Native Americans and Land Rights

In a blog post a few weeks ago, I discussed the Amazon rainforest fires in terms of how the Brazilian government was doing away with or disregarding rights for the natives of that land.

That post got me thinking about Native American rights, and particularly Native American land rights. The result of that thinking was this blog post, purposefully published on Columbus Day.[1]

That thinking also led me to a United States Supreme Court case from nearly 200 years ago, back to when John Marshall was the Chief Justice of the Supreme Court. In this case, which is known as Johnson v. M’Intosh, the court had a case before them where they had to determine whose land rights were superior: those of plaintiffs whose land claims came from Native Americans or those of defendants whose land claims came from a United States land grant.[2] The Supreme Court unanimously ruled that the defendants’ claims to the lands were superior. Furthermore, Chief Justice Marshall, who wrote about the Supreme Court’s decision, put into legal writing what is called the “Doctrine of Discovery,” a doctrine which said that European “discoverers” of land inhabited by non-Europeans have rights to the land.[3] This doctrine has existed for centuries, going back to Pope Nicholas V’s papal bull Romanus Pontifex,[4] but Chief Justice Marshall’s decision made this doctrine a part of the legal fabric of this country.

The consequences of this doctrine have been significant. Since European discoverers had rights to the land, not Native Americans who already had the land, it has allowed for the pushing of Native Americans off their former lands and for the killing of Native Americans in the process. And, when this doctrine hasn’t killed Native Americans, it has at the very least disenfranchised many of them.

To make matters worse, the Doctrine of Discovery remains a major part of the American legal system. Even Ruth Bader Ginsburg cited the very Doctrine of Discovery that has caused so much harm when she wrote a majority opinion for a Supreme Court decision in 2005.[5] And, to my knowledge, there has been nothing to undo that Doctrine of Discovery being part of America’s legal framework.

This is not to say that there is no hope in terms of acknowledging the wrongs of the doctrine, let alone doing anything about it. Many prominent entities, ranging from the United Nations in its Declaration on the Rights of Indigenous Peoples[6] to the World Council of Churches (a fellowship of churches that includes the United Methodist Church, Episcopal churches from several regions, and the Evangelical Lutheran Church of America, to name a few),[7] have repudiated this doctrine either explicitly or implicitly (as the UN did so without specifically mentioning the words “Doctrine of Discovery”). If these efforts show anything, it’s that more people are realizing the damage of this doctrine, and that maybe such a realization will eventually make its way to the American legal system. And hopefully more people and groups will come to this realization, because acknowledging the damage of the Doctrine of Discovery is one step, albeit a significant step, towards addressing the historical lack of land rights for Native Americans.


[1] For more on my feelings about Christopher Columbus and Columbus Day in general (which, as my readers can tell, are not positive feelings), I encourage you to read my post about the person and the holiday that I wrote two years ago: https://blindinjusticeblog.com/2017/10/10/why-i-blogged-today-even-though-columbus-day-was-yesterday/

[2] Lexis-Nexis probably does a much better job of describing the case than I could, so I encourage all to read the Lexis-Nexis summary of Johnson v. M’Intosh: https://www.lexisnexis.com/community/casebrief/p/casebrief-johnson-v-m-intosh

[3] Chief Justice Marshall goes into this doctrine when writing about the Supreme Court’s decision in Johnson v. M’Intosh.

[4] http://ili.nativeweb.org/sdrm_art.html

[5] I am a fan of Ruth Bader Ginsburg overall, but, as sad as it is for me to say this, she invoked the Doctrine of Discovery when she wrote the majority opinion of City of Sherrill v. Oneida Indian Nation: https://www.law.cornell.edu/supct/html/03-855.ZO.html

[6] Page 3 of this declaration affirms “further that all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust.” https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf

[7] https://www.oikoumene.org/en/resources/documents/executive-committee/2012-02/statement-on-the-doctrine-of-discovery-and-its-enduring-impact-on-indigenous-peoples

Blog News: An Important Update to a Recent Blog Post

Today, I am doing two unprecedented things: writing a blog news post on a Wednesday (not a Friday) and announcing an update to a blog post.

But why?

As readers know, I published a piece on the barriers that many Native Americans face to voting in the United States just over a week ago. I felt it was a relevant post given the upcoming election, discussions about voter suppression in this country, and the proximity to Columbus Day/Indigenous Peoples’ Day.

But I had no idea that this post would be so relevant that I find myself updating the piece I wrote.

Yet, that was exactly what happened. What happened was that I found out just yesterday that North Dakota enacted (and the Supreme Court did nothing to remove) a voter ID law that will provide yet another barrier to voting for some Native Americans in the state.

As to the full details on what that additional barrier is, please read the end of my modified blog post (the one that was originally published last week) for more details. To make it easy to see what I added (and to make it easy for those who have read the post and don’t want to read it a second time), I put my update in bold.

So, without further adieu, here is the link to the updated blog post on “Native American Barriers to Voting”: https://blindinjusticeblog.com/2018/10/09/native-american-barriers-to-voting/

Native American Barriers to Voting

As per usual, while I take many holiday weeks off, I am not taking Columbus Day off. If you’re wondering why, just read this post from the week of Columbus Day last year.

However, from this year on, I’m not just going to post on the week of Columbus Day, but also to post on one or more issues related to indigenous people (since, you know, that was the group most hurt by Columbus and others coming).

At this point, you’re probably asking this: “What are you going to post this year, Brendan?”

This year, given the upcoming midterm election, I think it’s important to write a post about an injustice many of us are not aware of: the fact that many Native Americans face barriers to voting.

It may be surprising to hear that many Native Americans face barriers to voting, especially considering the fact that Native Americans technically have the right to vote. However, just because a group of people has the right to vote doesn’t mean that they are given the resources to vote easily.

Take, for example, the barriers to voting that many Native Americans face in elections. The quantity of barriers is staggering: long distances to voting places, less time for early voting than other groups, restrictive voter-identification regulations, a lack of accommodations for tribal languages at polling places, and many more. The Native American Voting Rights Coalition listed further voting barriers faced by Native Americans in several states, such as registration problems caused by non-traditional addresses, a lack of voter-registration drives in Native American communities, and a lack of Internet access (which makes online voter registration impossible in practice even if it exists in theory). There are even more barriers that Native Americans face to voting, but these are just a few.

If your head is spinning at this point from the massive list of voting restrictions that Native Americans face, don’t feel badly—honestly, I felt that way, too, while drafting this post. If anything, be glad that you’re recognizing the extent of voting restrictions against Native Americans in 2018.

However, we must go further, as individuals, than simply recognizing how the system is stacked against Native Americans, as far as voting is concerned. Instead, we must consider what, if anything, our candidates say about voting rights for all individuals, including Native Americans. While I will not be one to endorse candidates on this blog, what I will say is that anyone who does not support the further enfranchisement of all individuals at the voting booth, including the enfranchisement of Native Americans, does not deserve anyone’s vote.

Update as of October 16, 2018: For the first time ever, I needed to update a blog post soon after writing one. That is because yet another barrier has been added for some Native Americans. Namely, for people in North Dakota, you must have an ID with a current street address in order to vote. P.O. boxes are not acceptable. This disproportionately affects Native Americans, as many Native American reservations lack physical street addresses (plus many homeless Native Americans use P.O. boxes, not physical street addresses). Therefore, North Dakota has created, and the Supreme Court has refused to do anything about, yet another barrier to voting that Native Americans in that state will face. I want to give a “thank you” to Scottie at Scotties Toy Box for bringing my attention to this issue, and to National Public Radio’s article on the topic and many others for reporting on this.

Native American History is Erased from School Curricula

One thing that many of us might not be aware of is that November is Native American History Month.

Another thing many of us may not be aware of is that Native American history is often barely present, absent, or extremely misleading in school curricula.

For example, the College Board’s curriculum for Advanced Placement (AP) United States History mentioned Native Americans only once in a post-1890 context: as a subdivision of a key concept which says students should learn about how “Latino, American Indian, and Asian American movements continued to demand social and economic equality and a redress of past injustices” (quote found on page 87 of this link). To which I think, “Umm…excuse me…what do you think happened with Native Americans between 1890 and the civil rights era?” I’m not sure if I’d get answers even if I asked the College Board.

My home state of New York is somewhat better about including Native Americans in its history curriculum. For example, New York includes Native American movements on the list of civil rights movements that need to be covered. Regarding the era of World War II, the curriculum says: “Students will examine the contributions of women, African Americans, Native Americans, Asian Americans, Mexican workers, and Mexican Americans to the war effort, as well as the discrimination that they experienced in the military and workforce.” The curriculum also makes room for key legislation on Native Americans, such as the Dawes Act, and forced assimilation efforts, such as the Carlisle Indian Industrial School. However, unless the quality of textbooks has changed since my younger brother went through United States History in New York two years ago, much of the information on these topics is misleading at best, and promoting falsehoods at worst.

And some of that misleading information is expressed when California talks about Native Americans and civil rights. At one point, the post-World War II chapter in their curriculum says: “American Indians also became more aware of the inequality of their treatment in many states where Indian tribes are located. American Indian veterans, returning from World War II were no longer willing to be denied the right to vote by the states, which controlled the voting sites or to be told their children could not attend state public schools” (in this link; search for my quote to find the link most easily). Say what? They just said that there was little awareness among Native Americans about their lack of rights before the 1940s? That comment left me puzzled, to say the least.

I can give more examples of how states poorly handle Native American issues beyond the 1870s or so, but I think that these three examples give enough of a picture. The bottom line is that Native Americans are often either erased or are depicted with misleading information in many portions of school curricula. That fact is shameful.

It is often said that “those who don’t learn from history are doomed to repeat it.” Many high school curricula don’t even teach the history of Native Americans beyond the 1870s (let alone teach it properly), so if we are to avoid repeating mistakes, we must start to educate ourselves. I have much to educate myself on, and many of us have much to educate ourselves on, but we must educate ourselves so that we don’t repeat the mistakes and injustices committed against Native Americans in the past.