Recognizing a Native American Holocaust

Since the late eighteenth and early nineteenth centuries, non-Indian America, asserted its cultural superiority by both assuming and asserting that Indians either must assimilate or blend into the American "melting-pot" and perish as a distinctive people or must gradually die off as their culture and skills fail to cope with the changes imposed on them by the advance of an allegedly superior white civilization. This asserted cultural superiority manifested into actual governmental policies affecting Native Americans, such as the General Allotment Act (GAA).

This article argues that the GAA and its effects constitute genocide. In arguing that the GAA constitutes genocide, this article further argues for a more liberal definition of genocide than the one in the Convention for the Prevention and Punishment of the Crime of Genocide (Genocide Convention). Congress passed the GAA as the next best answer to civilize Indians when federal policymakers determined that reservations failed in that purpose. The continued goal of assimilation by the GAA may not have succeeded, but it did destroy a way of life that by some constitute genocide.

This paper begins by discussing the affects of the GAA on Native American lives. Secondly, the paper will discuss the evolution of genocide’s definition and argue for a more liberal definition, so to include such destructive government sponsored policies as the GAA. Finally, the paper will demonstrate how the GAA constitutes genocide under the more liberal definition.

Manifest a Destiny While Destroying Another: The Effects of Allotment

Ironically, lawmakers passed the Dawes Act with the best of intentions to help the Indians, but the effects of the GAA hardly helped Indians in any positive way. The Removal and Reservation eras preceding Allotment virtually destroyed the many Indian nations’ way of life. The goals of the allotment and assimilation era were in many respects continuations of the reservation goals: agriculture, Christianity, and citizenship. The primary agent of civilization and citizenship was private land ownership. Advocates of the policy believed that individual ownership of property would turn the Indians from a savage, primitive, tribal way of life to a settled, agrarian, and civilized one. Assimilation was viewed as both humanitarian and inevitable. The cornerstone of this social engineering, this "legal cultural genocide," was the replacement of tribal communal ownership of land with private property. The GAA authorized the break up of the reservations. Indians were to receive allotments of land in severalty, and the remaining surplus lands were to be opened to settlement.

Under the Act, individual Indians generally received 160 acres of reservation land originally held in trust for 25 years. During the 25 years, the allottee was expected to assimilate to agriculture, to Christianity, and to citizenship. At the end of the twenty-five year transition period, the individual would receive a patent in fee, free of encumbrance and fully alienable and subject to the state jurisdiction. Thousands of Indian owners disposed of their lands by voluntary or fraudulent sales; many others lost their lands at sheriffs' sales for nonpayment of taxes or other liens. By the end of the allotment era, the total amount of Indian land held was reduced from 138 million acres to 48 million acres, of which 20 million were desert or semidesert.

The Supreme Court actively engaged in the process of Allotment also. In 1903, the Court held in Lone Wolf v. Hitchcock that tribal consent to the loss of surplus lands was not required, notwithstanding either the GAA or a specific treaty provision requiring written consent to any cession agreement. Thereafter, Congress unilaterally enacted surplus lands acts. An act originally requiring consent was found to not need consent by the Court, thereby imposing its vicious effects upon tribes that did not want it.

In 1934, Congress ended the allotment program and formally repudiated the assimilation policy with the passage of the Indian Reorganization Act (IRA). Even though Congress repudiated Allotment, courts continue to rely upon the Act to diminish tribal sovereignty. For example, the Court in South Dakota v. Yankton Sioux Tribe, held that the divestiture of Indian property in 1894 effected a diminishment of Indian territory, thus the ceded lands no longer constituted “Indian country” as defined by 18 U.S.C. § 1151(a), thereby allowing the State primary jurisdiction over them. The Court addressed this issue in other cases as well, not always finding diminishment, nonetheless invoking the intent of Congress from 1887 of a repudiated act to decide current issues.

Courts today still address this very issue. In fact, the Supreme Court recently denied certiorari in County of Mille Lacs v. Benjamin, where the Eighth Circuit Court of Appeals dismissed the county and a bank’s request to determine the reservation boundaries. The County of Mille Lacs and the First National Bank of Milaca argued that the reservation boundaries had been diminished. Even though the Court denied certiorari, the Court proved that it decided on this issue before, therefore, the likelihood of it doing so again remains.

The Supreme Court’s previous cases finding diminishment and creating a test, which relies upon Congress’ intent at the time it passed the GAA remain the most disturbing. The Court in Oliphant v. Suquamish Indian Tribe written by Justice Rehnquist, for instance, stated that “Indian law draws principally upon the treaties … and legislation … which beyond their actual text form the backdrop for the intricate web of judicially made Indian law, … must be read in light of the common notions of the day and the assumptions of those who drafted them. ” In Montana v. U.S., therefore, the Court stated in reference to the GAA that “(i)t defies common sense to suppose that Congress would intend that non-Indians purchasing allotted lands would become subject to tribal jurisdiction when an avowed purpose of the allotment policy was the ultimate destruction of tribal government. ”The Court in Montana applied its test in Oliphant of relying upon the common notions and assumptions of the GAA.

Relying upon the common notions and assumptions of the GAA are troubling given the Act’s repudiation. During the late 1800’s, Congress viewed tribes unfavorably, as evidenced by the GAA, which the Court admitted had the purpose of destroying tribal governments. The Court perpetuates the GAA’s repudiated purpose by relying upon its common notions and assumptions to decide cases today, which effectually diminishes tribal sovereignty. The Court’s utilizing a repudiated “disastrous” policy’s common notions and assumptions today furthers the genocidal nature of the GAA from when it was passed. The Act’s goal of destroying tribal governments continues today, despite the Act’s repudiation. To demonstrate that the GAA is genocide requires defining genocide, which the article next addresses.

Definitional Dilemmas

“To identify the relevant parameters is a first step in the prevention of future genocides. ” In 1944, Raphael Lemkin defined genocide, which included attacks on political and social institutions, culture, language, national feelings, religion, and the economic existence of the group. Even non-lethal acts that undermined the liberty, dignity, and personal security of members of a group constituted genocide, if they contributed to weakening the viability of it. Lemkin’s definition ought to replace the Genocide Convention’s conservative definition of genocide.

On December 9, 2023, the United Nations General Assembly adopted the Genocide Convention and was entered into force on January 12, 2024 with more than one-third of the U.N. member states. The Genocide Convention defines genocide in Article 2 as:

Any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group; and

(e) Forcibly transferring children of the group to another group.

Even the Genocide Convention mentions “mental harm” and “conditions of life” as a means of committing genocide, however, the Convention places a strong emphasis on the physical aspect of genocide. Therefore, by expanding the definition to Lemkin’s original definition would provide justice to those government sponsored acts causing so much destruction, while at the same time not constituting genocide because they do not physically destroy a people. Lemkin’s original definition included such things as: forced transfer of children, forced exile (i.e., mass expulsion), prohibition of the use of the national language, destruction of books, documents, monuments, and objects of historical, artistic or religious value. Even non-lethal acts that undermined the liberty, dignity, and personal security of members of a group constituted genocide, if they contributed to weakening the viability of the group.

A Native American Genocide

Arguably the GAA could constitute genocide under the Genocide Convention, Article 2 (c) because it “deliberately inflicted on Native Americans conditions of life calculated to bring about their physical destruction in whole or in part.” By the GAA’s admitted approach of assimilation by imposing Christianity, citizenship and the breaking up of tribal land, Congress intended to destroy the tribal way of life. Moreover, by the Court’s reliance on the Act’s legislative intent and purpose in determining whether reservation land is diminished, the GAA’s purpose is perpetuated, thereby continuing to erode tribal land, thus their life. But as mentioned previously, the Convention places a lot of emphasis on the physical aspect of genocide, therefore, the fact that the GAA did not intend to kill Native Americans physically diminishes the strength of the argument that the GAA constitutes genocide.

By imposing a foreign property system on a group of people that eventually results in its loss, that people no longer have a territory to exercise their political or social institutions, practice their culture and religion, thereby eliminating the all practical existence of them (cultural, spiritual, economical, political and social). A physical existence minus every other aspect of one’s life is hardly an existence worth living.

Granted Native Americans may not have suffered exactly as the Jewish did in the Holocaust, but the GAA’s effects brought enough destruction to Native American’s way of life, thereby constituting genocide. Even though the GAA was not a plan to annihilate all the Indians, its effects ranged from the loss of their land, which affected their ability to practice their culture, religion, spirituality, exercise their political / social institutions and sustain themselves economically. The GAA achieved every sort of destruction possible except physical destruction. The GAA demonstrates multiple ways of destroying a people, which is just as bad, if not worse, than physical destruction.

Conclusion

The greatest and most concerted attack on the territorial sovereignty of the tribes was the allotment policy. The allotment policy was overtly directed to the dissolution of the tribes and the extinguishment of tribal territories. The allotment policy was an admitted failure: it did not transform the Indians into yeoman farmers, but it did wreak destruction within tribal communities. Congress’ formal repudiation of Allotment in 1934 should have ended it, but its legacy lingers on, by the Supreme Court giving effect to the discredited policy of allotment and assimilation. By diminishing tribal territories and restricting tribal sovereign control over their remaining territory, the Court undercuts Indian nations’ sovereignty and territorial integrity.

Eliminating one’s land base, hence one’s control and use of it, destroys all that land encompassed to the people who considered that land home. By physical destruction, a person’s life is ended, but by destroying a person’s culture, religion, and way of life, they cease to exist as they once did, and not by choice. Tribes physically exist today, but the damage of the GAA is currently experienced almost one-hundred fourteen years later, therefore, a broader definition of genocide is necessary to prevent the further destruction of the GAA.

1 See Robert Clinton, “Redressing the Legacy of Conquest: A Vision Quest for a Decolonized Federal Indian Law,” 46 Ark. L. Rev. 77, 79 (1993) (Redressing the Legacy of Conquest).

2 The Dawes or General Allotment Act of 1887, 24 Stat. 388 (codified at 25 U.S.C. § 331; repealed at Pub. L. 106-462, title I, § 106(a)(1)).

3 General Assembly Resolution 260 A (III). For the definition of genocide provided by the Genocide Convention see infra p. 6.

4 See Judith Royster, “The Legacy of Allotment,” 27 AZSLJ 1, 8 (1995).

5 See Robert Porter, “The Demise of the Ongwehoweh and the Rise of the Native Americans: Redressing the Genocidal Act of Forcing American Citizenship Upon Indigenous Peoples,” 15 Harv. BlackLetter L.J. 107, 112 (1999) (Redressing the Genocidal Act). (Emphasis added).

6 The Legacy of Allotment at 9.

7 Id.

8 Id. Citing Delos S. Otis, “The Dawes Act and the Allotment of Indian Lands” 141 (Francis Paul Prucha ed., 1973).

9 Id. Citing Wilcomb E. Washburn, “The Assault on Indian Tribalism: The General Allotment Law (Dawes Act) of 1887” 12 (1986).

10 Id. Citing Rennard Strickland, “Genocide-at-Law: An Historic and Contemporary View of the Native American Experience,” 34 KAN. L. REV. 713, 721 (1986).

11 Id.

12 Id.

13 Id. at 10. However, Congress later amended the Act in 1906 allowing the Secretary of Interior to issue patents prior to the twenty-five years upon determining that the individual was "competent and capable of managing his or her affairs." See the Burke Act of 1906, 34 Stat. 182 (amending § 6 of the GAA) (codified at 25 U.S.C. § 349).

14 Id.

15 Id.

16 Id. Citing Janet A. McDonnell, “The Dispossession of the American Indian, 1887-1934,” (1991) at 100-01, 106-07.

17 See William C. Canby, Jr., “American Indian Law Nutshell,” (4th ed.) at 22.

18 187 U.S. 553, 567 (1903). The federal government entered into a cession agreement with the Kiowa and Comanche Tribes pursuant to the General Allotment Act and a treaty provision requiring the written consent of three-quarters of the adult males of the combined tribes. Id. at 554. The government obtained 456 signatures, and in 1900 Congress enacted the cession agreement into law. Id. at 554-55. Lone Wolf challenged the action, claiming that the number of signatures represented less than three-quarters of the adult males, and that many of the signatures had been obtained by fraud. Id. at 556. The Court refused to address Lone Wolf's arguments, holding that the statutory cession was within the plenary power of Congress over Indian affairs, and beyond the power of the courts to review. Id. at 567-68. See The Legacy of Allotment at footnote 65.

19 Id. See also Hagen v. Utah, 510 U.S. 399 (1994) discussing where Congress directed the Secretary of Interior to allot the Uintah lands unilaterally if the Indians did not give their consent within three months.

20 48 Stat. 984 (codified at 25 U.S.C. §§ 476-477).

21 522 U.S. 329 (1998).

22 See Solem v. Bartlett, 465 U.S. 463 (1984); Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977); United States v. Dion, 476 U.S. 734 (1986); Hagen v. Utah, 510 U.S. 399 (1994); County of Yakima v. Yakima Indian Nation, 502 U.S. 251 (1992); and DeCoteau v. District County Court for Tenth Judicial Dist., 420 U.S. 425 (1975).

23 2004 WL 2153236 (Nov. 1, 2004).

24 See 262 F.Supp.2d 990 (D.Minn.) May 06, 2024 and 361 F.3d 460 (8th Cir.) Mar 09, 2024).

25 435 U.S. 191, 206 (1978).

26 450 U.S. 544, 560, fn 9 (1981).

27 See Montana, where the Court held that the Crow did not have jurisdiction to regulate hunting and fishing on land within the reservation owned by non-Indians; and Strate v. A-1 Contractors, 520 U.S. 438 (1997), holding that the Three Affiliated Tribes do not have jurisdiction over accidents occurring on rights-of-way within their reservation; and Brendale v. Confederated Tribes & Bands of Yakima, 492 U.S. 408 (1989), holding that the tribes do not have the authority to zone non-Indian owned fee lands located within the reservation.

28 The Court stated that "this policy of allotment of Indian lands quickly proved disastrous for Indians." Hodel v. Irving, 481 U.S. 704, 707 (1987).

29 See “Defining the Unthinkable – Towards a Viable Definition of Genocide,” 2 Or. Rev. Int’l. L.3 (2000), (Defining the Unthinkable) quoting Frank Chalk and Kurt Jonassohn.

30 Id.

31 Id.

32 Id. Citing G.A. Res. 260 A (III): Convention on the Punishment and Prevention of the Crime of Genocide (Genocide Convention). See also Professor Churchill’s discussion of “Definitional Erosion” in Defining the Unthinkable at 13-16. Professor Churchill describes how Lemkin’s original definition became diluted by fear of Nation States’ potential liability. Therefore, the Convention took a much more conservative definition of genocide. For example, in the original draft, Article II had specified as genocidal the "destruction of the specific character of a persecuted 'group' by forced transfer of children, forced exile [i.e., mass expulsion], prohibition of the use of the national language, destruction of books, documents, monuments, and objects of historical, artistic or religious value." Defining the Unthinkable citing Robinson.

33 Genocide Convention, Art. 2.

34 See footnote 11 as mentioned in Defining the Unthinkable.

35 Id.

36 Hebrew University Professor Yehuda Bauer on June 2, 2024 by Michael Dunn stated that Native Americans did not suffer genocide because there was never any plan to annihilate all the Indians. http://www.remember.org/hist.per.bauer.html.

37 The Legacy of Allotment at 6.

38 Id.

39 Id.

40 Id.

41 Id.