Treaties in a world of contested discourse

Russell: Treaties in a world of contested discourse
© Indian Country Today February 08, 2008. All Rights Reserved
Posted: February 08, 2008
by: Steve Russell


The Cherokee Nation having, voluntarily, in February, eighteen hundred and sixty-three, by an act of the national council, forever abolished slavery, hereby covenant and agree that never hereafter shall either slavery or involuntary servitude exist in their nation otherwise than in the punishment of crime, whereof the party shall have been duly convicted, in accordance with laws applicable to all the members of said tribe alike. They further agree that all freedmen who have been liberated by voluntary act of their former owners or by law, as well as all free colored persons who were in the country at the commencement of the rebellion, and are now residents therein, or who may return within six months, and their descendants, shall have all the rights of native Cherokees: Provided, That owners of slaves so emancipated in the Cherokee Nation shall never receive any compensation or pay for the slaves so emancipated.

- Article 9 of the treaty between the United States and the Cherokee Nation, 1866



''When I use a word,'' Humpty Dumpty said, in rather a scornful tone, ''it means just what I choose it to mean - neither more nor less.''

''The question is,'' said Alice, ''whether you can make words mean so many different things.''

''The question is,'' said Humpty Dumpty, ''which is to be master - that's all.''

Semiotics, the study of signs, tells us that words don't mean anything at all in the cosmic sense. God didn't write a dictionary. Words, and how they are strung together, mean what we agree they shall mean and in the search for that agreement we engage in what social scientists call ''contested discourses.'' The reward for winning these contests is power.

Elections and other public opinion polls are driven by what words are used to frame the issues, leading to conflicting results and some folks to join once more with Lewis Carroll in deriding ''the different branches of Arithmetic - Ambition, Distraction, Uglification, and Derision.''

Witness Clinton I and Clinton II attacking Barack Obama for stating the plain truth about Ronald Reagan's redrawing of the political landscape. Few presidents can claim that: Jackson, Lincoln, FDR and Reagan easily make that short list.

Since I am Cherokee, I could be pilloried for saying that truth about Andrew Jackson. To this day, many families in the former Indian Territory (my own included) blame Jackson and therefore the Democratic Party for the Trail of Tears and so we start out thinking we are Republicans. To say Jackson redrew the political landscape is not to say he was a friend of Indians and to say Reagan did the same is not to approve of the new map.

Reagan was in fact the last president with big new ideas about the direction of the country. Ironically, the very Clintons bashing this statement are political creatures of the Democratic Leadership Council, which was a capitulation to Reaganism: Individual welfare bad, corporate welfare good; rehabilitation bad, incarceration and the death penalty good. The way to beat the Republicans is to co-opt their issues.

If the Bush II administration governed by the big lie, the Clinton I administration governed by parsing language in ways too cute by half, accumulating small lies until it's all right to be a Slick Willie because, after all, you are then not a Goebbels.

Are Indians different in their treatment of contested discourses? Witness the framing of the controversy within the Cherokee Nation over the disenrollment of the freedmen.

Frame the question as whether an Indian nation has the right to define its own requirements for citizenship, and it answers itself whether with law or with common sense. A subset of this claim, however, is nonsense: the claim that the Cherokee Nation can ignore a treaty obligation because the treaty was entered upon the end of the Civil War and the United States had all the bargaining power. If that were reason to ignore a treaty, there would be no treaties, since treaties customarily mark the end of armed conflicts which one party won and the other party lost.

Frame the question as whether an Indian nation can abrogate a treaty, and it still answers itself. How can anybody claim the United States can abrogate treaties but Indian nations cannot?

Both framings beg the question of right and wrong. Having power does not make any particular exercise of power morally correct. There are several alternative framings that take the result out of the realm of the slam-dunk.

What do slavers owe the enslaved besides freedom? If this debt was discharged when the Cherokee Nation was required to include the freedmen in the allotment of the Cherokee Reservation, then how is it that the U.S. debt to the Cherokee Nation has not been fully discharged in the millions of dollars in ''foreign aid'' we have received since the allotment years?

What nation largely made up of white people who needed a professional genealogist to find a Cherokee ancestor can credibly claim that black people should lose their citizenship for being insufficiently Indian? It's funny that the same people who defend this racist nonsense will claim that our treaty obligation is void because of manipulation of the treaty process by the victorious United States but their historical fastidiousness does not extend to the practice of segregating black looking people on the freedmen roll without any inquiry into Cherokee blood. In defense of the white people who did that, there was little reason to inquire at the time because persons formerly owned by Cherokees had the same right to allotments as Cherokees and it would have been extraordinarily prescient for any of those folks to understand that in the future location on the Dawes Rolls (rather than the fact of being on the rolls) would be important.

What kind of ''nation'' lacks a naturalization process, or takes away citizenship for any reason except criminality?

How can the Cherokee Nation take the position that the U.S. cannot abrogate Indian treaties by implication but claim that Cherokees have done so in an election where treaty abrogation was not on the ballot and every time it was brought up tribal officials denied it? Their argument, if I understand it, is that the treaty never uses the word ''citizenship.'' The treaty provision is above, and it is fair to ask what is unclear about ''all the rights of native Cherokees''?

What does it matter to Indian country if the Cherokee Nation violates a treaty with the United States? I have already felt the impact, as I can no longer tell my students that Indians have kept their word in the face of perfidy. As Justice Black wrote, ''Great nations, like great men, should keep their word.'' When Cherokees lose that argument, so do all Indians. That's not fair, but that's the fact of American politics.

As we speak, the Cherokee Nation Web site complains that we are facing ''termination.'' If I read my history correctly, the termination era was when the United States ceased government-to-government relations with Indian nations. What Congress proposes to do about the Cherokee treaty violation is withhold money that in the world of sovereignty could be called ''foreign aid.'' Congress says to Cherokees that our government may disregard treaty obligations, but not on America's dime. Sounds like a fair resolution to me, but it all depends on what the words mean.

Whether it's fair or not, the power to do it exists, and the only thing between the lied to Cherokee people and that power is a Cherokee Supreme Court that has the power to tell the Cherokee government if it intends to abrogate a treaty by referendum then the referendum question must give notice in words that admit no other interpretation.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and an associate professor of criminal justice at Indiana University - Bloomington. He is a columnist for Indian Country Today.