by David Treuer
He got into Vanderbilt but neither he nor his family could afford it, so he went to the University of Oklahoma as a commuter student: he lived at home with his mother. After college, Washburn attended Yale Law School. “Growing up I was never one of those people who wanted to get the hell out.” But when he left Oklahoma, he thought, “Oh my gosh! There’s a world out there! I’ve not moved back. It’s not for me. It’s a very red state.” Yet even as he graduated from clerkship to trial attorney for the Department of Justice to assistant U.S. attorney for New Mexico to dean of a law school, his tribe, the Chickasaw Nation, and by extension Indian people across the country, have always been on his mind.
“You know,” he says, “the Cherokee suffered terribly on the Trail of Tears, in some ways because they didn’t choose the moment of their departure. They were rounded up at gunpoint and forced to march in the winter. It was horrible. But for the Chickasaw it wasn’t nearly as bad. We had more time to prepare for removal because we were further west. And so in some ways being victimized has not been as much a part of our tribal identity. We feel that we chose our own destiny. Even today, our tribal seal includes the words ‘Unconquered and Unconquerable.’” An example? “The governor of my tribe has been governor since I was a kid. Bill Anoatubby. He had this saying, ‘If it’s going to be, it’s up to me.’ It really stuck with me. Basically he meant if you want something done you’ve got to do it yourself. He took our tribe to self-determination and self-governance.” One of Washburn’s siblings had asthma, and the family spent a lot of time at the Indian Health Service hospital. They frequently had to wait to be seen, he remembers, often for hours—and their mother took all three of the children to the hospital “because we never knew when we’d be done.” Anoatubby proposed that the tribe should take over the operation of the hospital; this met with a great deal of tribal opposition. Washburn remembers that his aunts and uncles were against it. “Who does he think he is? Our tribe can’t run a hospital better than the federal government. That’s just crazy!” But the governor prevailed. “It was a huge political risk because everyone expected him to fail and he would have been voted out of office in the next election if it turned into a disaster. But within three to six months everybody was saying, ‘Dang, this is running a lot better now.’” His mother reported that when appointments were running late, the hospital called her in advance and told her to come in later. “It was a little thing, just that little thing, but she didn’t have to be sitting waiting there for two hours. It was like they were saying, ‘We care about you. We respect you. We respect your time.’ It’s really about accountability. Federal officials are never going to be accountable for the things they do, but a tribal leader may get unelected if people aren’t served well. Perhaps there’s too much accountability within Indian tribes! They sometimes hold leaders accountable for things they shouldn’t. But federal officials have to commit a felony before they lose their jobs. It’s not like poorly serving Indian people will get federal employees fired! So that’s why I became a believer in tribal self-determination and self-governance very early in my life.”
This belief—in the intelligence and capability of Indian people—was on ample display between 2012 and 2015, when Washburn served as an assistant secretary of the interior, a position that put him in charge of the Bureau of Indian Affairs, among other agencies. “Some people say it’s the hardest job in government,” he says. He adds, in that self-effacing Indian way, “That’s not true, but it is one of the harder ones. You know—being the dean of the law school was perfect training for being assistant secretary. You have all these constituencies, everyone wants something different, no one is happy, and it’s really hard to make everyone happy.” In the end, he says, “we got a lot done. We kept cranking things out. But a lot of the things we accomplished are at risk of being overturned by Congress or by courts.” He saw to it that federal acknowledgment regulations for extending federal recognition to Indian tribes were updated and reformed, and he recognized the Pamunkey tribe of Virginia, which was the tribe of Pocahontas. And he defeated a House effort to deprive this work of funding. He improved the Indian Child Welfare Act, which had been law since 1978 but is still being resisted in courts around the country. That law is meant to ensure that Indian children put up for adoption go to Indian families, so they aren’t deprived of their culture at the same time they are severed from their Indian families. “But when you change anything, anything at all, it gives people standing to complain,” he says ruefully.
The End of the Treaty Era and the Rise of the Bureau
As early as 1775, during the deliberations of the Second Continental Congress, the revolutionary government created two, then three agencies to treat and trade with Indian tribes. These agencies were meant to be the major points of contact for negotiations between the federal government and Indian nations: a structure for working out agreements, settlements, annuities, and the like, more like embassies than anything else. In terms of realpolitik, the colonists were concerned that Indians—who vastly outnumbered them—would side with the British during the Revolutionary War. The declaration read: “In case any agent of the ministry shall induce the Indian tribes, or any of them, to commit actual hostilities against these colonies, or to enter into an offensive alliance with the British troops, thereupon the colonies ought to avail themselves of an alliance with such Indian nations as will enter into the same, to oppose such British troops and their Indian allies.” The agencies corresponded with the loose organization of colonies: northern, central, and southern.
Many tribes, notably most of the Iroquois Confederacy, sided with the British anyway; they seemed a stronger force than the colonists. In response, in 1779, George Washington ordered an offensive against the Iroquois, to be mounted under the command of Major General John Sullivan:
I would recommend that some post in the center of the Indian Country should be occupied with all expedition, with a sufficient quantity of provision, whence parties should be detached to lay waste all the settlements around with instructions to do it in the most effectual manner, that the country may not be merely overrun but destroyed. . . .
But you will not by any means listen to [any] overture of peace before the total ruin of their settlements is effected. . . . Our future security will be in their inability to injure us . . . and in the terror with which the severity of the chastisement they receive will inspire [them].”
The Sullivan expedition engaged in a scorched-earth policy that destroyed more than forty villages, driving most of the confederacy from the Finger Lakes region north to Buffalo, Rochester, and Syracuse. Among the Iroquois, Washington was already known as Hanodaganears, or “Devourer of Towns.” The Oneida, despite being a member of the Iroquois Confederacy, sided with the Americans and fought alongside the colonists at the battles of Oriskany and Saratoga, among others. During the winter of 1777–1778, when Washington and his troops were starving at Valley Forge, the Oneida marched down and provided much needed supplies and support. Polly Cooper, an Oneida woman with the entourage, showed the soldiers how to prepare Indian corn, thereby staving off the encroaching famine. After the war Congress signed a treaty with the Oneida in recognition of their contributions to American victory. It read, in part: “The United States acknowledges the lands reserved to the Oneida . . . to be their property; and the United States will never claim the same, nor their Indian friends residing thereon and united with them, in the free use and enjoyment thereof.” A mere thirty years later when General Lafayette returned to America, he was welcomed as a hero in Utica where Revolutionary War veterans met him on a street bearing his name. He wondered to his hosts where the Oneida were, because it was they who had saved the revolutionaries at Oriskany. The whole region had been Oneida territory, and Washington and Schuyler and others had promised it would remain so. No one knew what he was talking about. The Oneida contributions to American victory and the promises that had been made to them, as well as their homelands, had faded away.
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After the war, the American government’s concerns about and relations with eastern tribes shifted from military to economic ones. It created an Office of Indian Trade within the newly established War Department. The office was charged with regulating trade with tribes, working along the lines of existing trade networks, which were built much like the factory system that had been in use since colonial times. In addition to piggybacking on the factories to maintain political stability—factories often functioned as (and resembled) forts, with garrisons or other capacities to host military detachments as needed—the system was further institutionalized via a series of Indian Intercourse Acts beginning in 1790. On the face of it, these laws were meant to protect Indians from unscrupulous traders or unauthorized and invalid exchanges of land; some Indians did find protection—in trade and in person—under the factory system. But they were designed primarily to extend American trade (and hence influence) into territories the government either controlled or would like to control, at the expense of Indians.
The factory system remained in effect until 1822, by which point the fur trade had waned and the Louisiana Purchase and the War of 1812 had established more or less agreed-upon borders to the country. In 1824, the government constituted the Office of Indian Affairs (the name was changed to the Bureau of Indian Affairs in 1947). Its relationships with tribes weren’t merely military or transactional anymore. Scores of treaties had been signed in the intervening years, most of which, in addition to defining Indians’ rights and the borders of their homelands, included provisions for annuities in the form of cash, seed, iron, trade goods, and blankets. Thus the government, long an overbearing trading partner and military threat to the tribes, had added yet another role: trustee of money and goods promised to them by treaty. In 1832, Congress created the position of commissioner of Indian affairs, and in 1849 the Office of Indian Affairs was moved from the War Department to the Department of the Interior. Washburn jokes, “This was a bad choice for the BIA. It was better off in the War Department. Today the Department of the Interior’s annual appropriation from Congress is $13 billion. The annual appropriation for the Department of Defense is around six hundred billion!” The office’s origins in trade and war, however, continued to define its role.
During the Civil War, some tribes, especially in the South, had sided with the Confederates. In 1865, Dennis Cooley, then commissioner of Indian affairs, was charged with finding an apt punishment. Cooley forced a series of treaties on the factions of the Five Civilized Tribes in Indian Territory that had taken the Confederate side. In addition to abolishing slavery among the tribes and granting tribal citizenship to the new freedmen and their descendants, the treaties also forced the tribes to make radically unfair land cessions. “The President is willing to grant them peace,” Cooley said, “but wants land for other Indians, and a civil government for the whole Territory.” The commission also forced the Seminoles to sell their entire reservation at fifteen cents per acre and then buy a new reservation next door to the Creeks for fifty cents an acre.
The schizophrenic nature of the Office of Indian Affairs was nowhere more clear than in Cooley’s report to Congress in 1866:
It does not seem a great task to attend to the business of directing the management of about three hundred thousand Indians; but when it is considered that those Indians are scattered over a continent, and divided into more than two hundred tribes, in charge of fourteen superintendents and some seventy agents, whose frequent reports and quarterly accounts are to be examined and adjusted; that no general rules can be adopted for the guidance of those officers, for the reason that the people under their charge are so different in habits, customs, manners, and organization . . . and that this office is called upon to protect the Indian . . . from abuse by unscrupulous whites, while at the same time it must concede every reasonable privilege to the spirit of enterprise and adventure which is pouring its hardy population into the western country; when these things are considered, the task assigned this bureau will not seem so light as it is sometimes thought.
In 1869, Ely Parker became the first Indian to be placed in charge of the Office of Indian Affairs. Parker was something of a nineteenth-century Indian all-star. A Seneca, he was born and raised on the Tonawanda Reservation in upstate New York, the fourth of seven children. His father, William Parker, was a miller and Baptist minister, and Ely had been brought up in the faith although he, like many others, also participated in Seneca longhouse ceremonies and had a Seneca name: Hasanoanda. When he came of age his parents sent him to a missionary boarding school, where he learned English; his bilingualism would later help his band negotiate a number of treaties regarding land claims upstate. Browsing in an Albany bookstore at sixteen, he struck up a conversation with an important-looking white man who turned out to be Lewis Henry Morgan. Morgan was enthralled by Indians, particularly Indians of the Iroquois Confederacy, and along with friends had formed the Grand Order of the Iroquois, which, besides playing Indian and emulating the fraternalism of the Masonic order, espoused the “virtues and values” of the Iroquois who had until so recently controlled the region. Still, Morgan reasoned, “‘to sound the war whoop and seize the youth might have been dangerous,’ so he instead chose to speak to the young man.” They began a friendship, and Parker invited Morgan to visit him at Tonawanda. The Parker home became a meeting place for people like Morgan (who later made detailed studies of the Iroquois that culminated in a number of books, including Systems of Consanguinity and Affinity of the Human Family, League of the Ho-dé-no-sau-hee or Iroquois, and Ancient Society), Henry Rowe Schoolcraft (likewise an early writer about things Native, and an Indian agent and explorer who “discovered” the headwaters of the Mississippi), and John Wesley Powell (mapper of the Grand Canyon, explorer, and writer). Morgan formed such a strong connection with the young Parker that he dedicated League of the Ho-dé-no-sau-hee to him and, more important, helped him gain entrance to Rensselaer Polytechnic Institute to study engineering.
In his mid-twenties, Parker was appointed to an important political and ceremonial position within the Seneca Longhouse, which he used, along with his connections with Morgan and Schoolcraft, to fight federal, state, and private interests (most notably the land-hungry Ogden Lumber Company) that sought to gobble up Tonawanda land and relocate his band out west. The fight against removal and encroachment had been dragging on for two decades until finally, in 1857, the Tonawanda signed a new treaty with the government that preserved a large portion of their original reservation. Other Seneca communities—such as the reservation at Buffalo Creek—disappeared. After graduating from RPI, Parker worked as an engineer, helping to improve the Erie Canal. In Illinois he befriended Ulysses S. Grant, who had returned there to work after his military service in the Mexican-American War. When the Civil War broke out, Parker tried to muster a company of Iroquois soldiers, but the governor of New York denied them the opportunity because they weren’t Americans. (Most American Indians wouldn’t be considered citizens until 1924, although there were sometimes paths to citizenship in treaties or negotiations.) Parker then tried to enlist on his own, noting that there was a shortage of engineers in the Union Army, but again he was turned down. In desperation he wrote to Grant, who vouched for him, allowing Parker to be commissioned as a captain in May 1863. Later, Grant had Parker transferred to the Military Division of the Mississippi, then under his command, and he eventually served as Grant’s adjutant and secretary, in which capacity he was present at General Lee’s surrender at Appomattox in April 1865. Indeed, it was Parker who helped draft and produce the final copy of the articles of surrender that ended the Civil War. Known as a good fighter and thinker, Parker also, according to contemporaries, had wonderfully beautiful handwriting. When it was time to sign, General Lee looked around, bewildered, and then set his eyes on Parker. He extended his hand and said, “I am glad to see one real American here.” Parker, by his own account, shook Lee’s hand and said, “We are all Americans.” The an
ecdote is more a testament to Parker’s attitude than to fact, as he still was not an American citizen.
After the ill-fated administration of Andrew Johnson, Grant ascended to the presidency in 1869. While his tenure was marred by corruption and graft, it represented a welcome change in the ways the federal government worked with Indian tribes. One of his first moves was to appoint Parker as commissioner of Indian affairs. At Parker’s urging, Grant began to steer the federal government away from a policy of war with the tribes and toward one of peace. Together they constituted a Board of Indian Commissioners, charged with addressing “what should be the legal status of the Indians; a definition of their rights and obligations under the laws of the United States, of the States and territories and treaty stipulations; whether any more treaties shall be stipulated with the Indians, and if not, what legislation is necessary for those with whom there are existing stipulations, and what for those with whom no such stipulations exist; should Indians be placed upon reservation and what is the best method to accomplish this.” The findings of the board should have been encouraging to Indians across the country. They determined that “the first aggressions have been made by the white man, and the assertion is supported by every civilian of reputation who has studied the subject. In addition to the class of robbers and outlaws who find impunity in their nefarious pursuits upon the frontiers, there is a large class of professedly reputable men who use every means in their power to bring on Indian wars, for the sake of profit to be realized from the presence of troops and the expenditure of government funds in their midst.”
