This Indian Country

by Frederick Hoxie

  The problem, Deloria argued, was not political hostility or even racism; it was a profound cultural and spiritual breakdown that had triggered a “desperate” effort among non-Indians “to flee the abstract and find authenticity.” In this chaotic atmosphere, “the stoic and heroic red man . . . seemed to hold the key to survival. . . .” Indians too were victims of this fantasy. Activists posing as warriors ended up “dancing for liberal dollars,” he wrote, while “tribal officials with a heady sense of power demanded and received lucrative government contracts . . . and by taking the federal funds forever surrendered their rights to criticize the Bureau of Indian Affairs.” Viewing the aftermath of Alcatraz, Wounded Knee, and other recent confrontations, Deloria not only believed little had been accomplished but also argued that these events revealed an emptiness in the hearts of many young activists. For the former seminarian, this state of affairs amounted to a “religious crisis” that compelled all Americans to reexamine and identify their basic cultural values.72

  The “fundamental difference” between American Indian and Western European traditions, Deloria argued, was that Native people “hold their lands—places—as having the highest possible meaning,” while the American majority oriented itself around time, a concept that viewed history as a “steady progression of basically good events.” The problems the American public faced in the early 1970s were triggered by recent events; they had not been “good.” The civil rights promise had gone up in flames. America’s vaunted power had been defeated in Vietnam. Indians had spurned the idea of assimilating into the majority culture. Western faith in continuous progress had been defeated by the realities of resistance and geography. The world turned out not to be a happy global village; it was “a series of non-homogenous pockets of identity” spread across the globe. Deloria urged his readers to recognize and adjust to this new environment by shifting their focus away from the arc of “progress” and embracing instead the Native reverence for place. He predicted that personal growth would flow from “a particular experience at a particular place” rather than from achieving a distant and abstract goal. Reoriented to place, “religion thus becomes a present examination of community needs and values, not a progression of conceptual advances.”73

  Deloria spent the bulk of God Is Red elaborating on the differences between Western European cultures based on time and Native American cultures based on space, but the message of his title—“for this land, God is Red”—carried a warning that Indian people would never belong to American society until both they and the non-Indian majority recognized the implications of his argument. Both groups must abandon the unrealistic goals of complete assimilation, on the one hand, and the revival of a romantic past, on the other, he declared. Americans should turn instead to reconciliation through the application of traditional Native values to the complexities of the modern world. “Within the traditions, beliefs and customs of the American Indian people are the guidelines for mankind’s future,” he wrote. “It is this spirit of the continent . . . that shines through the Indian anthologies and glimmers in the Indian communities in grotesque and tortured forms.”74

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  BY CONTRAST, Behind the Trail of Broken Treaties had a straightforward political purpose. Deloria wrote it in the wake of the Wounded Knee occupation while he was applying his legal training to the defense of several American Indian Movement leaders facing federal conspiracy charges. The book sought to make intelligible one of the most radical, and widely dismissed, demands of the Wounded Knee occupiers: that the United States should resume making treaties with Indian tribes. His goal, Deloria wrote, was to demonstrate that this proposal was “far from a stupid or ill-considered proposal.”75 The book followed the organizational pattern of God Is Red: four stinging chapters that commented sarcastically on recent events, followed by short essays containing the author’s core conceptual argument. Like God Is Red, Behind the Trail identified a crisis in American life, though here the crisis was legal, not spiritual.

  According to Deloria, the hasty occupation of Wounded Knee village in early 1973 introduced a new element to Indian protests: “revered medicine men and several well-known holy men” joined the militants, along with “representatives of the Iroquois League.” Their presence, and the elders’ “declaration of independence” and call for the reinstatement of old treaties, “marked a historic watershed in the relations of American Indians and the Western European peoples. . . . In their declaration of independence,” Deloria wrote, “the Oglala Sioux spoke to the world about freedom for all aboriginal peoples. . . .” The fact that these claims were made before a global audience not only animated other tribes but enlivened fellow critics of colonialism across the globe. As bizarre as it may have seemed to have Angela Davis and other media figures parading before television cameras on the windswept prairies of South Dakota, the point had been made: American Indians were now being presented and understood as a distinct and separate people. As one Indian participant later observed, we “had become the VC [Vietcong] in our own homeland.”76

  Even as he underscored the international dimensions of American Indian treaty rights claims, Deloria argued that the demands raised at Wounded Knee should still be addressed within the framework of U.S. law. He insisted that reactivating Indian treaties was practical. Indian communities were no less deserving of recognition than the small nations of the Pacific or Central America or (repeating William Potter Ross’s argument from a century earlier) European principalities such as San Marino or the Vatican. The Sioux author also noted that these international examples demonstrated that tiny countries could survive without being self-sufficient. Any state, he wrote, was “perfectly free to contract with a neighbor for the transfer of certain governmental functions without prejudice to its status.” Deloria believed that this flexible outlook could inspire a new round of treaty negotiations that would produce formal agreements outlining the powers, rights, and responsibilities of both the tribes and the American nation.77

  Behind the Trail of Broken Treaties also warned that ignoring international standards of conduct would earn the United States “continued protest and discontent” in the global community. Deloria reminded readers that Israel’s recent emergence onto the world stage represented “a dramatic vindication of the validity of traditional historic claims to specific territory as the sovereign heritage of a specific people.” The current crisis in Indian affairs should be viewed as an opportunity to reverse the nation’s colonial legacy. “Action by Congress . . . to define Indian tribes as smaller nations under the protection of the United States,” he argued, “would . . . eliminate the errors of the past and bring to a close the nebulous period of history which has plagued us since the days of [the] discovery of the New World.”78

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  THE PUBLICATION OF God Is Red and Behind the Trail of Broken Treaties capped an extraordinary decade in Deloria’s life and, at least for him, marked the moment when Native activists were to abandon forever the idea of becoming Indian Americans. Despite his insistent optimism about the possibility of negotiating a new relationship between Indian tribes and the central government, the two books challenged activists of all stripes to face both cultural and constitutional realities and devise a new generation of solutions. “It is not enough,” he declared in an essay published in 1974, “that some Indians are clever enough to get appointed to high places or that others [are] . . . skillful politicians. . . . [F]uture generations of Indians will judge this generation from a different perspective. . . . We must not let this chance slip away from us by hoping that in the confusion we can get something for ourselves.”79

  THE PROFESSOR

  Events in the 1970s largely vindicated Deloria’s analysis. High-profile confrontations ended after 1975, but a series of shifts in both federal policy making and the nation’s cultural life confirmed a dramatic change in relations between Indians and the American majority. While the federal government shied away from restarting
wholesale treaty negotiations with tribes, Congress adopted a number of initiatives that promised tribal leaders would never again be locked out of decision making. Not only were commissioners of Indian affairs now routinely Native Americans, but a self-determination statute passed in 1975 empowered tribes to contract with federal agencies to take over the delivery of government services in their own communities. Funded by these contracts, reservation governments gradually organized their own school systems, housing projects, health centers, and other agencies to address law enforcement, environmental protection, and economic development.

  This expansion of tribal government was accompanied by an extraordinary rise in the number of American Indian professionals, particularly lawyers. Law schools encouraged this trend through the proliferation of courses on federal Indian law and the creation of special programs such as the University of New Mexico’s American Indian Law Center. In 1970 private foundation grants supported the creation of the Native American Rights Fund, a public interest law firm modeled on the NAACP Legal Defense Fund. By the middle of the decade these investments had begun to pay off: eastern Indians won legal recognition and financial compensation for nineteenth-century land seizures, judges and politicians increasingly accepted the expanded powers of tribal governments over local affairs, Congress affirmed the rights of Indians to religious freedom, and the federal courts vindicated long-standing claims to fishing rights in the Pacific Northwest and on the Great Lakes. 80

  Running parallel to the growing effectiveness of Indians in policy making and the law was a rising presence of Indians in American higher education. Academic disciplines that had long viewed Indians as marginal actors or passive subjects of research—literature, history, sociology, and anthropology—responded to criticism from activists like Deloria by focusing resources on contemporary issues as well as on the task of training a new generation of Native scholars. Public protests also inspired the creation of interdisciplinary American Indian studies programs at research universities such as UCLA (1969), the University of Minnesota (1969), and the University of California, Berkeley (1972).

  Deloria taught in the College of Ethnic Studies at Western Washington University immediately after receiving his law degree in 1970, but his first foray into academia ended unhappily after two years. Despite his delight at being close to the treaty rights activists pressing their claims in nearby Puget Sound, Deloria found his new duties a poor fit for his wide-ranging, irreverent intellect. Throughout his career he found universities oddly obsessed with credentials, stodgy disciplines, and outdated rules.

  Deloria returned to Colorado in 1972 and spent the next six years as a freelance writer, lecturer, and consultant. He lectured on college campuses, lobbied Congress when called upon, and taught short courses as a visiting professor. He continued to publish essays and books, but the extraordinary one-book-per-year output he had maintained for the five years following the publication of Custer now slowed considerably.81

  By the middle 1970s additional Indian studies programs had appeared, spawning academic journals and producing students who eagerly sought careers with tribes or in urban Indian communities. One of these new journals, the American Indian Quarterly, reviewed God Is Red in its maiden issue.82 Despite inadequate funding, inconsistent leadership, and the predictable carping of academic critics, these university programs, which had grown to number more than one hundred by century’s end, not only provided a ready venue for iconoclastic Native authors like Deloria but also produced a growing stream of scholarship on social, cultural, and legal issues that kept an American Indian perspective on events before the public.83

  This evolving political, legal, and cultural landscape encouraged both Native activists and their white allies to reflect upon the deeper meaning of the issues protesters had raised at Alcatraz and Wounded Knee. Deloria welcomed this ferment, believing it had produced a “growth to maturity,” but he was not so sure what that maturity would produce.84 Reviewing the encouraging trends in law and policy making in the spring of 1978, for example, he noted that even though Indians had made “substantial progress,” Natives and non-Natives still lacked a “theoretical conception of the contemporary status of Indians.” He believed such a conception was essential because “without ideological guidelines,” tribes would likely return to their old habit of simply lobbying for more of whatever federal dollars they were currently receiving. Without leaders who held to a firm cultural identity and clear set of cultural values, American Indians could expect nothing more than “continuous movement to and fro, between the poles of sovereignty and wardship. . . . How much better the future would be,” he wrote, “was the unanswered question.”85

  Shortly after Deloria wondered aloud about the Indian community’s future prospects, the University of Arizona invited him to become a professor of law and political science at its Tucson campus. By assuming the position of a tenured professor, the Sioux author would now be able to address the “unanswered question” of the Native American future in an atmosphere of economic and political security. Deloria was not the first Native American to hold a senior position at a major research university, but he was certainly the first Indian political activist to assume such a post. He was also the first Native scholar to have senior American Indian colleagues who, also protected by tenure and the rules of academic freedom, could write and speak alongside him without fear of retribution. At Arizona, Deloria focused the bulk of his intellectual energy on the two broad themes he had identified in Behind the Trail of Broken Treaties and God Is Red: spiritual renewal and political reforms that embraced the sovereignty of Native peoples within the United States. He explored these twin themes in several books and a steady stream of essays published in legal, religious, and popular journals.86 His legal writings appeared during a time of extraordinary litigiousness, when tribes and their adversaries tested the limits of the Indians’ ambition for power and political recognition. This activity produced a torrent of decisions in the federal courts. While Native advocates celebrated their victories in cases upholding treaty rights, reservation exemptions from state taxation, aboriginal land titles in eastern states, tribal jurisdiction over membership rolls, and other important issues, Deloria continued to remind his colleagues that the surging field now called federal Indian law was being shaped by white judges who had never denied Congress’s power to void treaties and who had never declared a federal statute affecting Indians to be unconstitutional.

  Deloria clearly understood that the nation’s founding had erased American Indians from the social contract that defined the United States as a nation. Excluded from the phrase “We the people” in the preamble to the U.S. Constitution, Indians had therefore never been in a position to consent to be governed by the nation’s institutions. Nor, Deloria added, could that document “provide any significant guidance or protection” for them.87

  Deloria argued that simply extending the rights of U.S. citizenship to Native people could not repair their original exclusion from the American nation. This was so, he wrote, because Indians by definition were members of tribes. So long as the Indians’ institutions were ignored, so were they. Consultation, a term that had become popular among congressional policy makers in the 1970s, was no substitute for recognition of a tribe’s sovereign status. According to Deloria, a requirement to consult with tribes “merely means that you try to talk the Indians into what you want to do. Following that meeting,” he added, “you proceed to do what you want to do anyway.” The only solution, he told a congressional hearing in December 1987, would be a series of negotiated agreements with Indian tribes that would establish the constitutional basis for their relationship with the United States: “What we need is a federal statute saying that there must be Indian consent before any program of the federal government can be operated on a reservation.”88

  As he witnessed the proliferation of legal decisions involving Indian tribes, Deloria worried that the expanding cadre of Indian law expert
s was itself creating a barrier to the recognition of tribal sovereignty. In an essay in the Arizona Law Review, he charged that like lawyers everywhere, the Indians’ current advocates, however well intentioned, dwelled in a world of rules and doctrine rather than justice and humanity. As a consequence, Deloria worried that the new generation of Native practitioners had “thrown caution to the winds and produced a massive amount of new literature which pretends that a few popular concepts can be used to explain a very complicated, very diverse body of data.” These concepts (jurisdiction, tribal sovereignty, water rights, congressional supremacy, among others) in turn had created a self-contained legal universe in which lawyers played the role of enlightened priests. “What is missing in Indian law,” he pointed out with his characteristic wit, “are the Indians.” Legal rules and categories flattened complex human predicaments into cases whose outcomes, the lawyers argued, should be determined by the application of rules. The ultimate result of these developments, Deloria argued, was an ironic state of affairs where a field initially conceived to aid Native people had become “an oppressive and obtuse thing. . . . Consequently, there is no need to discuss justice; there is only the requirement of understanding law.”89

  Just as national leaders in Washington, D.C., should come to terms with tribal governments through the negotiation of new treaties, so, Deloria argued, should lawyers and judges free themselves from the rules and doctrines that defined federal Indian law. In 1989, for example, Deloria cited the recent case of Oliphant v. Suquamish Indian Tribe, a conflict that arose on the tiny Port Madison Reservation of western Washington, where most of the land had been acquired by non-Indian purchasers over the course of the twentieth century and where only fifty Indians reportedly maintained a tribal government in the midst of nearly three thousand non-Indian neighbors. Despite these disparities, the tribe’s attorneys had insisted that federal courts apply the doctrine of tribal sovereignty to the situation, thereby empowering a tiny group to exercise criminal jurisdiction over thousands of nonmembers. Deloria reported he had not been surprised when the tribe’s solid doctrinal argument had failed in the Supreme Court. “Surely here,” he wrote, “was an instance of a doctrine run amok.” In the face of such cases, he urged tribal leaders to negotiate binding agreements with their counterparts in county and state governments rather than force them into litigation. Deloria was aware that many of his legal colleagues would be hurt by his sharply worded essay, but he insisted that negotiations had proved successful in the return of Taos Pueblo’s sacred Blue Lake to tribal ownership, the settlement of a century-long dispute over Native land claims in Alaska, and the struggle of several New England tribes to win recognition for their reservation governments.90