"Tribes" and Nations

Craven, Jim jcraven at clark.edu
Mon Feb 25 12:17:23 MST 2002


Louis wrote:

This is a crucial point.

Wallace argues that the state of Georgia decided to move ahead with Indian
removal--with Jackson's blessing--shortly after the Cherokee began to
assert its nationhood:

>>The economic progress and increasing literacy of the so-called Civilized
Tribes was bad enough in the eyes of Southern whites. But worse than all
this, in Georgia's eyes, was a change in the form of government adopted by
the Cherokees in emulation of federal political institutitions [which I
might add where influenced strongly by the Iroquois constitution]. In 1817,
the Cherokees had established a bicameral legislature, a chief executive, a
judiciary, and a small army [and without having read Lenin!]. The
legislature passed dozens of laws regulating marriage, the tribal treasury,
the whiskey trade, legal contracts, and so forth. And in 1827, that
legislature adopted a new, written constitution adopted a new, written
constitution (including a bill of rights), modeled after the Constitution
of the United States. This constitution asserted that the Cherokee nation
was "sovereign and independent."<<

Louis Proyect
Marxism mailing list: http://www.marxmail.org

In the debates of the U.S. Congress just prior to ending "Treaties" in 1871
and calling all future "agreements" with Indian nations just
that--"agreements"--and refusing to use the term "treaty", there was an
explicit recognition that even under international law at the time, as well
as under the U.S. Constitution itself ( Article I Section 10 and Article VI
Section 2) that treaties are only covenants between sovereign nations and
the mere construction and signing of a Treaty implied recognition of the
sovereignty and independence (and later right to self-determination) and
nationhood of the treating parties. The U.S. Government sought to summarily
wipe out nationhood, sovereignty and independence of Indigenous nations by
simply refusing to call treaties treaties rather summarily calling them
"agreements."

International law, unlike domestic law--particularly that based on English
common law--evolves and is codified much more through "customary practices"
and treaties than through constitutional interpretations, treaties,
statutes, judicial decisions and stare decisis (case law) or
executive/administrative orders/fiat as is the case in domestic law.
Further, according to Article VI Section 2 of the U.S. Constitution:
Treaties shall be considered supreme law of the land and the judges of every
state shall be bound thereby ANYTHING IN THE CONSTITUTION OR THE LAWS OF ANY
STATE TO THE CONTRARY NOTWITHSTANDING.(paraphrase).

After World War I there was talk of putting the Germans and Turks on trial
for war crimes, crimes against "minority" populations etc based on emerging
international conventions and laws governing warfare, treatment of captives
etc. The so-called Western powers knew very well, and explicitly laid it out
that they too could be subject to the same precedents they were
contemplating setting against the Germans and Turks. That is the major
reason no war crimes trials developed. In 1924, later codified in 1928 the
U.S. passed the Indian Citizenship Act summarily declaring/imposing without
consent, "citizenship" on American Indians. Further, where the early
Marshall decisions had referred to Indian "nations" (assumed to be dependent
and captive with very limited sovereignty), by the 1870s there was less and
less use of the term "nations" and more and more use of the term "Tribes" in
reference to whole groups of Indians. Canadas also began the same process in
the 1920s but did not consumate full "citizenship" until the 1960s. The
intent was clear and it was the same intent as that of the nazis who
declared that what we do with "our own" minorities within "our" borders is
not a matter of international law--or indeed is not anyone else's business;
"we" have a sovereign "right" to do genocide. They were also aware that the
concept of "Tribes" being sovereign and coverable under international law
was not to be found in international law--said to be laws governing
contacts, associations, treaties, protections and behaviors of "nations".

At Nuremberg, Goering in his lengthy and ranting testimony, along with
Streicher, made explicit reference to the fact that the American and
Canadian experiences/histories with respect to slaughtering Indians had been
the major inspiration for Hitler and the nazis vis-a-vis possible scopes,
rationales for and even methods of genocide against the targeted populations
by the nazis--he asked why the Western powers with Indigenous populations
were not also on trial for their own genocide. This caused the western
powers to attempt to shut him up (and even the Soviet judges joined in
fearing they had their own problems along these lines).

Recently the U.S. government has again been using the term "nations"; their
purpose is as disingenuous as when they ceased using the term nations using
instead "Tribes". With the grotesque conditions in Indian Country and
failures and betrayals of "Trusteeship", they are attempting to dump more
and more of the burdens--and blame--back on the Indian nations from failures
of the federal trusteeship relationships under the banner of again limited
sovereignty--"you want to be a nation and 'sovereign', we'll let you go this
far and any failures are your responsibility and yours to fix.

That is why--partly--it is not simply a matter of semantics of Tribes versus
Nations.

Jim Craven

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