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tv   Native American Land Treaties  CSPAN  November 23, 2014 10:18am-12:01pm EST

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apparently, she did not tell their customs office before she left. it was still valid and our people were denied. hillary clinton got involved and offered a one-time use of our passport. we are not going away. we are the people your ancestors met. we are the people who made these treaties with you. we are asking you to recognize that in real ways. to really manifest the aspirations of these treaties is very important i believe not only to the future the integrity of the united states and great britain but to also to our people, so that someday my great-grandchildren can say we are citizens of our own government. it has been this way a long time, and we don't have any desire to change. treaties are important because it provides us an avenue, an opportunity, to explore what this means in a very real way. i cannot just be something manipulated in court. you often lose when you leave it
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to other people to determine the nature of these. our wampum belts are never presented in court despite the aspiration that the treaties are important. these are replicas are important. hopefully on november 11, we are going to bring back the real versions because november 11 is the anniversary of the treaty. the nation just sent more vermonters to the white house inviting the president or a designee to come to the commemoration. stay tuned. if this will have any impact, november 11 will give us an indication. every year, we gather to recite the terms of the treaty. we invite you there. hopefully, this exhibition and the wampum lot in philadelphia, this will be the place where we can gather together, gather our minds together, and hopefully come together of one mind on what is the true nature, aspirations, and expectations these treaties provide for all
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of us. these treaties were made not just for our benefit, but for your benefit as well. i appreciate the time i have had here. i would like to acknowledge suzanne. if not for her grand vision and determination, this would never have come about. i would also like to acknowledge kevin having the courage to bring this exhibition here. when i first worked here years ago, this is the kind of thing we imagined would take place. i'm happy to be here to be part of the celebration. hopefully the next time i see you, we will be in england beating the united states in lacrosse. thank you. [laughter] [applause]
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>> next, a panel of native american scholars and tribal men there's -- tribal members. they talk about the impact of non-ratified treaties and how women have played a role i refusing to relocate. this panel was part of the national hosted by the museum of the native american. it is about 40 minutes. >> thank you very much and welcome to our session. i know the new exhibit on treaties that we recognize with the symposium was signed to coincide with many anniversaries taking place in indian country. in the case of my own tribal nation, it was 150 years ago just this past october that our leaders negotiated the old crossing treaty.
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during the course of which, we lost 11 million acres of land to the united states. that was in western minnesota, and as you can imagine, it was prime agricultural land full of natural stands of wild rice and game. i often reflect, especially during the past year, on what our leaders based in 1863, even as they struggle for their livelihood -- less free than they had ever been before. and living within the constraints of a new settler society. when i look at and read the transcripts and speeches from those negotiations, evidence suggests they were thinking about us. their descendents. they were holding onto the idea that in 150 years, there would still be a homeland for people in northern minnesota.
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and there is. despite the bad acts and that paper involved in this history, we must always remember that very important fact. i am very pleased to be able to be here to introduce a very distinguished panel. two of them are fellow historians. another a law professor, and a tribal chairman. they will each speak to us for about 15 minutes. and then we will have time for questions from the audience. i'm going to introduce them briefly, and dispense with the tradition we have a universities of long introductions. [laughter] it is hard for me. because each of them are deserving of very long introductions. they are very distinguished folks. first, mark. he has held his position for 19
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years. mark is on the board of the native american rights fund, and the harvard project on american indian economic development. he has a very impressive resume of projects. an engagement with his community and with the whole pacific region in california. jennifer is a historian and professor of american studies at the university of new mexico. you can find your essay on navajo history and the treaty of 1868 in the new book, nation to nation. she is also the author of a book. jane is a professor of american indian studies. he has been the editor of a significant journal. he is an expert on issues involving repatriation james also has an essay in the new book, nation to nation, about treaties and diplomacy. we will also hear from lindsay robertson, who is a law professor at the university of oklahoma.
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he has an excellent essay in nation to nation that sheds new light on the history of a significant case, johnson the macintosh, which has had an impact on the development of law. each panelist will have about 15 minutes for the presentation. we will begin with chairman macarro. >> good afternoon.
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it is good to be with you here right now. my name is mark macarro. my tribal nation is both a place and a people. there is a duality that characterizes what i'm about to talk about. we have the public pechango. and that's what you see in the casinos and the wine country. and then there is the other pechanga. and it's the head bob, leave us alone pechanga. the stop destroying our cultural landscape pechanga. i hope to convey a nation of the effect of treating on ratification on the pechanga. i'm speaking to the tribal people out there.
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have you ever wondered white -- what your world might look like if they treaty got lost in its way to washington dc or was never ratified? what it matter? that is what happened to us. in january 1852, a treaty was signed. it was the 17th of 18 treaties that was negotiated with indian tribes in california. upon the return of these treaties to washington dc in september of that year, 1852, the united states senate not only failed to ratify these treaties, but under pressure from the california congressional delegation and others, they placed an injunction of secrecy on these treaties. nobody saw them for 53 years. this five decade span and did up being a time of acute disposition. we are the people of the west. we are an ancient people.
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we believe that the world was created in our valley. this is the word for bison. the only bison that were ever found happened to be pleistocene bison. there are two river drainages. originally, there were upwards of 30 villages in this valley. why the late 1860's, there was but one. not having title to these things, there were lots of settlers coming into the valley. gold had been well-established in california. there was an influx of settlers coming in. one of the dynamics that people talked about were walking fences.
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the indians would get up in the morning, and the senses that the settlers had across the way had moved. this would go one week after week, month after month. the fences just kept walking, getting closer and closer. these would get reported to the indian agents, that amounted to taking of lands by the settlers. in 1869, a couple of sheep farmers -- established paper title to the name -- to the land
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underlying our last village. they were able to plead their case in federal district court, and they got the court to side with them. in 1873, the court ruled in favor of the sheep farmers. in the court went one next up to issue a decree of ejectment, of forced removal of our people. this was appealed by tribal leadership. on a date in september, september 20, 1875, the san diego county sheriff showed up with an armed posse to create the adjustment. it was carried out by his posse come in the middle of the day, with mostly elders, women and children. the men were off doing labor work that could sustain them. i will get to that in a second. surrounded by guns, they were only allowed to take whatever they could carry in their arms. they were loaded onto wagons and taken two miles away, away from
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that site. they were dumped next to a dry sand wash. any property value that remained was seized for recouping court costs. crops and farms were earned, and all stock was seized. in the weeks following the ejection, sometimes the indian stock would make its way back to its former owners. they would be arrested and charged with wrestling, and finds had to be paid to remedy those situations. about 1/7 of the land based in california, 7.5 million acres, comprising all these lands. this treaty is down here. they were the last to negotiated. this was the package. this is a blowup of that shape down there. this is the treaty to make in the land. just for reference committees black and light -- black and white lines are currently freeways.
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this is interstate 10, going on his way to phoenix. palm springs is appear. banning passes appear. temecula is appear. that's present-day pechanga. the current reservation, with the overlay of the treaty lands. the treaty contained signatories from 33 villages and for linguist a groups. this is present-day overlay of the current reservations as it is now. it might have been a mess had this treaty not been ratified. we will never know. the location we were evicted from was on a bluff right here. this is the village. this dot represents the place were there was an adobe house where the treaty signing occurred. you can see how revered history is in southern california, in southern california, and the rapid development that has taken place. neither of these locales
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actually exist, they are under neighborhoods and thousands of homes. the path of the eviction and wagon trails right here, and people were dumped right here. in the 1880's, after the eviction, one of the things that occurred was a woman came into the valley. she was tasked with writing a report on the condition of the mission indians. it is a term we don't use. we were referred to as a lump sum group on paper as mission indians. she became appalled at the actions of the united states and publish this book, the century of dishonor, to profile some case studies across indian country and the treatment. and then she wrote a thinly veiled work of fiction called ramona.
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the central plot and that that fictional work was this eviction. if you come across those texts, that is what she is talking about. that is why people she is talking about. from 1875 to 1882, about seven and a half years, our people were homeless. we had no paper title to anything. it was a really tough time. most of the people evicted from the village stayed together. i will expire what happened next. a few of them left the group, living with families elsewhere in southern california. this all changed in 1882, when president chester arthur created in the pechanga indian reservation. the initial creation of the reservation was 2500 acres. it was about two miles up valley
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from where everything took place. the eviction, and where they lived. there is a spring on the reservation. the name means where the water drips. this ancient spring was the only water source for the people then initiated to -- in 1882, 3 1975 when the first water system was created on the reservation. that spring is our namesake today. named after the pechanga spring. i think the exhibition will address treaty claims. in january 1905, the treaties were unsealed and read in the
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senate. this led to an act of congress in 1928. can't respect -- congress passed the california indian jurisdiction act. the court case was known as k344. as a result, 33 judgments or establish and finalize in a 1944 congressional settlement. the outcome of that settlement companies treaty not being ratified in the takings of land was a paltry and insulting $17 million, awarded for 7.5 million acres of land that was stolen through concessions that were made under these treaties. out of that $17 million, told me in dollars was deducted to cover legislation expenses. -- $12 million was deducted. in 1950, the congress allotted more to be distributed.
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it brought it into that chapter. but he doesn't really end. this is a pechanga schoolhouse that was built on a reservation in 1885. this is what it looks like now. it kind of his look like this for most of my lifetime. about 1955, nation 56 come other were multiple attempts to the riverside county roads department officials to put a two lane road to the reservation. we had been a close reservation. our people said no to these attempts. we don't want the road. go home.
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there were multiple attempts. one day, when they made this together sunday trip, they said we hearty told you know. there is nothing to discuss. they picked both men up, and threw them out the windows and onto the ground. it is called defenestration. it is a political act of defiance. among other things. suffice to say, they never returned. the road was never built. that was one of the first small victories for us, standing our ground. one day, about 1980, our tribal leadership was looking at a map of our reservation and comparing it to the original set aside. they noticed some thing adjusting. there was an audit asymmetry here with a stairstep. it appeared the logic of this creation should've had a line running to this corner and then down. along one of the rancho land grants here. this is three entered 66 acres.
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research ensued. they discover the original titleholder of this land, pedro marino, had a fraudulent patent on that land. when he sold the land, the land transferred. the current owners of the property in 1980 were kaiser aluminum corporation. so we filed suit based on a clouded chant of title in federal does to court, hoping to get that land back. the district court decided -- sided with cake or realty. it is passed through six or seven purchasers, the current owner has nothing to do with the clouded title or fraudulent title. we appealed the case in 1982. pechanga versus k corp realty. we lost. this is what it looks like today. it is a little closer and
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review. this is a public high school, a public recreation park. here is our casino right there. these are thousands of homes in this neighborhood. this is part of the reservation. that's a view from the ground. in 1995, things started to change. the tribe decided to build a casino, and open up the entertainment center -- the pechanga entertainment center. we had a governor who did not want to negotiate a contract with us. he refused to negotiate with tribes, and we opened anyways. there were attempts by u.s. attorneys to have a shutdown. eventually, the furthest they got was a seizure of our video gaming terminals. our video slot machines.
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they arrested the machines on our floor, but they stayed on our floor. our defiance was only emboldened. we thought we were right. the government didn't want to negotiate. he took them so fun of the equation, and we force the issue by bringing it to the voters of california. over 100 tribes in california were on the same page in the advocacy of proposition one a in the year 2000. it passed on a six to 7% approval. -- 67 percent approval. since then, tribes in california have had the opportunity to conduct indian gaming on their
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own lands. that was a huge win for us. the next episode is in 2001. this area in blue was not part of the reservation. it had been in private ownership. it was land that belonged to the author, the creator of. mason. his name escapes me. we bought it from these people in 2001. in that same time span that we purchased it, it became known to us that that company, san diego gas and electric were planning to put a transmission line through that land. and we said no. we enlisted the aid of congress and the community didn't like it. a coalition of us, the winegrowers association, and 3000 homeowners and their homeowners associations pulled up together to fight these guys.
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and we were successful, i am happy to report. they ruled that the plan was not well thought out, it was the wrong project for the right -- the wrong time. we were able to protect our greater tree, at the heart of this ranch. it is known to be over 1500 years old. it is still thriving. the powerline was to come within 200 feet of the street. and that was just too much to risk. the next episode talks about these lands right over here. this is our current boundary today. this is interstate 15. these lands and yellow.
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that mountain in this picture is at the core of our origin landscape. it is part of our creation story and part of our religion. it's the place with a first person ever died. where death came into the world. on may 5, 2005, at the urging of some local political leaders, who were instrumental in our great oak protection efforts, they urged us to sit down and listen to the proponents of a mining project. out of this obligation, we had a meet and greet with these folks. granite construction is their name. we listen to them. it was a project overview, they had glossy pr packets, jobs would be greedy, no visual impacts. and they were soliciting our input. we do mirrored in any substantive response. we knew there would be a formal project that would have to be produced. we would have time to comment on
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all those things and to kill the project there. liberty core rate was proposing a 75 year in duration line, three miles long, 1000 feet deep. this is what it would've looked like at your 25 -- year 25. there's the u.s. capitol, that theater in sydney, and the roman coliseum. [laughter] this is courtesy of our in-house gis department at pechanga. it would have gone down two thirds beyond that. we said there is no way this can happen. there was going to be serious impacts. wildlife, cultural and religious impact. there were meetings, lots of testimony was taken, we were part of that. we did that disclosing a lot of stuff publicly about our religion and culture, about why this is significant. we were rewarded with a four to one win.
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they men -- they then moved a recommendation. in two thousand 12, in may, the board of supervisors voted three to two against the project. that was a great win until august of that year. i didn't understand the mechanism, but there was a second vote on the project in august. i think they tweaked the project a little bit. one of the supervisors flipped their vote, on the two to three vote. they approved the mining project, not only that, they fast tracked those projects. we did some evaluation assessments. we said we are inside a process
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that is convoluted and will cost us a lot of money to create delays on a law that is an on point. we could engage local campaigns to undo the supervisors vote. in the end, after five years, have no certainty that we are going to win and have maybe spent $10 million. after doing other real estate assessment, we figured about $50 million to $20 million to buy the property from the mining cabinet. which is exactly what we did. we met with the mining company, and in short, we agreed on terms of a purchase of 360 acres on top of the mountain to buy out the property from them. they went away, and they also signed an agreement not to mind within a six mile radius of the mountain. later that month, november 15 it was declared pechanga day for
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saving the quality of life in the valley. this episode illustrates it was a huge moral victory, even at cost $20 million. it was a huge moral victory for pechanga, and for the treaty signing that was never rallied, to beating back this mining project, we have earned back a represent -- retention of tenacity. we'll think this will be the last time we have to do anything like this. but this casino, we get labeled as being casino tribes. but this is a means for us to correct issues of historical equity and justice for us. it also is a means for economic development in our economic future. it gives us some path to be on to do things that nobody has ever been able to do for us, only we can really do. we have learned also the given our location and geography and history -- this is another shot of the reservation.
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most of the reservation is here behind this ridge. begin our location here, straddling two counties, being at a crossroads of major interstates and highways in california, we don't expect this is the last valley we will be -- battle we will be involved in. we don't plan to go anywhere. we have been here for thousands of years. we plan to be here for the next thousand. that is our story. i'm happy to answer any questions at the appropriate time. thank you. [applause] >> thanks. we will hold questions until all panelists have completed their presentations. jennifer? >> is it on? jennifer denentdale. [speaking in native language]
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my home community is on the navajo nation, i teach at the university of new mexico. i'm very grateful to be part of this project and exhibit. i think -- i thank you for the opportunity to be a part of this project. i would also like to thank someone who kicked down the gates of the ivory tower so that educators like myself could be a part of great exhibits like this one. he approved of me because he thought native historians have important functions towards the support and perpetuation of tribal nations. i want to start with, or focus my talk around the cover of this book of which we will be doing a book signing this evening at 5:00. the cover of this book has on it a depiction of migrates, great,
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-- of my great, great, grandmother. you can see the american flag and and i does lurk, because of the brilliant -- eye dazzler, because of the brilliant colors. it has been dated to 1874. the staff at the smithsonian institution discovered that it was part of this collection in 2002. when i came here on one of my research trips, one of the
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archivists mentioned to me, and she let me see the textile which is part of their collection. in this textile, and there is photographs of my grandmother accompanying the essay that i wrote for this collection, the photographs that exists of this textile were taken probably during an 1874 navajo delegation to washington, d.c. probably the organizer and planner of the navajo delegation to d.c. was my great, great, great-grandfather. he was one of the most public, had the most loudest voice of
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objections first to mexican and then american invasion of navajo homelands and territories. these photographs show my grandmother being parts of the delegation to washington dc in 1874. i have no doubt that the indian agent who accompanied the all-male delegation, except for my grandmother, used my grandmother as part of his exhibit of beginning to develop indian arts and crafts that was developing at that time. at different stops, when the delegation took the train from santa fe to denver, then to st. louis and to d.c. -- at each of those times, the indian agent took out navajo things they had made like the weaving and different things. i'm sure he used my grandmother as a depiction as he began to promote navajo arts and crafts.
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when i showed the cover of this book at home to my own people, i was struck. i'm still thinking about what this means. i was struck by a man who looked at the cover of this book and said it is not traditional. i was struck by the remark, and it stays with me. it marks been only moments in our historical past, not just the relationship with what the treaty of 1876 means, but also of the transformations that we have undergone under american colonialism. my great, great, great grandmother, whose name means lady weaver.
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i uncovered her navajo name during my research. she lived through some of the most brutal times for my people. she lived during the united states' brutal battle in the subjugation of my people. and the forced relocation of my people to a concentration camp in 1863. my grandmother fought bravely alongside her husband and her relatives. she lost children to the slave raiders who counted on navajo captives as part of their reward when they fought the american war. my grandmother surrendered alongside her husband in 1866 to the americans. she endured the forced march to the concentration camp at fort sumner. she endured starvation, luminous, hearted, sexual violence. and upon the signing of the treaty in june of 1868, she returned with her family and relatives to her homeland. and so all of that, might
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grandmother's history, it's marked because it is not traditional enough. i determined that nothing, whatever we do, will ever meet the standards of whatever tradition and whatever authenticity means. it doesn't bother me. my grandmother -- the significance of american indian treaties -- i'm really thankful for this day to reflect upon native nations and our people's reactions to the united states and the symbol of what these treaties mean it. they are moments as we gather
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together, as representatives of tribal nations to share our history. we talk to each other. i heard several people this morning talk about shoshone for example. their relationship to the united states. it reminds me of our long-lasting kin relations to each other. it is also a reminder of the united states -- it reminds the united states of its moral and ethical obligations to been did you miss nation -- to its indigenous nations and people. i appreciate panels -- when a law professor gave a survey of treaties, his comparison of the fort laramie treaty and the navajo treaty of 1868. they were both signed the same time. he mentioned they were boilerplate treaties that pretty much said the same thing. one thing then that is it by my
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own people, by the meaning of the treaty of 1868 -- for me, because i followed through once i found out that my great, great, grandparents were prominent headman, and my grandmother was with him for the most part, ensuring navajo land claims, that this treaty and the delegation reminds me of my ancestors long devotion to navajo lands. when he came here in ages exceed four, it was to persuade president ulysses s. grant that he should pay attention. he should support navajo claims to land. to the end of his life, that was what he cared about. in the navajo delegation pictures of 1874, there was only one woman, which is my grandmother. we don't really have a lot of indications of what women's
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participation was in treaty negotiation. it just turns out that as you do your work, and you become public, and you writes, your own people will come to you with information. the men came to talk to me because he is interested in navajo history. he asked me if i knew about the role of navajo women in the process of negotiation with the treaties. i didn't know a lot. he told me that the women that the negotiator on behalf of the united states government was very adamant that the navajo people were to be sent to oklahoma, to indian country. that was one of the things that was being negotiated in this
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treaty in 1868. he told me that the women came forth and very successfully persuaded their men leaders that under no circumstances were they ever to give up on that point. they were not to go to indian country in oklahoma. they were to return to their homeland. that glimpse of women's presence has really inspired me. that we did have a role in talking to our men. that they might have been the public presence, but they always listened to us. that also keeps me on my trail of looking at and considering
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what the role of leadership was internation. in the present, some of the things i mentioned were a couple of court cases there. we remain under assault. we are less than 1% of the population of the united states. we control around or less than 3% of the land base, where we had at one time 100%. that 3%, because we have the misfortune of still having valuable national resources and water rights, remains under assault. one of the things that i'm very proud of is that i am a commissioner on the navajo nation human rights commission. this is the first ever human rights commission that any tribal nation has ever established in the united states. several of the presenters this morning mentioned indigenous presence at the u.n. the navajo nation has pursued that formally.
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we regularly send delegations to the united nations. we do not have a voice on the floor, or a vote, because of our status being under the united states. we do have word that the navajo nation now has consulted status at the united nations. we don't have to go to an ngo anymore to present our case on the u.n. floor. that is a wonderful thing. when we think about an international forum under the united nations, seeking a presence as tribal nations that are akin to any other nation in
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the world with the same sovereignty and self-determination respected. some of the things we also continue to strive for as a nation is to enact a form of governance, laws, or regulation, cultural traditions, language, based upon our own principles. we continue to determine for ourselves what to determine what such concepts mean it. we also take treaties to be a reminder of the possibility for creation a tribal nation of our own choosing. i want to end with a story. the essay that i did is also based upon the work that i did when i first started out as a graduate student. i had no clue what i was doing. i went to interview my great grandparents.
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it turns out to be primarily my great, great, grandmother. we are matrilineal people. one of the stories shared with me by all of my grandparents -- they have all since passed on. my great, great, grandfather, to fulfill the education provision of the treaty of 1868 with the united states, to send our children to american schools for education. he sent his own two sons to carlisle indian school in the 1880's. within a few months, one of his sons died of the diseases that were rampant at carlisle school.
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upon finding out his son had died, my grandfather insisted upon the return of his other son, who died soon after coming home. when he prepared his sons' funeral service, he had all the people who came to the funeral service. he told his people that you probably think that i have done something bad or have done something evil because i sent my son to carlisle indian school for an education. i did not intend for to turn out this way. i was thinking of our future. remember what i told you at fort sumner. life does not end. with that story, his father took
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his son, said, many times my father would be overcome with his burden of responsibility to the people. they need to keep our land. sometimes he would sit there all night long with a huge headache. we would make tea for him. by morning, he would have calmed down. i always think about what our ancestors had intended. that we would continue as a people and we would continue as a nation. that is what the stories mean to me, that is what i would like to leave you with. thank you. [applause] >> i want to move up to the podium.
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>> good afternoon. this book, nation to nation, the we contributed to, is making an important contribution to historiography. i think it does so more than any other fashion than either seen. the paradigm that i come from is that of an american indian studies scholar. i was trained as a historian. i hope to develop a more comprehensive view of looking at how they have struggled to maintain sacred ways of life that were given to them by our creators. one of the things we do in american indian studies is we are privileged with oral history. that is important to us, because
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those accounts are often not written. if we did not include oral history into our work, we would be missing a whole lot of the story. we also defend our sovereignty, our land, and human rights. a religious freedom. our health, our well-being. this is things that know the discipline does. when susan miller and myself co-authored a book, we i didn't identified six principles that were representative of indigenous thought. one is sovereignty is inherent. he predates the u.s. constitution. lands that were taken from us were done so through serial acts of duplicity, violence, deceit, and that is not to take away from the treaty making process.
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our leaders were determined to do what was best for people. the third is that the doctrine of discovery is rooted in a racially-based concept, based on a notion of white superiority and indian inferiority. the colonizers used the language of racism to justify its acts against us. 19th century discourses of colonialism is entrenched in contemporary academic and legal items. and colonialism is a crime against unity. this is our struggle. i try to deal with some of these issues. i was asked to write on pawnee treaties. how can i do that? it ended up about 6000 words in the first draft, i was able to pair down.
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what i have done, i have put together some photos that are in that book chapter that i will use as talking points. this individual was a pawnee scout. he symbolizes the loyalty of our people to the u.s. government. beginning in 1864, we sent hundreds of our young men to war, fighting against common enemy nation's. our scouts are revered today as our our veterans. i'm a fourth-generation veteran. we have been in every branch of the u.s. military. my dad was in the coast guard, my brother and i were both in the navy. three uncles were in the army. my great grandfather was a scout.
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the title of my chapter is betrayal. we allied ourselves with united states government. and yet we were treated as conquered enemies over time. it didn't take long for that to occur. this is a map of the pawnee homelands. what this map represents is what the struggles were all about. land. land, land, land. the incoming white americans wanted land. we had that land. the way the government wanted to take that land was by treaties. these treaties that i look at in my study were the 1833 treaty, and the 1857 treaty. both of these treaties have assimilation provisions. but that is not to say that the pawnee's ever consented to the
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eradication of the pawnee way of life. they did not. and this is the man chief. he was one of the negotiators of the 1857 treaty. he came to washington dc, where this picture was taken, to wait for congress to ratify this treaty. the chief, his responsibility was to care for the well-being of the people. to ensure that the future of the pawnee way of life continued forever. that those traditional ways of doing things, the religion, the making of sacrifices of animal parts to the creator, the growing of corn, maintaining cohesion, that was all part of his responsibility. those chiefs who signed in 1833
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the treaty. these chiefs did the best they he died from a gunshot wound when the pawnees were about to be removed oklahoma. my family tradition says someone shot him in the lake, and he died from gangrene. this is a pawnee town in nebraska. i believe suzanne's great-grandmother was born here. she hasn't ever mentioned she is pawnee, except for to a few of us pawnees. [laughter] it's good to hear that connection. can you imagine the richness of life in the settings? i believe this is a unity distribution that came from the
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1857 treaty. do we have any pawnees? we get money, not cloth. but i think our check this year will be about $10 a person. it's a per cap payment. the amount was $30,000 in perpetuity. no matter how small it is, we need to keep that money coming in. it shows that this treaty is still important to us. this is what the federal policy of assimilation was trying to do, was destroy this way of life. to move a people from these towns and make them live like white american farmers. making a living off the land, like the jeffersonian vision of america. these are who were targeted. the children. in the 1833 treaty, provisions were made for school. again in the 1857 treaty.
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in the 1833 treaty, the funding for school only lasted 10 years. can you imagine if the does states thought they could totally eradicate pawnee culture in 10 years? it was a failure. missionaries came out, there was a compromise of the church and state doctrine, of the federal government founding missionaries to come into indian country to do their conversion work. in the first treaty, very few pawnees were subjected to the system. link which bears came into play. they had the simple and carry out a way of life. one of the troubling aspects of the 1833 treaty was that it says that the pawnee agreed to move north of the platte river, and protect the people who would come there as a part of that assimilation program.
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the pawnee culture or custom was based upon hunting and agriculture. twice a year the pawnee went to hunt. the federal government wanted them to stay put, which would be a death warrant. they had to continue the hunting. the federal government bent on this one later on and allowed the setup of this assimilation program. some pawnees, but not all, began to move across the platte river to be a part of it. but again, there was no consensus amongst the pawnees about the nature of the treaty. and that the parents of these children who were at the schools did not want their children to lose their pawnee way of life. another aspect of the treaty was the 1857 treaty.
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the pawnee agreed to turn over any pawnees who committed crimes against white people. but it doesn't say anything about turning over white people who committed crimes. and there was much more criminality of whites against indians. this was an individual, yellow sun, a 70-year-old doctor. he was accused of killing a white settler. there was very little evidence about who killed the settler. but the whites thought that the pawnees had. the agency would taken charge of
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the pawnee reservation in 1869 info that provision of the 1857 treaty. what they did was withheld anuity distribution until the pawnee turned over someone for the murder of this white settler. they were starving to death. this is how the u.s. government used this treaty, to force the pawnee to give up someone i by starving them. they took the chiefs hostage to try and force the individuals to turn over the killers of the settler. while they were tried and convicted in federal district court. but then a u.s. judge held that because the crime had happened off the reservation, the federal government did not have jurisdiction over the matter. so these individuals were turned over to the state. the state later dropped charges because they couldn't find anyone who would testify against them. victims.
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the women. these were very important to our culture as well, for the same reasons that jennifer was talking about. the plan was to get them out of the indian dress, to make them dress more like white americans, speak more like white americans. they would not pass on the traditions to the children. here is another image that is not in the book. these are code talker metals that were given to the family of nine pawnee called code talkers during the second world war. his grandfather was one of them, and his other grandfather.
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in pawnee ways, we don't have uncles or cousins, we are brothers and sisters, dads and moms and grandparents in our terminology. his other grandfather was killed in italy. again, this image shows that we remained committed to providing military service. i think we need to rethink that sometimes. about why we do it. anyways, this last july, at pawnee, during the pawnee homecoming, which started after the second world war to bring veterans back to pawnee -- we honored those families and code talkers with an event at around house. we had a traditional feed, we had speakers, a general who was once a commander of the 45th division, lieutenant colonel who is now still a part of it. and several other people spoke about the scouts, about these code talkers and their legacy.
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i got the five minute notice. [laughter] believe it or not, i am done. [laughter] first time i've not had a hook. [applause] >> i'm going to stand up, too. it is tricky being a post-lunch speaker and i'm getting too comfortable. i would like to think our sponsors for inviting me to participate. i think this is a great event. it is not the first event i have participated in and each one is
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better than the one before. the leadership is doing an outstanding job of bringing important issues to the table in a appealing and productive public way. i would like to invite you to join me in a round of applause for kevin and suzanne and everyone else. [applause] thank you. when you are late speaker, you
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are always looking at your predecessors and looking for things you can pull from them. that is part of my introduction. the other is to say i go to a lot of indian law conferences. i am a lawyer and legal historian, but i am mostly a law professor. i always come away from them with mixed feelings. you come away feeling a bit hopeful, optimistic as you have been with your friends and their projects, but i was come away troubled by something. it is something i have not been expected to be troubled by. this one was really unexpected. i will carry away from this and be troubled by an image that suzanne left me with after the conversation just before our panel, which was a picture that i'm going to have to carry home in process of george washington smiling. i am a believer in confronting problematic images, so i was sitting here while my colleagues were speaking, how am i going to process this? it occurred to me that the more interesting question is, why is it so troubling, george washington with a full-faced grin? it is related to what i want to talk about. that is my other introductory segue. this thing that happens with state building, and it happens
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in every country, it is happening in scotland today, it has happened in the united states over the last couple of centuries, taking the founders of the republic, who were in our case the bad guys of the british empire, the troublemakers, all of them should probably have been imprisoned, and turning them into sanctified beings and statues and monuments. then we are discouraged from looking too closely at them. when we do decide to look closely at them, often times i think we go too far. poor thomas jefferson, bless his heart. i'm an alum of the university of virginia where he is sanctified for the most part. if he is not sanctified, he is ripped to shreds. you go to one extreme and i think that is part of the nature of academic discorse. having said that. the person i want to spend a few minutes talking about is john
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marshall, who i think has been subject to the same sort of sanctification, especially in the legal academy. my colleagues who are law professors who are here will agree with me that marshall is sort of the great untouchable in a sense. we read his opinions, we take no we read his opinions, we take no thought his opinions. he was a political operator and we get that but it does not matter because he is john marshall. we never look too closely at his personal life, which was really interesting, i guess i should say. his marriage was unusual. there are all sorts of things that one could say but one does not say about john marshall. i'm not going to talk about that. john marshall's marriage. how's that about treaties? it is not, so i will not talk about it. we have a book signing later. if you buy the book, i am happy to share what i know. [laughter] bob talked earlier about the discovery doctrine. here's the outline of what i will talk about. john marshall is the author of
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an opinion in 1823 call johnson versus macintosh. it is the first of three john marshall-authored opinions that is deal with native rights. a deal with native rights. johnson the second is cherokee nation versus georgia from 1831. all of you have probably heard of all of these and you may have read them and made some sense. johnson versus macintosh deals with native property rights in the cherokee nation versus georgia gives us the guardian ward language. wurster versus georgia says the state of georgia cannot impose its laws on the cherokee nation but it is ignored and we have indian removal.
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that is the conventional story we get. marshall plays a confused role in this story. he is the author of the discovery doctrine which is not universally liked and maybe universally disliked among folks who do indian law stuff. not just in the u.s., but throughout the english-speaking world because we have exported it. i may talk about that later. australia and new zealand and other places as well have adopted john marshall's formulation of the discovery doctrine from johnson versus macintosh. there are three decisions and marshall's role as author of the discovery doctrine but woman get to the cherokee removal cases, he shows up on the record as an opponent of indian removal and his decision in wurstur is heroic.
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generations of law professors have said, how is the guy who wrote the discovery doctrine, how can he be the same guy that wrote wurster versus georgia and how do we reconcile the law? there is enormous amount of legal historical scholarship in which folks take the wurster a will versus georgia hard-line against state law and try to make it consistent with the discovery doctrine in johnson versus macintosh. i started working on this book on the johnson case when i was a history grad student years ago -- 1990 -- and ended up getting so wrapped up in the complexities of this that i gave 14 years of my life to this project. i was doing other stuff. i was eating and stuff. [laughter] and i had a job. my academic energy was going into trying to figure out how to reconcile these.
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i uncovered all sorts of wonderful documents and that is why the project he came so big. i want to give you in a nutshell. you will get it in a chapter in the book, which i encourage you to buy. if you're really interested, i have another book and you should buy that, too. i will give you an overview of the story and i think it is the right story. in order to see it, the evolution of john marshall's thinking and the meaning of the discovery doctrine, what i believe to be the real meaning of these marshall trilogy cases, you have to be prepared to smash the statue of john marshall. you have to be prepared to say he was not god. nor was he the devil. he was just a guy who wore
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pants, had a strange wife, and went to work everyday and sometimes screwed up. that is my bottom line. this is a spoiler. cover your ears. i think he made it up. i think he regretted it almost immediately. i think he did his best to bury it, but he just could not pull it off and part of the reason is andrew jackson. part of the reason is marshall is an old guy by that time. he did not live to pull it off. here's the story in short. the discovery doctrine, johnson versus macintosh is a lawsuit brought by land speculation companies. they claim to have bought land during the late colonial era. this is 1773 and 1775, from a bunch of indians and in what will become the states of indiana and illinois. they did so in violation of british law.
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the british king george the third had issued a proclamation in october of 1763 that said nobody but me gets to buy land west of the appalachian mountains. these guys did not have permission to. they try to get away with it but it was illegal. everyone knew it was illegal. assuming that the proclamation of 1763 was valid under the british constitution. these guys spent decades trying to get someone to recognize their claim to title and after the american revolution and new constitution and government comes in, the u.s. sent treaty negotiators out there and they bought the same land from the same indians. they got to sell it twice, so they did ok. that love these lands spent living companies on the lurch. the united states started to sell this land and so they had individual landowners who are claiming title under the united
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states and they were claiming title by direct indian purchase that was illegal under british law, but their's was this first. they end up postpawneeng bringing legal satisfaction for the reason there was no court that had territorial jurisdiction over the lands from which they could have appealed to the supreme court until illinois and indiana became states. then they sent lawyers out and they found a great guy called william macintosh to stand in as a collusive defendant. macintosh signed a stipulation agreeing to anything they wanted to agree to because he hated the people that would be dispossessed by the lawsuit. the only thing they left open for argument was the proclamation of 1763 constitutional under the british constitution.
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the lawyers for the land speculators figured this is a dead winter. this is the 1820's. the supreme court is filled with revolutionary war veterans and all of these guys had fought the revolution in part based on their belief that the proclamation of 1763 was unconstitutional under the british constitution. surely they are going to win on this. they take the case to the supreme court and lose. here's where it becomes weird. they lose in part on the grounds that marshall and his colleagues find that the proclamation of 1763 was constitutional under the british constitution. they are disappointed. that takes about one paragraph in an opinion and that is 20 pages long. why is the rest of the stuff here and what is it? you start reading it and it is the discovery doctrine. what the discovery doctrine says, according to marshall, is there is another reason this title and land speculation
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concern is invalid and that is upon discovery of the new world, the discovering european sovereign, in this case the english, automatically acquired ownership of the underlying title to all discovered lands. they own it automatically. the native peoples retain occupancy right for those lands and that right to occupy them they can keep as long as they want. once they decide to alienated, alienate it, sell or give it away, they can only do so to the same discovering sovereign. that is the johnson discovery rule. that is still the law in the united states. we talk about trust lands, that is land -- the title to which is owned by the united states. under the johnson rule, private occupants can sell it but only to the united states, which means you can't mortgage it, you
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can do all sorts of thinks with it. that is the rule that we have exported. two questions occur. one is, where did this come from? the other is, why is it here? both of these are distressing. brace yourselves. they are to me. maybe they won't be to you. maybe you are more jaded than i am. the where it comes from question, if you read the opinion you will see there are no citations to anything in the section justifying the adoption of this as the court's understanding of consequences of european discovery. at least in that portion of the opinion that relates the english rule. that section of the opinion is really long but it is basically a history of english colonization drawing on the terms of various charters which
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purport to grant title to the land in these excerpts from various charters are joined by conjunctive sentences that say things like it is clear that england assumed that they owned title to the land. just read the following charter and you do and the next conjunctive passage says, see? everyone knew that -- but there is no citation there, either. let me say word about john marshall. you should do this with liquor. i have read every marshall opinion in chronological order. it takes a long time but it is actually kind of fun -- well, for some of you. [laughter] i am looking at you. what you will find is that there are certain stylistic gimmicks
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that marshall uses. i think this is part of the reason we have not figured this out. here is one. the one that matters is that virtually every time that marshall is about to make something up or introduce -- let me say it charitably -- introduce a questionable proposition, he will introduce it with some variation of the following -- it is beyond dispute that -- and then he goes. as everyone has always known -- and then the questionable proposition. no one could argue then. this was a common device in debate and they are all classically trained. they know all of these conventions of debate. it is just that we don't. we read these opinions 200 years later and we don't get that he is lying in the way his contemporaries did. we just assume that if john
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marshall said it is beyond dispute, it must be true. thomas jefferson got this. i love thomas jefferson. i'm a virginian. i want to read quickly his commentary on marshall's practice. this is a letter he wrote about a matter of weeks, a few months later, talking about marshall's method of drafting opinions. he said, and he is alluding to circumstance, like the circumstance i alluded to in johnson, where he has answered the question, so why is the other 20 pages of discovery doctrine there? here's what jefferson says --
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the practice of justice marshall of traveling out of his case to preside what the law might be in a mood case not before the court is very irregular and very censurable. here is why, he said. here the reasons he identified. the constitutional discussion in marbury versus madison, which is merely a dissertation of the chief justice. it means stuff the justices want to talk about and it may be persuasive in future cases but it is not binding. he says the constitutional discussion continually cited by bench and bar as if it were settled law. that is the discovery doctrine in my judgment. why is it there? that is a story i don't have time for but you have to read the book. the first book. if you are interested in this, the answer is -- this is the argument that i make in the book -- it was to resolve a contemporaneous dispute between
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kentucky and mississippi over who owned militia lands as compensation for their service to the state of virginia during the american revolution. the governor of virginia had granted title to these vets but the chickasaws were there. what marshall had to do, and they were fighting after kentucky became an independent state, what marshall job's was after getting read of the speculators was to say, how can i solve the problem of these militia veterans? the governor of virginia has to have had a real property attached with something they could give to him, not just a speculative one day i might buy this.
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the chickasaws have been there for years and this problem is solved by the discovery doctrine. virginia inherited the english claim but virginia owns the underlying title to the chickasaw land. that gives the militia veterans. chickasaws retain their occupancy right. once they left, the militias could go in. i think that is what marshall intended to do with the discovery doctrine because that was one of those freakish accidents were the state had granted indian lands before the indian lands were purchased. the federal government decided we are not doing that again. federal government can buy indian land. this is the trade intercourse act. the federal government is going to buy it and then it in that we are going to sell them. this is an accident that will not occur. no one will ever remember this decision or doctrine ever again. this is where he screwed up. the thing that i would add to jefferson's list of problems is
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that when you don't give lawyers and parties the opportunity to make arguments, you're flying blind. if he had asked the lawyers, what if i add discovery doctrine section? they would have had an opportunity to say, don't do that, because guess what will happen? people could have anticipated what actually did happen. those people did not include john marshall, who got blindsided by this. what happened was the state of georgia, where the cherokees dwelled, had been trying to get rid of the cherokees since 1802 when they ceded their claims to alabama and mississippi to the u.s. government. the u.s. proposed a treaty, the cherokee were not interested. somebody in the georgia government in the mid-1820's discovered johnson versus
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macintosh and johnson versus macintosh, the discovery doctrine says that the discovering sovereign requires underlying title to land. georgia individually declared independence from england. georgia would have inherited that ownership. georgia at no time had ceaded that to the united states. that was still owned of the underlying title of the cherokee land. if you own property and somebody else has legal right to live in, you are their landlord. they use these words in the debate. georgia is the landlord for the cherokee nation. how do you get rid of tenants you don't like? you change the lease terms. it is a lovely little dog, but i'm afraid there is a new policy. you can say, but you have to kill the dog or something. georgia's version of this was to say to the cherokee nation, you
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can stay -- this is legislation in 1828 -- you can stay, but from now on you will be subject to georgia law. tennessee says, you can do that? ok. tennessee passes the same statue. alabama passes the same statute. none of these tribes want to be subject to state law. the cherokees go to court twice to stop it. cherokee nation versus georgia is dismissed because the court does not have jurisdiction, they say. the cherokees are not a foreign state for the purposes of article three, original jurisdiction. wurster versus georgia comes and that is where john marshall as a chance to clean up the mess he made. he knows he made this mess. he knows that johnson versus macintosh is the authority. it is cited by the pro-removal people. it is cited by the georgia supreme court in an earlier capital case involving a guy called corn castle who is sentenced to death and executed
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in defiance of an order from the supreme court of the united states. marshall has to stop removal and he has to get rid of the johnson versus macintosh formulation of the discovery doctrine. he does. there are two parts of the decision. one is the one we teach is that georgia cannot impose it's laws because it is inconsistent with federal treaties and statutes. that is the supremacy clause of the constitution. that is there and that is interesting. georgia can't do it because he they do not have the title to land. he does not come out and overruled the discovery doctrine. he has never overruled an earlier supreme court decision. that is part of marshall's deal. marshall always upholds himself because of institutional insecurity. what he does instead is to rewrite it. i encourage you to reread the opinion. he rewrites the history, the british history.
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he says in conclusion something radically different. what did the british claim? they claimed the exclusive right to purchase lands that the natives were willing to sell, period. they did not claim any more. it is not possible to reconcile that with johnson except as an overruling of the decision in my judgment. the question is what happened after that. what happened was the demography. what happened was marshall died. his colleagues died. andrew jackson, as the president, appointed the replacement and within a very short amount of time, the majority of the justices were jacksonian. they reintroduced the vesting in title material in the johnson
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the decision. the first was introduced by henry baldwin, who was certifiably insane. someone asked me where the rule came from. we don't talk about that, but i will not take the time. if you cite that opinion today, if you cite the johnson versus macintosh opinion or cite the formulation of the discovery doctrine that vets ownership of indigenous lands in the discovering european sovereign, i'm going to encourage you, i want you to say that is not john marshall's discovery doctrine. it was a mistake and he got rid of it within 10 years. it is henry baldwin's discovery doctrine. baldwin was an andrew jackson appointee and certifiably insane. with any luck, eventually enough courts will hear that message and we can revisit this
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doctrine, and as i think mentioned earlier, is clearly racist and christian imperialism. it is also bad law. thank you very much. [applause] >> we have time for a couple of questions from the audience. there is a microphone in the center aisle. if you have a question, we are going to put you on the spot by asking you to come to the microphone with your question. we will do this for a few minutes and we will take time for a quick break. keep in mind that we have a webcast audience with us today. we want to allow them to hear the questions as well. that is why we are asking you to come to the microphone.
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>> good afternoon. i would like to say to macarro that you mentioned helen hunt jackson. she had formed the boston indian citizenship committee which in 1879 managed to get a bill through the senate to indemnify the tonka. that is our connection. she was a wonderful lady. she was an advocate for native americans. the treaty of 1857 with upon he pawnee government, it has an
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effect on my great, great grandfather. that affect was that you -- your grandfather's had sold land for seven cents an acre, so the issues between the tribes are evident there in that particular situation. i don't know if you are aware of that are not. there was a treaty in 1858
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ceading the land. why did they want $.11 when the pawnee sold it for seven cents? to professor robinson, i know the doctrine of discovery has presently been questioned and maybe there are intentions of resending it. that hopefully will happen. where will the doctrine that you are speaking about that the supreme court justice had put in place, where will it stand then? thank you. >> you can decide if you want to respond. was the first one a comment more for the chairman? james, do you want to respond to that treaty? >> i could not really capture all the question. >> he spoke about the differences between the tribes and the infighting. the tonka signed the treaty as well as the pawnee.
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the negotiators of the treaty, why did the pawnee $.11 an acre when they took it for seven cents an acre for their land? >> there was no acreage in the treaty. it was for annuity of goods, trade goods, and cash. i think it was the indian claims commission that set the value of the land at about seven or eight cents an acre, whatever it was. there was not a percent part of the pawnee treaty. >> you want to address the discovery doctrine? >> there is lots of movement -- the vatican does not have anything to do with the discovery doctrine. the english did not care what
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the pope said by the time they settled here. the piscopo church as refugee aided -- has refuted the discovery doctrine. if the court was to repudiated, it would depend on what they reputed with. if what we are talking about is repudiating ownership to title, that would convert all the tribes essentially into the status of the pueblos and the five tribes in eastern oklahoma because they have restriction of sales of land, but they own the title to their land. it might not be that earth-shaking. it would be bigger in other parts of the world where the scope of the tribal right under the occupancy portion of the decision is much more limited than it is here. is that true anywhere else in the world. if australia were to reject the
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discovery rule, that would have enormous consequences. this is part of what we are talking about globally. >> i hold a document from 1878 that was given to my great great grandfather, who it been a signator on the treaties of 1858 in 1865 which were proclaimed and ratified by james buchanan and andrew johnson. this document was handed to him and he walked this document from washington back to oklahoma. it has been in my family ever sense and we are in the courts trying to resolve this. thank you all for being here and your information. >> thank you. do you have a question? bad action, bad paper. [inaudible]
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since the 1970's, you have seen reservations taking back their self-government capacity. yet seen widely different levels of development across different reservations. what causes some reservations to develop more relative to others and what can reservations who have not seen developing due to foster that development, either by pursuing policy reform at the federal level or by pursuing internal reform? >> anybody who wants to take it.
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>> i think the question goes to the disparity of economic development and economic activities throughout the united states. in my head, i hear that as regards to indian gaming. the two reasons there that help explain the current environment for that our demographics. where are the people in the united states, the population centers, and infrastructure? how do people get there? in my remarks earlier, there was a part where i described where we are located. we are an hour north of san diego. we are an hour and a half without traffic outside of downtown los angeles. if you have ever been there, is one continuous mass of cities from los angeles to where we are. california has 38 million and rising residence. residents.
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2/3 of the population live in southern california, where we are. that is huge. contrast that with areas. a quickly gets rural when you go east into the desert, into phoenix, certainly into new mexico. in northern california, there are parts of california that look like the plains. small towns, straight highways, very few people and often times more livestock than people. it is hard to make a casino work with not a lot of people around. that is the short answer to part of that question, i believe. >> it is a huge question. hugely interesting and there are lots of folks dedicating the lives to figuring out what works for tribal economic development. there was a project that harvard that was referenced earlier and every tribal government thinks about it.
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the situation is so different. pechanga has a great location. gaming is not an option for some tribes. there is not an easy answer to the question, but there are some things that can help, including reforms and tax policy to make economic development easier, raising funds through tax excempt bonds and that sort of things. there is literature on that if you are interested. i would happy to point you point you in a direction. >> the reason we have a land-based in california where it is is because at the time of the eviction and the executive order that created our reservation, it was considered worthless land. it was land no one wanted. the title of my presentation was indicative of the experience throughout southern california. i will not attempt to broaden
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that throughout the rest of the state, but in southern california it was the rocky hill and dry lands that had no springs and very little artesian water. >> and oklahoma, the reservations were broken up against the will of the people. so we don't have that large land-based. also, culture comes into play. they have developed gaming and they have been a for cultural reasons. you can never discount culture when you talk about economic development. for onell take time last question, maybe with one answer from the


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