Today, I delivered a talk entitled Indigeneous Treaties: A Comparative New Zealand/United States Peespective in which I jusxtaposed the treatment of the Treaty of Waitangi of 1840 with the Maori in New Zealand with the treatment of American Indian treaties in the United States. A copy of the talk can be secured in Acrobat format by clicking on the title of the talk above. Comments or criticisms by email would be appreciated.
I was recently reading Mark Kurlansky’s excellent popular history 1968: The Year that Rocked the World and came across the following portion of a speech delivered in 1968 as apart of Robert F. Kennedy’s ill-fated candidacy for the Presidency:
” We will find neither national purpose nor national satisfaction in a mere continuation of economic progress, in an endless amassing of worldly goods. We cannot measure national spirit by the Dow Jones Average, nor national achievement by the Gross National Product. For the Gross National Product includes air pollution and ambulances to clear our highways from carnage. It counts special locks for our doors and jails for the people who break them. The Gross National Product includes the destruction of the redwoods and the death of Lake Superior. It grows with the production of naplam and missiles and nuclear warheads. . . . It includes . . . the broadcasting of television programs which glorify violence to sell goods to our children.
“And if the Gross National Product includes all this, there is much that it does not comprehend. It does not allow for the health of our families, the quality of their education, or the joy of their play. It is indifferent to the decency of our factories and the safety of our streets alike. It does not include the beauty of our poetry, or the strength of our marriages, the intelligence of our public debate or the integrity of our public officials. . . the Gross National Product measures neither our wit nor our courage, neither our wisdom nor our learning, neither our compassion nor our devotion to our country. It measures everything, in short, except that which makes life worthwhile and it can tell us everything about America – except whether we are proud to be Americans.”
As I read this truly classic speech, I was struck by the fact that despite the truth of the statements today, no current politician could or would deliver this speech on the 21st Century stump and stand any hope of being taken seriously or getting elected. That thought led me to realize what a barometer of our contemporary national values the quoted talk represents.
In 1968, when this speech was delivered, Robert Kennedy presciently saw that the nation was poised on the precipice of deciding between its commitment to loftier noble humane values or values measured almost exclusively by materialistic considerations reflected in the Gross National Product (now the Gross Domestic Product). The late 1960s and student rebellions of that era perhaps epitomized that debate, as the Kurlansky book wonderfully demonstrates. While the generation of the 1960s would like to think its values and its revolution “relevant,” the reality is that the total irrelevance of the humane concerns expressesd by Robert F. Kennedy in the quoted remarks to contemporary political debate suggests that the 1960s generation lost their revolution. The current values of the nation reflect precisely what Robert F. Kennedy warned against almost 35 years ago. The question he posed, however, remains the question for today. Given the current values and what we have become, can we remain “proud to be Americans?”
Clinton's Lore
Oct 25
This article is taken form the weekly issue of the New Zealand Listener published October 30-November 5 2004 Vol 196 No 3364
Clinton’s Lore
by Steven Price
When tribes no longer see themselves as victims, this gives them incredible spiritual strength, says a visiting expert on American Indian law, who sees parallels with the situation of many Maori.
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Mention the prospect of giving sovereignty to Maori, and Bob Clinton is likely to bridle a little, but not for the same reason as, say, Don Brash. “Can I suggest something?” Clinton will ask. “You’re not giving them anything. It’s already theirs.” It’s something to acknowledge, not bestow.
Maori sovereignty is not a radical notion for Clinton. He has spent 30 years studying American Indian law, arguing about it as a lawyer, teaching it as a professor, and applying it as a judge. This year, he’s at Victoria University’s law school working on a book, tentatively titled The Great Father’s Powers. The book excoriates the US Government – the “Great Father” – for failing to fully acknowledge the powers of governance of Native Americans. And Clinton is inclined to think that, in some ways, what’s happening in New Zealand is worse.
Because Maori sovereignty is a radical notion to middle New Zealand. Recent New Zealand governments have been prepared to negotiate with Maori claimants over redress for historical injustices, and consult over the development of some policies. But never do they concede that power – raw, decision-making, governmental power – may have to be shared.
For Clinton, that’s odd. He’s surprised at the “total unwillingness to recognise that a treaty, which – in its Maori version, at least – clearly includes rights of sovereignty, created a federated relationship between two peoples with separate rights of self-government”.
Article two of the Treaty of Waitangi, remember, promises Maori “te tino rangatiratanga” – the unqualified exercise of chieftainship – over their lands, villages and all their treasures.
Most indigenous peoples have to scramble to argue that their ancestors were hoodwinked by misleading colonialists into signing treaties, but in New Zealand the differences between the Maori text and the English text are there in black and white. For example, it’s only in the English text that “sovereignty” as such was ceded. The Maori version cedes “kawanatanga”, or governorship, which may be something less than sovereignty.
“You’ve got the only indigenous treaty I know that has two official written versions,” says Clinton. “You’ve got the proof that what indigenous people frequently claim happened, actually happened.”
Issues are more complex in the US, whose government signed nearly 375 treaties with various American Indian peoples. Much of their history has followed the same tragic path as here. Settler expansion. Land disputes. Wars. Court battles. Claims settle- ment processes. Sovereignty issues. But for all the similarities, things have played out differently in the US. Many Native Americans live on reservations, where they exercise real, though limited, rights of sovereignty. Tribal councils make political decisions and pass laws. Tribal administrations run schools and health clinics. Tribal courts rule on tribal members’ commercial disputes, divorce and custody battles, employment issues – even criminal cases.
Clinton hears some of those cases. Although he has no Indian blood, he was invited to be Chief Justice of the Winnebago Supreme Court in Nebraska (with jurisdiction over about 3000 tribal members). He’s also Associate Justice of the Cheyenne River Sioux Tribal Court of Appeals (6000 members) and the Colorado River Indian Tribes Court of Appeals (6000-7000 members).
So, how does this sovereignty shake down? Would a parallel Maori justice system be, as retired Court of Appeal judge Sir Duncan McMullin suggested last year, “unjust, unrealistic and impractical”?
Clinton doesn’t think so. Federal Indian law only recognises the tribes’ jurisdiction over their own members and territory, he notes. The tribal criminal law that they apply is similar – though often simpler – than the criminal law in neighbouring states. Serious crimes are still dealt with by federal courts. The procedure they follow is less formal, more grounded in respect, good faith and common sense than Western courts, he says. “They think of these things as requiring healing.”
One of the quirks of the tribal criminal justice system, Clinton says, is that sometimes defendants are too honest, even though they may be exposing themselves to a prison sentence. “In Indian culture, there’s a strong sense of telling the truth and doing right when a wrong is committed.”
Still, the tribal courts are in an ongoing tug-of-war with their US counterparts. The US Supreme Court, for instance, has held that the tribes do not have jurisdiction over non-members who commit criminal offences on their reservations. In part, that’s because juries would be comprised entirely of Indians. “White courts fear the implications,” says Clinton. But it’s a one-way street. The federal government tries Indians for major crimes, even when there’s no Indian on the jury. “It’s a distrust of having people of a different race on the jury judging white people. It’s pure, simple racism.”
Clinton argues that the sovereignty of Indian peoples has been short-changed by the US Government over the years. He points to a clause in the US Constitution that treats American Indians as analogous to separate countries. “Simply put,” says Clinton, “the federal government has no legitimate claim to legal supremacy over Indian tribes.”
Ironically, this approach tracks closely with the Supreme Court’s increasing defence to the states’ rights to manage their own business; and to the usually conservative demand that the Constitution should be interpreted as its framers intended.
Even with only limited sovereignty, many tribes are prospering. The Mississippi Choctaw, for example, led by visionary and business-savvy chief Philip Martin, are a major manufacturer of car-parts and greeting cards. They and other tribes have utilised their sovereignty rights to set up some wildly profitable casinos on the reservations, out of the reach of state casino bans. Such income is replacing the tribes’ reliance on federal government handouts, although a lot of tribes – especially the largest ones – remain mired in poverty.
But measuring sovereignty by economic success or even land repatriation is a mistake, argues Clinton. He points to a 1971 settlement with indigenous people in Alaska, who received a pot of money and 44 million acres of land. To manage the land, they have formed a mishmash of regional corporations, tribal governments, intertribal consortiums and messy alliances with local and state government offices. It’s land ownership, but it’s not government.
“Sovereignty is an empowering concept. The most important thing that sovereignty has done for the American Indian people is to give them a sense that they’re not so much victims, but a separate people with power. If you don’t see yourself as a victim, that gives you an incredible spiritual strength.”
But isn’t this sort of sovereignty limited to those with territory, like reservations, to exercise it over? Not necessarily, says Clinton. The Cayuga people of upstate New York are recognised as a tribal nation, even though they have had no land for most of the past two centuries. “They are another government; a separate, sovereign people, even though they have been landless. Not all sovereign rights are linked to land. For instance, US law recognises tribal authority to make child custody decisions for tribal members, wherever they live.
For Clinton, the lessons are clear. Indigenous people need to participate properly in settlement processes for them to be legitimate. He applauds our Waitangi Tribunal model, which he says mirrors the Treaty relationship. But there’s a problem, he adds. Over the years, the Crown has “so suppressed iwi government that you haven’t got an effective settlement”. One of the government’s obligations must be to “assist in re-creating governing authorities with power to legitimately speak for their people and to manage assets of the community”. The people have to participate, and not just through lawyers sitting down at some distant negotiation table; they have to fully buy into the process.
Is this what’s wrong with the foreshore and seabed proposal? “I don’t want to tell you Kiwis what to do. That’s not my place as a guest in your wonderful country. But it seems to me that what’s getting lost is a focus on the process – everyone’s so focused on the outcome. The Treaty of Waitangi represents a coming together of two peoples, creating a bargaining partnership. Having one party to the agreement dictate the outcome without bargaining about it: that’s not a partnership.”
But isn’t the word “partnership” – which doesn’t appear in the Treaty, though does appear in some court decisions about it – rather vexed?
“A treaty is in essence a partnership. And on any interpretation, article two creates some obligation to protect Maori property claims.”
So, when Clinton hears people like Haami Piripi and Margaret Mutu warning about a possible civil war, he’s not surprised. “I think ‘civil disobedience and resistance’ is perhaps more apt,” he suggests. He has seen it before, many times: occupations, protests – even occasional armed stand-offs, triggering violence. The famous 1973 occupation at Wounded Knee, for instance, ended with two deaths and a shooting injury. Clinton doesn’t condone the violence in any way. “But it’s a warning we need to hear,” he says, “without condemning those who responsibly sound the cry of alarm.”
Equality & Indians
Oct 14
While visiting on sabbatical at Wellington University Victoria and discussing with others the debates over Maori rights, the question of the liberal paradigm of equal treatment of citizens within a state frequently arose. This problem involves precisely the same discussion of equality frequently heard regarding Indian law in the United States.
One answer that has occurred to me here is both obvious and rarely heard. The western liberal paradigm has actually created two notions of equality that must be considered: (1) equality of citizens within a state and (2) equality between states with concomitant respect for the normative legal tradition of each state reflected in doctrines of comity and respect for sovereignty. The importance of the historic treaty relationship with many indigenous peoples is that it situates the problem in the second, rather than the first, paradigm.
By more recently situating the debate about indigenous rights in the first paradigm much of the recent discussion of indigenous rights by legal critics simply assumes away the basic problem — the need for equal respect for the normative legal traditions of indigenous peoples. In fact, by situating the problem automatically in the first western paradigm, rather than the second western paradigm, an automatic discrimination and inequality is created — the discrimination against the normative legal tradition of the indigenous people which invariably is ignored in the discussion in preference for the normative legal tradition of the dominant colonial state under the guise of an an argument based on equality of treatment. This is not equality; it is rank colonial discrimination against the normative legal tradition of the colonized indigenous people. So much for western liberal arguments based on equality of treatment!
Affirmative Action, History & Judicial Social Engineering
Copyright 2003, Robert N. Clinton
A little over 185 years ago, Federal Treaty Commissioners, led by Lewis Cass, met at the foot of the Rapids of the Miami of Lake Erie to negotiate a treaty with a number of Great Lakes Indian tribes, including the Chippewa, Ottawa (or Odawa), and Potawatomi from Michigan. The Fort Meigs Treaty of 1817 emerged from those talks. In it the Michigan Tribes donated lands to a college at Detroit and further authorized the donated lands to be kept or sold at the discretion of the college. The express purpose of the land grant contained in the Treaty was Indian education. The donor Michigan Tribes stated in the Treaty that they made the grant because “may wish some of their children hereafter educated.”
The land grant in the Fort Meigs Treaty marked the start of the University of Michigan, which to this day bears the 1817 date on its official seal as the date of the founding of the school. Sale of the lands donated by the tribes produced the original endowment of the University of Michigan, which purchased the core of its current campus in Ann Arbor, Michigan and provided much the University’s original endowment. Lewis Cass, the territorial governor and federal treaty commissioner at the Fort Meigs Treaty became the first President of the University of Michigan.
Thus, like Harvard, Dartmouth, and the College of William and Mary, to name a few, the history of the University of Michigan demonstrates that it was founded in part specifically to educate Indian students. In this case, land grants from the Michigan Tribes intended to educate their children provided the school’s original capital. Ironically, today the University of Michigan finds itself embroiled in a major controversy pending before the United States Supreme Court over whether it can even consider Indian or other minority racial status of applicants in its admissions processes. In light of this history, the question of the constitutionality of affirmative action at the University of Michigan raises the issue of whether the University can continue discharge one of its original founding missions – the education of Indian students.
The history of the University of Michigan illustrates the fact that frequently public institutions of higher learning have multiple objectives, not all of which are entirely consistent. For example, the University of Michigan, as a state institution of higher learning, has some obligation of educate the citizens of the state. However, it also has a special mission, derived from the history of its founding, to educate minority students, and in particular the descendents (“children” in the words of the Fort Meigs Treaty) of Indian tribes. Of course, Indian tribes need educated and highly skilled tribal officials, tribal staff, and tribal citizens to run their tribal governments, just as much as the State of Michigan requires an educated electorate – a point the ancestors of the Michigan Tribes foresaw when they helped found the University of Michigan. In the University of Michigan cases, the University itself has argued that it not only has the objective of admitting an educationally qualified class, it also has a compelling educational objective in providing a racially and intellectually diverse educational environment that mirrors America, not just the most politically powerful and numerous segment of it.
The plaintiffs in the University of Michigan cases and the Bush Administration in its friend of court briefs have grossly over simplified the purposes of higher education and the nature of the admissions process in making their arguments against affirmative action. The premise of their argument is the simple suggestion that public schools have a single-minded objective to provide education to the most qualified and that the admissions process must therefore admit the most “qualified” on a colorblind, race-neutral basis under the Equal Protection Clause of the Fourteenth Amendment.
The history of the founding the University of Michigan demonstrates the falsity of this premise. First, institutions of higher learning often have multiple objectives, which are reflected in their admissions processes. The University of Michigan, for example, was not founded merely to provide education to the state’s most “qualified” students based on some arbitrary test score; it was also specifically founded to educate Indian students in addition to other objectives such as educating Michigan residents and other students. Clearly, the University of Michigan cannot accomplish its founding mission of educating Indian students without considering their Indian status as part of the admissions process. Given that national curves suggest Indian students often score lower than non-Indian students on many standardized tests, in part as a result of the history of neglect of and inadequate funding by federal and state governments for education on Indian reservations, if the University of Michigan cannot consider an applicant’s Indian status as part of the admission process, it cannot fulfill its founding mission of educating Indian students because it may not even be able ask them if they are Indians as part of the admissions process.
In the University of Michigan cases pending before the United States Supreme Court, the plaintiffs and the Bush Administration argue that the Equal Protection Clause of the Fourteenth Amendment compels the University of Michigan and other public schools of higher learning to use race-neutral or colorblind criteria, impliedly arguing that the later adoption of the Fourteenth Amendment must have rendered the University of Michigan’s founding mission of educating Indian students somehow illegal. In fact, President Bush as much as said so in his message on affirmative action by specially singling out Native Americans in his comments.
This point raises the second problem with the argument — the political slogans of race neutrality or colorblindness find no support whatsoever in the language or history of Equal Protection Clause of the Fourteenth Amendment, as the University of Michigan cases demonstrate. If the University of Michigan was founded to educate Indian children, nothing in the Fourteenth Amendment could conceivably render that objective unconstitutional since section 2 of the Fourteenth Amendment itself draws an Indian classification for purposes of the census. Those who argue that the Equal Protection Clause of the Fourteenth Amendment requires race neutrality and colorblindness in all government decisionmaking totally ignore the fact the same constitutional amendment draws a benign Indian classification. The Fourteenth Amendment therefore could not conceivably have been thought by its drafters to totally outlaw even benign Indian classifications. What was outlawed by the 14th Amendment was what the early civil rights cases often called “invidious racial discrimination,” the disadvantaging of persons of minority races based solely on their race. Colorblindess as a legal norm therefore has no basis whatsoever in the language or history of the Fourteenth Amendment. Responding to contemporary political pressure, the decisions of the United States Supreme Court have simply invented it as a social engineering norm in the guise of legal doctrine. If the Court therefore accepts the arguments of the plaintiffs and the Bush Administration in the University of Michigan cases, it will be the majority of the Supreme Court and not the University of Michigan that is engaged in legal social engineering. The more interesting question is to what end. Here, history may provide another guide.
In 1883, the Supreme Court of the United States in the Civil Rights Cases struck down as unconstitutional under the Fourteenth Amendment the nation’s first law banning racial discrimination in places of public accommodation, such as hotels, public transportation, theaters, and other places of amusement. Justice Bradley’s opinion for the majority of Court ended, “[w]hen a man has emerged from slavery . . . there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the law, and when his rights as a citizen or man, are to be protected in the ordinary modes by which other men’s rights are protected.” The first Justice Harlan was the sole dissenter and the only Justice ready to uphold the ban on racial discrimination in places of public accommodation. He rejected the notion that special protections of the black race were inappropriate. He wrote, “If the constitutional amendments be enforced, according to the intent with which, as I conceive, they were adopted, there cannot be, in this republic any class of human being in practical subjection to another class, with power in the latter to dole out to the former just such privileges as they may choose to grant.” Justice Harlan thus argued for a special entitlement of the black race under the Fourteenth Amendment designed to produce true racial equality by establishing the political independence of minority races.
History teaches important lessons about race in the United States. Within 15 years of the Court’s decision in The Civil Rights Cases, the same Supreme Court in Plessy v. Ferguson created the separate but equal doctrine that reinforced the nation’s racial segregation for another six decades. The only dissenter from the separate but equal doctrine in Plessy was Justice Harlan, the sole dissenter in The Civil Rights Cases and the only justice who believed that the Fourteenth Amendment permitted, and perhaps required, special legislation protecting minorities in order to create true political racial equality. National laws outlawing racial discrimination in places of public accommodation did not become a national reality for another 80 years. The debates today over affirmative action and the use of race in the University of Michigan admission processes sound remarkably like the debate between the majority of the Supreme Court and Justice Harlan over special legislation to protect the newly freed slaves. In light of this history, the nation should hope that the members of the United States Supreme Court recall the often repeated admonition of the great Harvard philosopher George Santayana, “those who do not remember history are condemned to repeat it.” The nation simply cannot afford another half-century delay in its often-derailed quest for social justice and political racial equality.
One thing is certain about the University of Michigan affirmative action cases, however. Whatever way the United States Supreme Court rules on whether the University of Michigan can continue to employ Indian status or other racial classifications in its admissions processes in furtherance of its founding mission of educating Indian students, the Michigan Indian Tribes that donated land that founded the University of Michigan so their children could be educated there will not get their land back!