I got involved in Indian affairs almost by accident. I wound up with a summer job working with the Bureau of Indian Affairs in South Dakota as a recreation intern on an off-reservation boarding school. It was an extraordinary summer for me. It really changed my life. It was the first time I'd ever been around Indians, and the people were wonderful. But I was confronted with a situation the likes of which I'd never seen. These children and their parents were totally controlled by the Bureau of Indian Affairs. The government had essentially complete control over these people's lives. The federal government controlled their property, controlled where their kids went to school, even got to control whether their kids got to go home in the summer from off-reservation boarding schools where they went in the winter. And something about that struck me as fundamentally wrong.
Where I grew up in suburban St. Louis [Missouri], the government didn't have any kind of control like that, and that certainly was not my idea of what freedom was about. I went up there thinking I'd spend a summer, and became so interested that I wanted to spend my life working in this area. And the question then was: What would I do? It seemed to me that the problems I saw were inherently political, but that is to say that they were inherently legal, and that if I was to be of any use, I needed first to understand how our system of law and government worked, and that meant going to law school.
Welfare
The problems that have been created by the interface between Indians and non-Indians in the United States are a reflection of the loss of independence. It's a reflection of the loss of self-sustaining communities, of the loss of meaningful work, of the devastating effect of the use of welfare as a means of defeating people, which I think clearly is what the United States did with Indians. They [the Indians] were much too effective on the battlefield, and so, instead of having long supply lines and soldiers out there, they [the U.S.] simply gave the Indians just enough to survive and not enough to go anywhere. And that was welfare, and that was invented as a device for controlling Indians.
When I first went to Maine, there was one Indian in college, and now in the Passamaquoddy tribe alone there must be a hundred and fifty. Certainly, I've seen aspirations change for people, in terms of what they think is possible to achieve. But change doesn't come overnight, and generations, centuries of oppression leave a real mark--and the friction between cultures leaves a dramatic mark. With Native People in the United States that mark is most clearly seen in terms of suicide.
I know very well one family in which the grandfather committed suicide, one of his children committed suicide, and one of his grandchildren committed suicide. And how you deal with that kind of despair is tough because what you wind up relying on are the institutions that are supplied by the dominant culture. And in my mind, it's the dominant culture that to a large extent is creating this problem to begin with. So you turn for treatment to that other culture, and not surprisingly it doesn't work so well.
Community
I believe that communities are healthiest and happiest when people have self-esteem, and I think that self-esteem is closely tied to people having meaningful work. Meaningful work can involve a range of activities, from the most traditional activities to what we think of as the most modern. But at the heart of it is self-sufficiency. To be independent and self-reliant as a community is a very important ingredient in being healthy. So if you're not there, if you've been in a position of subordination, the question is, how do you bring about change? It's very important to think clearly about the strategy you're going to adopt for change, because you can waste a whole lot of time if you don't think it through clearly in the beginning.
New England Tribes I
One example that I was involved with concerns the tribes in New England who were not recognized by the federal government, which is to say that they were considered legally extinct, possessing no powers of self-government, and weren't considered eligible for the few services that the federal government gave to tribes in the western part of the United States. These tribes were amongst the poorest in the United States.
The Passamaquoddies had been very isolated until the wars came along. It was the Second World War and the Korean War in which some of their members went off and served in the military. That event was a watershed for them and was a time when they began to see something of the world and to understand something of their position in the world. John Stevens, who was governor of the Passamaquoddies for many years, began to get the sense that something was wrong, a sense of injustice, and a desire to change things.
The question for these folks was how to get into the same position that other tribes were in, in the western part of the United States. They were not secure in the way western tribes were secure: one, because they were so desperately poor and didn't have access even to services [like those available to western tribes]; and, two, because their sovereignty was not respected, in the sense that there was really nothing stopping the state of Maine from permitting non-Indians from participating in their political process. And of course once that happens, that's really the end of your autonomy. They also didn't have any protection for their land. Their land was held in trust by the state of Maine, but the state of Maine had already sold off a fair portion of it. And of course the land was the most important thing in terms of their survival as a separate people. And so the question became: How do they get basic protections that would ensure their survival?
New England Tribes II
We found a statute passed in 1790 that said that no land of any Indians could be sold without the consent of the federal government, and any transaction that was not federally approved was void. Now that's a statute that had really pretty much been forgotten, had never been applied to the benefit of Indians. Well, literally millions of acres had been sold in violation of this statute, and the Indians were entitled to return of that land plus compensation for its wrongful occupation for all of those years.
At first blush you'd say, "Well how are you ever going to get that system, which has oppressed these Indians all these years, to apply a statute like this that would mean displacing all of these people?" Success depended upon strict adherence to what the law said and having it apply equally to everyone, even though the results for the non-Indians might be, shall we say, surprising.
New England Tribes III
One of the unspoken things that happened at the very beginning was a belief that the legal system would work. If you think about it, it's pretty extraordinary to hinge this kind of effort--which was going to take many years and, in fact, took twelve years to execute--on the legal system, and in our case on the political system, as well. We believed in the system--maybe it was just that we were young and foolish--and we believed that we could make it work.
Mind you, I never believed that we would be able to get the court to return two-thirds of the state of Maine, which is the size that the claim ultimately became. My feeling from the beginning was that to succeed we had to win in court on the basic theoretical questions, and then rely on a compromise for the ultimate solution, because if we pressed for the ultimate solution in court, my fear always was that the court would find some reason for not doing it.
One of the fundamental lessons that I learned early on is to never assume that it's not going to work. I mean if it's theoretically correct, don't assume in advance that the people on the other side are jerks, or that the system won't work. One of the big surprises was that some of the best supporters of Indian rights were conservatives. Not totally surprising because, you know, what do conservatives believe in? The rule of law and property rights and things of that sort. The law is tremendously important to Indians for the same reason it's important to rich people. In this case the judge was a Republican appointed by [President] Eisenhower. And he wound up rendering a historic decision in 1975, saying not only that this law protected these Indians, but that it created a trust obligation on the part of the federal government to get this land back for them. That led to the restoration of hundreds of thousands of acres to these tribes and to the creation of enterprises that have made some of these tribes amongst the wealthiest people in the country.
So where do we go from here? I think it's always a process of being a practitioner of the possible, so that you don't lead your clients down blind alleys, but that you also are willing to dream, to think carefully, and to trust your instincts--more than trusting your instincts, to trust your intellect. And I guess ultimately, not to count your boobies before they're hatched, because allies come from the strangest places, and you don't get to find that out until you embark on the process.
New England Tribes IV
Going back to the very beginning, the whole thing really hinged on being able to use the instruments of the dominant power. To be able to use the courts and the political process, and to be able to use the media. Having gotten the decision in 1975, some very interesting things started to happen. First of all, the bond market collapsed in Maine. That got their attention.
What happened was the people who have to give opinions on borrowings by municipalities realized that if we were right--and once the decision came down in our favor in 1975 they realized that they could no longer say that we were for sure not right--then that meant they couldn't give clean opinions any more because, whoever was occupying the land, it was still owned by the Indians.
We didn't plan to have the bond market collapse, but it was sure helpful. The politicians no longer could say this is something that we're going to leave for our grandchildren to deal with. This suddenly became something that they had to deal with themselves. Now that's good and bad.
No sooner did we cause the bond market to collapse in Maine than the governor went to Congress, gathered together the Maine congressional delegation, and asked them to introduce a resolution in Congress which would have retroactively amended the Non-Intercourse Act, after the fact, and called on the courts of the United States to refuse to hear the Indian's claim for return of land. Now this was an absolute outrage. I mean this is something that you cannot do in a constitutional democracy. The law applies to everyone, it applies equally, and it won't get changed retroactively because it turns out that it protects a group of people that it wasn't expected to protect--you know, that a group of poor and powerless people nonetheless get the benefit of one of our statutes. It was an utter outrage.
It never went anywhere because Jimmy Carter had just come in as president, a man of significant principle, and we were able to bring this to his attention by garnering the support of the international human rights community and the newspapers. And in the end, he took the position that he would not support any settlement that was imposed on the tribe. Nor would he support any change in the law which took away their rights. They either would get their day in court, or they would get a negotiated settlement.
It took four years to negotiate the settlement in 1980 which returned 81.5 million dollars to these two tribes, about four thousand members at that time, and the right to reacquire three hundred thousand acres over which they would have sovereign powers.
