of as ahistorical and static. If the Indian changed through the adoption of civilization as defined by Whites, then he was no longer truly Indian according to the image, because the Indian was judged by what Whites were not. Change toward what Whites were made him ipso facto less Indian.[53]
By this definition of “Indian,” the affluent Pequots of Connecticut were nothing of the sort. Suddenly everyone else in the state was the loser, impoverished at the hands of a gang of merciless Indian socialites. Duthu describes this event as challenging “one of America’s most enduring mythologies—the myth of the ‘vanishing Indian.’”[54] And what might challenge that mythology more: the idea that the Indians were not completely exterminated when that sort of thing was more globally acceptable, or the idea that they had learned property law? According to Duthu, the land claim lawsuit of the Pequots exemplifies a surge of similar claims that have re-established and sometimes enhanced the dimensions of ancestral homelands. Utilizing federal laws from the 1930s Indian Reorganization Era, tribes continue to win back the land that was stolen from them centuries ago.
In United States v. Sioux Nation of Indians in 1980, the tribe won a money judgment that has accrued over $500 million, but that remains untouched in the U.S. Treasury because the Sioux maintain that the lawsuit was never about money—they wanted their ancestral lands back.[55]
The U.S. government was not prepared for the indigenous resurgence demonstrated in the latter half of the twentieth century. The Supreme Court admitted in a court opinion of South Dakota v. Yankton Sioux Tribe in 1998 that
within a generation or two, it was thought, the tribes would dissolve, their reservations would disappear, and individual Indians would be absorbed into the larger community of white settlers. With respect to the Yankton Reservation in particular, some Members of Congress speculated that “close contact with the frugal, moral, and industrious people who will settle [on the reservation would] stimulate individual effort and make [the tribe’s] progress much more rapid than heretofore.”[56]
In the late-nineteenth century, when, in spite of the law, the indigenous peoples of Yellowstone continued to hunt for food within the park’s bounds, they were vilified as an “unmitigated evil.” But later, as white poachers moved into the park and began illicit hunting practices, suddenly the clean, bold line between whites and Indians was blurred. If the Indians were the ones with no respect for the law, then what was a white man of similar lawlessness? Thus, locals created two categories of Indian: red Indians and white Indians. This usage suggests that “the privilege of whiteness could depend on one’s environmental practices.”
Similarly, today, if a proficient level of legal manipulation makes a white man a white man, then what do you call an Indian property lawyer? As Duthu writes, “Only the restorative legal magic of one legal fiction—the federal ‘lands into trust’ process—can counter the destructive magic of another legal fiction, the loss of tribal lands through ‘discovery.’”[57]
Captain Richard H. Pratt wanted to kill the Indian to save the man. What he didn’t anticipate was that the man who would emerge might understand the legal fiction of American property laws better than the Indian who came before him.
a. Fee simple: A permanent and absolute tenure of an estate in land, with freedom to dispose of it at will.
b. According to the official line, “termination” referred to extinguishing the formal relationship between the U.S. government and Native American tribes. The subtext here, however, is that they would arrive at a terminated relationship by first terminating the distinct people—a process known as assimilation.
c. A poverty inflicted by the introduction of capitalism to non-capitalist societies.
d. Johnson writes, “According to Native Americans, the failure of the BIA to recognize their independence tended to generate feelings of paternalism and dependency, which damaged Indian culture and its strengths. The BIA asserted, however, that the Indians wanted the support and aid offered by the BIA, but resented needing it” (p. 23).
e. As tribal distinctions diminished during the Termination years, some Indians found it more useful to ally themselves with similarly oppressed people from other tribes and act ecumenically to fight poverty, racism, and cultural genocide.
f. The Sioux Treaty of 1868 was the end product of the Red Cloud War—a war caused by the United States’s illegal use of Indian reservations for military forts and their granting rights of way to railroads through Sioux-held land. On March 27, 1964, McKenzie and the four others (Garfield Spotted Elk, Walter Means, Mark Martinez, and Allen Cottier) filed a claim for Alcatraz with the interior secretary, citing U.S. Code 474, 334, and the Fort Laramie Treaty, specifically Article VI, Paragraph 6.
g. Upon discovering this photograph in the San Francisco Public Library archives, I was awestruck. I wanted to copy it and take it home, but the library wouldn’t allow me. The photo carried with it such an intense meaning, and one that is rarely shipped by way of the postal service today: I cannot imagine any eleven year old—particularly one across the world—being so motivated as to hand-write a letter to a group of strangers, professing his support for their radical movement. I can scarcely imagine an adult doing this when most activist campaigns are now spotlighted on and swell in support using the Internet. Further, the Web is so saturated with campaigns that it is difficult to single out any one movement to feel passionate about or act passionately for. When my eyes scanned one handwritten letter of support that read, “I really do care,” I seized up, struck by the sincerity in the writer’s voice. Then I took a moment to lament that I will likely never see such a genuine letter again. October 23, 1970. San Francisco History Center, Alcatraz Collection. SFH 11. Box 1, Folder 10.
h. The return of Blue Lake to the Taos Indians was not simply an act of authoritative benevolence by the Nixon Administration; the Taos had been engrossed in a legal battle over the site for sixty-four years that was nearing an end. Further, to punctuate the lawsuit, in October 1970, two Forest Service signs in Carson National Forest were blown up by plastic explosives, and a second bombing occurred two days later in protest of a proposed “ranger bill” for Taos Blue Lake. The bill was defeated, and the Taos gained control of the lake once more.
Chapter Two:
"Scattering the Seeds of Discord, Misery, and Insurrection with Both Hands":
Land Distribution and Resistance in the Eighteenth and Nineteenth Centuries
“[The term squatter] has been applied indiscriminately to all who questioned dubious titles and tried to test them by settling land.”
—Paul W. Gates[1]
“Squatting is the oldest mode of tenure in the world, and we are all descended from squatters.”
—Colin Ward[2]
“In conclusion, your committee are compelled to say, that if possession under color of title for 207 years, and actual title under the legitimate government of the land, for 140 years…is not a perfect title, it would be extremely difficult to find one; there can certainly be none in this state.”
—New York Assemblyman William F. Allen in response to the conundrum of Rensselaerwyck
