Discover more from Peter d'Errico

More than fifty years involvement with Indigenous peoples' legal issues taught me to view America from outside.

LandBack, Ben&Jerry's, and the Dangers of a Race Critique of Federal Anti-Indian Law

Beware of what you ask for... and how you ask for it

Jul 26, 2023

The sovereignty claim of ‘Christian discovery’ underpins the entire edifice of US laws regarding Indigenous land rights. It is a US claim of ‘title’ and ‘dominion’ over Indigenous lands.

‘Christian discovery’ necessarily underlies ‘LandBack’ campaigns because the doctrine is embedded in US property law. See Johnson v. McIntosh (1823).

Understanding Indigenous “LandBack” requires understanding the depths of property law and sovereignty theory.

Some campaigns for ‘landback’ miss this and instead are based on ‘equal protection’ law — ‘race’ theory. Let’s explore the problem.

This post is public so feel free to share it.

On July 4, 2023, the Ben&Jerry’s company waded into the ‘landback’ movement with a marketing campaign titled “The US Was Founded on Stolen Indigenous Land— This July 4, Let’s Commit to Returning It”.

I have to call it a marketing campaign because it was sandwiched between a sales header — Ice Cream Flavors - Where to Buy - Shops & Catering — and a sales footer — Sweeten Up Your Inbox! Subscribe Now And We'll Make Sure You Get The Inside Scoop On Ben & Jerry's Fun And Flavors! It's Like Dessert For Your Inbox, And You're Going To Want Seconds.

Apparently B&J brand management is convinced that a sweet tooth mixes well with politics and that their consumer base is ‘hip’ (or ‘woke’ to use the current meme) to Indigenous peoples.

Corporations of all sorts have taken to dressing themselves in the latest social media fashions. As Chipotle chief marketing officer Chris Brandt told USA Today in March 2023 after “TikTok food influencers” pushed a menu addition:

“TikTok has not only changed the way we communicate with Gen-Z, but it’s proven it can identify areas of opportunity within our business.”

Here’s the danger: a social media ‘influencer’ is simply someone with a large following. Period.

There’s no requirement for knowledge of the subject on which the ‘influencer’ posts (pontificates?). If the subject is a matter of taste — as in quesadillas and fajitas — no problem (except for the corporation pumping out the menu).

If the subject is history or law, the ability to ‘influence’ without knowledge is dangerous. A call to action on Indigenous issues, especially land rights, must be grounded in something other than enthusiasm. Otherwise, it degenerates into a fad. And as a fad, it fades, leaving greater apathy and ignorance in its wake.

INDIGENOUS RIGHTS ARE DIFFERENT FROM CIVIL RIGHTS

The key to addressing Indigenous issues is to see that they cannot be conflated with civil rights equality issues.

The BIPOC movement, for example, sandwiches Indigenous between Black and People of Color. The sandwich squeezes incompatible struggles into a single meme of equality based on skin color.

The sandwich was explained in a 2020 news article by Cynthia Frisby, a professor of strategic communication at the Missouri School of Journalism:

“I think the major purpose of that was for including voices that hadn’t originally been heard that they wanted to include in the narrative, darker skin, blacks and Indigenous groups, so that they could make sure that all the skin shades are being represented.”

The incompatibility was pointed out in the same article by Charmaine Nelson, an art history professor at McGill University, who said

“To conflate everything in one is to erase, which is the very nature of genocidal practice.”

Ben&Jerry’s did not conflate the two issues, but it played into the conflation by defining ‘landback’ in terms of “White supremacy and systems of oppression”:

“The Indigenous-led Land Back movement is all about restoring the rights and freedoms of Indigenous people. It’s about dismantling white supremacy and systems of oppression and ensuring that Indigenous people can again govern the land their communities called home for thousands of years.”

No one can miss White supremacy and systems of oppression in the 1856 Dred Scott v. Sandford decision that described Blacks as “a subordinate and inferior class of beings . . . subjugated by the dominant race”. That decision was annulled by the Civil War.

Similarly, Lone Wolf v. Hitchcock, the 1903 federal anti-Indian law case that transmuted ‘Christian discovery’ into ‘plenary power’, referred to Indigenous peoples as “an ignorant and dependent race.” That decision is still considered valid law. It was cited by the Supreme Court in the Haaland decision to uphold ICWA!

In 2002, Professor Stacy Leeds pointed out the “ultimate similarity” of the two decisions as “classify[ing] the white Christian inhabitants of the United States as a race that rightfully dominates the ignorant, inferior, subordinate, and dependant [sic] African and Indian races.”

But the rhetoric of racism takes a strange turn in the history of federal anti-Indian law.

The first cited use of the term ‘racism’ in the Oxford English Dictionary points to a speech made by Richard Henry Pratt, founder of the infamous Carlisle Indian Industrial ‘School’ for Indigenous children forcibly taken from their homes. Pratt used the term in a speech at the 1902 Lake Mohonk Conference of Friends of the Indian.

Pratt said his Carlisle School combated the “racism” of federal policy, which allowed Indigenous nations to exist apart from American society. Pratt’s program was to break the transmission of Indigenous languages and traditions, to incapacitate Indigenous cultures and political structures through a multi-generational process. He called this an ‘anti-racism’ project!

In short, 19th century “friends of the Indian” aimed to “solve the Indian problem” with a civil rights ‘equality’ approach that undermined Indigenous independence.

Steven Curry put it this way in 2006:

“The racializing of communal identity [i.e., applying race theory to Indigenous nations] has been used as a policy designed to destroy indigenous communities.”

Despite the obvious racism in federal anti-Indian law, a critique relying on race theory runs the risk of supporting anti-Indigenous individualist assimilation agendas. Arguments that occur within a ‘race’ framework can undermine Indigenous freedom.

The 1924 Indian Citizenship Act, for example, is often described as a ‘pro-Indian’ law, as in this headline: “Native Americans won U.S. citizenship in 1924”. In fact, the citizenship act was part and parcel of the US program to assimilate ‘Indians’ as individuals into American society and pave the way for ‘termination’ of Indigenous peoples as separate political entities. Citizenship was imposed on ‘Indians’ as individuals to pave the way for their ‘termination’ as peoples.

The danger of a race critique of federal anti-Indian law is that it too easily plays into the project to assimilate individual Indigenous persons as citizens and extinguish Indigenous peoples as nations.

In a nutshell, Federal anti-Indian law involves the status of Indigenous peoples as sovereign political entities separate from the United States; civil rights law focuses on individual persons as citizens of the United States. This distinction is crucial for a range of discussions beyond the ‘landback’ movement.

To put it in two bulletpoints:

Indigenous peoples defend independence outside the US.
Black persons, ‘persons of color’, and LGBTQIA+ defend equality under the US.

The late Yankton / Standing Rock attorney and theologian Vine Deloria, Jr., explained it this way in 1974 in Behind the Trail of Broken Treaties, helping readers understand the Trail of Broken Treaties and the Wounded Knee occupation:

“Few people [in America] were able to . . . recognize that if the United States and its inhabitants . . . regarded the Indians as another domestic minority group, the Indians did not see themselves as such.”

THE COMING CHALLENGE

As I pointed out in my discussion of Haaland v. Brackeen, the Supreme Court did not rule on the ‘race’ challenge to the Indian Child Welfare Act, i.e., that ICWA violates the ‘equal protection’ of citizens. This challenge is now making its way through the courts.

The ‘race’ issue looms, and any confusion about whether federal anti-Indian law is a system of racial oppression to be dealt with by ‘equality’ theory or a system of property domination to be dealt with by ‘sovereignty’ theory plays into the hands of those who would once and for all end any separate status for Indigenous peoples.

Indigenous rights are extraconstitutional, because Indigenous nations existed before the Constitution. The US Supreme Court acknowledges this fact when it wants to, as in the 1991 case of Blatchford v. Native Village of Noatak and Circle Village, where it said the Constitution was “a convention to which [the tribes] were not even parties.”

Indigenous “equality” occurs at the level of nationhood. ‘Landback’ only makes sense when all this is understood.