Subscribe to the IHARE Blog

Indian Citizenship Act

Shakespeare and Indians

February 17, 2022
by Peter Feinman
Tlingit-Unangax̂ artist and musician Nicholas Galanin created "Never Forget" based on the famous Hollywood sign

“What we’ve got here is failure to communicate.” These words uttered to Paul Newman in the movie Cool Hand Luke (1967) have become part of American folklore. They attest among other things the challenge in effective communication. As anyone who writes or speaks in public (and even in private settings) knows that while you know exactly what you mean by your words, the reader/listener is quite capable of reading/hearing something totally different. The issue then may become one of trust: Is there sufficient trust between the two of you so that you can resolve the miscommunication or do you both go your separate ways sure that you heard or read right and let the difference become a sore point that festers possibly even into violence?

You talkin’ to me?

THE UNIVERSAL TRANSLATOR

The Universal Translator in Star Trek

The universal translator is a beloved device of science fiction such as in Star Trek. It instantaneously enables people of different worlds to perfectly understand each other. In theory, it could work as well between beings of the same world who speak different languages.

Even more miraculously, the device requires only a few words to work its magic. All one needs to do is say the equivalent of “Hello, my name is John Doe” and the device comprehends the entire culture. It knows that Alexander Graham Bell invented “hello” so he would have something to say when using the phone and why Henry Stanley said the now-awkward, “Dr. Livingstone, I presume.” Through this device all cultural nuance vanishes as it precisely translates the words of one language and species into the American English of the 1960s or 1980s-1990s depending on which Star Trek series you are watching.

Sometimes the translation does not work. Times change. In the Whales movie (Star Trek IV: The Voyage Home), Kirk says at the goodbye moment with the 20th century scientist now in his present and her future: “like they say in your century, I don’t even have your telephone number.” If the movie were made today, would the comment even be about telephone numbers? Remember “when you’ve got mail” did not refer to the Post Office and was something exciting?

In a Star Trek Voyager time-travel episode (Season 3, Episode 8-9: “Future’s End: Parts 1 & 2”), Tom Paris, supposedly conversant on 20th century America, learns that he is not quite as familiar with 1996 vernacular as he thought. He keeps flubbing the references and terminology of the American past. Perhaps most famously, in a Star Trek: The Next Generation episode, the Enterprise encounters a people who speak in metaphors and not physically literal. The universal translator is useless.

Darmok and Jalad at Tanagra in Star Trek: The Next Generation

The captains of the two species share an experience which each one explains in their own language: Picard tells the story of Gilgamesh in our narrative format while the alien uses metaphors and symbolic language to express beings who are alone and then who join together as brothers in face of a common foe. The new metaphor Darmok and Jalad at Tanagra then joins Gilgamesh and Enkidu at Uruk. These examples highlight the challenges in effective communication between species and between time periods of the same species.

These science fiction examples are relevant because it is perhaps with Europeans and Indians that we have the most tragic close encounters of the third kind in human history.

I

“To be or not to be, that is the question?” Shakespeare posed a fundamental question of identity through the character of Hamlet. The question is known far and wide.

One answer frequently is overlooked. “I am that I am, that is the answer.” In the King James Version of the Bible translated approximately the same time as Shakespeare wrote Hamlet, the name of deity Yahweh who Moses encounters at the burning bush is translated as “I am that I am.” The validity of this translation of the Hebrew has been questioned by biblical scholars. The Hebrew appears to be in the third person and not the first person. It seems more likely that the not-so-universal translators of the King James Bible were influenced by the cultural values of their own time. One should not be surprised by this. All biblical translations are not alike.

The consequences of this failure in translation are not limited to the ivory tower. In fact, the translation is not so much a failure as an expression of fundamental English values. The English are an “I” people. They brought that perception with them to what became the United States. There they encountered people colloquially called Indians who had a different value system. The tragic result was that even when people thought they were successfully communicating with each other, they were not. Those miscommunications continue to this very day. As best I can tell, there is little hope in the foreseeable future that each peoples will learn to speak the same language or even try to understand each other.

LAND

The initial failure to communicate occurred over land. The Europeans brought to this country a value system based on “I.” I own this piece of land. I have a deed attesting that I own this land. The “I” could be an individual human being or an individual corporation. It meant that through a treaty [which later would be broken anyway] you Indians who owned the land sold it to me and/or my corporation. The land was purchased and not taken from you. It now belongs to me.

As is comparatively well-known today, this perception did not match how the Indians understand the transaction. They did not come from an “I” society with deeds. The European concept of land ownership was foreign to them. Typically, today, this is understood to mean something along the lines of “we grant you permission to use the land.” In this scenario, “use” did not mean permanently settle in farms and prevent us from using it anymore the way it did to the Europeans. There was a failure to communicate. So while land treaties may look nice and official, they never meant the same thing to both parties. Of course, one can make the claim that even based on the European meaning of the terminology, the treaties never meant for long to the Europeans what the treaty expressed anyway.

MASCOTS

Mascots and logos were the subject of a recent blog (Should Chief Daniel Nimham Be Honored or Erased?, December 14, 2021). As I mentioned in it, one lesson learned by me in studying the current controversies, is the difference between Indians and Americans on the choices made for  logos or mascots. Americans frequently choose an individual. It doesn’t even have to be an historical person, it could be a fictional one. By contrast, the Indian images were more pictorial or metaphorical and not of an individual.

Jean M. O’Brien (White Earth Ojibwe) in a virtual talk through the Vermont Historical Society (January 19, 2022) spoke about statues to Massasoit. He was the grand sachem of all the Wampanoag Indians. He met with the Pilgrims. As best I can tell the statues of him she showed are part of the New England culture and not the Wampanoag tradition. Have you ever seen statues by Indians to one of their own? For example, the statue to Chief Nimham mentioned in an earlier blog is being done by the municipality of Fishkill and not the Stockbridge Indians. Again, different cultural values.

NATIVE

O’Brien also spoke about the word “native.” The topic came up as an objection to non-Indian New Englanders saying they were “native New Englanders.” In her opinion that was an improper use of the term.

In this instance she is exactly right and exactly wrong. “Native” in the American sense, refers to where you as an individual were born. No matter where one may travel in the world, you can always identify yourself as a native of your birth place. In American, I am a native New Yorker and a native American.

By contrast, “native” in the Indian sense used by O’Brien refers to a people, a people who have been on the land for 500 generations or 10,000 years. It is not based on individual birth. Based on her definition, the Tuscarora will never be native New Yorkers in American since they migrated to New York; the Cherokee will never be natives of Oklahoma in American since they were forced there; and the Apache will always be Native Canadians since they migrated from there to what became America.

In my opinion, Indians would be better served if they dropped the term “native” for “ancestral.”  Americans rarely even use the term “native” and when they do they are referring to their place of birth. One may ask, what exactly do Indians gain by referring themselves as “Native Americans” to the exclusion of the American meaning? Consider the 14th Amendment to the Constitution:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.

Birth place of the individual in the United States makes us American citizens. So again, one may ask, what is the value added to Indians in claiming that only they are native to America and that Americans born here are not?

One final example highlights the dilemma of the failure to communicate through different meanings of the same term. In her talk, O’Brien suggested that non-Indigenous people (her only use of that term instead of Indian in her entire talk) refer to themselves as “Settlers.” American ancestors can be identified as settlers, immigrants, and colonists, but Americans in the present do not use such terms to refer to themselves as individuals (unless they are an actual immigrant as an individual). Americans as settlers refers to an action taken by an individual and not a genetic trait passed on from one generation to the next forever. Here again, one may ask how does it benefit Indians to refer to Americans in the present as non-native settlers? It sounds more like Woke run amok.

In these casual examples at the conclusion of her talk, O’Brien demonstrates the failure to communicate is in full swing. Her suggested terms simply add fuel to the fire in the culture wars. They are fine as long as she is preaching to the choir. Even though she is a calm and reasonable person, her suggestions are not words of healing, they are words of war.

In a previous blog I suggested the centennial of the 1924 Indian Citizenship Act provided an opportunity for Indians and Americans to have a conversation about what it means for an individual Indian to choose to be or not to be an American citizen and on the relationship between Indian Nations and the United States.

The Onondaga Nation and the Haudenosaunee have never accepted the authority of the United States to make Six Nations citizens become citizens of the United States, as claimed in the Citizenship Act of 1924.  We hold three treaties with the United States: the 1784 Treaty of Fort Stanwix, the 1789 Treaty of Fort Harmor and the 1794 Treaty of Canandaigua. These treaties clearly recognize the Haudenosaunee as separate and sovereign Nations. Accepting United States citizenship would be treason to their own Nations, a violation of the treaties and a violation of international law, as recognized in the 2007 United Nation Declaration on the Rights of Indigenous Peoples. (THE CITIZENSHIP ACT OF 1924 by Onondaga Nation, June 7, 2018).

We also should add language and vocabulary to the mix. On the other hand, I am well aware of the fact that no such conversation will occur and the culture wars will continue and even worsen.

“In a marriage, almost never do a husband and wife have the same language. The key is we have to learn to speak the language of the other person,” Dr. Gary Chapman quoted in the NYT 2/13/22.

What Are You Doing for the Indian Citizenship Act (1924) Centennial?

August 25, 2021
by Peter Feinman
Indian Citizenship Act (1924) (constitutioncenter.org)

The 2020’s is a decade of many historical anniversaries. One that has received little attention so far as best I can determine is the Indian Citizenship Act signed into law on June 2, 1924, by President Calvin Coolidge. As the very title of the legislation states, the act made all Indians in the United States citizens of the United States.

One should not confuse this action with various suffrage movements. This bill did not grant those newly designated citizens any voting rights. Such authorization was at the state level. Think of how New York State among others authorized female suffrage (2017 centennial) prior to the Constitutional amendment.

BACKGROUND

At first glance the need for the Indian Citizenship Act might seem strange. According to the act,

… all noncitizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States: Provided that the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property.

One might think that under the Fourteenth Amendment (1868) that the citizenship issue had been settled. People born in the United States were citizens of United States with all the rights such designation entails. This amendment has been bandied about in recent political fights about who is and who is not a citizen or if birthright citizenship should be revoked. For the purposes of this blog, that debate is not the subject. However one should note there was a debate following the ratification of the Amendment if it applied to Indians or not.

The debate was so pronounced that the Senate Judiciary Committee pondered the issue. In 1870 it rendered its verdict:

… the 14th amendment to the Constitution has no effect whatever upon the status of the Indian tribes within the limits of the United States…

Strangely enough in the infamous Dred Scott decision in 1857, the frequently reviled Chief Justice Roger Taney had argued that American Indians could in fact become citizens. The caveat was that it had to be under congressional and legal supervision. In 1924, that is exactly what Congress did.

In the interim, Congress had established rules whereby specific actions, such as participation in the Dawes Act, were sufficient to grant citizenship to individuals. The downside of that action was the exposure of previously protected lands to now be available for purchase by outsiders. In any event, by one estimate, in 1924 when the Indian Citizenship Act was passed, approximately 125,000 out of 300,000 Indians were not citizens. And then by the stroke of a pen, they were.

ISSUES – INDIVIDUALS

The action taken in 1924 raises multiple issues. They could be addressed at any time. The centennial affords an opportunity to do by focusing attention on the act.

For example, as noted, citizenship is derived from Congressional and not constitutional action. In theory, Congress could revoke or alter the act for whatever reasons it deems fit. I am not suggesting it has any intention of so doing. I am simply pointing out the potential power is there. I presume that this time the Fourteenth Amendment would be deemed to be applicable but who knows how the legal process would unfold. Of course, Congress could revoke the act by asserting the amendment does apply, that birthright citizenship applies across the board, and that the act is moot. The action might be symbolic but there are benefits to saying all American citizens are citizens under one of two methods: birth or naturalization.

That conclusion leads to a second observation. What about the 125,000 people who were not citizens in 1924, what choice did they have? There is a difference between extending the opportunity to become a citizen to someone versus obligating someone to be a citizen. I am not saying the any of the 125,000 did not want to become citizens or that any of the 175,000 had been coerced into becoming citizens by virtue of participating in the Dawes Act. I am saying that as we approach the centennial of the Indian Citizenship Act, we have the opportunity to do something better: to give people a free choice on whether or not they want to be citizens instead of imposing a decision on them.

In practice, this means two possible actions.

1. For individuals who do not want to be citizens of the United States, they should not be forced to be citizens. Instead they would be citizens of their particular Indian Nation and not dual citizens. I have no idea how many people would choose this route, but I do think it would be better if we do now what was not done in 1924 – offer people a choice.

2. Citizenship Ceremony of Belonging – When immigrants are naturalized as American citizens, they go through a process culminating in a ceremony where they take an oath of allegiance to their new country. Oftentimes family members are present. Oftentimes it is a very emotional experience for all the participants. There was no such ceremony of belonging for the 125,000 who became citizens in 1924 with the stroke of a pen. I doubt there was one or much of one for the 175,000 who preceded them. That oversight should be corrected. There should be ceremonies of belonging held throughout the land in 2024 where Indian Nations/Tribes exist. The ceremony could even be self-designed or local. It would have no legal status. Instead, through these ceremonies, people would have the opportunity to publically affirm their identity as American citizens. Ceremonies of belonging do matter.

Together these two actions would remedy what the Indian Citizenship Act in 1924 left open.

ISSUES – INDIAN NATIONS

The Indian Citizenship Act does not directly address the subject of Indian Nations. At present there are about 574 such groups recognized by the United States plus additional ones which are not. The 2024 Centennial also provides a chance to address what it means to be an Indian Nation today in the 21st century regardless of what it meant in the 18th, 19th, and 20th centuries.

For example, the normal means of discourse between nations is via the treaty. England and France entered in treaties with each other. They, the colonies, and the states also entered into treaties with Indian Nations. The issue here is not the violation of the treaties. It is the legal significance of treaties.

Suppose the signatories of a treaty have a dispute. How is it resolved? Possible there is some provision in a treaty specifying how disagreements are to be resolved, but most likely not. Rather the signatories themselves are supposed to negotiate a solution. If there is an issue with NAFTA or NATO, then the countries involved have to work it out. Even a nuclear treaty with Iran requires the participation of the signatories to discuss the open items or proposed changes.

One might think that the same process would apply to treaties negotiated between the Indian Nations and the United States or the individual states which inherited the colonial treaties. After all, the original agreement was between nations so should not those nations be the ones to resolve the disputes?

WRONG! WRONG! WRONG! In the United States, in 1831, in the time of the Trail of Tears, a dispute between the Cherokee Nation and the State of Georgia reached the Supreme Court. In that case, Chief Justice Marshall termed tribes “domestic dependent nations,” with the federal/tribal relationship resembling “that of a ward to his guardian.” I am not a lawyer yet alone a Constitutional lawyer. My question is under what Constitutional authority did the Supreme Court have to make that decision? Also on what basis did the independent Indian Nations like the Cherokee have to accept that diminution in status save by “might makes for what happens”?

The Cherokees, now in Oklahoma, recently made news in another Supreme Court ruling about jurisdictions in that state. The question I have is why are disputes between nations being resolved in the Courts? That is not the way treaty relationships work. The Supreme Court does not adjudicate treaties entered into by the United States. The Executive branch negotiates them and the Congress ratifies them. The Courts are not involved. Now is a good time to reassess the legal relationship between Indian Nations and the United States from the assertion enunciated by Chief Justice Marshall on “domestic dependent nations” status. I am not proposing a solution to this issue. I am suggesting that it needs to be addressed.

It would also be a good idea for ceremonies of alliance to be held between the United States and the Indian Nations. This is especially true as the county prepares for its 250th anniversary.

One might think how can these nations celebrate an alliance with a country that did so many horrendous things to them? We invaded Canada multiple times and it is our ally. We fought England and the Germans twice each and they are our allies. We dropped two nuclear bombs on Japan and it is our ally. It may well be that not all 574 nations want to be an ally of the United States. We will not know until we ask. States can take the lead if the federal government will not.

One last thought. From time to time the suggestion has been made that a given Indian tribe or tribes form a state starting with the Cherokees. Such a designation would give them a seat at the table for such issues as vaccines or voting rights among others. There are peoples of sufficient numbers on lands of sufficient size where new states could be created from one or more existing state. One would have to weigh carefully the advantages and disadvantages of becoming a state while retaining an identity as an Indian Nation.

In conclusion, the Indian Citizenship Act Centennial provides an excellent chance to think about old issues that really are still part of our heritage today.