A Trail of Tears

By Rinaldo Brutoco   |   May 21, 2020

In our recent four-part series, “New Federalism in a Post COVID-19 World,” we extensively reviewed the pre-Colonial origins, the subsequent history, and the modern evolution of the Federal government’s relationship with the individual states. That’s what the subject of “Federalism” usually means in a political context, as if the only governmental authorities in the United States are the Federal and respective state governments. However, this limited assessment totally ignores the existence of over 500 sovereign Native American reservations residing within national boundaries. For the most part these are sovereign nations which the US Supreme Court in its 1835 decision in Worcester v. Georgia held could not be regulated by any state.

Fast forward to 2020 and we have the unbelievable situation where Governor Kristi Noem of South Dakota “ordered” the Oglala and Cheyenne River Sioux to remove coronavirus checkpoints established on the perimeter of their reservations to prevent non-essential traffic from bringing in the disease. Not only are the Sioux doing a smart thing from a public health perspective, and something that is clearly guaranteed them under the 1835 case, but they are also providing a regional public service from which Governor Noem should learn. How could South Dakota take the absurd position that the federally ratified treaties with the Sioux Nation can be abrogated because a Governor is uninterested in controlling the spread of the coronavirus – at meat packing plants, in the general public, or particularly on reservation land? In a similar vein, how can the Trump Administration justify the arbitrary removal of over 300 acres of Mashpee Wampanoag Tribe lands which they’ve inhabited for over a thousand years?!

Observing this travesty unfold in two places even as we publish this column, it is worth recalling that Benjamin Franklin first proposed “The Albany Plan” in 1754 as a protoype structure for the evolving United States, a plan he adapted from the Iroquois Confederation which, he observed, started in the 1100s and lasted until the founding of our nation. He felt that tenets of government that could last so long, and be so stable, would be suitable to the “experiment” the Founding Fathers were creating for us.

The first significant treaty between the new American nation and the sovereign Native Americans was negotiated directly under George Washington’s instructions as the Pickering Treaty of 1794. Every treaty with the Native Americans from that day to the present re-affirmed that Native Americans lived in their own sovereign nations. In fact, the first Chief Justice of the US Supreme Court, John Marshall (the man appointed by Washington himself), wrote this: “Indian Nations had always been considered as distinct, independent political communities retaining their original natural rights as the undisputed possessors of the soil… the very term ‘nation’ so generally applied to them means ‘a people distinct from other.’”

So how did we get to this place where the best intentions of the Founding Fathers, including Franklin, Washington, and Marshall, result in a first term governor of South Dakota, or the current Department of the Interior, so cavalierly ignoring what the law clearly requires as “Treaty Obligations”?

It is often said that our nation’s “original sin” was the enslavement of black people to build the southern sugar cane and cotton economy, but this “sin” also includes the fact we literally stole our land from the Native Americans. We entered into over 350 formal treaties, and violated them even after each signing was ratified by the US Senate as solemn treaty obligations of the USA. Well, the fact we’ve been violating those treaties since the moment the ink was dry does not excuse or give permission to modern politicians to continue the land grab which has been a moral albatross around our nation’s neck. It wasn’t legal or morally justifiable to ignore these treaty obligations yesterday and it won’t be in the future. We must discontinue doing so at once. Why?

The coming period of the New Federalism we will enter once COVID-19 is restrained will require the sovereign Native American nations to help the Federal and State governments develop comprehensive strategies for interactive engagement that will fundamentally alter the current relationships of political power. Properly restored to their legally entitled sovereignty, each Native American reservation could become a unique incubator of the solutions we must evolve to deal with: the food insecurity, public health challenges, and environmental sustainability issues presented by the current pandemic. Those individual “laboratories” would likely play a major role as the Federal and State governments, by necessity, re-establish the appropriate relative roles they will fill going forward. They cannot be left out simply because they are sovereign nations who pre-paid the U.S. government centuries ago for their treaties with the surrender of the land mass we now inhabit. They are sovereign nations within our borders and we have much to learn from them as we re-set the balance of power between the Federal, state, and sovereign nation governments – all which reside, like a three-legged milking stool, within our borders.

The Trail of Tears usually refers to the forced resettlement of 60,000 Cherokee natives (with many self-freed blacks included) to West of the Mississippi (with more than 4,000 lives lost along the way) in what was clearly President Andrew Jackson’s most morally outrageous act – which is saying something given the many moral challenges he inflicted on the U.S.

Those “tears” are symbolic of the moral stain we suffer as a people from our racist background that infects our politics to the present day. Until we face that moral stain, address it, and begin to heal it, we will not effectively live as one Nation. In order to create a healthy and prosperous future, sovereign states and sovereign Native American nations have to be brought into a just new alignment or we will never achieve our goal of E Pluribus Unum. Out of many, one. Is that not still our goal? Or will we opt  to devolve again into open civil war? We get to choose. Let’s choose wisely.


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