Christian Imperialism

One example of religious imperialism can be seen in the era following the Age of Discovery which began in the fifteenth century. European kings, and later the United States, used a legal fiction known as the Doctrine of Discovery to justify their acquisition of new territories outside of Europe. Following this doctrine, Christianity is seen as superior to all other religions and therefore Christian monarchs (and later Christian republics such as the United States) have a legal and religious right and even an obligation to impose their rule on all non-Christians.

It should be noted that the Doctrine of Discovery applies only to Christian nations in their dealings with non-Christian peoples. In his book American Indians and the Law, law professor Bruce Duthu writes:

“Only Christian colonizers in their encounters with non-Christian peoples could invoke the discovery doctrine. An indigenous seafaring tribe, by contrast, could not plant a flag in the British Isles or on the beaches of Normandy and make comparable claims to England or France under the doctrine.”

Law and its interpretation by the courts regarding American Indians in the United States are based on two concepts: (1) the U.S. Constitution, and (2) legal precedents from international law, primarily a legal fiction known as the Doctrine of Discovery.

In 1787, the United States adopted a constitution which is considered the supreme law of the land. Article I, Section 8, Clause 3 delegates to Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes” and thus dealings with the tribes are to be federal. Most of the litigation regarding Indian matters concerns this clause. However, it has not been unusual for legal scholars, including one Supreme Court Chief Justice, and for many politicians and government leaders to ignore this clause.

The Doctrine of Discovery is not well-known to people who are not: (a) historians, (b) legal scholars, or (c) American Indians. In brief, this is an ancient European Christian legal concept which says that Christian nations have a right, if not an obligation, to rule over all non-Christian nations. Thus, the European nations, and the United States after 1787, felt that they had a legal right to govern American Indians. The Doctrine of Discovery gave Christian nations, including the United States, the right to take land away from indigenous peoples paying for it with the gift of Christianity.

The Popes and Spanish Law

The Catholic Pope in 1452 laid the foundation for the Doctrine of Discovery by issuing the papal bull dum diversas which instructed the Portuguese monarchy “to invade, capture, vanquish, and subdue all Saracens, pagans, and other enemies of Christ, to put them into perpetual slavery, and to take away all their possessions and property.” The ideas found in this papal document were later woven into U.S. Indian law and continues to guide U.S. Indian policy.

A papal bull is a special kind of patent or charter issued by a pope. It is called a “bull” because of the seal (bulla) which was appended to the end of it and served to authenticate the document.

The original papal bull, which is still in force, was strengthened in 1455 with another papal bull, Romanus Pontifex, which sanctified the seizure of non-Christian lands and encouraged the slavery of natives. Following the discovery of the Americas by the Europeans, Papal bulls by Pope Alexander VI in 1493 granted Spain and Portugal all of the lands in the Americas which were not under Christian rule. This began the European assumption that the native people of the area didn’t really own the land because they were not Christian. The Pope decreed that:  “barbarous nations be overthrown and brought to the faith itself.”  The Inter Caetera papal bull stated: “We trust in Him from whom empires, and governments, and all good things proceed.”

This laid the legal foundation for assuming that government comes only from the Christian god and therefore Christian nations have a legal right to rule over non-Christian nations. Indian writer Vine Deloria would later comment:

“Thus armed with a totally bogus title issued by God’s representative on earth, the Spaniards then began a brutal conquest in the Americas which virtually obliterated the native populations in the Caribbean within a generation.”

The Doctrine of Discovery provided Europeans with the legal right to claim the Americas. While non-Christian Indian nations owned the land, the European nations, as Christian nations, had the right to rule Indian nations. If the Indian nations failed to recognize this right, then the Christian nations could wage a just war against them.

By 1513, Palacios Rubios, Spain’s master jurist, had refined the Doctrine of Discovery into a document which was to be read aloud, in Spanish or in Latin, when new peoples and/or lands were encountered. The fact that the indigenous people might not speak Spanish or Latin was not seen as relevant. The document recited the Christian history of the world and then demanded that the Natives accept this version of history and submit themselves to the authority of the Christian Spanish King. The indigenous people were told that God has declared that the Pope rules all people, regardless of their law, sect, or belief. This includes Christians, Moors, Jews, Gentiles, or any other sect. The Native Americans were to come forward of their own free will to convert to Catholicism or

“with the help of God we shall use force against you, declaring war upon you from all sides and with all possible means, and we shall bind you to the yoke of the Church and Their Highnesses; we shall enslave your persons, wives, and sons, sell you or dispose of you as the King sees fit; we shall seize your possessions and harm you as much as we can as disobedient and resisting vassals.”

Furthermore, the Natives who resist are to be held guilty of all resulting deaths and injuries from the “just” war waged against them. The idea of a “just war” is based upon the word of Saint Augustine. Under this concept, a just war was one that was waged to right an injustice or wrong by another nation. One of these wrongs, according to the Christian view, was not being Christian. Thus, if an Indian nation were to fail to let missionaries live and preach among them, then they were committing a “wrong” which would have to be set right through a “just war.”

American Law

The Doctrine of Discovery entered into American jurisprudence in 1823 when the Supreme Court ruled on Johnson and Graham’s Lessee versus McIntosh. The Court found that the Doctrine of Discovery gave sovereignty of Indian lands to England and then to the United States. Indian nations, under this Doctrine, have a right of occupancy to the land. Christian nations, such as England and the United States, have superior rights over the inferior culture and inferior religion of the Indians. According to the Court, Indians have been compensated for their lands by having the gift of Christianity bestowed upon them.

The Supreme Court’s use of the Doctrine of Discovery in Johnson and Graham’s Lessee versus McIntosh laid the foundation for Indian law that still continues. The decision reinforced the superiority of Christianity as a governing philosophy and paid little attention to either Indian history or the possibility of Indian religions.

In an article in This Week from Indian Country Today, Steven Newcomb, Director of the Indigenous Law Institute, writes:

“From the perspective of Western Christendom, it was the ‘god-given’ right of all Christian sovereigns to locate and dominate (“possess”) all non-Christian lands on the planet.”

In 1954, the United States Supreme Court heard arguments in the Tee-Hit-Ton case. The government argued that under international law Christian nations can acquire lands occupied by heathens and infidels. In an article in Indian Country Today, Steven Newcomb writes:

“This is a religiously premised argument. It is also racist, to be sure, but it is an argument made by the United States government on the basis of the Christian religion.”

In their argument, the United States government not only cited the nineteenth century case of Johnson v M’Intosh, but also the Papal bulls of the fifteenth century and the Old Testament from the Bible.

In 1955, the Supreme Court announced its decision which denied the Tee-Hit-Ton any compensation for the taking of the timber. According to the Court:

 “The Christian nations of Europe acquired jurisdiction over newly discovered lands by virtue of grants from the Popes, who claimed the power to grant Christian monarchs the right to acquire territory in the possession of heathens and infidels.”

Legal scholar Steven Newcomb, in an articles in Indian Country Today, writes of the government’s brief:

“It is a gem of religious racism that fully documents the illegitimate foundation of U.S. Indian law and policy.”

The Tee-Hit-Ton case reaffirmed the Doctrine of Discovery as the basis for U.S. law with regard to Indian nations. It reaffirmed this Christian doctrine as the principle to be used in judging American Indians and discounted American Indian history and religious traditions. It denied that Indians had any legal rights as pagan nations. Attorney Peter D’Errico, in an article in This Week from Indian Country Today, sums up the case:

“It reaffirms Christian Discovery as the basis of U.S. law regarding Indian nations; and it says this racist religious doctrine is still in full force and effect. It also says that Indians as people are not covered by the U.S. Constitution, which undermines the arguments of those who believe the Constitution ‘protects’ Indians.”

In 2005, the Supreme Court once again cited the Discovery Doctrine in City of Sherrill v Oneida Indian Nation of New York. Justice Ruth Bader Ginsburg wrote:

“Under the ‘doctrine of discovery,’ fee title to the lands occupied by the Indians when the colonists arrived became vested in the sovereign—first the discovering European nation and later the original States and the United States.”

George Zebrowski, in an article in Free Inquiry, writes:

“In other words, the Sherrill decision was based in part on the Doctrine of Discovery, one of the rare principles of American law that came not from English common law or from the pen of some Enlightenment philosopher but rather from the Vatican.”

In 2008, the International Council of Thirteen Indigenous Grandmothers traveled to the Vatican to ask Pope Benedict XVI to rescind historic church doctrine—the Discovery Doctrine—that has encouraged the genocide of millions of indigenous people. Vatican police, however, claimed that the women were engaged in conducting anti-Catholic demonstrations.

In 2009, Onondaga Chief Oren Lyons asked Pope Benedict XVI to renounce the Doctrine of Discovery. While the Pope declined, thus indicating that this Doctrine continues as Church policy, the Episcopal Church adopted a resolution repudiating the Doctrine of Discovery. The resolution called on the United States to review its historical and contemporary policies that contribute to the continued colonization of native peoples. The resolution also called for Queen Elizabeth II to repudiate publicly the validity of the Doctrine of Discovery.

In 2010, “A Preliminary Study on the Doctrine of Discovery” was presented to the United Nations Permanent Forum on Indigenous Issues by Tonya Gonnella Frichner (Onondaga). According to the study, the Doctrine of Discovery has been used to justify indigenous genocide and is one of the underlying reasons for the worldwide violations of the human rights of indigenous peoples. In 2012, the 11th Session of the United Nations Permanent Forum on Indigenous Issues discussed the Doctrine of Discovery.

On numerous other occasions, Indian leaders in the Americas have formally asked the Pope to renounce the Doctrine of Discovery. At the present time, it would appear that this is still the policy of the Catholic Church and is a part of American law.

The 14th Amendment

Following the Civil War in 1868, the United States adopted the Fourteenth Amendment as one of the Reconstruction Amendments. It was intended to deal with issues regarding the rights of former slaves.

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Following the adoption of this amendment, there were a few people who felt that it might be applied to American Indians and give them U.S. citizenship. Indians were born in the United States and under U.S. jurisdiction. Citizenship for Indians had several implications: (1) it might give them voting rights; (2) it would give them homestead rights; and (3) it would provide them with certain legal protections, such as the right to a trial. Well-aware that the amendment had been intended for former African American slaves, however, most people, particularly government officials, did not feel that Indian people were included in this amendment.

In 1870, the Senate Judicial Committee inquired into the effect of the Fourteenth Amendment on Indian tribes. The Committee declared that the Amendment was intended to eliminate the phrase “three-fifths of all other persons” which had described slaves in the Constitution and therefore does not change the status of Indians. The Committee concluded:

“To maintain that the United States intended, by a change of its fundamental law, which was not ratified by these tribes, and to which they were neither requested nor permitted to assent, to annual treaties then existing between the United States as one party, and the Indian tribes as the other parties respectively, would be to charge upon the United States repudiation of national obligations, repudiation doubly infamous from the fact that the parties whose claims were thus annulled are too weak to enforce their just rights, and were enjoying the voluntarily assumed guardianship and protection of this Government.”

In 1871, a federal district court in Oregon, in the case of McKay v. Campbell, ruled that the Fourteenth Amendment had not made Indians citizens.

One of the reasons that Indians were not considered U.S. citizens is that they were citizens of Indian nations and therefore, according to this line of reasoning, not under U.S. jurisdiction. However, not all Indians lived on reservations, and many of those who were living in urban areas no longer maintained any tribal connections. In 1873, a Washington territorial district court ruled that Indians could not become citizens by simply severing tribal connections. According to the court, citizenship for Indians required a naturalization act by Congress. In addition, the court ruled that the Fourteenth Amendment did not apply to tribal Indians.

In 1860, Congress had passed the Homestead Act which provided for the transfer of ownership of 80 acres of unoccupied public land in exchange for a nominal fee after five years of residence. Only U.S. citizens and aliens who were eligible to become citizens could apply for homesteads. Indians were not eligible to acquire homesteads as they were not citizens nor could they become citizens. In 1874, the Secretary of the Interior ruled that the Fourteenth Amendment did not give any land rights – such as homesteading – to civilized Indians since they had not been citizens when the Amendment had been passed. The Secretary ruled that only an act of Congress could give the benefits of the land laws to Indians.

Finally, in 1884 a case testing the Fourteenth Amendment and American Indians came before the U.S. Supreme Court. John Elk was a Ponca who had left the jurisdiction of his tribe and moved to Omaha, Nebraska. He owned a home, paid taxes, and was a member of the state militia. In Elk versus Wilkins the Supreme Court declared that Indi­ans were not citizens under the Fourteenth Amendment. While recog­nizing that Indians were born in the United States in a geographi­cal sense, they were not citizens just as children born within the United States of ambassadors or other public ministers of foreign nations were not citizens. According to the court, Indian tribes were

“alien nations, distinct political communities, with whom the United States might and habitually did deal, as they thought fit…The members of these tribes owed immediate allegiance to their several tribes, and were not a part of the people of the United States.”

The Court declared that citizenship must be directly bestowed upon the Indians by the United States. David Wilkins, in a column in Indian Country Today, writes:

“For the court, the only way for even solitary, urban-based American born Indians to become citizens under the 14th Amendment was to be naturalized by a treaty provision or congressional statute.”

According to historian Laurence Hauptman, in his book Tribes and Tribulations: Misconceptions about American Indians and their Histories:

“In the twilight zone of Indian existence, the Elk decision literally made the Indian a legal alien in his native land.”

Congress responded by passing a series of acts granting citizenship to Indians (see Indians 301: American Indian Voting Rights). In 1924 and again in 1940 Congress passed acts giving citizenship to all Indians. A number of states ignored both of these acts.

Sixteenth Century European Laws About Indians

The European invasion of the Americas really began in the sixteenth century with several European nations competing to divide up the new lands among themselves. In justifying their ability to take lands from Indians, to rule Indians, to make slaves of Indians, and to kill Indians, the European formulated a number of laws.

In 1512, the Spanish King Ferdinand promulgated the Laws of Burgos which spelled out how Indians were to be treated. The laws regulated Indian work and conversion.

The following year, King Ferdinand of Spain told Native Americans that God had declared that the Pope rules all people, regardless of their law, sect, or belief. This included Christians, Moors, Jews, Gentiles, or any other sect. He asked that the Native Americans come forward of their own free will to convert to Catholicism or  “with the help of God we shall use force against you, declaring war upon you from all sides and with all possible means, and we shall bind you to the yoke of the Church and Their Highnesses; we shall enslave your persons, wives, and sons, sell you or dispose of you as the King sees fit; we shall seize your possessions and harm you as much as we can as disobedient and resisting vassals.”

Furthermore, the Natives who resisted were to be held guilty of all resulting deaths and injuries. In other words, the victims were to be blamed for their own deaths. Killing Indians who refused to convert to Christianity was seen as a part of a “just war.”

The idea of a “just war” was based upon the word of Saint Augustine. Under this concept, a just war was one that was waged to right an injustice or wrong by another nation. One of these wrongs, according to the Christian view, was not being Christian. Thus, if an Indian nation were to fail to let missionaries live and preach among them, then they were committing a “wrong” which would have to be set right through a “just war.”

In 1519, Catholic Bishop Juan de Quevedo declared that Indians were slaves by nature because some people were by nature inferior.

In 1525, Dominican official Tomas Ortiz reported that Indians eat human flesh, engage in sodomy, go naked, and have no respect for love, virginity, or the truth. He said:  “It may therefore affirm that God has never created a race more full of vice and composed without the least mixture of kindness or culture.”

In 1526, Spanish King Charles V issued orders concerning the fair treatment of Indians. He ordered that Indians be treated so that  “it may be accomplished with no offence to God, without death nor robbery of said Indians and without enslaving them, so that the desire to spread our faith among them be achieved without grieving our consciences.”  However, there was also a royal levy of one-half of all looted grave-goods.

In 1529, Pope Clement VI wrote to King Charles of Spain:  “We trust that, as long as you are on earth, you will compel and with all zeal cause the barbarian nations to come to the knowledge of God, the maker and founder of all things, not only by edicts of admonitions, but also by force and arms, if needful, in order that their souls may partake of the heavenly kingdom.”

In 1532, Spanish judge Francisco de Vitoria declared that non-Christians can own property and therefore Indians may have title to their land. He also wrote:  “The Spaniards have the right to go to the lands of the Indians, dwell there and carry on trade, so long as they do no harm, and they cannot be prevented by the Indians from doing so.”

In 1537, in a papal bull Sublimis Deus, Pope Paul III declared that Indians were not to be enslaved nor were they  “to be deprived of their liberty or the possession of their property, even though they be outside of the faith of Jesus Christ.”  The Spanish King, however, disagreed with the bull and confiscated all copies of the bull before it could reach the Americas. He then prevailed upon the Pope to revoke the bull.

In 1573, the Spanish King issued “Laws Concerning Discoveries, Pacifications and Settlements Among the Indians” which was an extensive series of laws about exploration, settlement and the treatment of Indians. The new laws did not speak of “conquest,” but rather of the “pacification” of the Indians.

In 1578, Sir Humphrey Gilbert was granted a patent by England to discover and occupy North American lands not occupied by Spain. Under the legal fiction of the Discovery Doctrine, Christian nations could occupy any lands which were not under the rule of a Christian monarch. American Indians, of course, were not consulted and were not seen as having any legal rights.

In 1579, England formally declared that she would not acknowledge the 1493 papal demarcation which gave the Americas to Catholic Spain and Portugal. England, under the law of nations, saw itself free to have colonies in the Americas which were not already inhabited by Christians.

The English Queen Elizabeth I in 1580 claimed a right of discovery for North America based on the voyages of the Irish Saint Brendan in the sixth century and the mythical voyages of Prince Madoc of Wales in 1170.

The American Indian Religious Freedom Act

Any careful examination of the religious freedom of American Indians, especially as it pertains to aboriginal religious practices, since the foundation of the United States in 1776 is uncomfortable for those who would like to believe that America has championed religious freedom. American Indian religious freedom has been at best ignored, and more often it has been actively suppressed. As a Christian nation-a concept which has been consistently upheld and supported by the Supreme Court-the United States has been compelled to give Indians the gift of Christianity as a part of its program of forced assimilation. By the 1970s, however, the winds of change began to blow across the political landscape.  

One of the first steps in acknowledging American Indian religious freedom came in 1970 when Congress passed HR 471 which gave Blue Lake back to Taos Pueblo in New Mexico. The Blue Lake area, sacred to the people of Taos and used for ceremonies, had been a part of the Carson National Forest since 1906 and thus exclusive Indian use had been restricted. In signing the bill, President Richard Nixon noted the long history of Indian religious use of this site and said:

“We re¬store this place of worship to them for all the years to come.”  

During the 1970s, there were many issues involving American Indian religious freedom: sacred sites, including respect for these sites and allowing Indian access to them; the religious rights of Indian inmates; the use of peyote (the religious issues here were cleverly concealed through the so-called war on drugs). During the 1970s, American Indian civil rights became more visible through the actions of organizations such as the National Congress of American Indians and the American Indian Movement and through actions such as the occupations of Wounded Knee in South Dakota, Moss Lake in New York, and other locations.

Following two decades of complaints by Indian leaders about the abuse of Indian religious and cultural rights, Congress finally passed the American Indian Religious Freedom Act (AIRFA) in 1978. AIRFA was designed to pro¬tect and preserve traditional religious practices, including access to sacred sites, the use and possession of sacred objects, and the freedom to worship through traditional ceremonies. The Act directed federal agencies to survey their rules and regulations and to try to accommodate the practice of Indian religions. AIRFA directed federal agencies to adopt land management policies which would be sensitive to tribal religious needs.

Section 2 of the Act states:

The President shall direct that various Federal departments, agencies, and other instrumentalities responsible for administering relevant laws to evaluate their policies and procedures in consultation with Native traditional religious leaders in order to determine appropriate changes necessary to protect and preserve Native American religious cultural rights and practices. Twelve months after approval of this resolution, the President shall report back to Congress the results of his evaluation, including any changes which were made in administrative policies and procedures, and any recommendations he may have for legislative action.

Under AIRFA, federal agencies were to formally consult with American Indian tribes regarding how proposed federal developments might harm sacred places. However, the law doesn’t provide an administrative mechanism for Indian communities to contest agency decisions on how to treat such places. Thus, grievances must be adjudicated in a court of law, a place which is often hostile toward Indian tribes.  In other words, the Act was purely cosmetic. In the floor debate regarding the bill, Congressman Morris Udall had specifically stated that no major laws were being changed and no disruption of the existing state of affairs would take place.

A year later, the Task Force Report on the American Indian Religious Freedom Act (AIRFA) documented 522 infringements on Indian religious freedom. The report clearly demonstrated the need for AIRFA and the need for administrative changes in federal policy. Some federal agencies appear to be unaware of AIRFA while others engage in only superficial consultation with the tribes, more concerned about notifying the tribes of their decisions than in getting actual input from tribal leaders. The courts continue to rule against Indian religions and religious practices.

While AIRFA called for federal agencies to provide special accommodations for Indian spiritual practices, in 1981 the Forest Service denied a special use permit for Russell Means and other Lakotas which would have allowed them to establish Yellow Thunder Camp in the Black Hills National Forest. While several hundred camps had been established in the area, including many Christian church camps, none of the camps had been established by Indians. In the five years before the application, the Forest Service had received 61 special use applications and approved the 58 applications turned in by non-Indians and had denied the 3 applications by Indians. Ultimately, the Court of Appeals found in favor of the Forest Service.

The major legal challenge to AIRFA came with Lyng versus Northwest Indian Cemetery Protective Association.  In this California case, members of the Yurok, Karok, and Tolowa tribes sought to halt the Forest Service from building a six-mile road near Chimney Rock and from authorizing logging in the surrounding area. These are areas which are important to the traditional religious practices of these tribes. Indian religious informants and the Forest Service’s own anthropologist concluded that the construction of a road through the area would destroy the very core of the religious beliefs. Forest Service anthropologist Dorothea Theodoratus recommended that no road be built in this area. Tribal religious leaders and elders testified that the proposed government road would slice through and devastate the pristine quality of lands and mountain peaks they regarded as sacred. Religious practitioners gathered plants and other natural resources to use in ceremonial activities while other tribal members regularly visited the sacred praying site. In their testimony, the tribal leaders outlined the burden imposed upon their religious freedom in accordance with the provisions of the AIRFA.

While the Forest Service initially argued that building the road would increase timber harvest in the area, stimulate employment, and provide recreational access to the area, the Forest Service during the trial admitted that timber could be harvested without the road, that there would not be any increased employment, and that the economic value of improved access is minimal.

The Supreme Court’s G-O Road Decision opinion written by Justice Sandra Day O’Connor found that Indian Religious rights were outweighed by society’s broader interest in destroying sacred sites for economic reasons, even when such reasons were speculative. The Court found that unless there was specific governmental intent to infringe upon a religion or the government’s actions coerced individuals to act contrary to their spiritual beliefs, then the First Amendment provided no protection for Indian peoples to practice traditional religions even against federal action that potentially could destroy Indian sacred sites.

With regard to any potential protection from AIRFA, the Court determined that because the tribes had not stated a requisite legal burden on those rights that they could not receive protection under the AIRFA.

By the 1990s, the Supreme Court in both Lyng and in Smith v Oregon, had made it clear that AIRFA was meaningless. In 1994, Congress amended the Act. According to the Amended Act:

The Congress finds that – (1) unlike any other established religion, many traditional Native American Religions are site-specific in that the Native American religions hold certain lands or natural formations to be sacred; (2) such sacred sites are an integral and vital part of the Native American religions and the religious practices associated with such religions; (3) many of these sacred sites are found on lands which were formerly part of the aboriginal territory of the Indians but which now are held by the Federal Government; and (4) lack of sensitivity or understanding of traditional Native American religions on the part of Federal agencies vested with the management of Federal lands has resulted in the lack of a coherent policy for the management of sacred sites found on Federal lands and has also resulted in the infringement upon the rights of Native Americans to religious freedom.

According to the Amended Act, no federal lands are to be managed in a manner that undermines and frustrates a traditional Native American religion or religious practice.

In 1997, the Supreme Court overturned the Religious Freedom Restoration Act saying that Congress does not have the right to make laws protecting exercise of religion free from government interference.  

The Antiquities Act

Interest in a scientific understanding of the history of North America prior to the European invasion and a desire to obtain legislation to protect our ancient heritage from looting and vandalism began to coalesce in the late nineteenth century with the formation of several groups and government agencies. The groups included the Archaeological Institute of America, the American Association for the Advancement of Science, and the Anthropological Association of Washington (which would later become the American Anthropological Association). The primary government agency concerned with antiquities was the Smithsonian’s Bureau of Ethnography.  

In 1879, the Archaeological Institute of America was established by Charles Eliot Norton, a professor of art history at Harvard, and a group of his friends. The purpose of the Institute was to promote and direct archaeological research, both classical archaeological research and research in the Americas. With regard to the Americas, it was felt that an understanding of aboriginal America was essential to the understanding of humans and it was important to understand the human conditions on this continent prior to the European discovery.


Charles Eliot Norton is shown above.

With regard to American archaeology, the Institute turned to Lewis Henry Morgan for advice and assistance. By 1898, the Institute had affiliated groups in Philadelphia, Chicago, Detroit, Minneapolis, Madison, Pittsburg, Cincinnati, Cleveland, and Washington, D.C. The members of these groups generally came from influential circles and therefore had significant influence on Congress and on Congressional concern for preserving antiquities.

Frederic W. Putnam of the American Association for the Advancement of Science helped establish a committee to work for legislation to protect antiquities on federal lands. In 1894, Putnam was placed in charge of the anthropology program of the American Museum of National History in New York City.


Frederic W. Putnam is shown above.

In 1879 Professor Otis T. Mason of Columbian College and others assembled at the Smithsonian Institution and founded the Anthropological Association of Washington which would later become the American Anthropological Association. The AAA provided crucial support for the American Antiquities Act in 1906.


Otis T. Mason is shown above.

Noting the destruction of ancient sites in the Southwest, Dr. J. Walter Fewkes wrote in 1896:

If this destruction of the cliff-houses of New Mexico, Colorado, and Arizona goes on at the same rate in the next fifty years that it has in the past, these unique dwellings will be practically destroyed, and unless laws are enacted, either by states or by the general government, for their protection, at the close of the twentieth century many of the most interesting monuments of the prehistoric peoples of our Southwest will be little more than mounds of debris at the bases of the cliffs. A commercial spirit is leading to careless excavations for objects to sell, and walls are ruthlessly overthrown, buildings town down in hope of a few dollars’ gain. The proper designation of the way our antiquities are treated is vandalism. Students who follow us, when these cliff-houses have all disappeared and their instructive objects scattered by greed of traders, will wonder at our indifference and designate our negligence by its proper name. It would be wise legislation to prevent this vandalism as much as possible and good science to put all excavation of ruins in trained hands.


J. Walter Fewkes is shown above while working at Mesa Verde.

In 1901, Dr. Walter Hough, working in northeastern Arizona for the National Museum, wrote:

“The great hindrance to successful archaeologic (sic) work in this region lies in the fact that there is scarcely an ancient dwelling site or cemetery that has not been vandalized by ‘pottery diggers’ for personal gain.”

In 1899, the American Association for the Advancement of Science established a committee to promote a bill in Congress for the permanent protection of aboriginal antiquities on federal lands. At this same time the Archaeological Institute of America established a Standing Committee on American Archaeology. The two committees combined their efforts to seek preservation of American antiquities.

In 1902, the Records of the Past Exploration Society was formed and started publishing a journal, Records of the Past. The new society recommended the establishment of a national antiquities law. In 1904, the journal’s editor Rev. Henry Mason Baum, whose primary interest was in Biblical Archaeology, testified before the Senate:

“…two years ago I visited the mounds of the Mississippi Valley and the more important pueblo and cliff ruins of the Southwest. One of the objects I had in view was to ascertain how the antiquities on the Government domain could best be protected.”

Baum and his associates prepared a draft of a bill intended to preserve America’s antiquities. The bill, introduced by Representative William Rodenberg of Illinois, would place all historic and prehistoric ruins, monuments, archaeological objects, and antiquities on the public lands in the custody of the Secretary of the Interior with authority to grant excavation and collecting permits to qualified institutions.

In 1904, Senator Shelby M. Cullom and Representative Robert R. Hitt, both of Illinois, introduced bills which had been carefully worked out by the Smithsonian Institution. These bills defined antiquities as:

“…mounds, pyramids, cemeteries, graves, tombs, and burial places and their contents, including human remains; workshops, cliff dwelling, cavate lodges, caves, and rock shelters containing evidence of former occupancy; communal houses, towers, shrines, and other places of worship, including abandoned mission houses or other church edifices; stone heaps, shell heaps, ash heaps, cairns, stones artificially placed, solitary or in groups, with or without regularity; pictographs and all ancient or artificial inscriptions; also fortifications and enclosures, terraced gardens, walls standing or fallen down, and implements, utensils, and other objects of wood, stone, bone, shell, metal, and pottery, or textiles, statues and statuettes, and other artificial objects.”

Following the conflicts between the two bills in Congress-one championed by Baum and the other championed by the Smithsonian), Commissioner W. W. Richards of the General Land Office had Edgar Lee Hewitt, the former president of New Mexico Normal University, review the entire antiquities preservation problem on federal lands. Hewitt had done archaeological work in the Southwest and was active in the American Anthropological Association. He studied at the University of Geneva in Switzerland and received his Ph.D. in anthropology. Hewett’s unusual combination of western background, farming and teaching experience, first-hand knowledge of ancient ruins on federal lands in the Southwest, and experience as an archaeologist and administrator, enabled him in this period to enjoy alike the confidence of members of Congress, bureau chiefs, staffs of universities and research institutions, and members of professional societies. Hewitt produced a memorandum which provided the Land Office and Congress with a detailed description of the antiquities in Arizona, New Mexico, Colorado, and Utah. Following Hewitt’s recommendations Representative John Fletcher Lacey of Iowa and Senator Thomas M. Patterson of Colorado introduced new legislation to preserve American antiquities.


Edgar Lee Hewitt is shown above.

In 1906, Congress passed an Act for the Preservation of American Antiquities which makes it a criminal offense to appropriate, excavate, injure, or destroy historic or prehistoric ruins or objects of antiquity located on federal lands. The bill was motivated in part by reports of looting in the Southwest, particularly at sites such as Chaco Canyon, as well as by an increasing interest in the indigenous past of North America. The bill also reflected President Theodore Roosevelt’s passion for conserving and studying natural history, protecting America’s past, and ensuring continued access for a fast-growing scientific community.

As with most legislation regarding American Indians, there was no Indian involvement in the creation of the bill, no testimony by Indian leaders. There was, in fact, no suggestion that Indian people might have any legitimate affiliations with the past. There was still a strong feeling among politicians and among academics that Indian people were a disappearing people and that they were supposed to have vanished by the twentieth century. The fact of their continuing presence did not deter many non-Indians from assuming that they no longer existed.

In addition, many people still felt that Indian people had never been capable of great civilizations and thus the great ruins which were found throughout the Americas must have somehow been built and/or designed by non-Indians. A century later, people would be crediting aliens from other planets with many of the works done by American Indians.

There was no concern that living American Indians might have religious, spiritual, or historic connections to the sites which were to be preserved under the Antiquities Act. With the Antiquities Act, Congress declared that the American Indian past belonged to the general public in the same way as Yellowstone National Park. It was now the responsibility of the federal government, not the Indians, to protect and interpret the nation’s archaeological and historical resources. Under the permit system stemming from this act, protection and interpretation of the American Indian past was given to the scientific community rather than to the people whose ancestors had been responsible for its creation.

Under the Antiquities Act, amateur access to America’s past-whether by Indians or non-Indians-was now prohibited. Permission to examine ruins, excavate archaeological sites, or gather objects of antiquity is limited to people who were deemed

“properly qualified to conduct such examination…for the benefit of reputable museums, universities, colleges, or other recognized scientific or educational institutions.”  

Human remains of Indians who had been interred on what were now federal lands were to be considered archaeological resources and thus were federal property. As federal property these human remains were to be stored in facilities for further research.

It has now been more than a century since the passage of the Antiquities Act. The looting and vandalism of American Indian sites has continued on federal lands, state lands, and private lands. With regard to the preservation of antiquities, the United States Congress, in its infinite wisdom, has passed the National Historic Preservation Act (1966), the Archaeological Resources Protection Act (1970), the American Indian Religious Freedom Act (1978), and the Native American Graves Protection and Repatriation Act (1990). Indians now have more of a voice in protecting their past.

Justice Denied in the 1870s

Equal protection under the law is a legal and social concept which has often not been viewed as applicable to American Indians.  During much of the nineteenth century Indians were not citizens and often state and territorial laws prohibited from testifying in courts of law. A number of instances during the 1870s illustrate how justice was denied to American Indians.  

Murdering Indians:

In 1875, an American began putting a fence around Eagle Robe’s garden in Idaho, claiming it as his own. When the Nez Perce objected, he was shot dead. The American was never brought to justice. The dying man told his people:

“Do not go to war. You will lose your country by it, and above all the loss of life will be greater.”

In 1875, four men were accused of murdering a Haida man in Washington. They filed a writ of habeas corpus which stated that

“the petitioners are white men, and no evidence was given … implicating these petitioners as the guilty persons, except by witnesses who are North American Indians.”

It was commonly felt that Indians should not be allowed to be witnesses in any case involving a non-Indian. In the hearing, the defendants’ lawyer argued that Indian testimony was not valid in cases with non-Indian defendants unless it involved the liquor laws. The judge denied the petition. The grand jury, however, did not return an indictment and the four men went free.

In 1876, some American settlers murdered a Nez Perce man, Blowing Wind, in Oregon. He was known as a quiet, peaceful man and his killers had a reputation as trouble-makers. The Nez Perce viewed this murder with a call for justice, not war. However, after several months, the American government failed to arrest the murderers and bring them to trial. Finally, the Nez Perce under the leadership of Chief Joseph issued an ultimatum: if the men were not arrested the Nez Perce warriors would burn down all American homes in the Wallowa Valley. In response to the Nez Perce threat, many Americans left the area and the army sent in a small force of soldiers to meet with Chief Joseph. The murderers were arrested, tried, and set free. Since there were no Indian witnesses who were willing to swear an oath to the Christian God, the men were able to plead self-defense.

In Oregon’s Wallowa valley, an American killed Wilhautyah, a member of Joseph’s Nez Perce band. Joseph spoke with the Indian agent and agreed to let the civil authorities deal with the matter. The agent informed the army that the killing was willful and deliberate murder. After considerable delay, the two Americans turned themselves in and were set free after the judge ruled that the shooting was in self-defense.


In 1875, charges of corruption were made against the Office of Indian Affairs (Bureau of Indian Affairs) regarding the administration of the Sioux Reservation in South Dakota. According to the charges, the Indians had been given inferior beef and flour; the pork issued to them was not fit for human consumption; and the freight contractor was paid for 212 miles while the actual distance is only 145 miles. The complaint was investigated by the government and the allegations were found to be groundless. The commissioners who investigated the charges either played down or failed to see the implications of much of the testimony they heard.

In 1876, a prominent Montana businessman was charged with attempting to defraud the government and the Crow. His alleged scheme involved double sacking flour so that each flour sack would be counted twice, providing the Crow with shoddy goods, and branding Indian cattle as his own. The grand jury refused to bring an indictment.

Theft and Trespass:

In 1874, a Nebraska district court ruled that local courts had no jurisdiction over crimes committed on reservations. While non-Indians had rarely been brought to justice for committing crimes on reservations, this decision gave them a virtual license to steal.

In 1877, the Oklahoma Cherokee attempted to collect a levy on cattle which were grazed on their lands by non-Indians. The case was tried in an American court in Fort Smith, Arkansas where the judge told the jury:

“The fact of a man being in the Indian country without a permit is no excuse for seizing his property. Neither the Indian Sheriff nor any other officers of the Indian country can seize or remove him or his property. If a citizen of the United States is in the Indian country without permission, as intruder, the authorities can report the fact to President Grant, who is backed by all the military power of the United States, and he can send soldiers to put him out.”

The jury found against the Cherokee Nation.

Trials Not Needed:

In 1875, the United States Army simply sent 72 Cheyenne, Commanche, Arapaho, and Caddo prisoners to a military prison in Florida. Originally, the army had intended to try the prisoners before a military commission, but the attorney general ruled that a military trial would be illegal as a state of war could not exist between a nation and its wards. Thus, the Indians were imprisoned without a trial. Many of the young men selected to be imprisoned had simply been selected at random from a lineup of Indians. There were no concerns as to whether or not they had actually committed any crime: they were Indians and therefore deserved to be in prison.

Indians Are People:

In 1879, a U.S. District Court ruled in the case of Standing Bear versus Crook that an Indian is a person under United States law and therefore has a right to sue for a writ of habeas corpus in federal court. The U.S. Attorney had argued that Indians were not persons under the law and therefore were not entitled to a writ of habeas corpus. The Court found that if Indians must obey the laws of the land, then they must be afforded the protection of these laws. The Commissioner of Indian Affairs responded to the judge’s ruling by noting that it

“is regarded by the Government as a heavy blow to the present Indian system, that, if sustained, will prove extremely dangerous alike to whites and Indians.”

The ruling was generally ignored in both state and federal courts.

North Dakota U Dumps Fighting Sioux Mascot. Can We Finally Get Rid of ‘Prairie N****r,’ Too?

( – promoted by navajo)

What does the epithet “Prairie Nigger” have to do with the controversy around the University of North Dakota’s mascot, the “Fighting Sioux?”

It’s simple.


Simply racism.

Follow me from a 2009 Tribal Council Meeting on the Standing Rock Reservation where students testified about why they had dropped out of the University of North Dakota to recent news that the North Dakota legislature has effectively repealed a law it passed earlier this year that mandated that the UND keep the Fighting Sioux Mascot, bucking a 30+ year trend to to get rid of these disrespectful signs of school spirit. So now the mascot and team name is “in transition” (to avoid further NCAA sanctions).

How long did this thing going take to play out?

Decades. Decades during which American Indian students on campus were the subject of racist attacks while the university simultaneously built up its American Indian Studies program.

And to add intrigue to this story, there was a nefarious, Nazi-obsessed, big capitalist donor (read, casino owner) behind this controversy at its height.

And P.S. No, I’m not exaggerating about the Nazi obsession. This actually supports research suggesting that once you stereotype one group you’re more likely to stereotype other groups. So, the mascots actually increase stereotyping in general.

There is a long history of sports teams using American Indian mascots in this country, and another long history of activists convincing schools to stop this disrespectful practice. There is a good timeline”here of efforts to get rid of Indian mascots since 1968.

Here is a good summary of the issue. It is from an academic article that talks about “the activists” but then goes on to show the the historical and psychological accuracy of the arguments below:

Anti-mascot activists articulate many different arguments against the mascots. First, they assert that the mascots stereotype Native Americans as only existing in the past, having a single culture, and being aggressive fighters. Second, they hold that these stereotypes influence the way people perceive and treat Native Americans. Such imagery is seen as affecting Native American images of themselves, creating a hostile climate for many Native Americans, and preventing people from understanding current Native American realities, which affects public policy relative to Native Americans. Third, the activists state that no racial cultural group should be mimicked (especially in regard to sacred items/practices), even if such mimicking is “culturally accurate.” And fourth, they argue that Native Americans should have control over how they are represented (Davis, 1993,2002; King & Springwood, 2001a, 2001b; Pewewardy, 1991; Spindel, 2000; Staurowsky, 2000).


I have posted the references from the article at the end of the diary for your further research. Research does NOT support claims that these mascots are harmless, or respectful, or anything but hegemonic discourse that makes stereotyping seem natural.

Taunts and Eggs on the UND Campus

I went out to the Standing Rock Reservation in 2009 and ended up sitting in on a Tribal Council meeting. The Tribal Chairman at the time, Ron His Horse is Thunder, was ardently against continuing the use of the Mascot, as were most of the Tribal Council members. The Tribal Council had voted to continue objecting to the use of the mascot in 2007. In 2009 it was voting on whether to hold a reservation-wide vote.

As I was watching the normal business of the Tribe being discussed, a line of former UND students began emotional testimony about why they had dropped out of school. They all dejectedly described how they had been harassed on campus by white students, had eggs thrown at them, and sometimes had been physically attacked. They all had also been called “prairie nigger” on several occasions.

Prairie nigger?
I really thought I hadn’t heard that correctly. What must it feel like to be called that while you’re trying to get yourself an education to improve your lot in life????? It was jaw dropping.

What the HELL was THAT all about?

Racism. Racism inflamed by money. More specifically, big donor Ralph Englestad’s threat to withdraw $100 million in funding for a new stadium, which he had engraved with hundreds of Fighting Sioux mascots.

Although there had been tensions on campus around the issue for a couple of decades, they became inflamed at the turn of the 21st Century, and the NCAA finally stepped in in 2005:

The NCAA instituted its policy in 2005, initially listing 18 schools whose nicknames and/or mascots were “hostile or abusive” toward native Americans. Schools that continued to use the nicknames, or hostile or abusive images, would not be able to host NCAA postseason events or use the images at an NCAA postseason event.

North Dakota is the only school from that initial list that has not already changed its nickname, mascot and/or logo.

The university had agreed to retire its nickname and logo in mid-August, but the Legislature pre-empted those plans by approving a bill in March that requires UND to keep them.

Nickname supporters flooded lawmakers with emails at the time, and Gov. Jack Dalrymple signed the measure only a few hours after he received it.

That legislation is what has just been repealed.

A little more on what happened after the initial 2005 NCAA action.

Here’s an excerpt from a recent Sports Illustrated article:

…UND filed a lawsuit challenging how the association had reached its decision. In an October 2007 settlement, the university agreed to retire its nickname and logo if it could not get approval from North Dakota’s two largest Sioux tribes, the Standing Rock Sioux and the Spirit Lake Sioux, for their continued use.

The Spirit Lake Sioux tribe endorsed the nickname in a subsequent referendum, but the Standing Rock Sioux tribal council declined to support it or call a reservation referendum on the question.

Robert Kelley, UND’s president, said he had spent about half his time as president on the nickname and logo issue since taking the job in 2008. In the last year, the issue has demanded almost three-quarters of his time, Kelley said.

Repealing the law would “support our student athletes by removing sanctions (and) other restrictions that complicate the future of UND athletics,” Kelley said.

The 2009 vote on Standing Rock came out of the 2007 suit. How could it vote in favor of it after that testimony? Too many white students were acting out the disrespect and racism embodied in the use of the Fighting Sioux mascot.

But lets go back a bit farther to who the hell this donor was (he died in 2002).

A Nazi-obsessed Donor

From a 2001 article:

Enter Mephisto, dasher boards left. Ralph Engelstad is a Las Vegas casino owner and a major donor to the University of North Dakota, where he was a goalie in the late ’40s. He’s also a guy who’s been fined $1.5 million by the Nevada Gaming Control Board for damaging the reputation of the state by holding, in two separate years, private Hitler’s Birthday parties at his casino, complete with a swastika cake, German food and marching music, bartenders wearing T-shirts with the words “Adolph Hitler European Tour 1939-45,” and a life-size portrait of Hitler inscribed “To Ralphie from Adolph, 1939.” He says he despises Hitler, and that the parties were merely “spoofs” meant to celebrate new purchases for his collection of Nazi memorabilia.

Yeah, right….

Here’s an excerpt of a letter he wrote to UND in 2000, yes almost 12 years ago, about the mascot issue:

If the logo and slogan are not approved by the above-mentioned date, I will then write a letter on December 30, 2000, to all contractors and to everybody associated with the arena, canceling their construction contracts for the completion of the arena. I am a man of my word, and I will see to it that a settlement is made with all subcontractors, with anyone who has purchased prepaid advertising. I will refund money to all ticket holders and abandon the project. It would then be left up to you if you want to complete it, with money from wherever you may be able to find it.

I have spent, as of this time, in excess of $35 million, which I will consider a bad investment, but I will take my lumps and walk away.

As I am sure you realize, the commitment I made to the university of North Dakota was, I believe, one of the 10 largest ever made to a school of higher education, but if it is not completed, I am sure it will be the number one building never brought to completion at a school of higher education, due to your changing the logo and the slogan.

You need to think how changing this logo and slogan will affect not just the few that are urging the name change, but also how it will affect the university as a while, the students, the city of Grand forks, and the state of North Dakota.

If I walk away and abandon the project, please be advised that we will shut off all temporary heat going to this building, and I am sure that nature, through its cold weather, will completely destroy any portion of the building through frost that you might be able to salvage. I surely hoped that it would never come to this, but I guess it has.

It is a good thing that you are an educator because you are a man of indecision, and, and if you were a businessman, you would not succeed, you would be broke immediately.

Please do not consider this letter a threat in any manner, as it is not intended to be. It is only notification to you of exactly what I am going to do if you change this logo and this slogan.

In the event it is necessary to cancel the completion of the arena, I will then send notification to anyone who is interested, informing them of the same, and laying out to them all of the facts and all of the figures from all of the meetings that led me to make this decision.

Your lack of making a decision has hung over our heads too long, and we can’t go on with it any further.

It is your choice if you want to put hundreds of construction workers out of a job, and deprive the local businesses of Grand forks of the income they are receiving f4rom the construction of the arena.

Always sticking to the economic blackmail, as is typical of the right.

By now it should be clear that the Fighting Sioux mascot was directly related to harassment of American Indian students at the University of North Dakota, and that the racism that it promotes was directly related to the frequency of the “prairie nigger” epithet. The example I cited from the testimony wasn’t the only instance of this kind of racial harassment. Similar incidents, including hateful emails, are documented in articles describing tensions in the early 2000s.

So, if you look at the UND website, you’ll see an overlay about the transition, which seems to have taken place immediately after the Nov 10 vote by the North Dakota legislature.

Can we now work on retiring the epithet “prairie nigger” too? I’m not naive enough to believe that nobody will hear that again, but with this mascot issue gone, I’m hoping that there will at least be LESS harassment of American Indian students.

Here are the references from that article:


American Indian opinion leaders: American Indian mascots. (2001, August 7). Indian Country Today Retrieved May 22, 2002 from

Berkhofer, R. F. (1978). The White man’s Indian: Images of the American Indian from Columbus to present. New York: Vintage/Random Rouse.

Bird, S. E. (Ed.). (1996). Dressing in feathers: The construction of the Indian in American popular culture. Boulder, CO: Westview.

Brown et al V. Board of Education of Topeka et al. (1954) 347 U.S. 483.

Clark, D. A. (2002). Someone inside me, there is a memory of my grandfathers:Mis-educated representations of “Indians, those symbolic insiders.” Unpublished manuscript.

Coombe, R.J. (1998). Embodied trademarks: Mimesis and alterity on American commercial frontiers. Cultural Anthropology, 11(2), 202-224.

Davis, L. R. (1993). Protest against the use of Native American mascots: A challenge to traditional American identity. Journal of Sport & Social Issues, 17(1), 9-22.

Davis, t. R. (2002, Summer). The problems with Native American mascots. Multicultural Education, 9(4) 11-14.

Davis, L. R., & Rau, M. (2001). Escaping the tyranny of the majority: A case study of mascot change. In C. R. King & C. fl Springwood (Eds.), Team spirits: The Native American mascot controversy (pp.221-238). Lincoln: University of Nebraska Press.

Deloria, P. J. (1998). Playing Indian. New Haven, CT: Yale University Press.

Farnell, B. (in press). The fancy dance of racializing discourse. American Indian Quarterly.

Fenelon, J. V. (1999). Indian icons in the world series of racism: Institutionalization of the racial symbols of wahoos and Indians. Research in Politics and Society (6): 25-45.

Goldberg, B. (2001).Bias:A CBS insider exposes how the media distort the news. Washington, DC: Regnery Publishing.

Green, R. (1988). The tribe called wannabee: Playing Indian in America and Europe. Folklore, 99, 30-55.

Greenfeld, L. A.& Smith, S. K. (1999). American Indians and crime. Washington, DC:Bureau of Justice Statistics.

Grounds, R. (2001, June). Tallahassee, Osceola, and the hermenuetics of American place-names. Journal of the American Academy of Religion, 69(2), 287-322.

Hooks b. (1992). Black looks: Race and representation. Boston: South End Press.

Jaimes, M. A. (1992). The state of Native America: Genocide, colonization, and resistance. Boston: South End Press.

King, C. R. (2001). Uneasy Indians: Creating and contesting Native American mascots at Marquette University. In C. R. King & C. F. Springwood (Eds.), Team spirits: The Native American mascot controversy (pp. 281-303). Lincoln: University of Nebraska Press.

King, C. H. (2002). Defensive dialogues: Native American mascots, Anti-Indianism, and educational institutions. SIMILE: Studies in Media and information Literacy Education, 2(1). Retrieved from – Dead link >

King, C. H. (in press). Arguing over images: Native American mascots and race. In H. A. Lind (Ed.), Race /gender~media: Considering diversity across audiences, content, and producers. Boston: ABLongrnan.

King, C. R., & Springwood, C. F. (2000). Fighting spirits: The racial politics of sports mascots. Journal of Sport & Social Issues, 24(3): 282-304.

King, C. R., & Springwood, C. F (2001a). Beyond the cheers: Race as spectacle in college sports Albany: State University of New York Press.

King, C. R., & Spriagwood, C. F (Eds.). (2001b). Team spirits: The Native American mascot controversy Lincoln: University of Nebraska Press.

KoIb, J. J. (2001). Indian mascots: Activists say change needs to begin at home. American Indian Report 11(3): 24-25.

Mihesuah, D. A. (1996). American Indians: Stereotypes and realities. Atlanta, GA:
Clarity Press.

Nagel,J. (1995). American Indian ethnic renewal: Politics and the resurgence of identity. American Sociological Review, 60, 947-965.

Pewewardy, C. D. (1991). Native American mascots and imagery: The struggle of unlearning stereotypes. Journal of Navajo Education, 9(1), 19-23.

Pewewardy, C. D. (2001). Educators and mascots: Challenging contradictions. In C. R. King & C. F Springwood (Eds.), Team spirits: The Native American mascot controversy (pp. 257-278). Lincoln: University of Nebraska Press.

Pewewardy, C. D. (2002, May). From subhuman to superhuman: Images of First Nations people in comic books [Electronic version). Studies in Media & Information Literacy Education, 2(2), Retrieved from

Rosenstein, J. (1996). In whose honor? American Indian mascots in sports [Film]. (Available from New Day Films, 22-D Hollywood Avenue, Ho-ho-kus, NJ, 07423)

Shively, J. (1992). Cowboys and Indians: Perceptions of western film by American Indians and Anglos. American Sociological Review, 57(6), 725-734.

Sigelman, L. (1998). Hail to the Redskins? Public reactions to a racially insensitive team name. Sociology of Sport Journal, 15(4), 317-325.

Slapin, B., & Seale, D. (1998)-Through Indian eyes: The native experience in books for children. Berkeley, CA: Oyate.

Spindel, C. (2000). Dancing at halftime: Sports and the controversy over American Indian mascots. New York: New York University Press.

Springwood, C. F. (2001). Playing Indian and fighting (for) mascots: Reading the complications of Native American and Euro-American alliances. In C. R. King & C. F. Springwood (Eds.), Team spirits: The Native American mascot controversy (pp. 304-327). Lincoln: University of Nebraska Press.

Springwood, C. F. (in press). I’M an Indian too! Claiming Native American identity, crafting authority in mascot debates. American Indian Quarterly.

Stapleton, B. (2001). Redskins: Racial slur or symbol of success? San Jose, CA: Writers Club Press.That

Staurowsky, E. J. (1998). An act of honor or exploitation? The Cleveland Indians’ use of the Louis Francis Sockalexis story. Sociology of Sport Journal, 15(4), 299-316.

Staurowsky, E. J. (2000). The “Cleveland Indians”: A case study of American Indian cultural dispossession. Sociology of Sport Journal, 17(4): 307-330.

Trainor, D. J. (1995). Native American mascots, schools and the Title VI hostile environment analysis. University of Illinois Law Review, 5, 971-997.

Journal of Sport & Social Issues, Volume 26, No.4, November 2002, pp. 381-402

Centuries of Genocide: Modoc Indians, Part IV

In case you missed anything…

Part I describes the first generation of Modoc people to contact European-Americans, and the slow war in the Klamath Basin that destroyed the Second Generation. The Ben Wright Massacre is analyzed.

Part II encapsulates the Third Generation’s great crisis and the process leading to the Treaty of 1864, the significance of the Oregon reservation system, and Keintpoos’ years off the reservation before the US Army intervened, concluding with the escalation of tensions into full-blown war. We celebrate Thanksgiving at the end of November: at that time in 1872, Modoc people were fighting US Army from natural trenches in fiercely cold weather.

Part III covers the Modoc War of 1872-1873 as experienced by over 20 Modoc people, President Grant, William Tecumseh Sherman, famous settler Lindsay Applegate, and others. It depicts the assassination of General Canby and the fall of the third generation since contact.

After the war’s conclusion, Keintpoos’ severed skull ended up in the Smithsonian. Brancho and Slolux spent life in prison at Alcatraz Island. Winema died in the Spanish Flu epidemic in 1920. And the Modoc people were halved, and one half was shipped to Oklahoma.


The Modoc who went to Lava Beds were collectively judged as prisoners of war, whether they were involved in hostilities during the War or not. A people of lakes, the Cascade Mountains and the high desert, these Modoc were punished by being transferred to eastern Oklahoma.

Article 7 of a 1994 draft of the United Nations Declaration on the Rights of Indigenous Peoples uses the phrase “cultural genocide” but does not define what it means.[4] The complete article reads as follows:

Indigenous peoples have the collective and individual right not to be subjected to ethnocide and cultural genocide, including prevention of and redress for:

(a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities;

(b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources;

(c) Any form of population transfer which has the aim or effect of violating or undermining any of their rights;

(d) Any form of assimilation or integration by other cultures or ways of life imposed on them by legislative, administrative or other measures;

(e) Any form of propaganda directed against them.

The Modoc Tribe of Oklahoma explains how they ended up at Quapaw, and what happened to them there:

The terrible 2,000-mile winter ride in railroad cars intended for hauling cattle finally ended on November 16, 1873 when 153 Modoc men, women, and children arrived in Baxter Springs, Kansas cold and hungry.

In Baxter Springs, Captain Wilkinson conferred with Hiram W. Jones, Indian Agent at the Quapaw Agency as to where to place the Modoc. It was decided to locate them on Eastern Shawnee land where they would be under the direct supervision of Agent Jones. But Jones’ Quapaw Agency was little prepared to care for 153 persons with little but loose blankets on their backs. With Scarfaced Charley in command and only one day’s help from three non-Indians, the Modoc built their own temporary wood barracks two hundred yards from the agency headquarters. Some were housed in tents. These accommodations were to be their home until June of 1874 when 4,000 acres were purchased for them from the Eastern Shawnee

…Captain Wilkinson remained with his charges until the second week in December. When he left the agency, he reported to the Commissioner of Indian Affairs, “on the cars, in the old hotel used for them at Baxter, I found them uniformly obedient, ready to work, cheerful in compliance with police regulations, and with each day providing over and over that they only required just treatment, executed with firmness and kindness to make them a singularly reliable people.”

Despite their industriousness, poverty and material loss would continue to plague the people:

Agent Jones also found he had no difficulty enforcing the strictest discipline, although one small area of friction had developed. This was the habit of some of the Modoc in gambling, resulting in some instances in losing what few possessions they had. When Scarfaced Charley, who had replaced Captain Jack [Keintpoos] as chief, refused to interfere, Jones appointed Bogus Charley as chief. He remained chief until 1880 when formal Modoc tribal government in Oklahoma came to an end for almost 100 years.

More on the dissolution of the legal tribe in a bit. For now, the hard times after arrival:

The first years following removal to Indian Territory were difficult ones for the Modoc. They suffered much sickness and many hardships due to the corrupt and cruel administration of Agent Jones. During the first winter at the Quapaw Agency, there were no government funds available for food, clothing, or medical supplies. It would be almost a year after removal that funds in the amount of $15,000 were received for their needs.

In Oklahoma, the POW population declined precipitously:

The death rate was especially high among the children and the aged. By 1879, after six years at the Quapaw Agency, 54 deaths had reduced the Modoc population to 99. By the time of the Modoc allotment in 1891, there were only 68 left to receive allotments, and many of them had been born after removal. Had it not been for the gifts of money and clothing from charitable organizations in the east, General William Tecumseh Sherman’s wish not to leave a Modoc man, woman, or child alive so the name Modoc would cease, would have become a reality.

If you do a search of ‘Oregon’ in this Quapaw Agency Census from 1900, you will find some of the surviving Modoc. Modoc people are the only tribe of which I’m aware that were ever shipped to Oklahoma from far west.  Their race is indicated as “In” for Indian. Jennie Clinton, or Stimitchuas, is one of the individuals listed. It is believed that she died at age 89 in 1950, but it’s possible she was born earlier than 1861. (She was of the fourth generation after contact, having some pre-reservation and war memories but ultimately spending her adulthood in the reservation system.)

It Was the Assimilation Era

With first Americans no longer free to roam the country, European-Americans thought that the plight of Indians would be alleviated, and with that alleviation, the Indian problem for European-Americans would be solved, by educating and acculturating Indians to Western life.  Quakers had already established a Quapaw boarding school in 1871, 2 years before Modoc arrival. The school was miles to the northwest of the agency.  Isolated from their families, children would forcibly have their hair cut by missionaries, wear European-American schoolchildren garb, and become literate and converted Christians by the missionaries forbidding their language, Klamath-Modoc.

Modoc people at both the Quapaw Agency, Oklahoma and Oregon reservations displayed a strong interest in education and literacy.  In 1879, Modoc people built a church and school on the Modoc Reservation at Quapaw. Later, Modoc children attended the Carlisle School, the notorious string of Indian boarding schools, in Kansas. The families that sent children there included the Hoods, Hoover, Balls and McCartys. Schonchin John’s stepson Adam McCarty died at Carlisle, and Modoc stopped sending their children to Carlisle.

After the war, the third generation since contact passed into elderhood–if they weren’t already butchered or executed. Modoc War leader Steamboat Frank became the first Indian to become an ordained Quaker.  He died in Portland, Maine in the 1890s. The Fourth Generation became the establishment.  The Fifth Generation grew up speaking English.

Dawes, Curtis and Statehood

In 1887, the Dawes Act changed American Indian life forever. Among the most significant changes, reservation land was broken up into patrilineal, owned parcels. This change furthered the loss of Indian land that began with the early treaties and reservations.  

The plains itself had been established as a vast reservation for tribes from the midwest, south and east. But once tapping aquifers like Oglalla and cattle ranching became feasible (Chicago boomed as an inland rail-port) Indians were further reduced to the Indian Territory–Oklahoma.  But now even Indian Territory was wanted, and especially its natural resources.  Statehood for Oklahoma would mean breaking the power of Indian tribes.

Dawes opened a can of worms that, for the Modoc Tribe of Oklahoma, would spiral into a loss of sovereignty and environmental degradation.  An amendment to Dawes, the Curtis Act of 1898, ended the authority of tribal courts and the tribal governments themselves in Oklahoma. (Charles Curtis himself was a Republican congressman of Osage descent, who wanted education, assimilation and opportunity for Indians through his bill, which was later botched by various committees.)  Although Oklahoma’s natural resource history is most associated with its oil-boom perhaps, in the Quapaw area, rich deposits of zinc and lead allowed for a mining boom. Multiple Indian tribes leased out their land. Today, Quapaw area residents contend with a superfund site from those mines and the environmental costs that entails.

In 1909, the US government permitted Oklahoma Modoc to return to Oregon. Twenty-nine did so. Jennie Clinton was among them; she would then divorce and live until 1950 in a cabin on Oregon’s Williamson River.  The remaining forebears of the Modoc Tribe of Oklahoma were (and still are) the smallest group of American Indian people in the region.

This is how the Third and Fourth Generations lived and died in Oklahoma.

Subsequent generations of Modoc history will be described in upcoming diaries.

Denying Indian Nations Legal Representation

With the passage of the Indian Reorganization Act (IRA) in 1934, the United States government sought to bring economic development to Indian reservations by making them into a kind of corporation. Under the IRA, tribes could now enter into contracts and, more importantly, they could hire their own attorneys. Following World War II, government policies regarding Indian tribes changed. In order to pay for the reconstruction of Germany and Japan, the United States turned to the Indian reservations, the poorest sector of the country. If the United States could just get out of the “Indian business,” stop worrying about upholding any treaty obligations, and get the Indians to assimilate into American society just like immigrants, then this would free up money which could be spent overseas. Thus the United States began the process of dismantling the Indian tribes.  

In 1950, Dillon S. Meyer was appointed as Commissioner of Indian Affairs. He had previously been in charge of the Japanese-American Relocation Camps during World War II. He ran the Bureau of Indian Affairs as a dictatorship with the goal of destroying Indian cultures and dismantling Indian reservations so that their resources could be developed by private, non-Indian, corporations. He viewed the existence of Indian cultures as “un-American” and a force that weakened the fabric of American society. Indians, according to Meyer, were helpless and unable to elevate themselves into the non-Indian world of mainstream America. From an Indian viewpoint, he was one of the worst, and perhaps the worst, Commissioner of Indian Affairs ever appointed.

While federal Indian policies during the Meyer regime reflected the larger Cold War and the strong anti-Communist sentiments of the time, Blackfoot tribal chairman George Pambrum would charge:

“The Indian Bureau is now using methods of Communist dictatorship against our people. … Stalin could learn a lot about how to run a dictatorship by watching the Indian Bureau.”

One of the major conflicts between Meyer and the Indian tribes stemmed from their desire to obtain legal counsel. One of his first acts was to issue new rules which required that all attorneys who contracted with the tribes had to have his personal approval. In response to the proposed rules, the Association on American Indian Affairs (1951: 1) editorialized:

“The proposed rules, by interfering with free choice of counsel, collide head-on with the due process guarantee of the Federal Constitution.”

In South Dakota, the Standing Rock Sioux attempted to hire their own attorney, to be paid out of tribal funds, to help in the negotiations regarding lands taken in the Pick-Sloan dam projects. The tribe wanted legal counsel which was totally independent from the politics of the Department of the Interior. However, Commissioner of Indian Affairs Dillon Meyer rejected their choice of an attorney and allowed only a one-year contract.

The attorney selected by the tribe, James Curry, was an outspoken critic of the Bureau of Indian Affairs and was one of a number of Indian claims lawyers against whom Meyer had a personal vendetta. The tribe protested Meyer’s decision to the Department of Interior, but the Department of the Interior did nothing as Meyer continued to publicly attack Curry.

In 1951, Dillon Meyer outlined his new Indian policy at a speech before the National Council of Churches. He announced that the private sector or state governments could better serve the Indian people and the time had come to weaken or dissolve the relationship between Indian tribes and the federal government. He asked that religious groups help Indians to assimilate into American society.

Following his “new” policy, the Commissioner of Indian Affairs notified all tribes that money for hiring private attorneys to represent tribal claims would no longer be available. The Commissioner explained that public money was being wasted on private attorneys when government attorneys could perform the same tasks. In other words, when Indians needed to sue the government, then they would have to use government attorneys, attorneys whose primary responsibility was defending the government against such suits. It was evident that Meyer wanted to take Indian litigation hostage and prevent Indians from having access to the court system.

In Nevada, the Commissioner of Indian Affairs denied the Pyramid Lake Paiute the right to hire their own attorney in settling a claim for disputed land on their reservation. Paiute tribal chairman Avery Winnemucca and a three-member delegation traveled to Washington, D.C. to demand a hearing with the Secretary of the Interior. They failed to see the Secretary and to gain support for their cause.

In 1951, the Standing Rock Sioux sent a delegation to Washington to obtain a hearing about their choice in an attorney to represent their interests. For 26 days the delegation camped out in the office of the Secretary of the Interior, lobbied in Congress, and gave interviews to the news media to present their case. Finally, the Secretary of the Interior overruled the Meyer’s decision about the tribe’s contract with the attorney of their choice. This was seen as a victory not only for the Standing Rock Sioux, but for all Indians. It appeared that Indian tribes would have the right to select their own attorneys and to make contracts on their own terms. However, Dillon Meyer managed to circumvent the decision of the Secretary of the Interior by refusing to allow the tribe to spend more than $300 per year for the attorney’s services. It should be pointed out that the money which was used for tribal attorneys was not from federal funds, but from tribal funds: money which they had obtained from leases and other tribal enterprises.

The Bureau of Indian Affairs in 1952 abandoned the Indian reorganization program started in 1934 and set out with enthusiasm to take the government out of the Indian business. The BIA intended to destroy bilateral United States-Indian treaties and to end the government’s commitment to its trusteeship obligations. With no legislative authority, Dillon Meyer made an offer to all Indian tribes to end their federal relationships. In the annual report of the Bureau of Indian Affairs, Meyer wrote:

“If any Indian tribe is convinced that the Bureau of Indians Affairs is a handicap to its advancement, I am willing to recommend to the Secretary of Interior that we cooperate in securing legislative authority to terminate the Department’s trusteeship responsibility to that tribe.”

Like many of the nineteenth and early twentieth century Commissioners of Indian Affairs, Meyer had little understanding of the needs and desires of Indian people or any concern over their culture and well-being.

In 1952, federal representatives from the Army Corps of Engineers and the Bureau of Indian Affairs met with the Standing Rock Sioux and the Cheyenne River Sioux to seek an agreement over lands taken from them under the Pick-Sloan dam projects on the Missouri River. The Standing Rock Sioux asked that they be allowed to spend $500 to have their attorney attend the conference with them. Dillon Meyer refused the request, calling it a “highjacking game.” The Secretary of the Interior, however, overruled Meyer’s decision.

Dillon Meyer’s lack of concern for the legal rights of Indians can be seen again in 1952 when he has a bill introduced to Congress which would authorize BIA law enforcement officers to carry arms, to make arrests, and to engage in searches and seizures for alleged violations of BIA regulations, both on and off the reservation. The proposed bill makes it clear that insofar as Fourth Amendment search-and-seizure rights were concerned, Indians had only a tenuous claim to these constitutional protections. The bill failed to pass.

The BIA also petitioned Congress for blanket authority to terminate trusteeship of land, to veto any tribal expenditures, and to remove tax-exempt status from Indian Country. The BIA also asked that the BIA be exempt from any review or correction in the courts. In other words, Dillon Meyer wanted his friends in Congress to put his agency above the law.

The Commissioner of Indian Affairs is a political appointment and with a new President in 1953, Glenn Emmons was appointed to the position. Emmons, who was from New Mexico, was a staunch supporter of Indian termination. His appointment was supported by the Navajo tribal council. While the conflict of legal representation calmed down somewhat under Emmons, the push by the federal government to get rid of any federal obligations toward Indian nations continued. The BIA continued to obstruct tribal contracts for legal services.


Indians 101: Murder in Montana (19th Century)

( – promoted by navajo)


photo credit: Aaron Huey

The West in the nineteenth century was at times violent and this violence was sometimes expressed in murder. This was particularly true with regard to interactions between Indians and Americans. Often, Americans who murdered Indians escaped any legal consequences for their actions. On the other hand, Indian violence, or even the threat of violence, against Americans was met with retaliation against which ever Indians were nearby with no concern about their identity or guilt. In addition, many incidents were blown up into full scale massacres by the press, even when these incidents hadn’t happened. These can be seen in a series of events that took place in the mining town of Bannack City, Montana in 1863.  

It began when a miner bought an Indian woman (perhaps a Sheepeater or Bannock). It was not uncommon at this time that Indian women would be taken captive and then sold. On the other hand, it was also common for the husband in an arranged marriage to pay a bride price to the family of the bride. Not understanding the meaning of this, Americans would often feel that they had purchased a wife. It is not clear which kind of purchase happened here.

The Bannock woman left the American miner, claiming that she had been mistreated. An Indian elder came to her defense when the miner protested. A group of drunken Americans who witnessed the event then declared that they were not afraid of Indians. They followed the elder to his camp on the edge of town. They shot into his tipi, killing the old man, a boy, and a baby.

Later a group of American “road agents” came across Lemhi Shoshone Chief Snag bathing in a creek. One of the men drew his gun and shot the chief, killing him. The next day, Tendoy was elected chief by the Indians in accordance with the wish of the dying Chief Snag.

Tendoy then rode his war pony into the town of Bannack and stopped in front of the general store. He waited there for the townspeople to gather. He reminded them that as war chief for the Lemhi Shoshone he had protected them against assault from hostile Indian tribes. He told them that he has come to find out why they have killed his uncle, Chief Snag. Did this mean that they have declared war against their friends? If so, Tendoy told them, then he would accept the challenge. The townspeople responded by telling the new chief that the killings were the actions of a few bad men and that the good people in the town deplored the act. After a long conversation, Tenday returned to the band, called for his warriors to maintain the peace, and then led them on a long buffalo hunt.

While the Americans took no action against the drunken miners who had killed three Indians outside of town, they did “arrest” the men who had been involved with the killing of Chief Snag. At the trial before a local jury, the men simply explained that they had killed the chief in revenge for the killing of some of their friends by Indians during the 1849 California gold rush (14 years earlier). The jury completely exonerated them.

Following the trial, the Deseret News in Salt Lake City reported that, in retaliation, the Indians had killed 24 miners. The miners then organized a militia which attacked and killed 17 Indians. According to the paper, some 300 miners were now looking to take the scalp of Paiute Chief Winnemucca (who had nothing to do with any of the events).  However, an investigation found that the reported retaliations between the Indians and the miners did not actually take place. During this time period, it was fairly common for newspapers to print totally fictitious accounts of Indian attacks, “wars,” raids, and massacres.

Bannack and Bannock:

Bannack, now a ghost town operated as a Montana State Park, was named after the Bannock Indians who are related to the Northern Paiute. The Bannock were later moved to the Fort Hall Reservation in Idaho. Shown below are pictures of the ghost town and the Bannock Indians.

Bannack 3

Bannack Courthouse

Bannock Indians

Indians 101: Utes Held by Army

( – promoted by navajo)

The United States acquired what would become Colorado and Utah from Mexico following a brief war in 1848. In the treaty of Guadalupe Hidalgo, the United States agreed to recognize Indian land holdings and to allow Indian people to continue their customs and languages. At this time, the primary Indian tribes in Colorado were the Ute, Comanche, Arapaho, and Cheyenne. It was not long, however, before the American settlers in Colorado began to advocate that all Indians be removed from the territory so that the land could be developed for cattle, farming, and mining by non-Indians.

In 1880, the American government forced the Whiteriver Ute to agree to move to the Uintah Reservation in Utah where they were to live with other Ute bands. Under the agreement with the federal government, the bands were to have a perpetual trust fund created from the sale of their Colorado homelands. The United States, however, makes no attempt to sell the Ute lands and they remain in government possession.  

American greed for land and minerals caught up with the Ute in Utah. Soon American settlers were advocating the opening of the Uintah Reservation to non-Indian settlement. Without consulting the Ute, in 1903 Congress passed an act to allot the Uintah Reservation. Under allotment, tribal members would be given parcels of land for “farming” and the remainder of the reservation opened for non-Indian settlement. The Ute protested the act.

In 1905, a non-Indian commission selected the allotments for the Ute in the Uintah Valley. The least valuable lands on the reservation were allotted and the remaining lands, the best farm lands, were opened for homesteading by non-Indians. The Utah Mormons met and held a drawing for the best lands in the valley.

In addition to opening the reservation, a Presidential proclamation took 101,000 acres from the Ute and added it to the Uintah National Forest. An additional 60,120 acres were set aside for reclamation and reservoir purposes.  

Many of the Utes, particularly those from the Whiteriver bands, were upset about the allotment of their reservation and the increase of non-Indian settlers. Red Cap spoke to the Ute who had gathered for the 1906 Bear Dance:

“The white people have robbed us of our cattle, our pony grass, and our hunting grounds”

As a result of his encouragement, between 300 and 600 gathered with their wagons, supplies, and horses near present-day Bridgeland.  They planned to travel to Montana and  South Dakota, where they hoped to form an alliance with the Sioux and with the Crow and to stop the allotment program.

Initially their journey took them into Wyoming where one dispatch reported:

“Seven hundred Utes are slaughtering cattle and sheep, robbing ranches and committing other depredations in the vicinity of Douglas, on the Platte River 150 miles north of Cheyenne. They are in an ugly mood and refuse to return to their reservation at White Rocks, Utah.”

The governor of Wyoming telegraphed the Commissioner of Indian Affairs to have them removed. The Commissioner replied:

“As long as they [the Indians] are peaceful and do not threaten hostility it does not seem that the Federal government would be justified in interfering with them.”

A special inspector from the Bureau of Indian Affairs met with the Ute and persuaded 45 of them to return to the reservation. He reported that about 100 were planning to go to the Big Horn Mountains to settle and the rest were bound for Pine Ridge, South Dakota.

On their journey, the Utes were peaceful. They killed game, but they felt that the game belonged to Indian people. In spite of the newspaper accounts, there was no violence toward non-Indians. The governor, however, reported that the Indians were drinking, insulting and stealing. He demanded federal help. The President sent his request to the War Department. Two detachments of the Tenth Cavalry were sent to meet with Red Cap.

The army made a strong show of force and the Indians saw the hopelessness of their situation. The military then escorted them to Fort Meade, South Dakota. In spite of court rulings indicating that Indians were entitled to due process of law, the army assumed that the Utes were prisoners of war.

In South Dakota, the Ute found that the Sioux have no interest in entering into an alliance with them. The Sioux were facing difficult times. The army placed the Ute band on the Cheyenne River Sioux Reservation.

With regard to the Ute situation, the Commissioner of Indian Affairs recommended not feeding them. In a speech to the Lake Mohonk Conference he said:

“It was not the government’s fault that they took the course they did in order to get into a place where they could live in idleness and eat the bread of charity. If they persist in that course they will be made to understand what the word ‘must’ means.”

His words are met with a round of applause.

In 1908, the Ute who had gone to the Cheyenne River Sioux Reservation in South Dakota were returned to the Uintah reservation in Utah under military escort. The Ute leaders were defeated and discouraged. They were unable to control the destiny of their people. The American government dictated their destiny with no concern for possible Constitutional rights, even though the courts had consistently ruled that Indians were entitled to those rights.

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Long Hair

( – promoted by navajo)

One of the issues that many Native American men and boys have faced concerns long hair. For them long hair is not a stylistic concern, but is a religious issue. For many Native Americans having long hair is a symbol of tribal religious traditions which teach that hair is only to be cut when one is in mourning for the death of a close relative. The American government, public schools, and prisons have all forced Indian men to cut their hair in spite of the teachings of their tribal religions.

The most recent long hair case involves a five-year- old Lipan Apache boy in Texas. In 2008, Adriel Arocha was denied admission to school because the school policy did not allow long hair for boys. After a two-year court battle, an appeals court finally ruled that the school’s policy regarding hair length was a violation of his religious freedom rights. According to the court:

Long hair is part of Arocha’s religious beliefs. He wears his hair long, as he did as a young child before he was forced to cut it for school-an experience he describes as “unsettling.” His grandfather wore his hair short, but his uncle wore his hair long and in one or two braids. As an adult and over time Arocha came to find religious meaning in wearing his hair long as he gained greater understanding of his grandfather and uncle’s teachings.


The Texas case is only the latest in a long history in the struggle for the right for Indian men to wear their hair long.  

Federal Government Policies and Actions:

During the Dark Age of American Indian religious freedom (1870-1934), the American government insisted that all Indians convert to Christianity and a part of this conversion process required that Indian men cut their hair. Government agents and missionaries found long hair offensive and un-Christian.

In 1871 the Indian agent for the Nez Perce Reservation in Idaho, who ruled the reservation on behalf of the Presbyterians, condemned long hair as a barrier to civilization, Americanization, and Christianization. At this same time, the Indian agent for the Methodist-controlled Yakama reservation in Washington required all Indian men to have their hair cut.

At the World Columbian Exposition in Chicago in 1893, the Bureau of Indian Affairs ordered John Shangreau, a Lakota who acted as an interpreter for Buffalo Bill’s Wild West show, to cut his hair because he would be representing “advanced Indians.”

Indian agents, in their attempt to “civilize” and Christianize Indians, focused a great deal of attention on the problem of long hair on Indian men. In 1896 the Indian Office (Bureau of Indian Affairs) issued orders for all Indian men to cut their hair. One Army lieutenant wrote:

“All energies were bent to compel the adult males to cut their hair.”

In 1902 the Bureau of Indian Affairs told all reservation agents:

“You are therefore directed to induce your male Indians to cut their hair.”

According to the Commissioner of Indian Affairs:

“The wearing of short hair by the males will be a great step in advance, and will certainly hasten their progress toward civilization.”

Under the directive from the Bureau of Indian Affairs, Indian men with long hair were to be denied rations. If they still refused to cut their hair, “short confinement in the guardhouse at hard labor with shorn locks, should furnish a cure.”

For many centuries the Hopi in Northern Arizona had grown corn. The corn depended on rain. Hopi men wore-and many still continue to wear-their hair long as a symbol of the falling rain for which they prayed. In spite of this, in 1904 the Indian agent forced a number of Hopi men to have their hair cut. Among the Hopi, for a man to have his hair cut during the growing season was tantamount to asking that the corn stop growing.

Indian Schools:

One important part of the government’s program to strip Indian people of their traditional cultures involved boarding schools where young children could be removed from their people and raised by strangers in an institutional setting. The premier boarding school in the American system was Carlisle, which was opened in 1879. The school, situated in an abandoned army post in Pennsylvania, required the students to take Anglo-Saxon Christian names, cut their hair, and replace their clothes with European-style dress (their old clothes were usually burned).  

A century later, the Bureau of Indian Affairs had completely changed. In 1974 the Bureau issued a statement regarding student rights and due process procedures for all BIA schools. Student rights include freedom of religion and culture, and freedom of speech which includes the right to wear long hair.

Public Schools:

Public schools have a well-deserved reputation for being insensitive to American Indian cultures. For American Indian students school policies have prohibited long hair for the boys. While the Texas case found in favor of the Native traditions, this has not always been the case.

New Rider versus Board of Education was a 1973 case in which three Pawnee students were placed on suspension for having long hair in braids. The Oklahoma school’s regulation which prohibited male students from wearing braids was challenged by the parents who felt that the school was violating their children’s freedom of religion. The court’s denied the parents’ claim.  

Hatch versus Goerke involved a 1974 challenge to a school’s regulation on the length of hair. The parents argued that the school’s regulations violated their traditional religious values, but the court disagreed.

Traditional Apaches believe that the only time one should cut one’s hair is when a relative dies. In 1993, the Wickiup, Arizona schools refused to allow a traditional Apache boy to attend classes be¬cause he has a long braid. Among the Akimel O’odham, people traditionally cut their hair after the death of a loved one. However, the Phoenix, Arizona school system in 1997 did not allow students from the Gila Indian community to attend school unless they cut their hair. Neither of these cases were challenged in court.


During the past 50 years, part of the battle for American Indian religious freedom has involved the prison system. Not only are the prisons a tightly controlled environment, but there is an attitude that conversion to Christianity is good for the prisoners and that Native American religions are not valid.

In 1972 in Minnesota, an Oglala Lakota inmate at a federal prison refused to allow his hair to be cut because of a religious vow and was punished for this refusal. The Court found that the prison’s regulations about hair length were reasonable and questioned the petitioner’s sincerity of belief.

In 1974, the U.S. District Court issued a Consent Decree – a binding agreement between the Nebraska correctional system and the Indian inmates – that provided the precedent for determining how Indian spiritual and cultural needs were to be met within the prison system. Under the Consent Decree, Indian inmates were entitled to wear their hair long and in Indian style as a religious right.

In 1975, Jerry Teterud (Cree), an inmate of the Iowa State Penitentiary, challenged prison regulations that prohibited long braided hair, contending that such a prohibition violated his freedom of religion, as well as his freedom of expression. The Courts found for Teterud and noted that it was sufficient to prove that long hair was rooted in religious practice, rather than being the central tenet of Indian religion.  

A federal court ruled in 1983 that Washington state correctional authorities cannot cut the hair of Indian offenders in the reception units.

In the 1985 Florida case of Shabazz versus Barnauskas, an Indian inmate charged that prison rules regarding hair length violated his religious freedom under the First Amendment and under the American Indian Religious Freedom Act of 1978. The Court ruled that the state’s need for penal security outweighed religious freedom.

At the 1998 Annual Conference of the Academy of Criminal Justice Sciences in Albuquerque, a number of Indians leaders called for more consideration for religious freedom for American Indians who were in jail. Indians leaders reported that some states required Indian prisoners to cut their hair which is a form of spiritual castration.


In 1999 Arizona, Akimel O’otham prisoner Darrick Gerlaugh was the first American Indian prisoner in Arizona to receive the sweat lodge and a pipe ceremony as last rites before his execution. In addition, he was allowed to wear his hair in braids for the execution.

Aboriginal Justice in Canada

( – promoted by navajo)

The First Nations of Canada had law, and therefore a justice system, long before the arrival of the French and British. With the imposition of British rule, however, the First Nations have had a foreign, and very different, justice system superimposed on them. At the present time, there are really three different kinds of justice systems operating among the First Nations of Canada: the European system which is alien to the traditional cultures, traditional systems which operate to hear certain kinds of cases, and a blended system which is based on the European justice model, but which is empathetic to aboriginal culture. This diary will focus on a case study of the blended system.  

European-style justice systems are adversarial with a focus on punishment. The traditional justice systems of aboriginal peoples, on the other hand, are cooperative and focused on healing. This is not to say that in traditional justice systems people were not punished, but that the focus was not on the individual, but rather the family and the community.  When a Cree elder was asked by a Crown Attorney what the community did to those who misbehaved in traditional times, she replied (through a translator):

We didn’t do anything to them. We counselled them instead.

What follows below is from an actual case. It is described in more detail in Returning to the Teachings by Rupert Ross.

The Cree First Nation in northwestern Ontario is remote. There is no court building, or even courtroom. There are no resident judges, Crown Attorneys, or Duty Counsels (a kind of public defender). These are flown in for the trials. The court is set up in a local school.

The courtroom is arranged to reduce the adversarial nature of the process: the tables are arranged in a circle. Instead of having the accused sit opposite from the Crown and the police, they are spread around the room. The circle is a mixture of police, the accused, translators, probation officers, and anyone else who might contribute to the case. People tend to feel better when they come together as equals in an attempt to find solutions.

Among those present are three Cree women from the Police Committee. The Police Committee, composed of six men and six women, had been working with each of the people charged and had prepared detailed recommendations for each case. They bring with them an infant in a cradle board who is one the table in front of them during the proceedings. It is normal for children, including infants, to be present at Native events. Within the aboriginal justice system, the infant serves as a reminder that the people have come together to make life better for the next generation.

The case involved assault: a man in his twenties had assaulted his wife. In urban Canada, it is generally agreed that by the time a woman reports an assault by her partner it is about the thirty-fifth time he has assaulted her. The man pled guilty.

The three Cree women then made their suggestions. First, they recommended that the man go through a thirty-day alcohol treatment program in the distant city of Thunder Bay. They felt, however, that drinking was just a surface problem and could not be solved on its own. They commented on the lack of communication between the man and his wife and recommended that both attend a series of three-day workshops on family violence and family communication.

In addition, the women continued, the children in the home had witnessed the violence. Without help, the children would grow up to repeat their father’s behavior themselves. Therefore, the women suggested that the entire family attend a month-long family healing program which was available in another community.

The judge included all of the women’s recommendations in the Probation Order. He then reminded the offender that in accepting these recommendations the offender was making promises to his own community and to the elders. The man indicated that he understood this.

This case provides a good illustration of how aboriginal concepts of justice can be integrated into the Canadian legal system.  

Take Action: Tax Credits for Wind Resources on Reservations


Currently, Native American tribes aren’t eligible for the federal production tax credit available to non-tribal project owners under law.

Without this 2 cents per kWh tax credit, it is much harder for wind farms to get built on reservations.  

Action Info Below

Two bills, S.2520 and the H.R. 1954 propose changing the tax code to allow tribes to benefit from the tax credit.

Please contact the members of the Senate Committee on Finance, the House Committee on Ways and Means and your Washington representatives and tell them you want Native American tribes to get this tax credit so they will be able to build more wind farms on tribal lands.

Note that most members of Congress are on vacation from D.C. and it may be easier to contact them through their district offices until after both party’s conventions.  Regardless, emails sent through their contact forms, your calls or faxes will be there when they return to work.  Please, don’t put off acting because they are not in D.C..

Senate Bill: S.2520

S. 2520 would amend the Internal Revenue Code of 1986 to allow Indian tribal governments to transfer the credit for electricity produced from renewable resources.

Status of the Legislation

Latest Major Action: 12/19/2007: Referred to Senate committee.

Status: Read twice and referred to the Committee on Finance.

House Bill: H.R. 1954

H.R. 1954 would amend the Internal Revenue Code of 1986 to allow Indian tribal governments to transfer the credit for electricity produced from renewable resources.

Status of the Legislation

Latest Major Action: 4/19/2007: Referred to House committee.

Status: Referred to the House Committee on Ways and Means.


Members of the two committees can be found by clicking on the linked committee names above.

Information courtesy of Native Energy’s July Newsletter

Even if your congress member is not on the above committees, it would be a good thing to contact them about this disparity.  If needed, you can use to find your reps.

Thank you for taking a moment to make some calls.