Transcripts For CSPAN3 Native American Land Treaties 20141011

As they struggle for their livelihood less free than they had ever been before. Living within the strains 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. 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. Im going to introduce them , 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. Mark. He has held his position for 19 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. On can find your essay 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. Issuesn expert on 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. An excellent essay in nation to nation that sheds new light on the history of a significant case, johnson the macintosh, which has had eight 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. It is good to be with you here right now. My name is mark macarro. Nation is both a place and a people. There is a duality that characterizes what im about to talk about. Public pechango. See in thewhat you casinos and the wine country. And then there is the other pechanga. And its 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. Im speaking to the tribal people out there. 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. 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, notunited States Senate 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. 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 1860s, there was but one. Title to these things, there were lots of settlers coming into the valley. Gold had been wellestablished in california. There was an influx of settlers coming in. One of the dynamics that people talked about were walking fences. In theians would get up morning, and the senses that the settlers had across the way had moved. This would go one week after week, month after month. 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 established paper title to the name to the land underlying our last village. They were able to plead their case in Federal District court, and they got the court to side with them. 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 ar. Date in september, september 20, 1875, the San Diego County sheriff showed up with an armed posse to create the adjustment. By his possed out 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. Were loaded onto wagons and taken two miles away, away from that site. They were dumped next to a dry sand wash. Any Property Value that remained was seized for recouping court costs. Ands and farms were earned, all stock was seized. In the weeks following the the indianometimes 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 ,alifornia, 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. This is interstate 10, going on his way to phoenix. Palm springs is appear. Banning passes appear. To mak temecula is appear. Thats presentday 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 presentday overlay of the current reservations as it is now. 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. How revered history is in Southern California, in Southern California, and the Rapid Development that has taken place. Neither of these locales 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. 1880s, 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 dont 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. 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. 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. , 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 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 1975ated to in 1882, 3 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 senate. This led to an act of congress in 1928. Congress passed the california indian jurisdiction act. K344ourt case was known as. Judgments or33 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 7. 5 millionrded for 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. Congress allotted more to be distributed. It brought it into that chapter. But he doesnt 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 to put at officials two lane road to the reservation. We had been a close reservation. Our people said no to these attempts. We dont want the road. Go home. 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. 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 shouldve had a line running to this corner and then down. Rancho land the grants here. This is three entered 66 acres. Research ensued. They discover the original , pedrolder of this land had a fraudulent patent on that land. When he sold the land, the land transferred. The current owners of the were kaiser1980 aluminum corporation. A we filed suit based on inuded chant of title federal does to court, hoping to get that land back. 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. Corp realty. Us k we lost. This is what it looks like today. It is a little closer and 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. Thats a view from the ground. In 1995, things started to change. 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. 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. 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 didnt want to negotiate. He took them so fun of the equation, and we force the issue by bringing it to the voters of california. Californiaibes in were on the same page in the inocacy of proposition one a 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 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. Perry mason. Pes 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 didnt like it. A coalition of us, the winegrowers association, and 3000 homeowners and their homeowners associations pulled up together to fight these guys. And we were successful, i am happy to report. 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. 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. Ist mountain in this picture at the core of our origin landscape. It is part of our creation story and part of our religion. Its 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 packets, jobs would be greedy, no visual impacts. And they were soliciting our input. We do mirrored in any substantive response. Knew there would be a formal project that would have to be produced. We would have time to comment on 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 wouldve looked year 25. Our 25 theres the u. S. Capitol, that theater in sydney, and the roman coliseum. [laughter] our inhouseesy of gis department at pechanga. It would have gone down two thirds beyond that. We said there is no way this can happen. Be seriousoing to impacts. Wildlife, cultural and religious impact. 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. 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 didnt 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 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, 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 day forared pechanga t saving the quality of life in the valley. It wasisode illustrates 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. Well 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. Ongives us some path to be 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. 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 dont expect this is the last valley we will be battle we will be involved in. We dont 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. Im 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. Nativveg in language] my Home Community is on the Navajo Nation, i teach at the university of new mexico. Grateful to be part of this project and exhibit. I thank you for the opportunity to be a part of this project. Thankd also like to 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. 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 great,tion of migrates, of my great, great, grandmother. The American Flag and and i does lurk, because of dazzler,iant eye 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 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, greatgrandfather. Public,ne of the most had the most loudest voice of objections first to mexican and then American Invasion of navajo homelands and territories. Photographs show my grandmother being parts of the inegation to washington dc 1874. I have no doubt that the indian agent who accompanied the allmale delegation, except for my grandmother, used my grandmother as part of his exhibit of beginning to develop that wasts and crafts 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 and like the weaving different things. Im sure he used my grandmother as a depiction as he began to promote navajo arts and crafts. When i showed the cover of this book at home to my own people, i was struck. Im 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. , and struck by the remark 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 meansother, whose name lady weaver. 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 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. Slavest children to the 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. March toed the forced 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. Might all of that, grandmothers history, its marked because it is not traditional enough. Nothing,ned that whatever we do, will ever meet the standards of whatever tradition and whatever authenticity means. It doesnt bother me. Grandmother the significance of American Indian really thankful for this day to reflect upon native nations and our peoples reactions to the United States and the symbol of what these treaties mean it. They are moments as we gather 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. Oureminds me of longlasting kin relations to each other. It is also a reminder of the it reminds the United States of its moral and ethical obligations to been did you miss nation to its indigenous nations and people. 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 , by the meaning of the treaty of 1868 for me, because i followed through once i found out that my great, were, grandparents headman, and my grandmother was with him for the most part, ensuring navajo land treaty and theis delegation reminds me of my toestors long devotion navajo lands. When he came here in ages exceed four, it was to persuade president ulysses s. Grant that he should pay attention. Claimsld support navajo 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. A lot ofreally have indications of what womens participation was in treaty negotiation. It just turns out that as you do your work, and you become public, new right and you writes, your own people will come to you with information. Talk to mee to because he is interested in navajo history. Me if i knew about the role of navajo women in the process of negotiation with the treaties. I didnt know a lot. Women thatthat the 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 treaty and agent 68. 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. Presencepse of womens has really inspired me. That we did have a role in talking to our men. That they might have been the , but they always listened to us. Makes me consider what the role of leadership was internation. , some of thet 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 . 3 , because we have the misfortune of still having valuable National Resources and water rights, remains under assault. Of the things that im 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. We regularly send delegations to the human rights to the united nations. We do not have a voice on the floor, or a vote, because of our being under the United States. We do have word that the Navajo Nation now has consulted status at the united nations. We dont 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 thatnce as tribal nations are akin to any other nation in the world with the same sovereignty and selfdetermination respected. Some of the things we also continue to strive for as a enact a form of , laws or regulation, cultural traditions, language, based upon our own principles. We continued to determine for determinewhat to d what such confidence concepts mean it. Treaties to be a reminder of the possibility for creation of 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. Be primarily my great, great, grandmother. We are matrilineal people. One of the stories shared with by all of my grandparents they have all since passed on. Grandfather, to fulfill the education provision of the treaty of 1868 with the send ourates, to children to american schools for education. He sent his own two sons to Carlisle Indian schools in the 1880s. Within a few months, one of his sons died of the diseases that were rampant at carlisle schools. Upon finding out his sons 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 sun to Carlisle Indian school for an indication and education. I did not intend for to turn out this way. I was thinking of our future,. Member what i told you at fort sumner. Life does not end. Tookthat story, his father timesgn, said, many f 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 calm down. I would think about what our ancestors had intended. That we would continue as a people, 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] and want to move up to the podium. I want to move up to the podium. Good afternoon. This book, nation to nation, the we contributed to, is making an to itsnt contribution article thought. More than anys so 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 conference of you 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. Becauseimportant to us, 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 of our land, and human rights. A religious freedom. Our health, our wellbeing. This is things that know the discipline does. Miller and myself coauthored a book, we i didnt find 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. Our leaders were determined to do what was best for people. Doctrine is that the of discovery is rooted in a , based onased concept a notion of white superiority and indian inferiority. The colonizers used the language of racism to justify its acts against us. 19 sensory discourses of colonialism is entrenched in contemporary academic and legal items. And colonialism is a crime against unity. This is our struggle. By turner deal with some of these issues. I was asked to write on pony pawnee treaties. How can i do that . It ended up about 6000 words in the first draft, i was able to pair down. What i have done, i have put together some photos that are in net book chapter that i will use as talking points. Individual was a pawnee scouts. He symbolizes the loyalty of our people to the u. S. Government. In net is 64, we sent hundreds of our young men to war, fighting against common animations. Our scouts are revered today as our our veterans. Im a fourthgeneration 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. My chapter is betrayal. We allied ourselves with United States government. And yet we were treated as conquered enemies over time. It didnt take long for that to occur. This is a map of the pawnee homeland. What this map represents is what the struggles were all about. Land. Land, land, land. The incoming 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 ever consented to the eradication of the pawnee way of life. They did not. Chief. S is the man he was one of the negotiators of the 1857 treaty. , where to washington dc this picture was taken, to wait for congress to ratify this treaty. The chief, his responsibility was to care for the wellbeing 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 foreign, corn, maintaining cohesion, that was all part of his responsibility. Those chiefs who signed in 1833 treaty. These chiefs did the best they could. He died from a gunshot wound when the pawnees were about to be removed oklahoma. My Family Tradition says someone shot him well he was in the late, and he died from gangrene. Lake, and he died from gangrene. Town ina pawnee nebraska. I believe suzannes greatgrandmother was born here. She hasnt ever mentioned she is pawnee, except for to a few of us pawnees. [laughter] its good to hear that connection. Can you imagine the richness of life in the settings . Is a new woody distribution that came from the 1857 treaty. Distribution that came from the 1857 treaty. Pawnee . E any pon we get money, not plot. But i think our check this year will be about 10 a person. Payment. R cap 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. ,aking 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. School onlytreaty, 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 document doctrine, of the federal government founding missionaries to come into Indian Country to do their conversion work. Treaty, very few pawnee wurst objected 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. Culture or custom was based upon hunting in agriculture. Twice he or, 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. Washer aspect of the treaty the 1857 treaty. Agreed to turn over s who committed crimes against white people. But it doesnt say anything about turning over white people who committed crimes. And it was much more criminality against whites of whites against indians. This was an individual, yellow sun, a sevenyearold 70yearold doctor. Accused of killing a white settler. There was very little evidence about who killed the settler. But the white stop at the pawnees had. The agency would taken charge of 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 starving them. They took the chiefs hostage to try and force the individuals to turn over the killers of the settler. Ande they were tried 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 couldnt find anyone who would testify against them. Victims. The women. These were very important to our culture as well, for the same reasons that jennifer was talking about. Them out of to get 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 oft were given to the family nine pawnee called code talkers during the Second World War. Them,andfather was one of and his other grandfather. We dont have, uncles or cousins, we are brothers and sisters, dads and moms and grandparents. Our terminology. Killeder grandfather was in italy. Shows that weage 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 wens back to pawnee 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. Ive got the fiveminute notice. [laughter] believe it or not, i am done. [laughter] first time ive not had a hook. [applause] im going to stand up to sue. Postlunchy being a speaker and im getting too comfortable. I would like to think our sponsors for inviting me to participate. I think this is a great event. Have not the first event i dissipated in and each one is 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 always looking at your right assessors 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 soy 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 that, which was a picture im going to have to carry home in process of George Washington smiling. Confrontingver in 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 fullfaced 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 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 four. Poor thomas jefferson, was his heart. 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 to sports. Having said that. The person i want to spend a few minutes talking about is John 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 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 to sue 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. Im not going to talk about that. John marshalls marriage. Hows that about treaties . It is not, so i will not talk about it. Signing later. If you buy the book, i am happy to share what i know. [laughter] bob talked earlier about the discovery doctrine. Heres the outline of what i will talk about. John marshall is the author of an opinion in 1823 call johnson versus macintosh. It is the first of three John Marshallauthored opinions that deal with native rights. 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 mac tosh deals with native Property Rights in the Cherokee Nation versus georgia gives us the guardian ward language. Versus georgia says the state of georgia cannot impose cherokee on the nation but it is ignored and we have indian removal. As a conventional story we have. Marshall plays a confused role in this story. He is the author of the stuck 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 englishspeaking world because we have exported it. I may talk about that later. Australia and new zealand and other places as well have adopted John Marshalls formulation of the discovery doctrine from johnson versus macintosh. There are three decisions and author of role as 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 worcester is a oque is he wrote heroic. Generations of law professors 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 . Amount ofnormous legal historical scholarship in which folks take the wurster againsteorgia hardline state law and try to make it consistent with the discovery doctrine and johnson versus macintosh. I started working on this book on the johnson case when i was a history grad student years ago 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] i had a job. My Academic Energy was going into trying to figure out how to reconcile these. 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 ankara jew to encourage you to buy. If youre really interested, i have another book and you should buy that, to sue. 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 Marshalls 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 pants, at a strange life, and went to work everyday and sometimes screwed up. Hat 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. Heres the story in short. , johnsonvery doctrine versus macintosh is a lawsuit brought by land speculation companies. Landclaim to have bought during the late colonial era. 1775, from aand bunch of indians and in what will become the states of indiana and illinois. They did so in violation of british law. 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 getting 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 and from the same indias. 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 so they hadnd and individual landowners who are claiming title under the United States and they were claiming title by direct indian purchase that was illegal under british law, but there is this first. Bringingup postponing legal satisfaction for the thatn there was no court had territorial jurisdiction over the lands from which they could have appealed to the Supreme Court until in leander 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 the lawyers for the land speculators figured this is a dead winter. This is the 1820s. Filled withcourt is revolutionary war veterans and all of these guys had fought the onolution in part based 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. Heres 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 and appearing in 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 and land speculation concerns and valid 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 people 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, 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 cant mortgage it, you 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 wont 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 courts understanding of consequences of european discovery. At least in that portion of the opinion that relates to english rule. That section of the opinion is but it is basically a history of english colonization drawing on the terms of various charters which report purport to grant title to the land in these excerpts from various charters are joined by conjunctive sentences that say that 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 ises a long time but actually kind of fun well, for some of you. [laughter] looking at you. What you will find is that there are certain stylistic gimmicks that marshall will use. 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 dont. We read these opinions 200 years later and we dont get that he is lying in the way his contemporaries did. We just assume that if John Marshall said it is bound dispute, beyond dispute, it must be true. Thomas jefferson got this. I love thomas jefferson. Im a virginian. I want to read quickly his commentary on Marshall Project marshalls practice. This is a letter he wrote about a matter of weeks, a few months later, talking about marshalls method of drafting opinions. He said, and he is alluding to thecircumstance like circumstance i alluded to in johnson where he has answered the question, so why is the other 20 pages of discovery doctrine there . Heres what jefferson says the practice of justice marcil 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 centura bull. 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. Justice willf the talk about and it may be persuasive in future cases but it is not binding. 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 dont 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 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 a were fighting after kentucky became an independent state, what marshall jobs 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 mi bayless one day i might buy this. Have been there for years and this problem is sold by the discovery doctrine. Virginia inherited the english claim but virginia owns the underlying title to the chickasaw land. That gives the militia veterans. Retain their occupancy right. Once they left, the militias could go in. I think that is what marshall intended to do with the thatvery doctrine because 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. Is goingal government 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 isfersons list of problems that when you dont give lawyers and parties the opportunity to make arguments, youre flying blind. If he had asked the lawyers, what if i add discovery doctrine section . They would have had an opportunity to say, dont 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 mid1820s discovered johnson versus 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 seated 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 dont like . You change the lease terms. It is a lovely little dog, but im afraid there is a new policy. You can say, but you have to kill the dog or something. Georgias version of this was to say to the Cherokee Nation, you can stay this legislation in 1828 you can stay, but from now on you will be subject to georgia law. Tennessee says come you can do that . Ok. Tennessee passes the same statue. Alabama passes the same statute. 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 proremoval people. It is cited by the georgia Supreme Court an earlier capital case involving a guy called corn castle who is sentenced to death and executed in defiance from a order fromrt an 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 islam because it is inconsistent with federal treaties and statutes. Because ofa premise the constitution. That is there and that is interesting. That is the sopranos the clause of the constitution. That is there and that is interesting. Georgia cant do it because he does 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 marshalls 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. Conclusion something radically different. What did the british claim . They claim 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 mantra for a. Demography. Marshall died. As his colleagues died. Andrew jackson, as the president , appointed the replacement and within a very thet amount of time, majority of the justices were jacksonian. They introduced the vesting in title material in the johnson the decision. By first was introduced henry baldwin, who was certifiably insane. Someone asked me where the rule came from. We dont 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 oftrine that fits ownership Indigenous Lands in the discovering european sovereign, im going to encourage you, i want you to say that is not John Marshalls discovery doctrine. It was a mistake and he got rid of it within 10 years. It is henry baldwins discovery doctrine. Baldwin was in Andrew Jackson appointee and certifiably insane. With any luck, eventually enough courts will hear that message and we can revisit this doctrine , and i think mentioned earlier, isclearly racist and 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. Good afternoon. Macarrolike to say to that you mentioned helen hunt jackson. She informed 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. In, riding in 1857 with upon he and the government, it has an effect on my great great grandfather. You yourwas that and thers had sold for 11ted seven cents million acres so the issues between the tribes are evident there in that particular situation. I dont know if you are aware of that are not. 19 1858 tree in seating the land. . 11 when theant poni sold it for seven cents . Robinson, i know the doctrine of discovery has andently been questioned maybe there are intentions of resending it. That hopefully will happen. Doctrine that you are speaking about that the Supreme Court justice had put in place, where will it stand the n . 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. They signed the treaty as well as the pawnee. The negotiators of the trees, . 11 an acreawnee when they took it for seven cents an acre for their land . Acreage in the treaty. Annuity of goods, trade goods, and cash. I think it was the Indian Claims Commission that set the value of the land at about eight cents an acre, whatever it was. Part ofs not a percent the poni treaty 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 the pope said by the time they settle. 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 ownership to title, that would convert all the tribes essentially into the status of the pueblos and the five tribes in eastern oklahoma enjoy because they have restriction of sales of land, but they own the title to their land. It might not be that earthshaking. 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 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 1868 proclaimedch were 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 document 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 . That action, bad paper. [inaudible] since the 1970s, you have seen reservations taking back their selfgovernment 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 theursuing policy reform at federal level or by pursuing internal reform . Anybody who wants to take it. 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. 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 planes. 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. A project that harbor that was referenced earlier and every tribal government thinks about it. The situation is so different. Changa has a pe 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 taxing of bonds and that sort of things. Ifre is literature on that you are interested. I would happy to point you point you in a direction. The reason we have a landbased 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 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. It was worthless then, but you are right about the real estate values of that land. Or now increasing in value 150 years later. You are right about that land now increasing in value 150 years later. Reservations were broken up in oklahoma against the will of the people so we do not have the large land base. Most of the land is held by the individual. Culture comes into play. Developedhave not gaming and they have cultural reasons. You can never discount culture when you talk about Economic Development. We will take time for one last question with one answer from the answer. Good afternoon. Chairman macarro, how are you . I have not seen you in a long time. I have been looking at a lot of the treaties over the last five years and i found quite if you in equities quite a few inequities of the government not living up. There are a lot of inequities when living up to trees. One of particular that has touched my heart is a treaty that my friend here, earl burley was talking about. The one that the u. S. Government may with his great, greatgrandfather. Arelands in oklahoma actually in ownership of the tribes and that there were certain restrictions. I have a question that i would like to ask all of you and i would like to give this package if individual families owned these lands and had needs to these lands and over the years there have been Oil Companies drilling on these lands and they have never received one penny of revenue from all this drilling, then what is the next step to get this rectified . If they are on their land and they just took the land without considering the familys ownership, what is it that can be done . What do you recommend . We have time for a quick response. I know it is a huge question. Get a lawyer. [laughter] i graduate about 80 of them a year who do indian law. Thanks so much, audience, panelists. I also have a new lecture for my students on johnson v. Macintosh. Well take a quick 10 minute break in the symposium will resume. [captions Copyright National cable satellite corp. 2014] [captioning performed by national captioning institute] tonight at 8 50 pm eastern, author Elizabeth Cobbs hoffman explores the consequences of the United States role as a world leader. Asking the question, is america an umpire or an empire . Hoffman argues that the u. S. Has played the role of umpire since 1776 but also argues that umpires cannot win. Youre watching American History tv. Each week, American History you reel america brings archival films that tell the story of the 20th century. 1952Social Security is a film designed to his plane how the Social Security system works. It was signed into law by Franklin Roosevelt in 1935 and after several Supreme Court cases affirmeds constitutionality, the first benefit payments were made in 1937. Here is how it works. Survivors insurance is earned by most of us because your jobs are covered by the Social Security act. 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Search for real america and browse the topic. This year, cspan is touring cities across the country, exploring American History. A look at our recent visit to boulder, colorado. You are watching American History tv all weekend, every weekend on cspan 3. When visitors come to the boulder history museum, they will learn the early history of the boulder area. Our focus is telling the story of boulder from the early years up until today. The first floor is the exhibit of the arapahoe, native americans who lives here before white settlement. The legend and legacy exhibit tells that story. The second floor of the museum is called story makers. It is really about the stories