideological turn. Unlike Kellogg, who advocated for the abolition of the Indian service within the federal government and sometimes encouraged tribal members not to pay their taxes to the federal government because she felt they were intrusions against Native American sovereignty and focused heavily on building reservations’ self-governing capacities and economic forms of self-governance, Roe Cloud worked within the government. Particularly after his time at the American Indian Institute, which he founded in 1915 with his partner, Elizabeth Bender Cloud, whom he met at a Society of American Indians Meeting. He even aspired to be the Commissioner of Indian Affairs in 1928.
Born on the Ho-Chunk or Winnebago Reservation in Nebraska, he was first schooled in boarding schools before gaining sponsorship to attend the preparatory school in Massachusetts known as Mount Hermon School. He entered, of all places, Yale College thereafter, becoming, in 1910, the school’s first Native American graduate.
And in other settings, particularly with Yale undergraduate students, I might dwell upon this in some form. I might say things like, “Who might he have known when he was at Yale at this time? He was apparently close friends with a future senator from Ohio, for example, by the name of Robert Taft, who almost became the Republican nominee for president in 1952. He and Taft were close, I don’t know exactly how close, but clearly friends and peers. They debated and traveled. In the yearbook of 1910, it lists their home addresses along with a brief bio of each graduate. Roe Cloud is sponsored by a missionary family called the Roe family, so the Roe family is listed as his home address. And I ask the students, “Where do you think Robert Taft’s home address was in 1910, when he graduated from Yale College? Anyone know what address? It’s most famous address in America. 1600 Pennsylvania Avenue. Because he was the son of Howard Taft, a sitting U.S. President, former Commissioner of the Philippines, and future Supreme Court Chief Justice. These are the individuals whom Roe Cloud was socialized around, and rather than following them into careers in, I don’t know, finance? Philippine sugar oversight? Government? He built a school in a rural Wichita to create alternative educational experiences for Native peoples, because his varied educational experiences had clarified to him the necessity of these imperative reforms. Having seen, for example, at age five, his older brother seized by local police and sent off to school, Roe Cloud soon followed with washing clothes; working in laundries and related vocational labor did not offer him, he felt, much education. It nursed what he called “a growing hatred” of the monotony of boarding school life. “Such work is not educative,” he wrote. It in fact “begets a hatred of work,” as he had seen as a student and subsequent government investigator for industrial error, the so-called “industrial education” exploited youth and ill prepared them to “grapple with their communities’ problems and grow.”
Both he and Elizabeth Bender Cloud hoped to strengthen then tribal capacities by educating children differently, and the Clouds traveled widely and worked extensively, both at the Indian Institute and other educational facilities thereafter. In one address to a graduating class of Native students at Mount Edgecumbe School in Alaska, he communicated his philosophy to strengthen tribal capacities by educating children differently. “Never be ashamed,” he told them, “that you are an American Indian or Native of Alaska.”
He traveled widely on behalf of the government, often investigating problems within reservation communities, for example, investigating conditions and reports of abuse at boarding schools themselves. As he reported from Rosebud, South Dakota, “Conditions were awful, and punishments worse.”
Student runaways were common, and several boys had recently “frozen to death by running away.” Shortly before he arrived, “three girls ran away” and upon their return one was made to “carry a ball and chain around her ankle while pushing a wheelbarrow for hours in front of the whole school.”
Breaking the punitive structure of education was his and Elizabeth Bender Cloud’s imperative. And upon his appointment eventually as superintendent of Haskell Indian Institute in Lawrence, Kansas, in 1933, then the nation’s largest Indian boarding school following the closure of Carlisle, he expanded upon these philosophies that he developed over the previous decades. In his first act, he closed the Haskell jail–which, like many boarding schools, was built to imprison and incarcerate Indian children.
He dismissed also school employees known for harsh discipline and distanced Haskell from the local National Guard unit, which had supplied uniforms, officers, and drilling equipment that were often utilized by Pratt and other boarding school leaders. Located in Lawrence, Kansas, he also cultivated relationships with nearby educational institutions, and by 1935, after only 24 months, 28 Haskell graduates had gained admission to the University of Kansas for college education.
[Photo] Here are one of the last graduating classes of the American Indian students in front of one of the buildings built through their fundraising and very determined organizational and administrative efforts.Roe Cloud however is best known for his co-authorship of the 1928 Meriam Report, the most thorough report ever authored on the state of Indian affairs in America. Begun in 1926 at the request of the Secretary of Interior and conducted by the Brookings Institute, it leveled devastating critiques of federal Indian policy, laid bare the impacts of assimilation, and provided much momentum for the subsequent reforms that followed.
Henry Roe Cloud’s fingerprints are all over this report, and he is the only Native American co-author, along with seven other non-natives, on a survey that helps, I think, communicate the law and society kind of challenge of Indian affairs at the time. The report was entitled “The Problem of Indian Administration.”
In preparation for the report, he visited more reservation communities than any other committee members, spent the entire summer of 1927 commuting from Maryland to Washington to write the report and eventually shape the ideological tenor. “There’s a close relationship between the loss of land and the health and prosperity of Indian people,” he concluded, and improving the health and prosperity of Indian people guided his and Bender Cloud’s activism throughout the latter half of their careers.
And I could continue to explicate the myriad ways in which Roe Cloud’s philosophies and practices helped guide the subsequent reforms of this Indian New Deal, but before doing so, we’ll introduce the last primary subject of this, generation of activism by discussing the Hualapai veteran by the name of Fred Mahone.
For those of us who don’t know, the establishment of the Roosevelt Administration’s first cabinet and organizational leaders set in motion the radical revision of assimilation policies that I’ve just sketched. The land policies of allotment became reversed during the New Deal, many boarding schools themselves were closed, and, perhaps most importantly, a series of legislative and congressional efforts were established, most notably the Indian Reorganization Act, a monumental, what some might call, “super-statute” of congressional, legislative, constitutionalism that established, for the first time in American history, a congressional statutory basis for the federal government to work with tribal nations and self-governing units.
And the IRA was followed by a series of attempts to encourage Native American communities to adopt Tribal constitutions that Felix Cohen, John Collier, and Henry Roe Cloud often encouraged Tribal communities to do. So Cohen, as we’ll see shortly, Collier, Roe Cloud, and numerous members of this generation of activist communities worked diligently and closely throughout the New Deal era to establish a distinct alternative form of federal Indian relations that ultimately lay the seeds of what we now would call self-determination, an era that became more institutionalized in the later 20th century, but really has its primary statutory, if not ideological, foundations and origins during this period.
Cohen not just litigated and drafted, but also studied the problem of Indian law and policy and codified them into a government publication known as the Handbook of Federal Indian Law, first published by the U.S. Government Publishing Office in 1941, which literally brought the field together into a single codified form for the first time and gave judges and policymakers and colleagues, and eventually academics, the framework for understanding the evolution of this longstanding subject known as federal Indian law, which has its roots, at least constitutionally, in the summer of 1787, when the Constitutional Convention brings Indians into the Constitution formally twice that summer and eventually later in the 14th Amendment and Reconstruction Era. So Indians are in the Constitution, and some of us may know they’re recognized in the Declaration of Independence. These are not invisible subjects of legal inquiry, but seemingly have been put there in some form or fashion that has been, I think, not entirely helpful.
And if we were to look and conclude with one last example of a Native American activist intellectual community member who had an alternative vision of American Indian capacity, alternative vision of U.S. history more broadly, and a vision of the future that was distinctive from that of federal policymakers at the time, I think we’ll get a clearer sense of this dialectic of Indigenous activism that I’m trying to outline.
In closing, then, I believe that broader assessments of this activist generation have the potential to reorient understandings, not only of this era, but hopefully of other historical normative assumptions. And I’d like to conclude with Fred Mahone, featured on the cover of Christian McMillen’s award winning and beautifully rendered history Making Indian Law. Christian texted me that he will land tomorrow morning so he couldn’t be here today, but if you happen to see him, I think it’ll probably put a slightly increased smile on his face to hear that, his work may have been featured prominently this evening.
As we’ve briefly introduced already, Society of American Indian members had long felt the onerous intrusions of the federal government, and many of their concerns have also long centered on the challenges of getting the federal government to compensate tribes for the taking of their land, for the mismanagement of reservation resources, and as Zitkala-sa has suggested, for outright fraud itself. And Collier and Cohen and other New Deal leaders understood that the questionable Indian land claims required clarification, and the IRA did include statutory provisions for extending federal recognition to non-recognized tribes such as my own, for example, taking new lands into federal trust for the administration and clarifying outstanding reservation border disputes with state, municipal, as well as other tribal communities.
But what if tribes whose reservation lands were seized against their wishes have not received any restitution or compensation for clearly illegal and unconstitutional takings? Fred Mahone understood this challenge, understood that his tribe’s homeland, the Hualapai Nation of Arizona, had been taken illegally by the Atchison, Topeka and Santa Fe Railroad Company, which laid its first tracks on the reservation in early 1883, shortly after the reservation had been established by Executive Order.
The railway bisected, as this map from Christian’s book hopefully can show us, the Hualapai’s land and establish a watering station at the tribe’s historic freshwater well at a place called Peach Springs, which you may not be able to see, but it’s in the center of this map which is focused largely on the western portions of the Arizona-Colorado borderlands region.
Fred Mahone wrote to the Commission of Indian Affairs about this concern. He wrote that the U.S. President had “set aside and reserved the use and occupancy of the Hualapai Indians’ lands. It is our desire to make this reservation our everlasting home for ourselves and future generations.”
Much like other Society of American Indian leaders, Mahone was not formally in this organization, but influenced by it. He did also project alternative visions of history that countered claims by the federal government at the time, its senators like Hayden, railroad leaders and others that they were “mere wanderers” who had no rights to their own reservation and delegated lands. He suggested, as others among his tribe did as well, that they possessed land rights, rights to self-govern and form a distinct society. He thus countered American mythologies and also enlisted the support of national leaders, including Cohen, in assembling a case that recognized the occupancy rights of his tribe. This case took a very long time, like perhaps most legal cases do, to make its way through the U.S. legal system.
When I teach this book, or when I talk about it sometimes, I try to communicate how powerful 19th century railway companies were in America, and how the U.S. senators like Hayden were totally in line with their corporate interests, and how this tribe had literally no political representation, you know, they could hardly afford a lawyer to file their case, which took a very long time itself, just to put into motion.
Eventually their case did reach the U.S. Supreme Court, which was handed down in a unanimous decision on December 8th, 1941. This case, called U.S. v. Santa Fe Pacific Railroad Railway Company, affirmed that the Hualapai, and by extension other tribes had occupancy rights known as “Aboriginal Title,” and that these rights pre-date claims by the United States and need no formal recognition. This became, as McMillen argues quite wonderfully, the 20th Century’s first major articulation of Native American land rights. The court found that absent the formal extinguishment of Aboriginal Title by Congress, such occupancy rights both exist for tribes and are eligible for restitution. There’s a lot of legality in that paragraph that, I think I hopefully communicated, but essentially, the Supreme Court handed down a unanimous decision affirming the Hualapai’s rights, not just to the lands, but to restitution for their taking.
And this required then the subsequent congressional statute to clarify this ambiguity of constitutional practice. If tribes’ lands have been taken and they are eligible for restitution, how can we thus compensate them? Well, we’re going to be busy on December 8th, 1941, right? Hopefully we can all understand what else is happening in the United States at the time, and why there was no press coverage of this case and hardly any legal academic study of it until McMillen’s work, in part because of what happened on December 7th, 8th, and 9th of 1941.
So Congress eventually, with Cohen’s leadership, drafts a new law, the Indian Claims Commission Act in 1946, that established a congressionally regulated commission known as the ICC to settle these outstanding claims, establishing a nearly half century process of congressional organized redress across much of Indian Country and over 100 tribes with file cases similar to those of the Hualapai seeking damages and thus restitution for the taking of the reservation lands. Here is a vision that McMillan and others have provided that highlights the capacity of the study of the potentially rural or marginal social communities, particularly in reservation or Western spaces, to literally refashion constitutional practice. And that’s what Mahone was very involved in doing; his fingerprints, like Roe Cloud’s fingerprints, are all over this subject matter.
This case is not commonly found in Federal Indian Law case books, nor is it the subject of much secondary literature other than McMillen’s. As with the Boland case and many dimensions of these subjects, the reform of education policy, this case was initiated by Mahone and other boarding school graduates, many of whom had served in Europe and returned home at a time of unprecedented national advocacy in Indian affairs. And they’re much more concerned about this than getting, for example, citizenship–which we’re now commemorating the 100th anniversary of the Indian Citizenship Act of 1924, which bestowed, finally, citizenship to American Indians universally in the United States.
So I hope have suggested today that a generation of American Indian activists directed the course of federal Indian policy and did so in part by challenging misunderstandings of American Indian capabilities. Their practices, ideas, and demeanor demonstrated a new habitus of Native capacity. And they challenged mythologies and faulty historical premises that have long undergirded U.S. historical inquiry and limited, ultimately, assessments of the rise of Native American self-determination more broadly across the 20th century, in what some scholars, I think myself included, are finally referring to as the modern American Indian Sovereignty movement. I’d be happy to talk further about some of these subjects and dimensions. I didn’t have time to talk about the Sherrill case, but I know Professor Davis has some concluding suggestions and/or queries that might facilitate some ongoing dialogue and exchange.
Thank you so much for your sustained participation and engagement.
Seth Davis
Professor Blackhawk, thank you so much for joining us and for your address today. I know that we’re all honored that you’re here. And I will say, personally, as with all your work, I’ve learned so much. And I’ve been left with so many questions about law and society from your address. So I just want to give the audience a moment to formulate their own questions.
There are microphones here and here. So if you’ve got a question that you’ve formulated, please feel free to come to the microphone. Or if you’d prefer, we’ll make sure to get the microphone to you.
So I’ll say I hope everyone in the audience has or will get Professor Blackhawk’s National Book Award winning history, The Rediscovery of America. Because I will say to this audience, it’s a book that bears reading and rereading from a law and society perspective. Professor Blackhawk’s work touches on many of the classic themes and concerns of law and society, including legal pluralism, the law in action, and law’s violence. American Indians, this book shows, and as we’ve heard today, have been central to American history and U.S. law. And indeed, the book shows that we cannot understand each of these classic law and society themes within the U.S. context, that is to say, these themes of legal pluralism, the law in action and law’s violence, we can’t understand them within the U.S. context if we don’t understand the histories of Native nations that you, Professor Blackhawk, have recounted.
To get Q&A started, I thought I would just take up your invitation to talk a bit about City of Sherrill. I’ll just say to the audience, that just to set that up, for those of us that may not be familiar with it, this is a Supreme Court case in which Justice Ginsburg invokes the doctrine of laches and impossibility to say, essentially, that too much time has passed. For the Oneida Indian Nation, which is seeking to assert its inter-governmental immunity against local taxation, too much time has passed, the claim has gone stale. And I’m so struck whenever I teach that opinion, that Justice Ginsburg apparently didn’t know anything about the dialectic of Native activism that is at the core of your work, and how that explains the timing of when the cases are brought by the Oneida Indian Nation. So I would really love to hear your reflections as a historian on the City of Sherrill Case.
Ned Blackhawk
We may not have our slide up anymore, but I wanted to mention that one of the efforts that also characterized the Laura Cornelius Kellogg’s advocacy throughout the early 20th century was trying to revive, not just reservation economic and political capacities–raising money, taking state or government to court–but she also was trying to revive, within her broad community of Iroquoian, speaking, Native nations, long standing traditions of self-governance rooted in particular forms of traditional gender political practices. Her advocacy was steeped in efforts to restore traditional gendered forms of Iroquoian authority, in which women had historically held much governing power and still hold to this day, to select representatives to attend the intertribal gatherings of what is known as the Iroquois Confederacy, whose origins predate the arrival of Europeans and who themselves constitute the oldest political community or intertribal or social community in the United States. During the colonial era, when Iroquois men traveled and fought and were diplomatically engaged across much of eastern North America, women held domestic and political authority within villages almost universally, and fields, and resources, and the rearing of children, these responsibilities were inherently in their domain, and it’s kind of codified in many of their cultural and community practices, cultural traditions, and oral traditions as well.
And so women select Iroquois men to serve in important roles. I mean, decide, for example, at times, when to go to war, historically speaking. So that form of gender autonomy became heavily challenged by the arrival of property ownership in the 19th century, forms of Christian morality and other practices that increasingly diminished the Iroquoian values of gender autonomy and power for many women.
So she was very active, ironically, given Ginsburg’s larger commitments to gender equity. Kellogg was very steeped in these understandings of alternative forms of gender authority. Clan matriarchs governed the annual selection of representatives, for example, or Confederacy gatherings. So these understandings–I think, had amicus authors or had respondents to the case been able to expose, for example, how these longstanding efforts of restoring Indigenous feminism have long guided the political efforts to essentially get land back for the Iroquois communities, I think that that would have been one way to counter the majority opinion the Ginsburg authored that held that the Oneida could not exercise sovereignty over their lands because the amount of time had passed and this kind of court made equitable doctrine known as laches became not just invoked, or kind of fashioned, in Indian laws–Professor Davis and Professor Berger teach this, I think doctrinally can perhaps offer far more insights than I might be able to. But there are so many fictions that are often invoked by Americans court leaders or justices in these areas, where they say, “Well, you know, weren’t all these tribes kind of violent to begin with? Did they ever really own these lands? Did they really ever use them?” and I think this kind of doctrine of laches, as is I think one of the footnotes to her opinion suggests, heavily draws upon this doctrine of discovery that is at the heart of the evolving practices of federal understandings of land management, and is the first of the most formative trilogy of federal Indian law cases, known as Johnson v. McIntosh. And so U.S. justices essentially turn to fictions of the European right of discovery to take lands from “uncivilized people,” to justify their actions, to legitimate the regulation of Indian lands in certain ways.
So this is one of the paradoxes, challenges of this subject, is that it brings uncommon subjects before individuals who often have very limited preparation to assess them.
And there are very few, sadly, for example, Ivy League law schools that have full time federal Indian Law courses or practitioners, it’s not a subject that is widely circulating in many legal circles. So part of the effort of the work that many of us do is to bring these subjects into some degree of visibility so that when they eventually find their way into other circles, they’re not simply seen as foreign or unintelligible.
There’s a question here.
Audience Member 1
Thank you for your presentation. I’m speaking as a former city council member and a former mayor, and it’s become trendy to do a land acknowledgment in political contexts, it’s become trendy for liberal, progressive, centrist, conservative people. I have some education around the Iroquois Confederacy, that it was sort of the basis of the United States government to start, and I’m wondering if there are ideas that you have that more people who are in positions of power or authority can do.
And I think, you know, the first thing is to give land back. I completely acknowledge that, but in between doing something that’s very, at this point, superficial–I don’t mean that it’s superficial in intent from Indigenous folks, but it’s superficial from politicians–doing a land acknowledgment and giving land back. Like, are there specific policies or legal strategies that municipalities or counties or states can pursue to more formally acknowledge Indigenous communities?
I say this coming from California, where we have a lot of federally unrecognized tribes who still organize, who still get things done in terms of preserving land, working with environmental groups, etc. But is there more, from a legal perspective that municipalities and counties can do, to really formally recognize and then also, where possible, actually extend more land rights to Indigenous communities who have been disinvested?
Ned Blackhawk
I appreciate your question, as well as your concern that the somewhat performative nature of certain political practices seemingly is divorced from perhaps more applied practices or actions.
I think it’s helpful as historians, it takes sometimes contextual perspectives on subject matters to understand that we are living through a new era of awareness around these subjects.10, 15, 20, 25 years ago, these were not common conversations. Only recently have some of the most egregious representation challenges confronting American Indians been widely acknowledged, having often been denounced by professional organizations or academics like the American Psychological Association, who have highlighted the harmful impacts that negative representations can have on children. Only recently have some of these, for example, mascots come down or been changed. Recently, state curricular initiatives have put American Indian History into their required, subject matters for K-12 school systems.
I think understanding this trajectory is helpful to understand that there have been significant gains in certain ways. Challenges obviously remain, but there will be, with dialogue, with engagement, with understanding, potential strategies for collective action that might present themselves. And I think it’s hard for people who are outside of the field.
And I’m not actually a law professor, so I don’t really know the dimensions of contemporary law practice. I’m much more familiar talking about, I don’t know, the Colorado Gold Rush of 1858. Which I actually wanted to mention today. One of the best books on Colorado history is called The Contested Plains, which is very congruent with your conference theme. It opens with this really interesting section on the Colorado Gold Rush, which led to Denver’s formation. So I can’t really answer some of the particulars, but I can say that within the field of Federal Indian Law like this Hualapai case, which–I never had heard of it until I picked up this book. And to be honest, had I–I have a funny, crazy story on this that I love telling my students, I won’t bore us all with it too much, except to say that one of my promotional requirements of the University of Wisconsin, from associate to potentially full professor, required an international publication. And I’m like, “Okay, I study Native American history. How am I going to do this?” And then somebody offered me a review essay in a Journal of American Studies in Australia, and they offered me Christian’s book, and had I not taken that review, I would not know about the Hualapai case, because I may not have spent that much time.
So within this subject are these types of already evident opportunities of engagement, essentially. There have been monumental class action litigations that have changed Indian community political and financial fortunes. There have been tremendous–as you know, from California–relatively recent, historically speaking, gaming powers that tribes have obtained, contested often by state governors and leaders, who were either unfamiliar with or threatened by these initiatives. We’re living in a different topography, essentially, of Native American-U.S. white relations, the field that it used to be known as, in which we still need to bring people into some of its core tenets and practices, one of which is that tribes are not exclusively racial communities, but political ones. They have governance, as you know, already, but many have less practical familiarity with governance over their lands, state jurisdictions do not extend to them largely except in certain criminal areas, municipalities can work in partnership with tribes but need MOUs or cross-deputization agreements of various kinds.
Just understanding these already existing practices and/or evolving ones might be one realm of possible further engagement, rather than simply a representational or performative beginning to a public hearing of some kind.
Seth Davis
It looks like our time is up. Please join me in thanking Professor Blackhawk.