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Part 4: Treaty Rights and You

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Unabridged Version with Bonus Content:

In this episode, we listen to Dr. Joseph Bauerkemper, Samir Grover, and Tadd Johnson on the foundational issue of treaties. As you know, Broken Lands is a podcast series that came about because of the Duluth Reparation made to the Minnesota Chippewa Tribe. The financial amount offered in this reparation symbolizes the treaties of 1854, 1855 and 1866, in which the Anishinaabegkake granted the federal government this land and what settlers now call Northeastern Minnesota. This episode is all about the implications for a society built on promises that have been broken.

When we talk about treaty violations, it's not long before we begin to touch on larger historical ideas like the doctrine of discovery, Manifest Destiny, white supremacy, and progress. Examining these dogmas of Western civilization helps us understand how and why settler narratives often lack attention to the relationships spelled out by these treaties. We will also listen to our elder Tadd Johnson speak to us about the failure of our judicial system to fully understand the implications of our treaty-making and the basics of Indian law. This abdication of responsibility is predicated on a dysfunctional system that goes all the way to the top. So since we've witnessed this Duluth reparation, isn't it time to consider how our relationships are at the center of these treaties mapped out seven generations ago?

Dr. Matthew Cobb So knowing the context of northern Minnesota and the arrowhead, knowing the demographics, knowing some history, the three guests today are going to provide a real wide breadth of understanding about treaty rights and how they might impact us directly in our lives together here. So, Joseph, would you start us with a quick introduction?

Dr. Joseph Bauerkemper Yeah, thank you. So I'm Joseph Bauerkemper, tuning in here from Duluth, Minnesota, where I live and work at the University of Minnesota's Duluth campus in the Department of American Indian Studies. I currently serve as one of your other guests' successor as the director of the Tribal Sovereignty Institute now, at the University of Minnesota. And I also am an affiliate faculty at the Humphrey School of Public Affairs. And I'm here today to shed a bit of my perspective as a settler person, a non-Indian, primarily of European descent, though having, you know, in a kinship network, a family that's lived on this continent for nearly a couple hundred years. So I'm here to share that perspective. I don't speak on behalf of the university, though the work there certainly informs where I'm coming from and the ideas that I'm working toward, I suppose. But it's good to be here. I appreciate the conversation. Thank you.

Samir Grover My name is Samir Grover. I'm a law student at Sandra Day O'Connor College of Law in Phoenix, Arizona. I'm part of the Indian legal program, pursuing the Indian legal certificate there. And prior to that, I worked at Anishinaabe Legal Services in Cass Lake, and I did work in White Earth, Red Lake, and Leech Lake Reservations regarding disability cases. And, yeah, I'm Indian and Pakistani, specifically Punjabi. So I come from, I guess, that perspective. But I think part of what drew me towards Indian law was that my family was forcibly removed from Pakistan, and had to relocate to India, due to a border being drawn.

Tadd Johnson So my name's Tadd Johnson, I'm a member of the Bois Forte Band of Chippewa, which is part of the Minnesota Chippewa Tribe. I spent most of my life as an attorney and came to the academy fairly ... well, I was 52, and worked with Joseph, and we started a couple of graduate programs, a Master of Tribal Administration and Governance and a Master of Tribal Resource and Environmental Stewardship. And we also worked closely with MNDOT, Minnesota Department of Transportation, and the Minnesota Indian Affairs Council, which is essentially all the tribes in Minnesota, and created a tribal state relations program. And together, we've trained about 5,000 state employees. So we've been doing it since 2013. I think of the things we've done, that's one of the things I'm most proud of is actually training non-Indians on federal Indian policy. And we have a lot of fun doing it, so I'm honored to be here.

Dr. Matthew Cobb To set up this conversation. I wanted to start with Joseph Bauerkemper first, speaking to us about how the treaties between European settlers and the Anishinaabeg on this land are at the very foundation of our society as an example of how this affects our relationships with one another today. He references a recent Supreme Court case which calls into question Indian sovereignty, and even Indian identity. He notes that such deliberations are bound to be wrongheaded if we don't recognize the fundamental reality of these treaties. At the center of these treaties is the basic human relationship between the Anishinaabeg and European settlers. The principle and foundation of these treaties are that they recognize the rights were granted to settlers by the tribal nations, not the other way around.

Dr. Joseph Bauerkemper I've got a bit of a certain kind of privilege in this conversation, because I'm not an attorney, I'm certainly not an attorney, nor am I studying to be one. And so, I get to maybe have, instead of a more realistic tilt, I get to maybe have a little more of a moral tilt when I do an analysis of some of these things. And, you know, to my mind, the treaties are at the core of it, in the sense that it's only by way of treaties that we have this entity called the federal government.

It's only by way of treaties that we have these state governments. You know, those treaties are the pathway through which those things were created and exist, and they're doing a terrible job of upholding their obligations under those treaties, and therefore, they're doing a terrible job of upholding the reality that allows them to exist.

And so it's a strange circumstance where you have, someone like Justice Kavanaugh, writing in the ruling in the Castro Huerta case, you know, aggrandizing state power and state authority without a base. There's no real stable legal source for the apparent observations that he's making, which are probably fabrications that he's making, I would say. And in my understanding, we need to look at treaties, at those treaty relationships in order to ascertain what are the bases of settler society, its authorities, its latitudes, and its limitations to those things.

And settler society is living well beyond the consent granted by Indigenous peoples through those treaties, and that's a crisis. You know, we find ourselves in a crisis and have been in that crisis for many generations now. And so, you know, when I think about the legal cases that have been mentioned here, you know, they on the one hand, just seem kind of absurd. But on the other hand, they have incredible practical import and they rub up against everybody's lives with great consequence.

And so my view at the moment is that if we have more and more folks understanding and appreciating that treaties are fundamental to settler society, to relationships between settler governments and Indigenous governments, that they create the reality in which something like the United States, something like Minnesota, something like the Northeastern Minnesota Synod of the ELCA, you know, they create the reality in which these things can exist. Without those treaty relationships, there's no legitimacy to any of that. And with that comes a whole host of obligations that are pretty obscenely neglected, and so, you know, this conversation hopefully can engage more and more folks in that. And the more folks learn about that and appreciate whatever their relationship with these various treaties might be, perhaps we'll be a little bit better off, or a little bit less worse off, when it comes to our crises here.

Dr. Matthew Cobb When we get down to morality, Christian morality, when we get down to faith and faith formation, one of the things that the ELCA and the Episcopal Church has done is adopted resolutions to repudiate the doctrine of discovery. Now, this doctrine of discovery, I think, Tadd, is just littered all over the Kavanaugh decision, or, you know, what he has written. And it's a really big assumption that Manifest Destiny, these kinds of things, will continue to progress. And so that creeps, that creeps all the way to legislatures. There's a creep to that. And I think there is some culpability to use, you know, to go to that moral conscience that Joseph brought us to.

Tadd Johnson It's a huge issue you've brought up. First of all, the doctrine of discovery was essentially a Catholic doctrine promulgated by popes and Spanish theologians and refined over the years. It allowed for the first European sovereign to get to the Native Americans to make a deal with them. Usually it was "please don't harm us," and there was some trading of goods as well.

But there was an underlying assumption that, you know, a good thing for these Indigenous folks would be if we could Christianize them. And that continued on, and here's where you get into a separation of church and state issue. The boarding schools started in 1879 in Carlisle, Pennsylvania, by Captain Pratt, who said "Kill the Indians, save the man." And so consequently, kids as young as four were brought from Arizona and places West to, you know, thousands of miles away to Carlisle, Pennsylvania. They were not allowed to speak their language. They had Christianity driven into them, and that was going on all over the place. Both my grandparents were in a boarding school at Lake Vermillion up here in northern Minnesota. And anyway, after Wounded Knee took place in 1890, I mean, they've already kind of made all these generations of kids that went to boarding schools think that their religion is like devil worship or worse.

And then in 1890, people were doing the Ghost Dance at Wounded Knee, and the Army breaks out and kills men, women and children. And after that, the Native American religions went underground. And it wasn't until 1978, with the passage of the American Indian Religious Freedom Act, that suddenly Congress said it was okay for, you know, Native American people to freely exercise their religion, which is guaranteed to them under the Indian Civil Rights Act. People continued to practice around here the Midewiwin, but they didn't talk about it in public. And there were, you know, hundreds of Native American religions going on throughout the United States. And all of this stemmed from essentially John Marshall adopting the doctrine of discovery into American jurisprudence in an 1823 case called Johnson v. McIntosh. And so that essentially got incorporated into the law of the land.

And anyway, so the United States, which with its plenary power, ended up passing laws, and especially in courts of Indian offenses and other places where the United States had some say in what the Native Americans could do on their own reservations, there were statutes effectively precluding certain types of prayer, certain types of dances. And so in spite of the fact the United States was founded on religious freedom for the Quakers, the Catholics in Maryland, the Puritans in New England, those rights were not acknowledged by the United States for Indian tribes until 1978. And that is a slap in the face, if nothing else.

Dr. Matthew Cobb Is it the case that there is a continued assimilation that's going on right now?

Samir Grover I can just briefly say, you know, I've heard tribal leaders here in Minnesota observe that, in relation to discussions of boarding school as a historical artifact — the boarding school era or boarding school history, the ongoing legacies of boarding schools. And I've heard more than one tribal leader observe that it won't be long before we're calling the time we live in right now the foster care era, or the child removal era. And so I think that there's an ongoing story there that is not distinct from that boarding school history, if you will.

Dr. Matthew Cobb Yeah, absolutely. And then the difficulty, I think, for some of our listening audience, is to work through the cognitive dissonance that this is still unfolding, and that we as good, faithful Lutherans might be standing on broken lands. And those broken lands are directly related to the broken treaties, and to the broken promises, and I think that's really hard for folks to understand.

Dr. Joseph Bauerkemper You know, my understanding, or some of what I think I might have observed, is that this is to some extent about education more than about ideology. You know, Indian sovereignty has not been a particularly partisan issue. Maybe it's increasingly so, that that might be the case. But it hasn't been as partisan as some other issues that end up before the courts as frequently as it does.

And we can see that in the distinction between the McGirt case and the Castro-Huerte case, right? I mean, you've got Gorsuch, you know, appointed not because of his understanding of Indian law, appointed for some very different reasons than that, but happens to have an understanding of Indian law to a significant extent and writes the majority opinion in the McGirt case when Justice Ginsburg is still on the court. And then when Justice Ginsburg is no longer in the court and Justice Barrett is on the court, the votes are such that Gorsuch is writing the dissent, right?

So I think we could look at the circuits and kind of observe what the education levels are amongst those folks when it comes to Indian law. And there's going to be a correlation in the decisions they make I think. And this is why tribal nations have invested extensively in the school where you go, in creating the chair in Indian law at Harvard, and trying to educate folks who are studying law, because they're going to be the attorneys arguing these cases and the judges making these decisions. And if they're informed about this stuff, they're going to make maybe better decisions.

But I think you're right that there's a disregard for the reserved rights doctrine. And it's a strange one. I mean, the reserved rights doctrine is just so simple. It's so elegant. It simply says that you have not permitted something that you have not permitted, or you have not given away something that you have not given away.

And there are a couple of like really simple thought exercises. I mean, there shouldn't even be called thought exercises, or even metaphors, they're not that profound. But when I get a chance to talk to folks, I'll ask, hey, think about if you bought like a like a used fishing boat. You know, this is something that I think resonates up here in northern Minnesota. If you're meeting someone in the parking lot of Super One to buy a fishing boat, and you might could reasonably assume that the trailer the boat's on is going to come with the purchase that you're making with the arrangement. But if you get into their pickup truck and drive off, you know, that's just weird, right? Like, nobody would do that. Like, say, okay, I'm going to buy your boat. Here you go. And I'm going to suddenly you get in the truck and try to drive off, right? That's weird, aberrant behavior. But when it comes to the treaties, this is how we behave, right?

There are certain stipulations in treaties, certain permissions that Indigenous nations have granted to settler communities, to settler nations. And we behave well beyond those permissions. We behave obnoxiously and obscenely. And so there's a deep and expansive disregard for the reserved rights doctrine in society. And that is growing, I think, in court decisions. You know, it's a settler hubris and a lack of education, understanding and appreciation. And I think part of what happens there is that the settler governments, settler courts are cutting off their own legs, right? They don't exist without these treaty relationships, and the neglect and disregard for them makes those institutions illegitimate.

Samir Grover Yeah, the settler hubris, I think is ... I like the way you put that because I feel as though the era we're living in will be considered an error of Indian law — foster care, the era of taking children away from their families — in the future. I think it goes back to what Matt was saying about the doctrine of discovery and this guardian-to-ward relationship and this idea that, you know, we know better. To me, that's where the plenary power really derives itself from, for Congress to have. And it's just like you said, it's that education to say this was a conferral of rights to settlers, this is the reason for their existence, and we should be taken into account, where does this come from? It comes from racial undertones to say as a guardian to a ward that we know better when we really don't.

Dr. Matthew Cobb Yeah, I just want to underscore that. And Samir, I'm not putting these words in your mouth, these are my words that I'll be responsible and accountable for, but treaties serve as a legal source maybe, as a moral source, for a very small amount of what settler governments do, and white supremacy serves as a real significant and expansive source for a lot of that. I mean, the plenary power, show me where that comes from if not white supremacy. There's not a basis in a treaty for that. There's not a basis in reasoned law for that. It comes from elsewhere. And I'd be happy to be proven wrong in that regard. But I think that it comes from white supremacy. It comes from the idea of superiority, in any case.

I'm really curious about how myself as a white male — with the racial undertones and the plenary discussion with the treaties — begins to set up as a settler trying to acknowledge, as much as possible, the fact that I am a custodian on white supremacy. I am a beneficiary of white supremacy. All these laws are actually lies. And I want to begin to become more of an ally. I know it's not upon me to say I'm an ally now. It really has to do with the solidarity, I think. And so how does someone like me, a white Anglo-Saxon Protestant Christian cleric, become an ally in this, sounds like a fight.

Tadd Johnson If I may, we have found, the UMD, the Minnesota Indian Affairs Council and MNDOT, started doing trainings in 2013. And as I mentioned earlier, Joseph and I have trained about 5,000 state employees. The number one comment we get after folks are done with the two-day training is anger. They're like, why didn't I hear this before? What? Anyway, I think step one is, as Joseph alluded earlier, is education. Just understanding, you know, the U.S. v. Winans, which we've talked about multiple times here, which was, treaties are not a grant of rights to tribes, but a grant of rights from them. And keeping keeping those types of things in mind, those little aphorisms that we carry around, you know, and educating the public on those ideas, I think is the most important starting point for for folks.

Dr. Matthew Cobb Joseph now, how have you made inroads to becoming a true ally in this fight?

Dr. Joseph Bauerkemper Well, I guess, you know, I'm not the arbiter of that. So, I'll be happy if that's the case. And, you know, don't ask me if that's the case. I think that to some extent I do a lot of listening. And to some extent, I think about myself, you know, I have a focus. You know, this is a tricky deal because sometimes my work and the opportunities I have to share my perspective can make it a sort of white-centering or settler-centering mode, and there's a lot of risk entailed in that and harm that can arise from that. But at the same time, I think that focus is useful and necessary in combination and in conversation with a bunch of other focuses. So I can think about who I am and what I'm doing here, and what it means to be a citizen of the United States who lives in Duluth, Minnesota. Right now, I'm sitting here on this call practicing my 1854 treaty rights, because if the 1854 treaty didn't exist, this is not the United States, my citizenship would mean nothing here, so on and so forth. And that entails a bunch of obligations, including thinking about whether or not the 1854 treaty itself is a legitimate, right? And what other contours of indigeneity in relationship with this place are not accounted for, even in that. So I think one of those modes is to really learn about ourselves, like who we are, what we're up to, where our being in relation with others is made possible, and what kind of obligations are associated with that. So those are those are some abstract ideas that have a lot of practicality to them when we dig in.

Dr. Matthew Cobb Samir, you get a really interesting perch you're sitting from, because there is a Anishinaabe man and two white settler men, and you're a man in this conversation, but you're coming at it as a person whose parents immigrated to this land, from another land that was parsed and divided, as you said earlier. What's your perspective? And maybe that will be what we close on.

Samir Grover Yeah, I think for me growing up here, and also reaching back to my roots and where I'm from, I think I found a purpose in Indian law and relating to where I'm from. Because, as far as being an ally, I think where education comes into play is that colonialism, it's still existing in our law, it's deeply rooted in it. And it's had effects here, it's had effects throughout the world. And it's important for people to understand this decolonization process can only occur when we go towards the root of it: the doctrine of discovery, the sense of white supremacy and superiority over the decision makings of other people. I think people will be allies when they realize the importance of Indigenous nations and the culture and how important it is to us as a society.


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