Reckoning & Reconciliation Discussion Circle Part 2

Center for Great Plains Studies Author

07/11/2022 Added

16 Plays

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Replay of second discussion circle, July 11, 2022.

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[00:00:01.590]So, I think we will get started.
[00:00:05.790]I will take this little slide off the screen soon,
[00:00:10.380]but my name is Margaret Jacobs.
[00:00:12.300]I'm the Director of the Center for Great Plains Studies
[00:00:14.640]at the University of Nebraska in Lincoln.
[00:00:17.250]And we're just really happy
[00:00:19.560]that you're joining us this evening.
[00:00:22.680]I wanna mention, before we get started,
[00:00:24.930]that if you are having any technical issues,
[00:00:28.650]the best thing to do is to write something in the chat.
[00:00:32.850]And if I'm available, I'll try to help you.
[00:00:35.940]If not, Matt Everson who's here, who just raised his hand,
[00:00:40.380]he's volunteered, or I strong-armed him
[00:00:43.260]into helping out tonight with any tech issues.
[00:00:47.460]So, if you are having trouble hearing or any issues,
[00:00:52.320]just let us know in the chat and we'll try to help you out
[00:00:56.040]through messaging you separately.
[00:01:01.770]And just to let you know a little bit about this evening,
[00:01:07.440]this study circle grew out
[00:01:09.810]of the yearlong series we've been having
[00:01:12.270]on reckoning and reconciliation on the Great Plains.
[00:01:15.300]And many people have expressed a desire to have a place
[00:01:19.890]to discuss all the things that we've been talking about
[00:01:23.700]and that have come up in lectures.
[00:01:25.710]But because we've been mostly on Zoom, mostly with lectures,
[00:01:29.820]mostly with presentations, we haven't had a lot of chance
[00:01:33.060]to have discussion, question and answer.
[00:01:36.480]So, this series for the summer is meant
[00:01:39.630]to help with discussion.
[00:01:41.520]And we're reading Walter Echo-Hawk's book,
[00:01:44.257]"In the Light of Justice,"
[00:01:46.230]which quotes our guest speaker tonight,
[00:01:48.570]who I'll get to soon, and we are gonna spend about,
[00:01:55.410]up to an hour with our guest, Robert Miller.
[00:01:58.950]Then we'll have up to 45 minutes,
[00:02:02.460]30 to 45 minutes, for discussion among ourselves.
[00:02:07.830]But I wanna start first by mentioning
[00:02:11.940]that I'm based here in Lincoln, Nebraska.
[00:02:15.330]I think many of you are, or many of you are in Nebraska,
[00:02:19.740]and we want to acknowledge that we are living
[00:02:23.700]on the past, present and future homelands
[00:02:26.460]of the Pawnee, Otoe-Missouria, Omaha,
[00:02:29.370]and Kansa peoples here in Lincoln.
[00:02:32.430]The salt basin around present-day Lincoln
[00:02:35.640]attracted many Indigenous nations to this region.
[00:02:39.750]The Omaha called the area Niskithe or saltwater,
[00:02:44.130]and their women used eagle feathers to collect the salt,
[00:02:47.850]which they used to cure buffalo meat.
[00:02:50.760]Under pressure from federal officials and settlers,
[00:02:53.820]the Otoe-Missouria ceded the land that became Lincoln
[00:02:57.450]to the federal government in 1833 and 1854.
[00:03:01.560]And this forced out the tribal peoples
[00:03:03.600]who had called Niskithe home for many generations.
[00:03:07.920]Native peoples of many nations live in Lincoln today
[00:03:11.640]and contribute to our community's vitality and diversity.
[00:03:15.150]And today we thank them for their stewardship
[00:03:17.400]of these lands.
[00:03:21.840]So, tonight, we have a special guest, Robert Miller.
[00:03:26.310]Robert Miller is an enrolled citizen
[00:03:28.410]of the Eastern Shawnee Tribe and a professor of law
[00:03:32.600]at the Sandra Day O'Connor College of Law
[00:03:35.610]at Arizona State University.
[00:03:38.400]He's the author of lots of books and articles,
[00:03:40.830]including "Native America, Discovered and Conquered:
[00:03:44.130]Thomas Jefferson, Lewis and Clark, and Manifest Destiny"
[00:03:47.850]and "Reservation 'Capitalism': Economic Development
[00:03:50.820]in Indian Country."
[00:03:52.620]He co-authored ""A Promise Kept:
[00:03:56.070]The Muscogee Creek Nation and McGirt versus Oklahoma,"
[00:04:00.720]which is coming out.
[00:04:02.220]Maybe it's already out, or is it?
[00:04:03.840]Oh, it's coming out soon, this year.
[00:04:06.930]And he has also co-written "Discovering Indigenous Lands:
[00:04:11.370]the Doctrine of Discovery in the English Colonies."
[00:04:15.270]So, we are really thrilled to have you tonight, Bob.
[00:04:19.950]Bob has, this is I think his second
[00:04:21.930]of three lectures he's giving today
[00:04:24.690]and I don't know how it worked out that way,
[00:04:26.820]but we're just really thrilled
[00:04:28.530]and delighted you're joining us today as well.
[00:04:30.900]And Bob's a real expert on federal Indian law.
[00:04:34.530]And I'm gonna ask him, beginning,
[00:04:40.230]is there anything I missed in your intro,
[00:04:42.270]Bob, that you wanna add?
[00:04:45.570]No, I mean, I'm a tribal judge and I've taught,
[00:04:48.450]I've practiced Indian law when I was a practicing lawyer.
[00:04:51.180]And I've now been, my gosh,
[00:04:52.440]a full-time professor since 1999.
[00:04:55.380]And I and Margaret are co-editors of a book series for,
[00:04:59.610]uh-oh, somebody disappeared.
[00:05:02.880]Can you hear me?
[00:05:04.560]Yeah, I just took off the slide.
[00:05:06.690]Oh, I've got University of Nebraska here.
[00:05:09.150]Uh-oh.
[00:05:11.123]We can- And, anyway,
[00:05:13.230]I'm delighted to work with Margaret.
[00:05:15.780]Margaret, have we literally met in person about twice?
[00:05:18.390]But we've exchanged about 10,000 emails.
[00:05:20.902](Margaret laughing)
[00:05:22.080]And yeah, so I guess we've been co-editors together
[00:05:24.870]since 2015, I think.
[00:05:26.580]Yeah. So, I am delighted
[00:05:28.140]to be here and to see you
[00:05:29.580]and to talk with you in this group.
[00:05:32.370]Thanks, Bob.
[00:05:35.040]We have lots of questions for you,
[00:05:38.701]and I think you know the book
[00:05:40.380]that we're reading is about the United Nations'
[00:05:42.990]Declaration on the Rights of Indigenous Peoples, or UNDRIP,
[00:05:47.040]and I wondered how you would respond to many non-Natives
[00:05:53.520]who claim that Indigenous people shouldn't have
[00:05:56.880]any kind of special rights,
[00:05:59.100]and therefore, why would they need
[00:06:02.010]the UN Declaration on the Rights of Indigenous People?
[00:06:04.410]Why can't they just live by the same laws,
[00:06:07.890]the same set of principles that other Americans do
[00:06:11.490]or that other people do all around the world?
[00:06:14.610]Why do we need UNDRIP?
[00:06:17.100]Well, I'm gonna talk for quite a bit here for,
[00:06:19.320]to get us started, but first off,
[00:06:22.470]Walter Echo-Hawk has written,
[00:06:24.000]of course, I've known him for decades now.
[00:06:26.130]He's, I think he's the chairman of his own tribe,
[00:06:28.710]the Pawnee Tribe now, isn't he?
[00:06:29.940]Or does, is the title chief?
[00:06:31.530]I don't know, it's either chief or chairman.
[00:06:34.380]And so, I've read very closely his first book.
[00:06:37.740]And I know this book too, he wrote about a federal law
[00:06:42.540]that's called NAGPRA,
[00:06:43.830]Native American Graves Protection and Repatriation Act
[00:06:48.060]that Congress enacted 1990.
[00:06:50.220]And he said that was just human rights law.
[00:06:53.100]It was treating American Indian human remains
[00:06:56.580]and funerary objects the same way all 50 states treat
[00:07:01.410]and outlaw grave robbing for anyone else.
[00:07:05.580]So, what Walter said about NAGPRA applies across the board,
[00:07:10.470]I think, to the DRIP,
[00:07:12.510]to the Declaration of the Rights of Indigenous People.
[00:07:14.970]It's a human rights, it's a property law,
[00:07:17.550]but it's bringing Indigenous peoples,
[00:07:19.740]really, only up to the same protection
[00:07:21.900]that every other human being and group of humans,
[00:07:27.000]call it a nation, call it a,
[00:07:29.430]I guess we'll use nation as the best example,
[00:07:32.010]I was thinking of an ethnic group inside a nation,
[00:07:34.530]but Indigenous peoples deserve the same rights.
[00:07:38.700]And in some instances,
[00:07:41.010]maybe their rights encompass more than what you
[00:07:43.440]and I might have as either a citizen of Colombia
[00:07:46.320]or a citizen of Brazil
[00:07:47.850]or a citizen of the United States.
[00:07:49.647]And so, let me get into that a little bit.
[00:07:52.950]What I did in 2015 was wrote,
[00:07:56.250]I wrote a very detailed law review article
[00:07:59.760]that your audience can read, get it for free online.
[00:08:02.730]It's from the North Dakota Law Review.
[00:08:05.730]And at this moment, I am blanking on the title.
[00:08:09.000]It's something about,
[00:08:11.100]oh my gosh.
[00:08:11.933]Well, the whole article is about what's called FPIC,
[00:08:15.330]free, prior and informed consent.
[00:08:19.410]This is a very significant provision in the DRIP
[00:08:22.650]that we will talk about.
[00:08:24.150]It's maybe almost the most controversial part of the DRIP.
[00:08:29.490]And so, I trace over 30 years, in my article,
[00:08:33.270]I trace over 30 years, how the declaration was negotiated,
[00:08:38.010]drafted and adopted.
[00:08:39.960]I primarily focus on FPIC, free, prior and informed consent.
[00:08:44.400]Can the United States, can Russia,
[00:08:46.830]can Brazil do things to Indigenous peoples
[00:08:51.750]and their property rights
[00:08:54.000]without free, prior and informed consent?
[00:08:59.700]So, let me back up just a little bit.
[00:09:01.110]So, now I'm trying to remember my article
[00:09:03.780]from seven years ago.
[00:09:05.790]I read more reports
[00:09:07.200]and things from the UN than you can shake a stick at.
[00:09:09.570]And I read the minutes of the meetings that they had,
[00:09:12.480]sometimes twice a year, often for 10, 11, 12 days at a time,
[00:09:17.100]often in Europe, in Geneva,
[00:09:19.080]or in New York as the DRIP was negotiated.
[00:09:22.830]And let me tell you, Margaret,
[00:09:23.940]there's something quite unique about this
[00:09:26.340]and the power that Indigenous peoples developed and exerted
[00:09:30.540]because the United Nations is a organization for states,
[00:09:35.820]for government, nation states.
[00:09:37.890]Folks, if you're not familiar
[00:09:39.270]or acquainted with international law,
[00:09:41.460]they use the word states, not the United, not our 50 states,
[00:09:46.860]but that's an organization just for governments.
[00:09:49.350]And all of a sudden, Indigenous people started banging
[00:09:51.810]on the door and said, "Let us in."
[00:09:54.690]We are nations too.
[00:09:56.790]And I'll tell you, some American Indians,
[00:09:59.250]Oren Lyons from the Onondaga Nation in Upstate New York,
[00:10:04.050]in fact, one of the chiefs of the Iroquois Confederacy,
[00:10:07.680]if you folks know what that is,
[00:10:09.180]so the Iroquois, there's no tribe the Iroquois,
[00:10:12.570]that is a political confederation
[00:10:15.720]of six different Indian nations.
[00:10:19.080]Some people argue it started in the 1500s,
[00:10:21.565]the 1100s, the 1600s.
[00:10:23.910]People don't agree.
[00:10:25.380]But anyway, they decided to confederate
[00:10:28.020]and exercise the power that their six nations had
[00:10:31.620]to work together on an international scope.
[00:10:34.470]So literally, in 1922, I think, or 1920,
[00:10:38.610]one of their leaders,
[00:10:39.900]I don't know how to say his name, Desh, D-E-S-H-A,
[00:10:42.990]I think W-E-H, Deshaweh,
[00:10:45.270]He went to the League of Nations.
[00:10:47.400]And so, he's considered
[00:10:48.570]to be one of the first Indigenous people,
[00:10:50.400]certainly one of the first American Indians that went
[00:10:53.280]to this forerunner of the UN and demanded to be heard.
[00:10:57.660]I do not think they let him in.
[00:10:59.520]I do not think they let him give a speech,
[00:11:02.100]but things have changed now in this modern day.
[00:11:06.000]And so, starting in the early '70s, Oren Lyons
[00:11:09.990]and other peoples,
[00:11:11.400]and then there's one attorney that's pretty well known,
[00:11:13.530]the Indian Law Resource Center, Robert Tim Coulter.
[00:11:17.760]I think he went to these UN meetings for 30 some years.
[00:11:22.350]I think he deserves credit for writing some of the,
[00:11:26.430]a fair amount.
[00:11:27.330]I don't know how much to, you know,
[00:11:28.590]he's modest enough and doesn't say,
[00:11:31.050]but I just know he was at all these meetings.
[00:11:33.870]Finally, they got the UN to pay attention to them.
[00:11:37.020]They started negotiating these issues.
[00:11:39.420]At first, the nation states weren't all that interested.
[00:11:42.000]So, I think the Indigenous peoples were talking
[00:11:44.280]to UN staffers.
[00:11:46.560]And then lo and behold, I now,
[00:11:49.020]you need to read my article, but I think, by 1994,
[00:11:52.200]they had a draft declaration of independence,
[00:11:55.518](laughs) excuse me,
[00:11:57.180]a draft Declaration on the Rights of Indigenous Peoples.
[00:12:01.950]And it took another decade plus to get it adopted.
[00:12:08.610]So, I used to teach here in Portland, Oregon,
[00:12:11.250]at Lewis and Clark Law School
[00:12:12.840]and across the hall was a guy that taught international law.
[00:12:16.350]So he, I mean,
[00:12:17.370]I knew the Indian peoples involved in this.
[00:12:19.740]I knew what was going on, but he was also filling me in
[00:12:22.650]on the workings of the UN and how this was coming.
[00:12:26.760]So, what's really funny, in the summer of 2006,
[00:12:30.090]he told me they're going to approve the DRIP.
[00:12:33.360]And so I started thinking,
[00:12:34.350]well, I better teach a class on this subject.
[00:12:36.390]Well, they did not adopt the DRIP in the fall of 2006.
[00:12:41.250]So, you might be surprised to hear this.
[00:12:43.140]All of this, the nations had really started to get involved
[00:12:46.890]in the late 1990s after there was a draft declaration.
[00:12:51.000]And they changed that draft quite radically,
[00:12:54.810]because all of a sudden the nations said,
[00:12:56.407]"Whoa, we're not letting the UN adopt this."
[00:12:59.010]And they got more serious,
[00:13:01.320]but what happened in the summer and fall of 2006 was
[00:13:05.820]about nine different nations
[00:13:07.590]from Africa all of a sudden said,
[00:13:09.457]"Wait a minute, this DRIP's not going to apply to us.
[00:13:12.870]Correct?"
[00:13:14.280]And so, that's what put it on pause for an entire year.
[00:13:18.300]And these leaders from Africa said,
[00:13:20.197]"Well, all of us here are Indigenous.
[00:13:22.980]And so, this has no application in Africa, correct?"
[00:13:27.060]So, it delayed the process by a year.
[00:13:31.230]Several amendments were made at the insistence
[00:13:34.560]of some of these African nations.
[00:13:36.750]And I will tell you that you can read
[00:13:38.760]that Canada and the United States put some
[00:13:43.620]of these African nations up to this.
[00:13:46.050]I don't know that this has been proven,
[00:13:48.390]that some foreign aid dollars were put forward
[00:13:51.780]to these countries saying, "Hey, try to stop this DRIP."
[00:13:55.140]That's the allegation.
[00:13:56.760]You know, as a lawyer,
[00:13:57.593]I could not prove that in court tomorrow,
[00:14:00.630]but finally, with these few changes,
[00:14:03.030]and they added, I think,
[00:14:04.290]two provisions to the two articles to the DRIP.
[00:14:07.320]There are 47 articles in this declaration.
[00:14:11.700]The idea of free, prior and informed consent are
[00:14:15.540]in six of them.
[00:14:17.340]And the most controversial is article 19.
[00:14:21.180]I'm going purely by memory here.
[00:14:23.160]I can almost quote it to you.
[00:14:24.840]It was article 20 in the prior draft and that got changed.
[00:14:29.400]So it's article 19 now.
[00:14:31.140]Article 19 and article 32 are
[00:14:33.360]the two most controversial uses
[00:14:36.360]of free, prior informed consent in the DRIP.
[00:14:40.260]In 19, it says,
[00:14:41.857]"No government will enact any law
[00:14:44.700]or administrative regulation that impacts Indigenous peoples
[00:14:48.930]without their free, prior and informed consent."
[00:14:53.550]And in article 32, which is about the property,
[00:14:56.610]the lands owned and claimed by Indigenous peoples,
[00:15:00.577]"No nation will, you know, lease, sell, injure that land
[00:15:05.970]without the free, prior and informed consent
[00:15:09.300]of those Indigenous nations."
[00:15:11.520]So, you can imagine those two things are controversial
[00:15:14.430]and that's what the nations really were worried about.
[00:15:18.900]Now, let me tell you, I want to pause to you.
[00:15:20.700]And in my article, I do pose this question, that article 19,
[00:15:24.750]I can see why the United States was a little concerned.
[00:15:28.170]Now, I got ahead of myself.
[00:15:29.130]So let me tell you, first off,
[00:15:30.540]the vote occurred in September,
[00:15:33.060]boy, I think September the 13th, 2007,
[00:15:36.060]is when they voted to accept the DRIP.
[00:15:40.110]Now, it's not a treaty, folks,
[00:15:42.600]which in the UN language they call conventions
[00:15:46.140]and those require a government to sign onto them
[00:15:50.160]and agree to them later.
[00:15:52.740]The DRIP is only a declaration.
[00:15:56.010]It's a statement of the sense of the General Assembly
[00:16:00.720]of the United Nations of what international law should be
[00:16:04.590]or what international law is.
[00:16:08.040]And the vote was something like 147 nations voted yes
[00:16:13.920]for the DRIP.
[00:16:15.390]I'm, 11 or 13 nations voted no.
[00:16:20.250]A couple of those were some of the African nations
[00:16:23.010]that had slowed the process down,
[00:16:24.930]or no, excuse me, excuse me, abstained.
[00:16:27.330]11 or 13 nations abstained.
[00:16:30.570]There were only four no votes.
[00:16:34.830]Now, I always like to joke my audience.
[00:16:36.510]Well, of course, that had to be the axis of evil, right?
[00:16:39.300]That had to be Russia and Iran and Saudi.
[00:16:44.700]No, folks, take a wild guess.
[00:16:46.290]Who do you think the four votes were if you don't know?
[00:16:48.780]The United States, Canada, Australia, and New Zealand,
[00:16:51.900]four, the liberal democracies of the world,
[00:16:55.260]you know, that are held up as this model.
[00:16:58.320]Well, why'd they vote no?
[00:17:00.000]They voted no for three reasons.
[00:17:01.920]And I can only remember two at this moment,
[00:17:03.780]but one is article 19.
[00:17:06.240]They said, "We are a democracy.
[00:17:08.250]And 51% of the vote gets their way.
[00:17:11.580]We don't consult with a minority.
[00:17:16.320]And if the minority says, 'No,' the law can't go ahead."
[00:17:20.130]Now in my article, I say,
[00:17:21.690]well, that sounds like a pretty fair argument.
[00:17:24.960]So, I have some troubles with article 13
[00:17:28.050]or some struggles, or article 19, I'm sorry.
[00:17:31.350]Article 32, for tribes in the United States,
[00:17:34.170]is not an issue at all.
[00:17:35.490]Tribally owned lands,
[00:17:36.690]the United States should not be messing around
[00:17:38.820]with tribally owned lands
[00:17:40.080]without their free, prior and informed consent.
[00:17:43.410]But that's the second reason the US objected to,
[00:17:47.520]voted no on the DRIP.
[00:17:49.020]And I do forget the third,
[00:17:50.280]so you're gonna have to read my article.
[00:17:52.620]And again, it's free.
[00:17:53.453]I'm not trying to sell you anything,
[00:17:55.950]but all four of those countries have now subsequently said,
[00:17:59.977]"We agree with the DRIP."
[00:18:02.550]Australia was first, I believe.
[00:18:05.700]They had their Aboriginal foreign minister
[00:18:08.340]of the government announce it.
[00:18:10.350]New Zealand then, and I may be wrong.
[00:18:13.020]New Zealand was first, then Australia,
[00:18:14.850]both those countries adopted the DRIP on face value.
[00:18:18.810]We withdraw our no vote.
[00:18:21.690]Canada, and then only under the Obama Administration,
[00:18:25.170]we decided to accept the DRIP,
[00:18:28.410]but both Canada and the United States put in a qualifier.
[00:18:33.060]We only accept the DRIP to the extent
[00:18:36.120]that it is already our national law.
[00:18:39.810]So if you want,
[00:18:40.650]you know what?
[00:18:41.880]So if you adopt,
[00:18:42.900]what did Obama say?
[00:18:44.310]Yeah, we're adopting that,
[00:18:45.300]but it makes no difference whatsoever.
[00:18:47.460]So, that's what the Canadian prime minister,
[00:18:49.530]who I think at the time was Stephen Harper,
[00:18:51.330]that's what he had done in 2009.
[00:18:53.850]And in 2010, Obama Administration adopted it
[00:18:57.900]but with that same qualifier.
[00:19:00.000]So in one sense, it, Canada and the United States,
[00:19:03.480]it gives no Indigenous person any more rights
[00:19:06.240]than they ever had.
[00:19:08.730]Now, I think that was as much intro as I want,
[00:19:11.130]let, no, so in the world, folks,
[00:19:14.190]the DRIP does not even define what Indigenous peoples are.
[00:19:18.180]They just could not,
[00:19:19.440]if you know the UN, they argued for a decade
[00:19:22.890]over whether to put the word S at the end of peoples.
[00:19:27.810]The nation states,
[00:19:29.970]and I almost don't get this, but the nation states, I guess,
[00:19:34.350]wanted it to be that there's one type of Indigenous people,
[00:19:38.010]or maybe there's one Indigenous person in the whole world.
[00:19:40.710]I honestly don't know what the argument was.
[00:19:44.460]Indigenous peoples said, "Hey, we're all different.
[00:19:46.650]We're all over the country.
[00:19:47.790]We have, world, we have different religions.
[00:19:49.680]We have different traditions and cultures.
[00:19:52.140]We are separate and we wanna be treated that way."
[00:19:54.720]So, I do think that's what the argument was about.
[00:19:57.690]Finally, the nations gave in.
[00:19:59.790]and so, it's Indigenous peoples.
[00:20:03.750]So, what are the rights?
[00:20:05.250]Now, like everyone here is an American, right?
[00:20:07.680]So in the United States,
[00:20:09.750]tribal rights are pretty well defined.
[00:20:12.420]And the United States Supreme Court would agree
[00:20:15.030]that these are property rights protected
[00:20:16.770]by the Fifth Amendment of the Constitution.
[00:20:19.560]So the DRIP's not so radical in the United States
[00:20:23.820]when it talks about protecting rights, but when,
[00:20:26.940]property rights, valuable timber, minerals, water,
[00:20:31.290]tribes are recognized as owning those,
[00:20:33.570]based on their treaties,
[00:20:34.590]based on the laws of the United States,
[00:20:37.230]statutes and agreements
[00:20:38.970]that individual Tribal Nations made with the United States.
[00:20:43.350]But I want you to know
[00:20:44.183]that the United States is almost held up like a model
[00:20:47.430]around the world on how to treat Indigenous peoples.
[00:20:50.550]Now, that's kind of shocking
[00:20:51.780]if you know the true history of the United States,
[00:20:54.300]or maybe this just shows
[00:20:55.530]how horribly Indigenous peoples have been treated elsewhere,
[00:20:59.460]but the rest of the world,
[00:21:00.630]we're the only country in the nation that in, in the world,
[00:21:04.290]that in our Constitution recognizes the sovereignty
[00:21:08.820]of the Indian Nations.
[00:21:11.070]Is Australia doing better with Aboriginal peoples now? Yes.
[00:21:14.490]Is New Zealand perhaps even more advanced
[00:21:16.710]than the United States, as far as Maori rights?
[00:21:19.140]Probably yes.
[00:21:20.340]Is Canada getting more liberal?
[00:21:22.770]I don't know that that's the right word,
[00:21:24.540]but are they recognizing the rights
[00:21:29.700]of First Nations more than the US?
[00:21:31.339]Possibly.
[00:21:33.000]But none of those nations have, in their Constitution,
[00:21:36.270]the sovereignty of Indigenous peoples.
[00:21:39.390]So in one sense, the DRIP, what is its impact in the US?
[00:21:43.920]Well, according to Obama, nothing,
[00:21:46.500]and according to our Constitution, tribal sovereignty
[00:21:49.740]and property rights were already protected.
[00:21:52.350]A lot of people though are pushing,
[00:21:54.270]I'm sure, Walter, when he talked to you,
[00:21:55.890]talked about this.
[00:21:57.150]A good friend of mine,
[00:21:58.500]Professor Kristen Carpenter from Colorado,
[00:22:01.379]University of Colorado Law School.
[00:22:03.450]She was on a UN body until just recently.
[00:22:06.930]And she's making a big effort to get states
[00:22:10.260]and the United States to adopt the DRIP
[00:22:14.130]as national or state or local law.
[00:22:18.480]So, special rights?
[00:22:19.560]In the United States, that is not correct.
[00:22:21.690]These rights the Tribal peoples have were property rights
[00:22:24.900]they already had.
[00:22:26.820]And so, it's not at all correct
[00:22:29.250]to call Indian rights special rights.
[00:22:32.340]Now I'm talking the US.
[00:22:33.870]In the rest of the world, so I just,
[00:22:36.210]you know, after Margaret asked me to do this,
[00:22:38.550]I've been trying to think of this.
[00:22:40.890]And so, in the rest of the world,
[00:22:43.560]a lot of nations, Honduras, Guatemala, Brazil,
[00:22:46.800]they might go, "What?
[00:22:48.870]What? Yeah, this is a special right.
[00:22:51.210]Our constitution says nothing.
[00:22:52.950]We have no case law on Indigenous people.
[00:22:56.010]Why should we recognize this now?"
[00:22:59.820]Well, so let me take you back to the DRIP
[00:23:01.470]and also say this point.
[00:23:03.210]Of course, Indigenous peoples are well recognized
[00:23:06.810]and well understood groups,
[00:23:09.240]governments, cultures, communities.
[00:23:11.880]And I wanna give you this number,
[00:23:13.500]according to the estimates, there are about 370 million
[00:23:18.510]to 500 million Indigenous peoples around the world.
[00:23:23.790]But again, I repeat to you
[00:23:25.110]there is no definition of Indigenous peoples,
[00:23:28.050]at least not in the DRIP.
[00:23:29.490]And I believe the UN has never adopted one.
[00:23:32.280]They just couldn't agree to it.
[00:23:34.140]That's why I spun outta control there
[00:23:36.600]and talked about just adding the S to Indigenous peoples,
[00:23:39.810]took 'em 10 years to do that.
[00:23:42.270]You might be shocked to hear there's no genocide,
[00:23:45.090]no definition of genocide in the UN either,
[00:23:48.180]even though there is a convention and treaty on genocide,
[00:23:52.830]but let me take you one more step into international law.
[00:23:57.480]And what do you know about American law?
[00:23:59.880]So, let me tell you something.
[00:24:01.350]I'm spelling these words out so I can say I'm right myself.
[00:24:06.210]In international law, just as in the United States
[00:24:10.320]and England, legislatures pass law
[00:24:13.890]that must be complied with.
[00:24:16.140]So, in the international realm, those are treaties.
[00:24:20.160]When England signs a treaty with France,
[00:24:23.160]you're bound to do that.
[00:24:25.170]And the rest of the world will shame you if you violate it.
[00:24:28.200]And today, there are bodies you can sue the country
[00:24:31.080]that violates a treaty,
[00:24:32.730]depending on what it is, the WTO,
[00:24:34.650]the World Trade Organization.
[00:24:36.000]The US gets sued there regularly.
[00:24:37.680]We sue other countries there because we've signed a treaty
[00:24:41.490]and we've agreed to be part of that.
[00:24:43.890]So, in the Anglo-American legal system,
[00:24:46.440]a treaty is like a law passed by our federal Congress
[00:24:50.790]or by your state legislature.
[00:24:53.670]That's the law. It's written in black and white.
[00:24:55.710]You have to comply with it,
[00:24:57.420]but the reason I'm equating international law
[00:24:59.910]to the Anglo-American system is
[00:25:02.310]we also let courts develop law.
[00:25:06.240]If this is new to you,
[00:25:07.440]we are called a common law system,
[00:25:11.280]in contradistinction to Europe,
[00:25:14.400]which is called a civil law system.
[00:25:17.460]Russia and the other countries in Europe,
[00:25:20.340]the mainland, courts can't make law.
[00:25:24.570]The only law there is is legislatures pass written statutes.
[00:25:28.830]England, and that's where we got our legal system from,
[00:25:31.860]we believe both in legislative laws,
[00:25:35.790]but in law that courts developed,
[00:25:37.590]we call that the common law.
[00:25:39.480]So, their international law is analogous
[00:25:42.420]to our Anglo-American system.
[00:25:44.760]There is written law.
[00:25:47.490]That is the treaties.
[00:25:49.950]And so, by analogy,
[00:25:51.360]that's a statute of the United States or of your state.
[00:25:55.620]There's also a common law of international law.
[00:26:00.210]And I'm gonna spell this for you, 'cause it's Latin,
[00:26:02.370]but it's called opinio juris, two words, O-P-I-N-I-A,
[00:26:08.310]and I guess, you know,
[00:26:09.750]is that a Latin word that leads to the word opinion today?
[00:26:14.070]I've never looked that up. I should.
[00:26:16.260]And then juris just means law.
[00:26:18.930]So, this is like common law
[00:26:21.000]because there's international law not written down,
[00:26:24.780]not in a treaty, but we just think,
[00:26:27.180]governments have to do this and this and this.
[00:26:31.950]And so, this is international law that develops organically,
[00:26:38.340]not by a treaty
[00:26:39.810]that you're not bound by only if you sign onto the treaty.
[00:26:43.350]Maybe you folks know, the UN,
[00:26:44.880]we were one of the big advocates for it.
[00:26:46.800]It's in the United States,
[00:26:48.960]but we don't sign too many treaties
[00:26:51.210]because then we can be sued or, you know,
[00:26:53.880]we didn't sign that war crimes treaty
[00:26:55.950]because some of our military officers would be taken
[00:26:58.350]and tried in the Hague.
[00:26:59.670]So, we've never signed onto that treaty,
[00:27:02.340]but something that is opinio juris,
[00:27:06.270]that develops like the common law,
[00:27:09.180]we are expected to follow that.
[00:27:11.970]And so, I don't think I'm the original person to say this,
[00:27:15.900]but I, in that article I wrote 2015,
[00:27:18.960]I plainly say that the DRIP, it is only a declaration,
[00:27:23.730]but the General Assembly said,
[00:27:25.650]this is what we think international law is, not in a treaty,
[00:27:32.010]and you don't have to sign it to be bound by it.
[00:27:35.310]We think this is the common law of international law.
[00:27:40.050]And so, that's where the word of opinio juris comes from.
[00:27:42.750]And that's what the DRIP probably is.
[00:27:45.150]Well, I, that's what the DRIP is.
[00:27:48.060]147 nations in the General Assembly voted yes.
[00:27:52.440]They think it's the law.
[00:27:55.740]Okay, that was a long answer to your question, Margaret,
[00:27:58.590]and I needed a drink of water,
[00:28:00.069](Margaret laughing) but
[00:28:01.140]all of that is in my article.
[00:28:03.720]All of that, I, you know, of course, law review articles,
[00:28:06.360]I probably have 300 footnotes in it,
[00:28:08.400]so you can see the citations,
[00:28:10.470]and if you're that interested to read something like that,
[00:28:15.090]next question, please.
[00:28:16.530]Yeah. Well, that was so helpful, Bob.
[00:28:18.780]Because I don't know about the rest of the people
[00:28:21.690]who are participating, but I'm not a,
[00:28:24.030]I don't have any legal training.
[00:28:25.740]So, a lot of the points you were making
[00:28:28.320]were really enlightening and helpful to me.
[00:28:30.870]And I think a lot
[00:28:31.830]of people aren't legal experts here either.
[00:28:35.970]So gosh, I have so many questions
[00:28:38.100]and we're already at 6 o'clock.
[00:28:39.810]So I think, you know, I guess what came up for me
[00:28:44.730]in your talk was that I wanted to know,
[00:28:47.160]do you agree with Obama that UNDRIP, or the DRIP,
[00:28:50.730]I love that term.
[00:28:51.563]The DRIP really doesn't have any,
[00:28:55.560]it's not really consequential in the United States?
[00:28:58.050]I mean, Walter thinks it's very consequential.
[00:29:00.510]He thinks that there are elements of federal Indian law
[00:29:04.950]that are completely out of step with the DRIP
[00:29:08.640]and that it would be great if we brought all elements
[00:29:14.040]of federal Indian law into sync with that.
[00:29:16.950]And then it would, you know, it would bring greater justice
[00:29:19.500]for Indigenous peoples in the US, and it would also,
[00:29:23.910]he also thinks it would have real benefits
[00:29:25.800]for non-Indian people.
[00:29:28.950]And so, do you agree with Obama?
[00:29:33.870]Well, Obama said we will comply with it
[00:29:37.020]as long as it meets American Indian law.
[00:29:40.890]So, he was agreeing to it,
[00:29:43.890]but only to the extent it was already law
[00:29:45.920]in the United States.
[00:29:47.010]So, it was like meaningless what he said.
[00:29:50.700]So, it just, the United States was the last country
[00:29:52.770]that had voted no, that looked pretty bad.
[00:29:55.680]So for PR purposes, all of a sudden,
[00:29:58.380]oh yeah, we love the DRIP.
[00:30:00.120]We aren't gonna comply with any part of it.
[00:30:01.932](laughs) You know?
[00:30:03.090]So, I mean, I wish I would've heard Walter's talk to you.
[00:30:07.260]I do not believe I've read that book you folks are reading.
[00:30:10.500]I read his early,
[00:30:11.520]his first book closely and I've seen him give several talks.
[00:30:15.840]I wonder what parts
[00:30:17.100]of federal Indian law he thinks is in violation to the DRIP.
[00:30:19.767]So, I would like to know that,
[00:30:21.930]but if he's correct,
[00:30:24.600]Obama said, "We aren't enforcing that part of the DRIP."
[00:30:28.080]So that's the only answer I have to you.
[00:30:30.240]The United States isn't going to enforce it
[00:30:33.450]and remember, folks, when we're the world power,
[00:30:36.030]and so if you believe in opinio juris,
[00:30:38.790]there's this international law
[00:30:40.950]that governments should comply with.
[00:30:43.890]Well, guess what?
[00:30:44.723]Russia should not have invaded the Ukraine,
[00:30:48.090]but we can't stop that.
[00:30:49.590]Can we? Unless we wanna have a all out war.
[00:30:52.920]The United States tries to do something.
[00:30:54.690]Who's gonna stop us?
[00:30:56.910]And then, as I started my talk with,
[00:30:58.800]this is why the US usually doesn't sign on
[00:31:00.720]to most of these treaties,
[00:31:01.553]'cause then we can be sued in some world court
[00:31:04.350]or some body in the Hague or in Belgium or whatever.
[00:31:08.700]And we don't want that
[00:31:09.720]'cause we're the big boys on the block
[00:31:11.400]with the most nuclear bombs and biggest army in the world.
[00:31:14.490]So you wonder,
[00:31:16.170]I have taught an international law class,
[00:31:19.470]just one week classes for one credit hour
[00:31:22.020]for quite a few years now.
[00:31:24.150]And so, this is why I was so interested in the DRIP.
[00:31:26.880]I thought it might be real law that could be enforced.
[00:31:29.520]As an American lawyer, I'm used to, you win a court case,
[00:31:32.850]you get a judgment and then you can get the county sheriff
[00:31:35.760]to help you enforce that judgment.
[00:31:37.620]If it's like throw someone out of a house
[00:31:39.900]or repossess a car,
[00:31:41.910]I wanna be able to enforce this right.
[00:31:45.180]And so, I look at international law
[00:31:47.190]and even the people that write about it, Margaret,
[00:31:50.160]the only tool they really have,
[00:31:52.530]they call it name and shame.
[00:31:55.950]Did Walter say anything about that?
[00:31:58.187]I mean that's,
[00:31:59.700]name and shame.
[00:32:00.690]Do you think Russia is being named and shamed now?
[00:32:03.600]And have they withdrawn their troops from Ukraine?
[00:32:07.050]No.
[00:32:08.040]So, you know, maybe I'm being silly
[00:32:11.400]or facetious or even worse
[00:32:14.610]to wonder about the enforcement power of international law.
[00:32:21.060]And if you can't enforce, I mean,
[00:32:22.800]that's why you create a body like the UN.
[00:32:24.840]You hope people join.
[00:32:26.400]You hope the threat of them being censured
[00:32:29.940]or thrown out of the UN,
[00:32:32.490]but Russia's on the Security Council.
[00:32:34.590]What can we do about, through the UN, about Russia?
[00:32:38.940]Anyway, I've gone way
[00:32:42.180]from what we're talking about or what you asked.
[00:32:44.820]Well, I guess this is kind of on point,
[00:32:46.590]but the US can't be forced to do anything
[00:32:49.110]by the world body just because of the DRIP.
[00:32:51.990]So, it is a name and shame.
[00:32:53.940]You claim you're
[00:32:54.780]the world's leading, liberal, moral democracy
[00:32:58.710]Live up to that, dude.
[00:33:00.330]That's about,
[00:33:01.950]that's the power of name and shame.
[00:33:06.540]Yeah. I think that's fascinating.
[00:33:10.020]And despite that, it's interesting,
[00:33:12.450]because Walter is a big believer,
[00:33:15.180]a big advocate of, I was just talking to him the other day.
[00:33:18.690]He wants to get all the five states
[00:33:21.870]that the Pawnee used to live in to adopt UNDRIP or the DRIP.
[00:33:27.420]And he believes that it will provide some leverage,
[00:33:33.120]some support for Indigenous rights and conflicts that arise.
[00:33:41.160]Well, I agree with him 100%.
[00:33:42.900]If these states adopt this as legislative law,
[00:33:46.830]then it's not just this ephemeral common law opinio juris
[00:33:52.350]of international law.
[00:33:53.520]Now, it will be state law.
[00:33:55.050]Yeah, that's a whole different story
[00:33:56.910]once it becomes statutory law in a country.
[00:34:00.750]If you don't know this, he must have told you this,
[00:34:03.060]but I think Ecuador and Bolivia have adopted the DRIP
[00:34:06.690]as national law.
[00:34:08.070]Now, both of those are countries
[00:34:09.540]with majority Indigenous peoples.
[00:34:12.330]Wasn't it Ecuador that Evo Morales was the president
[00:34:15.450]for 10 or 12 years?
[00:34:16.830]And he's Indigenous.
[00:34:18.720]So, it has happened in a few places.
[00:34:21.450]And I keep thinking
[00:34:22.470]that the City of Berkeley has adopted it.
[00:34:24.810]Surely if there's one place in the United States (laughs),
[00:34:28.771]I could be wrong on that, but it makes for a good joke.
[00:34:31.020]Right?
[00:34:32.220]You know, if that's the case, it's law.
[00:34:35.460]And so that may,
[00:34:36.750]that's a whole different story from what I've been,
[00:34:38.940]you know, I'm downplaying.
[00:34:40.860]I don't wanna be a wet blanket here,
[00:34:43.260]but I'm trying to explain my understanding
[00:34:45.810]of international law and what the DRIP was.
[00:34:48.930]Remember, it was not a convention slash treaty.
[00:34:52.140]Countries didn't sign onto it.
[00:34:54.630]They just voted for it, thinking "Yeah, that sounds good.
[00:34:57.627]And that sounds like
[00:34:58.740]that's what international law should be."
[00:35:01.020]Some people alleged that a lot of, I
[00:35:03.990]that some countries voted for it just to stick it
[00:35:07.200]to the United States,
[00:35:08.430]that you can read that in some places (laughs).
[00:35:12.420]I'm thinking about,
[00:35:13.950]I met a scholar up in Canada
[00:35:16.650]a couple years ago named Sheryl Lightfoot
[00:35:19.170]and Sheryl teaches at University of British Columbia.
[00:35:23.850]And she has gotten that university to adopt the DRIP,
[00:35:29.760]which is a fascinating strategy to sort of use it
[00:35:36.630]in an institution like that, not just a legislature.
[00:35:39.870]And so, I guess my question,
[00:35:43.528]I think Walter's very optimistic about using the DRIP.
[00:35:47.430]You seem less optimistic, but do you see, I mean,
[00:35:51.060]do you see that a state like Nebraska, I mean,
[00:35:54.030]Walter would love Nebraska to adopt this
[00:35:56.190]or Oklahoma, yeah, Colorado.
[00:36:00.990]You know, he would love to see those states adopt this.
[00:36:04.500]Do you have any hope for something like that?
[00:36:08.340]I mean, Oklahoma's where my tribe's from,
[00:36:10.320]but I was born and raised in Oregon.
[00:36:13.710]Oklahoma wanting to protect more Indigenous rights,
[00:36:17.640]I think that's a non-starter.
[00:36:20.940]Colorado? I mean, Colorado on some things kind of liberal.
[00:36:24.420]Weren't they the first state with the marijuana,
[00:36:26.760]to legalize marijuana?
[00:36:28.890]Nebraska, I don't know your state, you know better than me,
[00:36:31.920]I guess it's a red state and pretty conservative.
[00:36:34.290]So, would they want to give tribes more power?
[00:36:38.220]Protect,
[00:36:40.740]you know, and especially when Obama himself said,
[00:36:43.440]the US isn't gonna do any more
[00:36:45.150]than what it already thinks is the law,
[00:36:47.430]what it's already required to do.
[00:36:48.990]So I just, I don't know.
[00:36:50.670]I don't wanna be a wet blanket or be a pessimist
[00:36:53.100]or whatever, but you know, let's see a state adopt this.
[00:36:56.337]And I find that,
[00:36:57.597]the moment you said that
[00:36:58.650]about University of British Columbia,
[00:37:00.000]I just thought, well, what does that really mean?
[00:37:02.310]How do you enforce it? Yeah.
[00:37:03.840]Is this sort of like just their rules
[00:37:07.470]on how students treat each other?
[00:37:09.750]Is it like sexual harassment rules?
[00:37:12.000]All the, is it just sort of a rule?
[00:37:14.070]What are they doing there for Indigenous?
[00:37:15.033]Yes. Did they give all their land
[00:37:17.130]back to the local Indian nation (laughs)?
[00:37:20.280]I bet not, so, Yeah, I'm very curious
[00:37:22.920]to know what it actually means.
[00:37:24.390]Yeah. Yeah.
[00:37:25.500]You should ask her.
[00:37:26.430]Yeah, I will.
[00:37:27.690]But, as the, what did Martin Luther King say?
[00:37:31.560]Something about the arc is long,
[00:37:33.210]but it bends towards justice, right?
[00:37:35.940]So even if I'm right, now,
[00:37:37.860]or I don't say right,
[00:37:38.970]I'm not anti-DRIP.
[00:37:41.400]I just don't, I don't know if it will be adopted,
[00:37:45.180]but please don't think of me as anti-DRIP.
[00:37:48.360]I mean, I wrote about it because it's important
[00:37:50.610]and it's an evolution of the arc of justice,
[00:37:54.600]but will it be adopted as law?
[00:37:57.810]That's a big, different step.
[00:38:00.300]And that might be after my time (laughs).
[00:38:04.080]Yeah, I mean,
[00:38:05.460]I think we should take advantage of our last bits
[00:38:08.160]of time with you, Bob,
[00:38:09.270]to ask you more about like other issues
[00:38:13.650]that are going on right now in federal Indian law.
[00:38:16.170]I mean, we, a couple years ago, we had this,
[00:38:23.220]or I guess maybe it's just a year ago, we had the decision,
[00:38:26.490]the McGirt decision, and I think most people,
[00:38:29.580]most Americans don't quite understand that decision,
[00:38:32.307]and I know you've written a lot about it.
[00:38:34.080]I know you have a book coming out on it.
[00:38:35.013]It'd be great if you explain that a little bit to us
[00:38:38.310]and also to talk about the current decision
[00:38:42.180]that just came down from the Supreme Court
[00:38:45.510]and future cases that are coming up in the Supreme Court
[00:38:49.050]that have impact on Indian communities.
[00:38:52.710]That's a tall order, but it'd be great
[00:38:54.540]to hear your, No, I can do each of those
[00:38:55.550]in 20 seconds.
[00:38:56.700]So gimme one minute. (laughs) Okay.
[00:38:58.230]Just like I talked about the UN for 20 seconds.
[00:39:01.290]Okay.
[00:39:02.940]The McGirt decision came out on July the 9th, 2020,
[00:39:07.107]and my wife said that, in this house,
[00:39:09.210]it's been all McGirt all the time
[00:39:11.204](Margaret laughing)
[00:39:12.037]'cause I've been giving podcasts.
[00:39:14.040]I've written two articles and literally, Margaret,
[00:39:16.410]we just finished editing the book.
[00:39:18.600]I co-authored it with a history professor
[00:39:21.390]from University of Mississippi.
[00:39:24.030]She knew quite a bit about the Muscogee Creek Nation
[00:39:26.670]when they were in the Southeast.
[00:39:28.050]And so, she wrote the historical chapters
[00:39:30.390]about the Muscogee Creek Nation,
[00:39:33.150]the Trail of Tears, their removal to Oklahoma,
[00:39:36.300]to the Indian territory, it was called then in the 1830s.
[00:39:39.600]And then the outright theft, murder, fraud,
[00:39:44.250]that occurred as their lands and rights were taken.
[00:39:47.940]So, my tribe is affected 100% by the McGirt decision,
[00:39:52.590]and what you can say in a split second,
[00:39:54.810]what the holding is the reservations that were in Oklahoma
[00:39:59.700]in the 1830s, the 1870s, the 1890s,
[00:40:03.990]and the day of statehood in 1907,
[00:40:07.410]those reservations still exist.
[00:40:10.320]Everyone assumed they did not anymore
[00:40:13.140]because that's what Oklahoma wanted.
[00:40:15.450]And the courts were involved.
[00:40:17.520]The legislature was involved.
[00:40:19.170]Judges and lawyers were involved with stealing Indian lands,
[00:40:23.040]Indian oil-rich lands.
[00:40:25.530]One person wrote that if you were an Indian
[00:40:27.930]and owned land with oil on it,
[00:40:29.250]you were deemed to be incompetent.
[00:40:31.200]I mean, they meant that as a facetious joke,
[00:40:33.900]but the Oklahoma state courts would then appoint
[00:40:36.660]a conservator for you.
[00:40:38.100]And they would sell your lands out from under you,
[00:40:40.590]often to friends with wink, wink.
[00:40:43.050]I mean the Supreme Court recognizes this.
[00:40:45.840]Congress knew this was going on from 1890 to the 1930s
[00:40:50.520]and did absolutely nothing.
[00:40:52.380]So, what the McGirt decision says is, there are,
[00:40:55.110]there's still Indian country in Oklahoma.
[00:40:57.990]It's now 43% of the state, folks, is now a reservation.
[00:41:03.570]My tribe's reservation was re-recognized,
[00:41:07.260]the Eastern Shawnee Tribe,
[00:41:09.120]we only have 14,000 acres as of 1888,
[00:41:13.350]but a court in Oklahoma has said,
[00:41:15.420]our reservation still exists.
[00:41:17.910]And the five big tribes,
[00:41:19.320]what people call the five civilized tribes,
[00:41:21.840]they like the phrase just five tribes now,
[00:41:25.500]it's something like 19 million acres
[00:41:27.930]of Eastern Oklahoma is now Indian country.
[00:41:31.230]The state has limited criminal jurisdiction there.
[00:41:34.050]The state has limited civil jurisdiction.
[00:41:36.810]The state cannot tax Indians who live
[00:41:39.750]and work on their own reservation.
[00:41:41.850]So, I called this case, Margaret, a bombshell.
[00:41:45.150]Some people asked me not to use that word
[00:41:47.430]'cause they were trying to tone down.
[00:41:50.430]And I told them, I said,
[00:41:51.937]"Well, you think people aren't gonna notice what happened?
[00:41:54.611](Robert and Margaret laughing)
[00:41:55.444]You think the governor doesn't know?"
[00:41:57.960]So folks, the governor is Cherokee.
[00:42:00.930]He's enrolled in the Cherokee Tribe, but he is,
[00:42:05.730]he's just outraged.
[00:42:07.230]He's apoplectic.
[00:42:10.050]The legislature appropriated $10 million to fight it.
[00:42:15.540]And they've done a PR campaign.
[00:42:17.567]They're winning the PR campaign.
[00:42:19.980]The podcast I got off literally 15 minutes ago
[00:42:22.920]or a half hour ago,
[00:42:24.180]we were talking about this recent case
[00:42:26.700]that Margaret's asked me about.
[00:42:28.560]And I'm telling people, we've got to win this PR war.
[00:42:31.680]We gotta fight back with the false news that Oklahoma
[00:42:36.210]and the Wall Street Journal editorial page has swallowed it
[00:42:39.630]hook, line and sinker, that there's chaos in Oklahoma
[00:42:43.680]and the sky has fallen.
[00:42:45.840]So anyway, but I guess that was your question.
[00:42:48.570]So, what the Supreme Court did on June 29th
[00:42:51.900]was a case that, Quick question.
[00:42:53.460]Quick question. The McGirt decision.
[00:42:56.010]I think people think that means 43% of Oklahoma is now,
[00:43:01.080]quote, "Owned by Indians," but that's not the case.
[00:43:04.232]Correct. Can you explain
[00:43:05.065]that a little bit?
[00:43:05.898]Not a single title changed, folks.
[00:43:09.090]The next day, on July the 10th,
[00:43:10.890]after the court's decision,
[00:43:12.210]there were headlines and people on Facebook,
[00:43:14.167]"Will I lose my house?"
[00:43:16.140]No.
[00:43:16.973]There are lots of non-Indians
[00:43:18.450]that live inside a reservation today.
[00:43:20.940]There are plenty of reservation where 90% of the people
[00:43:23.670]that live there are not Indians
[00:43:25.980]and not citizens of that tribal government.
[00:43:29.580]This is a jurisdictional boundary question.
[00:43:33.150]So, it's sort of like if Nebraska and Kansas,
[00:43:36.180]if your river moves,
[00:43:37.620]hey, you folks, you guys all know Nebraska and Iowa.
[00:43:40.500]Isn't your airport in Iowa?
[00:43:43.830]Which towns is that? In Omaha, yeah.
[00:43:45.870]The Omaha airport, yeah. In Omaha.
[00:43:47.910]So because the river moved, folks, that's called avulsion.
[00:43:52.290]I don't know how to spell it, but I know how to say it.
[00:43:55.200]I do know how to spell it.
[00:43:57.300]Your airport ended up in Iowa.
[00:44:00.780]So, I'm using an example.
[00:44:02.024]If Kansas and Nebraska had a lawsuit over your border
[00:44:05.940]and they decide, oh Lord, all these years,
[00:44:08.580]we thought it was here,
[00:44:09.780]but no, it's 10 miles further north.
[00:44:12.720]Nebraska, all of a sudden,
[00:44:13.830]got a little bigger, but the people
[00:44:16.230]that live there didn't lose their property rights
[00:44:18.600]or anything.
[00:44:19.433]They just find out there's a new government
[00:44:20.880]they have to deal with.
[00:44:21.900]So, that analogy is not 100% correct
[00:44:24.660]because these Oklahomans still live in Oklahoma.
[00:44:28.050]But 1.8 million Oklahomans found out they now live also
[00:44:33.480]on an Indian reservation.
[00:44:35.160]The City of Tulsa, the second biggest city
[00:44:37.500]in Oklahoma is all in Indian country now.
[00:44:41.157]The Muscogee Creek Nation reservation
[00:44:43.890]or the Cherokee reservation.
[00:44:46.200]So, this decision from four days ago,
[00:44:48.240]5, 6, 7, 8 days ago now,
[00:44:50.700]June 29th does not impact tribal criminal jurisdiction
[00:44:55.860]at all.
[00:44:57.270]It's really not about tribal sovereignty.
[00:45:01.560]It grows out of the McGirt case,
[00:45:04.410]but it's not a challenge to tribal powers.
[00:45:08.790]What Oklahoma sued about was that, in Indian country, folks,
[00:45:14.700]there's only two governments
[00:45:16.020]that have criminal jurisdictional power.
[00:45:18.540]That's the feds and the tribal governments.
[00:45:21.480]The states have almost no criminal jurisdiction
[00:45:24.450]in Indian country.
[00:45:25.890]So, you can see
[00:45:26.790]why the McGirt decision raises enormous questions
[00:45:29.790]and why I call it a bombshell.
[00:45:32.010]So what Oklahoma sued about, and it won, you know,
[00:45:35.670]seven, eight days ago,
[00:45:37.770]is that Oklahoma has concurrent jurisdiction
[00:45:41.820]with the United States for a non-Indian
[00:45:45.510]who injures an Indian person in Indian country.
[00:45:53.100]Now, I guess I better not overuse the word bombshell.
[00:45:55.710]This is a big change,
[00:45:57.480]and the court applied it to all 50 states.
[00:46:00.360]So even now in Nebraska,
[00:46:01.950]Nebraska, the state woke up on June 29th
[00:46:06.870]and found out it has concurrent criminal jurisdiction
[00:46:10.410]on the reservations in your state
[00:46:12.990]over a non-Indian who criminal, allegedly,
[00:46:16.890]criminally injured an Indian person.
[00:46:19.680]And for 200 years, it's been assumed
[00:46:21.810]that only the feds had that jurisdiction.
[00:46:24.630]And so, Oklahoma won that case.
[00:46:27.150]It definitely is because of McGirt, but it's not really,
[00:46:31.140]it doesn't limit what McGirt said,
[00:46:34.020]but this is what Indian country,
[00:46:35.580]that's why we had this podcast today.
[00:46:37.200]And there were 700 people on it,
[00:46:39.690]attorneys from across the country and stuff.
[00:46:42.330]What does this case now mean in Alaska?
[00:46:44.670]What does it mean in Oregon?
[00:46:45.600]What does it mean in Nebraska?
[00:46:47.640]And so it's a big case.
[00:46:57.000]You're muted.
[00:47:00.510]So, I'm gonna ask a question
[00:47:03.300]that I bet is on a lot of people's minds.
[00:47:06.000]Why is it a big deal
[00:47:07.650]that the states now have this concurrent jurisdiction?
[00:47:10.530]How will that impact Indian communities?
[00:47:13.830]Well, it does not limit, change,
[00:47:16.500]alter tribal criminal jurisdiction.
[00:47:20.010]It does allow state troopers and county sheriffs
[00:47:23.850]and maybe even city cops
[00:47:25.440]to come driving through your reservation and doing stuff.
[00:47:28.680]Now, some people,
[00:47:29.910]and there was a guy on the podcast today
[00:47:32.640]and I share his opinion.
[00:47:34.170]I had said this.
[00:47:36.030]The feds aren't too good at providing criminal jurisdiction
[00:47:39.420]in Indian country, 'cause they have a shortage of resources,
[00:47:43.440]blah, blah, blah.
[00:47:44.940]I worked for the US Attorney's office as a law student,
[00:47:48.450]I clerked, it's called.
[00:47:50.250]I saw one case that disturbed me very much
[00:47:54.360]that the Assistant United States Attorney didn't give much
[00:47:57.360]of a hoot that an Indian person had been injured.
[00:48:01.050]It was very egregious
[00:48:02.970]and it was too much effort to drive three hours
[00:48:05.100]out to the reservation.
[00:48:06.870]So, that's what studies show is
[00:48:09.270]that the federal government declines,
[00:48:11.310]it's called the declination rate,
[00:48:13.980]when an Assistant US Attorney declines prosecuting a case.
[00:48:18.690]In Indian country, for a while, Margaret,
[00:48:20.850]it was like 75% of the time
[00:48:24.330]the Assistant US Attorney would not charge a person.
[00:48:28.260]So, some reservations think
[00:48:30.180]there's a lack of law enforcement.
[00:48:32.820]And so, some reservations, exactly what you said,
[00:48:35.310]maybe having a state trooper or a city cop come driving
[00:48:38.280]through your res every once in a while,
[00:48:39.870]maybe that's not a bad thing.
[00:48:41.850]We will see how this shakes out in the future.
[00:48:44.640]But for those of us that practice Indian law,
[00:48:46.890]we look at these five justices that decided this case
[00:48:49.677]and we're afraid of the case next year and the year after.
[00:48:53.370]And so, Amy Coney Barrett, if you folks don't know,
[00:48:56.790]she replaced Ruth Bader Ginsburg.
[00:49:00.240]President Trump has three appointees on the court.
[00:49:03.660]You know the decisions that happened
[00:49:05.490]in the last two weeks.
[00:49:06.960]Are those gonna start happening in Indian country?
[00:49:10.290]Castro-Huerta was a, you know,
[00:49:13.260]was a warning sign to us and got us all nervous.
[00:49:15.870]The, and I, us, those who advocate for tribal governments,
[00:49:18.630]work for tribal governments, support tribal sovereignty.
[00:49:22.350]Yeah, so I know,
[00:49:24.060]because I've done some historical research
[00:49:26.580]on the Indian Child Welfare Act,
[00:49:28.320]I know there's a huge case coming up next year
[00:49:31.770]that's known as Brackeen.
[00:49:34.530]The Supreme Court agreed to take the case
[00:49:36.960]and it'll be on their docket next year.
[00:49:41.220]I wonder if you could give us a short explanation
[00:49:44.580]of the importance of the Indian Child Welfare Act,
[00:49:47.700]and we know that it's under threat,
[00:49:51.780]and what would that mean if it is overturned?
[00:49:55.440]Yes. This is the scary case.
[00:49:58.350]I think it gets argued in November.
[00:50:00.240]So, it's hard.
[00:50:01.110]It's you can never tell
[00:50:02.370]when the Supreme Court will issue an opinion.
[00:50:05.040]The hard opinions always come out at the end of June.
[00:50:07.890]If your audience doesn't know,
[00:50:09.750]the court goes on recess from July 1st
[00:50:13.560]until the first Monday in October.
[00:50:16.650]So, they want to get outta town for summer.
[00:50:18.300]The hard cases come out the last week or so of June.
[00:50:22.230]The Indian Child Welfare Act was enacted by Congress in 1978
[00:50:25.830]in reaction to numerous studies that genocide was going on
[00:50:31.590]in Indian country.
[00:50:33.360]State child welfare employees and private adoption agencies,
[00:50:41.010]and there's even one church,
[00:50:42.390]I won't mention the name, that targeted Indian children.
[00:50:46.710]And the assumption was, to grow up in an Indian family was
[00:50:50.820]against the best interest of the Indian child.
[00:50:54.450]So, state agencies were adopting Indian children out.
[00:50:58.830]Just by my memory, I can remember studies outta Minnesota,
[00:51:02.100]something like 35% of Indian kids were,
[00:51:06.480]oh, Margaret, you know better than me,
[00:51:07.890]but the numbers that were adopted
[00:51:10.020]and always placed in non-Indian families
[00:51:13.620]away from their reservation.
[00:51:14.650]Well, you know that that's genocide
[00:51:16.830]because that's gonna be the end of your reservation
[00:51:18.990]in a pretty short while when all your kids are taken away
[00:51:21.930]and you don't, and they're not raised in your culture,
[00:51:24.690]your language, your family.
[00:51:27.240]So, Congress passes the 1978 Indian Child Welfare Act.
[00:51:32.700]The United States Supreme Court has heard ICWA cases twice,
[00:51:37.230]nobody, in 1973, and I think in 2007, Alito,
[00:51:41.700]who's no friend of Indian country, he wrote an opinion.
[00:51:43.890]Nobody questioned whether the ICWA was constitutional,
[00:51:47.550]but now, Texas and maybe Louisiana
[00:51:50.580]and some other states have brought this lawsuit
[00:51:54.090]claiming that they want the whole act stricken
[00:51:57.330]as unconstitutional because Indians are a race
[00:52:01.170]and Congress did not have the power to legislate
[00:52:04.650]about this race of people.
[00:52:07.560]Well, Indian law's never been considered to be racial
[00:52:11.520]or about race.
[00:52:13.320]It's about the status of me as a citizen
[00:52:15.437]in the Eastern Shawnee Tribe
[00:52:17.340]and Walter as a citizen in the Pawnee Nation.
[00:52:20.310]It's citizenship recognized in the Constitution.
[00:52:25.290]Some people are afraid Supreme Court's gonna strike
[00:52:27.210]that down and say, it's a racial classification.
[00:52:29.460]And then say, Congress had no authority
[00:52:31.800]to enact the Indian Child Welfare.
[00:52:33.330]That's the worst-case scenario. So our teeth are chattering.
[00:52:37.500]But also, the case was heard,
[00:52:39.960]if you folks know about how to bring litigation,
[00:52:42.570]you always bring it in a federal court
[00:52:44.340]and in a state where you think it'll favor your position.
[00:52:47.730]So, I think the Texas case was brought in Texas
[00:52:50.580]in front of a federal district judge, who is (laughs),
[00:52:55.410]any of the really wild cases
[00:52:57.330]that you hear about probably got in front of Reed O'Connor
[00:53:01.440]in the Northern District of Texas.
[00:53:03.600]Anyway, it then went on appeal to the fifth circuit,
[00:53:08.430]which is the federal appellate court
[00:53:11.460]that rules on cases out of Texas, Louisiana.
[00:53:15.540]Maybe it is just Texas and Louisiana, but anyway,
[00:53:18.810]they issued a 200 page opinion, multiple dissents,
[00:53:24.270]I have not read it.
[00:53:25.830]So Margaret, I'm talking about something now
[00:53:27.900]that I've not read.
[00:53:28.770]So, take my comments with a grain of salt.
[00:53:30.930]This is what I hear from people talking about the case.
[00:53:32.603]This is what I've read just in short little news blogs.
[00:53:37.470]The fifth circuit struck down about three or four provisions
[00:53:42.360]in the ICWA that kept the ICWA just barely.
[00:53:46.110]They said, you know, that it's constitutional.
[00:53:48.600]Congress could do it,
[00:53:50.160]but they struck down a few provisions
[00:53:52.260]under what's called the anti-commandeering principle
[00:53:57.360]of constitutional law.
[00:53:59.910]In our Federalist system,
[00:54:02.100]the feds can't force state officials to do certain things.
[00:54:07.140]And the fifth circuit judges,
[00:54:09.720]they determined that three or four provisions
[00:54:12.270]in ICWA forced state judges to do stuff,
[00:54:15.570]and that violates the anti-commandeering principle
[00:54:20.730]of our Federalist, federalism system.
[00:54:24.690]So that's, so the tribes appealed,
[00:54:26.970]the state appealed 'cause they didn't win everything.
[00:54:28.980]And so, it's in front of the Supremes,
[00:54:30.630]and I think oral argument's in November, I believe.
[00:54:33.930]So, the court has to answer all those questions.
[00:54:36.420]That's a big deal.
[00:54:38.550]And if we- Yeah.
[00:54:40.140]My sense is that if they rule against ICWA on these grounds,
[00:54:44.520]that will undermine and sabotage a lot of other aspects
[00:54:49.800]of federal Indian law, tribal sovereignty,
[00:54:52.282]if Indians are ruled to be a race
[00:54:56.310]rather than a political status.
[00:54:59.850]So boy, it could really shake everything up.
[00:55:04.200]Couldn't it?
[00:55:05.033]On the podcast today,
[00:55:06.330]we had the Dean of the Iowa Law School.
[00:55:08.880]So he lands at you guys' airport.
[00:55:12.600]Anyway, he said what you just said.
[00:55:16.020]If they pull the rug out from under ICWA,
[00:55:18.660]for the reason you just said,
[00:55:20.730]that Indian classification is a race,
[00:55:23.070]if we're like Hispanics,
[00:55:24.600]if we're like African Americans,
[00:55:26.130]if we're like French people or whatever,
[00:55:28.530]then all of a sudden it changes 500 years of Indian law,
[00:55:35.160]how European countries have dealt with tribes,
[00:55:37.890]how the United States dealt with tribes and Indians.
[00:55:41.610]And literally, it would ignore what the Constitution says
[00:55:45.000]in Article I and in the 14th Amendment.
[00:55:47.760]Those two provisions recognize clearly Indian peoples
[00:55:51.210]as citizens of their own nations,
[00:55:53.520]not a citizen of the state,
[00:55:55.200]not a citizen of the federal government.
[00:55:57.270]So what am I a citizen of?
[00:55:59.220]Then it's my tribe.
[00:56:00.990]And if that's not political,
[00:56:03.060]so I just hope and think the court won't do that, Margaret,
[00:56:08.400]but that's on the table.
[00:56:10.260]Yeah, yeah. Yeah, so it's very serious times.
[00:56:16.650]We've only got two minutes, Robert, Bob,
[00:56:19.050]and are there any questions from any of the people today?
[00:56:26.820]If you wanna raise your hand.
[00:56:31.710]Matt?
[00:56:33.900]Well, I have a question that might be
[00:56:36.000]for the McGirt decision comes back to our reading for today
[00:56:39.330]where Walter Echo-Hawk had pointed out this legacy
[00:56:42.570]of the Supreme Court ruling unjustly.
[00:56:45.810]And that's one of the reasons why he thinks we need
[00:56:47.970]to adopt the DRIP is there's this premise
[00:56:51.840]of conquest and discovery and colonialism built into it.
[00:56:55.950]And then he says, the sovereignty issue's
[00:56:57.720]where the United States has been more progressive in that.
[00:57:00.810]How did they rule on McGirt? Was it a treaty?
[00:57:03.750]They just verified a treaty. What was it?
[00:57:06.341]Well, it was only five to four, and Justice Gorsuch,
[00:57:10.050]an originalist, a textualist, a Trump appointee,
[00:57:14.550]Federalist society, conservative as can be,
[00:57:17.880]he wrote the opinion.
[00:57:19.890]Stunningly, if you didn't know this, Margaret,
[00:57:21.900]and all of you, since he joined the court,
[00:57:25.020]tribes have won eight of the last eight cases
[00:57:27.720]until Thursday.
[00:57:28.740]So, we've won eight of nine.
[00:57:31.020]That is a miracle,
[00:57:33.090]because the 31 years I've been a lawyer, I graduated in '91,
[00:57:39.330]we have lost 80% of our cases in front of the Supreme Court.
[00:57:43.710]So, Gorsuch has been this miracle where, you know,
[00:57:46.500]that's how we're all acting.
[00:57:48.000]So, he wrote the opinion, Matt,
[00:57:49.980]and yes, he relied,
[00:57:51.450]so he was the only true originalist.
[00:57:53.700]He said, what do the treaties say?
[00:57:55.530]The Constitution, Article VI says,
[00:57:57.450]treaties are the supreme law of the land.
[00:58:00.000]So the treaties that my tribe, the Cherokee,
[00:58:02.850]the Muscogee Creek signed, Chickasaw, Choctaw, Seminoles,
[00:58:08.220]they're still in existence.
[00:58:09.840]They still mean something.
[00:58:11.130]The reservations they defined have never been taken away
[00:58:15.360]by Congress.
[00:58:17.070]Oklahoma acted fraudulently for a hundred years
[00:58:20.730]in violation of its own constitution.
[00:58:25.140]Congress required Oklahoma to put a provision
[00:58:28.440]in its first constitution.
[00:58:29.820]And it's still in there,
[00:58:31.410]that says the state disavows any claim, right,
[00:58:34.710]or title to Indian lands,
[00:58:37.230]lands of Indians and the Indian nations.
[00:58:40.710]Day one, they ignored that.
[00:58:44.490]They wanted to steal Indian lands,
[00:58:46.140]wanted to steal Indian oil, timber, asphalt, coal.
[00:58:50.010]I didn't know asphalt was something you could mine.
[00:58:52.020]That's mentioned over and over.
[00:58:53.910]They, it was theft, outright theft,
[00:58:57.060]and the feds and the state have allowed it.
[00:58:59.850]So, Gorsuch stepped on the brakes.
[00:59:03.204]And so, that's what my, that's why my book,
[00:59:05.670]it's why my first article, I called it a bombshell,
[00:59:07.890]'cause this is stopping 107 years
[00:59:10.800]of Oklahoma's illegal activities
[00:59:12.960]that the feds acquiesced to.
[00:59:15.998]The feds didn't do a thing to stop it.
[00:59:18.030]Supreme Court in 1926 did issue an opinion
[00:59:21.570]that everyone's just ignored,
[00:59:24.390]that Oklahoma didn't have certain criminal jurisdiction
[00:59:27.120]because this was still Indian country,
[00:59:29.370]and yeah, just ignored it.
[00:59:31.500]So that's, you know,
[00:59:34.140]that's why we're worried about this Castro-Huerta case
[00:59:36.900]from last week.
[00:59:40.050]Gosh, it's so complicated and we're really grateful
[00:59:43.320]to you for sharing your knowledge about this.
[00:59:46.437]And I can't wait till your book comes out.
[00:59:49.476]What month is it supposed to be out?
[00:59:51.210]Well, that's, it won't be till January,
[00:59:52.890]but you can pre-order it.
[00:59:54.300]You can pre-order it on Amazon
[00:59:56.365]and from University of Oklahoma Press.
[00:59:58.800]I shouldn't be supporting that press, should I, Margaret?
[01:00:00.990]'Cause you and I are, (Margaret laughing)
[01:00:03.180]You and I
[01:00:04.013]are University of Nebraska. That's right.
[01:00:05.665]That's right.
[01:00:06.498]No, it makes sense to do it in Oklahoma, right?
[01:00:09.780]It's an Oklahoma situation.
[01:00:11.010]Well, especially she invited,
[01:00:12.330]the editor there invited me to write the book, so.
[01:00:14.940]Yeah.
[01:00:16.500]Though I don't know
[01:00:17.333]how you have time. Well, I do have to,
[01:00:18.166]Yes. Thank you so much. I'm giving another speech
[01:00:19.650]in two hours (laughs).
[01:00:21.780]We thank you so much, Bob.
[01:00:23.670]Everybody join me
[01:00:25.050]in applauding, Bob. Thank you.
[01:00:28.530]We're really grateful. Thank you.
[01:00:31.080]Take care. Thank you all.
[01:00:32.370]I will leave now.
[01:00:33.780]Look forward to seeing you later, Margaret,
[01:00:35.370]and actually in person.
[01:00:36.377]It would be good. Yes, that'd be great.
[01:00:37.443]Bye. Bye. Bye, Bob.
[01:00:39.900]Nice to meet you, Matt, and the rest of you,
[01:00:41.430]hello, or goodbye (laughs).
[01:00:47.430]Wow. That was a whirlwind tour.
[01:00:49.680]Wasn't it?
[01:00:50.599](Margaret laughing)
[01:00:52.710]Yeah.
[01:00:54.930]So, how are you all doing?
[01:00:57.720]Any thoughts on our speaker just now or the?
[01:01:09.150]It's a lot to take in, I think.
[01:01:11.940]Yeah, it was. I was just trying to absorb everything.
[01:01:15.510]So, it's, you gotta need a while to think it over.
[01:01:19.710]Yeah, and before everyone was here,
[01:01:22.350]Matt and I were talking about how it's,
[01:01:24.930]this is a tough book to read too,
[01:01:26.610]if you're not a legal scholar.
[01:01:29.490]And so, my approach to it really is,
[01:01:35.610]I can't possibly absorb all this,
[01:01:37.440]but there's certain points that really come out to me
[01:01:40.110]that I find really useful and helpful.
[01:01:42.390]And I hope that's the case for all of you as well.
[01:01:47.010]So we don't, I think we can just stay together.
[01:01:50.370]Sometimes, if we were a larger group,
[01:01:52.470]we'd have smaller groups, but I think if you're up for it,
[01:01:55.950]we could just have a discussion among ourselves
[01:01:57.870]about both Walter's book and what Robert told us tonight.
[01:02:03.900]Are there any questions that you all have
[01:02:06.870]that you wanna discuss?
[01:02:07.890]I have some prepared things,
[01:02:09.840]but I wanted to check
[01:02:10.980]if you all have anything you really wanna discuss.
[01:02:25.500]I'm just a beginning learner and I'm just listening
[01:02:28.950]and trying to take in a lot of stuff all at once.
[01:02:34.170]I know, it's making me wish we had like a whole year
[01:02:37.590]just to meet every week and talk about all this stuff.
[01:02:40.410]There's so much.
[01:02:41.475]So one of the things I was super interested in,
[01:02:47.490]in this week's, this section
[01:02:51.090]of the reading was Walter's discussion of trauma
[01:02:56.010]and post traumatic stress disorder
[01:02:58.950]and how it's affected Indigenous communities.
[01:03:01.410]And I thought it was very interesting
[01:03:02.970]he actually relies on the work of one of his brothers
[01:03:06.750]who's a psychiatrist who works on this.
[01:03:10.350]Marilyn, you're nodding your head.
[01:03:14.400]You're muted. Do you wanna unmute?
[01:03:18.750]I always forget that.
[01:03:20.490]There's a lot of work going on in trauma,
[01:03:22.894]in a number of different arenas,
[01:03:28.110]racial discrimination against Black Americans,
[01:03:34.800]kids who've lost their parents,
[01:03:36.960]people who have been uprooted.
[01:03:43.230]You know, I think it's,
[01:03:47.520]rarely is it the psychology is put in the historical context
[01:03:52.350]and really explains these bigger patterns.
[01:03:56.040]So, I think it's very exciting thinking that's going on.
[01:04:01.650]Yeah, to, One of the things
[01:04:02.643]that gets raised for me is that I think
[01:04:06.480]that a lot of the Europeans who came over here
[01:04:10.020]also came out of traumatic experiences.
[01:04:14.100]I came across a description.
[01:04:17.130]Part of me is Scottish.
[01:04:18.840]And it was a transition in Scotland in which it was learned,
[01:04:25.140]it was discovered sort of that the textiles
[01:04:29.760]that you could make out
[01:04:30.690]of sheep brought you a lot more money
[01:04:33.120]than having people grow things on your land.
[01:04:36.240]So literally, thousands of people were
[01:04:39.030]violently taken off their land.
[01:04:41.160]People starved to death
[01:04:43.110]and surely some of them came over here.
[01:04:48.210]To me, it helps explain back-to-the-wall kind of response
[01:04:55.440]to problems is that, if you think you absolutely must seize
[01:04:59.220]that land, you do extreme things to get it,
[01:05:05.790]which is what we saw.
[01:05:09.958]Yeah, I thought that was an amazing point that Walter made
[01:05:12.810]about just what you said, Marilyn, these,
[01:05:16.440]a lot of settlers who were coming
[01:05:18.660]from Europe were equally traumatized by,
[01:05:21.480]what you described is called the enclosure movement.
[01:05:24.330]Yes, yes.
[01:05:25.163]Yeah and, but I was just thinking about some,
[01:05:29.130]my husband's Irish or Irish American,
[01:05:32.880]and a lot of his relatives came over during the famine,
[01:05:37.950]what an incredible trauma that was.
[01:05:40.320]So, I do think Walter has this really huge vision.
[01:05:46.530]He's a very compassionate person and writer
[01:05:49.620]who can extend his empathy toward many settlers
[01:05:55.500]who were coming in this period as well.
[01:05:59.880]I also thought his discussion,
[01:06:02.310]this is page 103 and 104.
[01:06:08.520]I was so interested in what he talked about,
[01:06:12.817]"These aggressor societies can exhibit
[01:06:16.920]these characteristics and tendencies."
[01:06:20.880]I thought that was so interesting,
[01:06:22.517]'cause I think he really kind of hits the nail on the head
[01:06:25.590]in many ways of, you know,
[01:06:28.140]the kind of dominant settler society.
[01:06:32.250]To justify its takeover of the land,
[01:06:35.940]it distorts history.
[01:06:37.590]Yeah.
[01:06:40.200]It demonizes and demeans victimized groups.
[01:06:42.687]Yeah. Yeah, that list at the bottom of 103 is really good.
[01:06:50.047]Yeah, and I mean,
[01:06:51.360]so one of the takeaways I had
[01:06:53.610]from Walter's reading is thinking about how healing has,
[01:06:59.610]somebody brought this up at our last meeting.
[01:07:01.710]Healing has to happen, not just for Indigenous peoples,
[01:07:05.340]but it needs to happen for the non-Indigenous population
[01:07:10.200]of the United States too.
[01:07:11.280]I think a lot of people don't realize that,
[01:07:15.390]but I think if we want to be a fully democratic
[01:07:19.470]and pluralistic society
[01:07:21.021]and one in which all people are like treated with dignity,
[01:07:25.500]how do we do that
[01:07:27.510]without like recognizing the sort of trauma
[01:07:30.600]that has happened in the past and face up, facing up to it?
[01:07:37.380]I think closely related to that is, for those of us
[01:07:41.550]who would like to see the United States going
[01:07:43.500]to war less often,
[01:07:46.200]you know, that's one of the things he talks
[01:07:47.880]about is that a heritage of national aggression is part
[01:07:53.190]of the trauma.
[01:07:55.777]Makes sense to me.
[01:08:02.880]Did anybody else have any stuff they wanted to mention
[01:08:05.400]about trauma or post traumatic stress disorder
[01:08:08.820]or some of those passages that Walter writes about there?
[01:08:22.590]What did you all think about the land ethic?
[01:08:27.810]I love that section (laughs).
[01:08:33.060]Yeah. Well, tell me more.
[01:08:34.260]Why did you love it?
[01:08:37.468]Oh boy.
[01:08:42.330]Let me look at my notes for just a second.
[01:08:44.100]Then I'll tell you.
[01:08:45.810]I mean, partly because I personally feel a strong connection
[01:08:50.520]to land and I think some people feel it
[01:08:52.740]and some people don't
[01:08:54.690]and it's not always the same land.
[01:08:57.540]I can, you know,
[01:08:59.440]I've moved and I find parts of land that I love or,
[01:09:05.250]you know, tall grass prairie, which is not where I grew up,
[01:09:07.770]but now I love it.
[01:09:12.480]A lot of things spring from that, I think.
[01:09:20.220]Matt, I, I have a thought on this.
[01:09:21.540]Yeah, go ahead. If nobody else is.
[01:09:23.427]And it kind of ties the two sections together
[01:09:25.920]'cause when he goes into the land ethic part, I was like,
[01:09:30.060]after all that legal stuff, I was kinda like,
[01:09:32.010]this is refreshing, but it reminds me of my mom.
[01:09:35.220]For whatever reason, she got a copy of "Braiding Sweetgrass"
[01:09:38.040]by Robin Wall Kimmerer.
[01:09:40.410]I wouldn't think that'd be something,
[01:09:41.820]and it really impacted her, but she,
[01:09:43.800]so she talks to me all the time about reciprocity
[01:09:46.950]and that's what that chapter made me think of.
[01:09:50.040]But she also in the same breath says,
[01:09:52.117]"Why do we have to keep fighting all this stuff
[01:09:55.020]from the past?
[01:09:55.853]And if the British weren't gonna take over this country
[01:09:59.960]or the French, somebody was."
[01:10:02.160]And so, I kind of see two tracks there.
[01:10:05.490]And so, the chapter on conquest,
[01:10:08.220]and I can think about relating this to,
[01:10:09.930]my students say that often as well,
[01:10:11.587]"It wasn't my ancestors" or,
[01:10:14.070]and all, you know, Yeah.
[01:10:15.780]Human history is all about conquest.
[01:10:18.060]And I thought the chapter offered kind of an anecdote.
[01:10:21.150]The colonizers who were coming here knew
[01:10:24.570]about these international norms and they,
[01:10:27.360]and that was new to me.
[01:10:28.500]I didn't think about that,
[01:10:29.931]that they knew that they were,
[01:10:31.890]and the court doctrines that were developed to try and,
[01:10:35.310]as how does he put it?
[01:10:37.020]These false doctrines to try
[01:10:39.060]and make an excuse for that as a process of discovery,
[01:10:43.260]it only sustains itself
[01:10:45.120]if you consider the people who were here not human
[01:10:49.470]or whatever, like said that the laws don't apply.
[01:10:52.380]So, I thought those two chapters
[01:10:53.910]kind of wound up being linked in my mind.
[01:11:01.303]Yeah.
[01:11:04.230]Here's a line that grabbed me.
[01:11:07.237]"Colonialization of Native lands is invariably accompanied
[01:11:11.310]by destroying the habitat
[01:11:13.200]that supports the tribal way of life,"
[01:11:15.540]that sort of, Matthew, back to your mother's book.
[01:11:23.310]That made me think too
[01:11:24.660]about a lot of Indigenous people,
[01:11:31.080]I'm sure y'all have heard of the land back movement,
[01:11:34.230]hashtag #LANDBACK.
[01:11:37.560]And some of those activists in that movement,
[01:11:40.680]as well as like lots of different Indigenous writers
[01:11:43.740]and thinkers and intellectuals have proposed the return of
[01:11:47.880]or the joint management of public lands
[01:11:51.060]by Indigenous peoples.
[01:11:53.520]There was just something,
[01:11:55.410]let me see if I can find this and put it in the chat.
[01:11:58.770]This just happened last week.
[01:12:02.220]For the first time, the US,
[01:12:04.170]I believe it's the, I don't know which federal agency,
[01:12:08.070]probably the Department of the Interior,
[01:12:09.870]has agreed to joint management
[01:12:11.670]of the Bears Ears National Monument,
[01:12:16.590]and they are gonna be jointly managing it with a coalition,
[01:12:20.550]I believe, of five different tribes
[01:12:22.500]who all consider that area sacred.
[01:12:28.170]So, it's a real, it's a very interesting development.
[01:12:32.460]Another one I came across recently
[01:12:36.390]that you might find of interest
[01:12:39.450]is there's a Anishinaabe writer named David Treuer.
[01:12:45.060]He's written a book you may have heard of
[01:12:46.860]called "The Heartbeat of Wounded Knee."
[01:12:49.080]It's really a great book.
[01:12:50.160]It's like this well-written history
[01:12:53.250]of Native America, basically.
[01:12:56.160]And he's got an article.
[01:12:58.320]I just put it in the chat, in The Atlantic, and it's about,
[01:13:02.820]you can see, it says,
[01:13:03.653]"Return the national parks to the tribes."
[01:13:07.740]It's a really, you know, I don't,
[01:13:10.423]I think most Indigenous advocates wouldn't say,
[01:13:14.257]"Oh, you need to return all this land to us
[01:13:16.620]and we're gonna take it over."
[01:13:17.700]It's more about creating jointly managed public lands.
[01:13:24.780]They've done this in Australia.
[01:13:26.460]They've done it in, they're doing it in Canada,
[01:13:28.710]New Zealand as well.
[01:13:31.260]And it's kind of a recognition
[01:13:33.000]of the traditional stewardship
[01:13:36.480]that Indigenous people have held toward land.
[01:13:40.350]And that maybe Indigenous people know something
[01:13:42.900]about how to take care of this land after all.
[01:13:45.240]And I know like the State of California has been doing
[01:13:48.300]some work between the state park system
[01:13:50.790]and a lot of Indigenous partners.
[01:13:53.160]So, I see this as a really important like development,
[01:13:59.220]you know, even if we can't get the State of Nebraska,
[01:14:01.710]for example, to adopt UNDRIP, I love the DRIP.
[01:14:05.730]I'm gonna start calling it the DRIP. That's even better.
[01:14:10.260]Even if we can't get that done,
[01:14:11.790]there are these like encouraging signs around,
[01:14:16.590]and growing consciousness,
[01:14:19.860]that one way that we can give some land back
[01:14:23.370]to Native peoples is through some of the public land
[01:14:26.010]that was taken
[01:14:27.450]and that's been being used and could be jointly managed,
[01:14:31.950]or could be made available to Native peoples
[01:14:34.500]for many purposes that they have,
[01:14:37.170]especially ceremonial purposes.
[01:14:43.680]It's a little bit
[01:14:44.513]like the protectorate model he's describing.
[01:14:47.880]And again, another tool
[01:14:50.310]for when I do have students say this,
[01:14:52.777]"Well, we're not gonna give the land back."
[01:14:54.420]And it comes up a lot around here
[01:14:56.610]because we talk about the Black Hills.
[01:14:59.190]And I was thinking about McGirt too.
[01:15:00.360]I wonder if anybody's looked into,
[01:15:03.390]'cause as far as I know, the Fort Laramie Treaty is still,
[01:15:07.680]wasn't the ruling on that? Of course.
[01:15:09.390]So, and I know they have some joint management
[01:15:13.350]with the Badlands National Park too.
[01:15:16.710]Depending on which entrance you go through,
[01:15:19.350]one of 'em is managed by the Lakota Tribe.
[01:15:22.620]And the other one is, if you come through the other side.
[01:15:25.620]So I don't know.
[01:15:27.390]That, it, this,
[01:15:30.390]all well and good is what my students often say,
[01:15:33.540]but anytime you start talking about reparations
[01:15:36.120]or land going back, it gets pretty contentious pretty quick.
[01:15:42.031]Yeah, yeah.
[01:15:46.220]You stole it fair and square. Yeah.
[01:15:49.350]I couldn't hear you, Marilyn. What'd you say?
[01:15:51.660]We stole it far and square.
[01:15:54.224](group laughing)
[01:15:55.230]Yeah, we stole it far and square.
[01:15:58.320]I wonder about that too.
[01:15:59.460]I was writing that down in some of my notes,
[01:16:01.590]trying to think about the practical application of this,
[01:16:05.370]and I don't know what everybody else thinks,
[01:16:07.470]but is it too arch to use the term "We stole this land?"
[01:16:11.760]I sometimes wanna say to students
[01:16:14.700]who are sharing their settler narratives,
[01:16:17.437]"Well, you know, that was on stolen land,"
[01:16:19.350]and the Walter Echo-Hawk's piece kind of makes me think
[01:16:24.210]about also the term colonialism is problematic
[01:16:27.750]in the way he describes it.
[01:16:28.583]And I think, Margaret, in your book,
[01:16:30.300]you kind of go back and forth
[01:16:31.650]on whether we should be using the term genocide
[01:16:34.530]in some of these cases.
[01:16:36.150]I don't know what if,
[01:16:36.983]what does everybody else think about that?
[01:16:39.090]Is using the term stolen land not helpful?
[01:16:42.330]I think it depends, It is stolen land though.
[01:16:43.500]Isn't it?
[01:16:44.580]Who you're talking to and under what circumstances,
[01:16:47.640]if you can tell the truth, you say it's stolen land.
[01:16:53.894]If you're trying to, you know, Yeah.
[01:16:55.410]Persuade your congressman
[01:16:56.850]of something about climate change,
[01:16:59.580]I probably wouldn't drop that phrase in the discussion.
[01:17:03.151](Marilyn laughing) Well, my students would say,
[01:17:04.897]"My family didn't steal it, they," what'd you say?
[01:17:07.770]Steal it fair and square?
[01:17:09.210]Yeah. They,
[01:17:10.860]and of course, it wasn't welfare
[01:17:12.630]or anything like that either
[01:17:13.680]to have the Homestead Act, you know?
[01:17:16.170]But I want to have more positive explorations of this
[01:17:22.197]and I don't wanna,
[01:17:23.850]Yeah. You know.
[01:17:25.890]So, one way I think about it is,
[01:17:30.240]so when I was writing my most recent book,
[01:17:32.220]I was really studying what happened in South Africa
[01:17:35.370]with the Truth and Reconciliation Commission.
[01:17:37.380]And boy, there is so much written about that.
[01:17:41.190]I could have spent years just reading it
[01:17:43.770]and I read as much as I could, and it was very complicated,
[01:17:49.560]but as I read it, more and more, I started to think
[01:17:52.020]that a lot of restorative justice processes
[01:17:55.710]like truth and reconciliation,
[01:17:57.180]focus on two categories, victims and perpetrators.
[01:18:02.940]But we really need to think beyond that.
[01:18:05.550]I think the largest class of people we should be thinking
[01:18:08.880]about are beneficiaries.
[01:18:11.820]So, that helps me think about,
[01:18:15.090]yes, I had nothing to do with killing any Indian people.
[01:18:19.620]I personally had nothing to do
[01:18:21.450]with relocating any Indian person or stealing anything.
[01:18:26.850]And maybe none of my ancestors had anything
[01:18:29.460]to do with it either.
[01:18:30.660]And yet, they have, my ancestors and me personally,
[01:18:35.970]I have benefited from the land that was taken
[01:18:39.450]from Native people and the resources that were taken.
[01:18:43.530]So, I have,
[01:18:45.600]I do feel like I have a responsibility and accountability
[01:18:49.590]because I've benefited, and what my family,
[01:18:54.000]my ancestors experienced, you know,
[01:18:57.060]all the opportunities that we had made available
[01:18:59.970]to us came at the expense of Indigenous people's lives
[01:19:04.200]and communities, habitats, land.
[01:19:09.540]So, I do think of that as a way
[01:19:12.360]to try to move people to say, "This does matter," you know?
[01:19:18.570]We should be thinking of ways to repair this
[01:19:22.800]and it doesn't necessarily have
[01:19:24.390]to be some huge dramatic gesture.
[01:19:27.360]It can be small things that we do in our own communities
[01:19:31.500]or our churches or our, at the university.
[01:19:42.866]I think it's also really good
[01:19:45.060]in terms of throwing one's imagination into the future
[01:19:51.117]'cause there's just not a lot we can do
[01:19:52.710]about things that happened 150 years ago here, but without,
[01:20:04.740]Yeah.
[01:20:05.880]But I mean, it also acknowledges the past,
[01:20:08.580]but it doesn't, it isn't stuck there.
[01:20:17.610]Yeah.
[01:20:19.290]Do you all feel like a lot of Americans are very ahistorical
[01:20:25.380]don't want to sort of acknowledge this history
[01:20:30.240]or face up to it?
[01:20:33.210]I certainly feel that as a historian.
[01:20:34.920]It feels like,
[01:20:36.480]I feel like a lot of the uproar
[01:20:40.350]over critical race theory is really about uproar
[01:20:43.230]over teaching history.
[01:20:45.150]Yes, it is.
[01:20:46.560]Yeah.
[01:20:47.393]And so, on the one hand,
[01:20:50.280]I feel like we have to face up to this,
[01:20:52.110]but I agree with you, Marilyn,
[01:20:53.340]that we also need to be very forward thinking about like,
[01:20:57.390]okay, now that we've acknowledged this history,
[01:20:59.310]now, what do we do?
[01:21:00.330]What's the next step?
[01:21:01.470]And I mean, for Walter, I think, you know,
[01:21:05.370]Walter and I share of a view
[01:21:06.570]that we need to work toward reconciliation.
[01:21:08.550]And for him, the DRIP is the way to do it.
[01:21:13.890]For those of us who aren't from a legal background,
[01:21:15.840]we might have other ways that we would propose to do this.
[01:21:24.060]I mean, I'm gonna call out Nancy Carlson
[01:21:26.340]who's on the line today.
[01:21:28.530]Nancy is from Genoa, Nebraska, and she helped establish
[01:21:34.410]the Genoa Indian School Foundation and Museum way back
[01:21:37.410]in late '80s.
[01:21:39.630]And I really see that as an act of reconciliation,
[01:21:44.220]community, you know, build,
[01:21:49.620]truth telling and reconciliation.
[01:21:51.990]So, I've always admired what Nancy has done,
[01:21:54.960]because I feel like Nancy didn't wait around
[01:21:58.530]for the State of Nebraska to pass a law that, you know,
[01:22:02.940]finally acknowledged Indian people.
[01:22:04.950]She's just doing this work in her community.
[01:22:07.740]And so, I think you're a real model for me, Nancy.
[01:22:10.950]Well, I think it was more
[01:22:12.630]because the Native former students were coming
[01:22:16.110]and wanting us to do something and we felt this need.
[01:22:20.520]So, that's why we stepped up and did that, so.
[01:22:23.940]Yeah, I think it's so great that you listened
[01:22:26.520]and (indistinct). Yeah.
[01:22:28.950]I do. I think it's amazing.
[01:22:32.130]Thank you.
[01:22:34.290]Yeah, I agree.
[01:22:35.250]I mean, I think that that's an unusual thing where,
[01:22:39.210]oh, a settler will listen.
[01:22:42.480]Yes. And hear
[01:22:44.367]and respond in such a generous way.
[01:22:49.560]And so, I mean, that's why Kevin Abourezk
[01:22:53.247]and I started the Reconciliation Rising podcast.
[01:22:55.860]We really wanted to bring attention to people like Nancy.
[01:23:00.120]Nancy's one of our podcast interviews.
[01:23:01.860]You can hear more about it.
[01:23:04.200]And we just wanted to bring attention to people
[01:23:06.900]who are doing this really important grassroots work
[01:23:10.830]in their communities.
[01:23:12.420]I feel like we'd need more models
[01:23:14.280]of people who are taking those kinds of steps
[01:23:17.850]and taking those risks.
[01:23:24.720]So, we're about five minutes out.
[01:23:28.650]Do y'all have any more comments or questions?
[01:23:35.700]You know, our next,
[01:23:36.900]oh, sorry, sorry, Marilyn.
[01:23:38.430]I wondered if you heard more from the delegation
[01:23:41.940]that visited Lincoln from Oklahoma
[01:23:45.035]to look at the land and meet some people,
[01:23:47.580]and you know, what are they thinking?
[01:23:50.070]We sort of lost, I've lost contact with them, so.
[01:23:53.760]Yeah, so Marilyn's referring to,
[01:23:57.930]and I think Jean was at this.
[01:24:00.330]I don't know if anybody else was, but in May,
[01:24:05.820]Kevin Abourezk and I were able to bring a small delegation
[01:24:10.170]of four people from the Otoe-Missouria Nation to Lincoln.
[01:24:14.490]The purpose was to try to reestablish ties
[01:24:17.730]between the city and the university
[01:24:19.680]and the tribe that ceded the land that became Lincoln.
[01:24:24.090]So, we met with lots of environmental groups
[01:24:27.000]and faith groups and Indian center,
[01:24:31.830]university officials, city officials.
[01:24:34.950]One of the things that that delegation asked
[01:24:37.440]for was they wanted the City of Lincoln
[01:24:40.860]to establish an annual day (dogs barking)
[01:24:44.640]that would recognize the Otoe-Missouria.
[01:24:47.310]And there has been some progress on that.
[01:24:50.550]The day they asked for would, was September 21st.
[01:24:56.010]It was the day they signed the treaty that gave up the land
[01:24:59.010]that became Lincoln and the city is moving forward on that.
[01:25:05.160]We've been, we've had one more meeting with them about it,
[01:25:09.150]and I believe we're gonna do it this September 21st.
[01:25:13.350]We're gonna have another delegation
[01:25:15.270]from the Otoe-Missouria come.
[01:25:17.460]I think it'll be very small scale this year.
[01:25:20.640]I think the mayor will make a declaration
[01:25:23.790]and we'll have some Otoe-Missouria people, very low key.
[01:25:27.210]But then the goal, really,
[01:25:30.030]when we talked with the city officials was that they want
[01:25:32.790]to make this an annual event
[01:25:34.830]and make it a much bigger deal each year.
[01:25:40.230]So, our first year would be low key.
[01:25:43.650]Our second year, you know, 2023,
[01:25:46.350]the idea would be much more
[01:25:47.730]of a kind of festival celebration.
[01:25:52.080]So, there are some really positive things going on there.
[01:25:55.060]Yeah. Thank you. Yeah. Sure.
[01:26:00.120]So, our last meeting is gonna be, of the summer,
[01:26:04.290]will be August 11th.
[01:26:06.240]I only remember that 'cause it's my mother's birthday
[01:26:09.720]and we're gonna meet at the same time.
[01:26:12.870]I believe we have the same Zoom link,
[01:26:16.050]but we'll be sending you more information about it later,
[01:26:19.410]but I have a real treat for you.
[01:26:21.270]Walter Echo-Hawk's gonna join us
[01:26:23.468]on August 11th. Whoa.
[01:26:24.780]Yeah.
[01:26:25.920]So it's, you know,
[01:26:28.770]I don't know if attendance is gonna increase
[01:26:30.930]when other people find out, but I, if not,
[01:26:33.720]we're gonna have a great treat, aren't we?
[01:26:35.820]You know, to get to speak with Walter in this way.
[01:26:40.860]So, be thinking in the next few weeks
[01:26:44.910]as you read the last part of the book,
[01:26:46.800]if you have any particular questions for Walter,
[01:26:49.800]anything you wanna bring up with him,
[01:26:52.770]maybe even send me things in advance.
[01:26:55.560]So, I can build that into our time with him.
[01:26:59.850]I always feel kind of bad
[01:27:00.990]that I'm monopolizing the discussion.
[01:27:03.270]So, I hope you all feel like you can always put things
[01:27:06.960]in the chat.
[01:27:08.130]You can always email me in advance and say,
[01:27:11.167]"Hey, can you be sure to ask this question?
[01:27:13.290]Or can you make time, more time for Q and A?"
[01:27:15.690]And so, I'm really glad you're all here.
[01:27:20.400]Thanks for attending again.
[01:27:22.500]And I hope I'll see you on August 11th.
[01:27:24.651]And let me know if you have any questions
[01:27:26.880]in the interim, so.

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Reckoning & Reconciliation Discussion Circle Part 2

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