Earlier this month, as part of the $585 billion defense bill for 2015, Congress passed a measure that would give lands sacred to American Indians in Arizona to a foreign company. The deal gives the Australian-English mining firm Rio Tinto 2,400 acres of the Tonto National Forest in exchange for several other parcels so it can mine a massive copper deposit.
This week, Bill speaks with Robert A. Williams Jr., a professor specializing in American Indian law, about how deals such as the one with Rio Tinto are a part of American Indian’s tragic history of dispossession. “Very much like African-Americans, the history of America is taking away resources, whether it’s labor or whether it’s land from one racial group to give them to the dominate racial group,” Williams, who is of Lumbee Indian heritage, says.
He adds that the Arizona land set to become the “largest copper mine in the world” is one of the most sacred places of the San Carlos Apache Tribe. “These are folks that have been fighting the federal government over their land rights and cultural rights for a long time,” adding, “and here you have this little, small tribe of Apaches, one of the poorest tribes… trying to stop this.”
BILL MOYERS: Welcome. Mention America’s original sin and most of us will quickly think of the enslavement of black people, with a bitter fruit we’re still harvesting. Rarely, though, are we summoned to think about the fate of indigenous people, the Indians, who were already here when Europeans “discovered” the so-called “New World.” Even the controversy over the name of the Washington Redskins fails to hold our attention for very long.
And you can safely bet that not many school children are taught that these native people wound up in the Declaration of Independence as “merciless Indian savages” – right there in the birth certificate of our nation. How is it they came to be mythologized as so ignorant and primitive they didn’t even know the value of Manhattan island, which they sold on the cheap to the Dutch? And how is it they became stereotyped as monolithic when in fact, opinions and beliefs among the 550-plus tribes are as diverse as any other society’s?
For example, suppose you were to think all American Indians share a belief that untouched land is sacrosanct. Then you wouldn’t be surprised, that the Rosebud Sioux in South Dakota oppose the Keystone XL Pipeline. Or that Apaches in Arizona are furious that Congress just slipped through a law turning over sacred land to the foreign corporate giant Rio Tinto for mining copper. Or that Navajos in Arizona have protested the Snowbowl ski resort’s use of recycled sewer water to make snow on sacred mountainsides. Yet at the same time, in the same state, Navajo leaders want to build the Grand Canyon Escalade, a tramway nearly a mile and a half to the floor of the canyon to facilitate tourism. To some Indians that would be sacrilegious. So — monolithic? Hardly.
And that’s why my guest is Robert Williams, who is out to change how we think about Indians and to challenge the laws that embody bigotry against them. Robert Williams teaches law and American Indian studies at the University of Arizona. He’s represented tribal groups before human rights courts and the US Supreme Court, and he’s written such groundbreaking books as “Like a Loaded Weapon,” about the legal history of racism against Indians in America, and my favorite, “Savage Anxieties: The Invention of Western Civilization”. Robert Williams, welcome.
ROBERT A. WILLIAMS, JR.: Thank you, Bill. Thank you for having me.
BILL MOYERS: That land deal that gives the big mining company land in Arizona, what’s your take on that?
ROBERT A. WILLIAMS, JR.: It involves land that is really part of the most sacred land to the San Carlos Apache tribe. Many members of San Carlos trace their ancestry back to Geronimo and some of the famous Apache warriors. These are folks that have been fighting the federal government over their land rights and cultural rights for a long time.
It’s going to be the largest copper mine in the United States. And here you have this little, small tribe of Apaches, one of the poorest tribes, poverty rates and unemployment rates double, triple that of the rest of Arizona, trying to stop this. They brought in a large coalition, National Congress of American Indians, tribes from all over the US to try and fight it. But they couldn’t overcome the power of the copper industry, quite frankly, and the economic benefits that this would purportedly bring.
BILL MOYERS: When you say sacred land, help me understand what you mean by that from your history.
ROBERT A. WILLIAMS, JR.: Yeah. In many tribes, all land is sacred in the sense that it sustains the tribe. But some sites have particular historical and religious significance. It may be, for example, for the Navajos, in that development that you were talking about, the Escalade project in the Grand Canyon, many Navajos believe that that point of the confluence of the Colorado and Little Colorado River was the point of emergence of the Navajo from, blessed by the creator.
So you can go on reservations and ask, is that mountain sacred? And maybe half of the folks will say, yeah, that’s a sacred mountain. The other half will say, no, it doesn’t mean anything to me. So it’s very difficult for a tribe to sort of sit down and come to a consensus on which particular pieces of land are sacred. Each different clan or family will have a different idea.
BILL MOYERS: So this small tribe fighting the Rio Tinto land swap in Arizona, they consider the sacredness of the land, by their definition, more important than the jobs that it would produce?
ROBERT A. WILLIAMS, JR.: In this particular case, yes.
BILL MOYERS: The opposite in the Grand Canyon, right?
ROBERT A. WILLIAMS, JR.: In the Grand Canyon, absolutely.
BILL MOYERS: The Navajos want to build this.
ROBERT A. WILLIAMS, JR.: That’s right. And at the same time the Navajos are also fighting a sacred lands battle, as you mentioned, involving a ski resort. And so, again, the tribe has to come to a consensus, what’s important to us? In some cases, that particular piece of land may not have so many associations with it that we can’t let it go and let it go to development. But in other instances, particularly where things might be associated with the Apache, with a famous battle between the Apache and the US armies where Apaches died—
BILL MOYERS: Like Gettysburg to—
ROBERT A. WILLIAMS, JR.: Yeah, it would be very similar if somebody neighboring Gettysburg wanted to build an amusement park. People would be offended.
BILL MOYERS: You represent tribes in land disputes such as these. What do these particular stories: Arizona, Grand Canyon, Rio Tinto, the ski resort, what do they have in common?
ROBERT A. WILLIAMS, JR.: Today what we see is tribes moving into the 21st century and facing real 21st century problems of globalization, of multi-national, national resource development, of jobs, of the need, you know, tribes have elected leaderships. They’re elected to do a lot of things.
They’re elected to protect sacred lands. But they’re also elected to provide jobs, improve quality of life. And so these are the types of situations tribes are confronting on a daily basis. And you find lots of different attitudes, lots of different conflicts, lots of different controversy within tribes. Is this piece sacred, is that piece sacred? How sacred is it, to which particular part of the tribe, for example. So you’re going to find a lot of diversity. And tribal governments have to manage that diversity and have to do what’s best for the tribe.
BILL MOYERS: So is the Rio Tinto deal that just has gone through familiar to you? I mean, is it a pattern?
ROBERT A. WILLIAMS, JR.: Oh yeah. That land was taken away from the tribe. And many people in the tribe will tell you to this day that it was illegally taken away. But once Congress signs a treaty or issues an Indian Claims Commission decision and pays off on it, that’s it. Your rights are exhausted. I’ve looked at a lot of treaties. And I keep seeing the same guy sign that treaty again and again. And I ask my students what that guy’s name is, X. You know, and it’s—
BILL MOYERS: And that says?
ROBERT A. WILLIAMS, JR.: Yeah, and what it says is that the tribes didn’t, they had a document handed over to them. They didn’t know what they were signing. They were lied to. Often times it was fraud induced. Sometimes treaties would be ratified even though the required signatures weren’t there. And so for Indian tribes, the fact that there may be a treaty, the fact that they may have been quote “compensated” for these lands in a process that didn’t even award them interest from the date of the taking doesn’t mean the case is over.
US law and international human rights law have radically diverged in the past 20 years in terms of the recognition of indigenous people’s rights. International human rights law now looks at not whether or not the tribes have formal ownership or legal title in a Western legal conception might have it, but rather they look at the tribe’s historical connection to that land.
BILL MOYERS: So US courts couldn’t address it.
ROBERT A. WILLIAMS, JR.: No they wouldn’t be able to address it. In fact, the way that legislation is written, the environmental review process is going to be concluded before the land is transferred. And then of course once it’s transferred there’s a mandatory transfer date, those processes really have little meaning anymore.
BILL MOYERS: Yeah, once the land is transferred, environmental laws don’t— it’s because private property and federal environmental laws don’t apply.
ROBERT A. WILLIAMS, JR.: Yeah, you’ve really hit on it. It’s this idea of private property. You know, when Europeans came to the New World the first thing they said is, well, Indians don’t appreciate property. They’re savage. They’re backwards. They’re uncivilized. And so we really don’t have to pay them for it or if we give them a treaty we really don’t have to give them what the land is truly worth.
Nothing could be farther from the truth. Tribes have very clear conceptions of their traditional boundaries, they maintain their rights and their claim sovereignty over the lands according to their own honored traditions and tribal elders. And so, you can go out there on the reservation, and there might be a reservation boundary established by the United States. But then there’s traditional land boundaries. The Navajo, for example, regard their traditional lands as within the four sacred peaks. One of those sacred peaks is the San Francisco Peaks where the ski resort, one of the holiest, sacred mountains in Navajo cosmology. And here you’ve got the city of Flagstaff selling reclaimed water to make snow.
BILL MOYERS: Sewage water.
ROBERT A. WILLIAMS, JR.: Sewage water. I mean, it’s considered a horrible desecration. I mean, you know, put it into another cultural context and you wouldn’t be able to think of that being, with any other racial group. But for Indians because, you know, we think they really don’t care about land or they have primitive ideas or they don’t have ownership, we completely disrespect that.
BILL MOYERS: This has been your passion, almost your obsession, to help us understand how American law came to embody this whole notion of savagery. Your book, “Savage Anxieties” just opened my eyes to this long, 250-year history that you talk about as institutionalizing savagery as a concept to discriminate against Natives.
ROBERT A. WILLIAMS, JR.: That’s right. And what I tried to show in that book is that this idea of this fundamental conflict between savagery and civilization goes back to the very beginnings of Western history. I go back to the Greeks, I go back to the Romans. You can read Homer. And of course Homer has his great heroes involved in this myth, this wonderful mythic contest with savage tribal peoples, half-human monsters on distant parts of the world. When you think about the Roman Empire, what was it made of? It was made of conquest of the tribes of Central Europe, the Germans, the, the Celts. You have tribal wars of Charlemagne in the Middle Ages, fall on behalf of Christianity.
Western civilization has been at war with tribalism for 3,000 years. And that war was brought to the New World by Columbus, by the Spanish conquistadors, by the English colonists. And what you find is that a very early point in American law Chief Justice John Marshall is asked to decide the status of Indian tribes. And what he does is, I like to tell my students, he goes to the S-card. He calls them savages who lack the same rights as the white people who came over here, the Europeans, and colonized their land under this, what many Americans might regard as an obscure legal doctrine called the Doctrine of Discovery. But it is still the most important doctrine in American constitutional law.
BILL MOYERS: The Doctrine of—
ROBERT A. WILLIAMS, JR.: Discovery.
BILL MOYERS: —which holds?
ROBERT A. WILLIAMS, JR.: Which holds that when Columbus and John Cabot and the other European explorers came to the New World and then sailed along the shores and claimed it for their crowns so long as those lands were occupied by heathen, infidel and savage peoples their property rights did not have to be recognized.
Marshall says in this famous 1823 case of Johnson v. M’Intosh, he says when “the great nations of Europe” discovered this continent they “were eager to appropriate to themselves so much of it as they could respectively acquire,” but “the character and religion of its inhabitants” made them “a people over whom the superior genius of Europe might claim an ascendency.” In other words, what he’s saying there is, when we discovered America it was occupied by a bunch of backwards uncivilized brutes and we were going to make better use of the land than them so we could take it from them.
BILL MOYERS: I grew up in Texas in a town named after John Marshall. Marshall, Texas. No one ever told me what Chief Justice John Marshall said in that 1823 decision that you just mentioned in which he refers to Indians as heathens and fierce savages. And you say this is one of the most important Indian rights cases ever handed down through the Supreme Court.
ROBERT A. WILLIAMS, JR.: Oh, absolutely.
BILL MOYERS: Because?
ROBERT A. WILLIAMS, JR.: Because it defines the property rights of indigenous peoples in this country. And what it says is that upon discovery the European nation, or the nation that secedes to its interest, the US from Great Britain, holds superior title and sovereignty to the land belonging to the Indians. They have a mere right of occupancy. And what Marshall says is that right of occupancy can be taken away by purchase, conquest or any other means.
And so the reason that this case is so important is it really sets the foundation for this radical approach to understanding the basic human rights of Indian people to hold and control the lands that they occupy. It gives the US government the right to relocate, it stands at the bottom of the ethnic cleansing campaigns, for example, in the removal era.
And it’s continued to be cited today by the Supreme Court. Even Justice Ginsburg, the most liberal member of the court, in footnote one of opinion she wrote several years ago involving the Oneida Nation cites the Doctrine of Discovery. The court never questions it.
BILL MOYERS: The Doctrine of Discovery, the fact that the white Europeans quote “discovered” the New World.
ROBERT A. WILLIAMS, JR.: That’s right.
BILL MOYERS: Carries with it an inherent right to dominate the people who live there.
ROBERT A. WILLIAMS, JR.: Oh absolutely. It’s exactly why Congress can pass legislation as it did with the Rio Tinto land mine deal because Congress took the land from the tribes, ignores their sacred connections to it, their cultural connections and does whatever it wants with it. It’s why Congress can order tribes removed in the 1950s. Congress terminated tribal status for more than 100 tribes. Basically said, you’re not a tribe anymore and we’re not going to pay attention to the treaties. The Supreme Court has held that when Congress breaches a treaty with an Indian tribe it’s not judicially reviewable. It’s called a political question. And if tribes have a problem with that, go back to Congress, the very people who broke your treaty.
BILL MOYERS: You write about another case Cherokee Nation v. Georgia. The chief justice, John Marshall again, describes Indians as constituting a race of people who were quote “once numerous, powerful, and truly independent,” but who had gradually sank “beneath our superior policy, our arts, and our arms.” I mean, this from one of the most brilliant men of the founding generation, fought with Washington at Valley Forge, became the chief justice. And this is what he’s saying about the Native—
ROBERT A. WILLIAMS, JR.: That’s right. And that was the opinion shared by the founders to a man. In fact, George Washington two weeks after the Treaty of Paris is signed ending the Revolutionary War is asked about his opinions on Indian policy. Washington had been an Indian fighter since the French and Indian War.
And a lot of folks, particularly in the red states, the Southern states that had suffered a number of Indian depredations wanted to remove all the Indians to Canada. Let them go with the English. And Washington said, well, you can try and chase the Indians off their land but the savage is like the wolf. They’re return immediately you turn your back. And so better, he said, more expedient to negotiate treaties with them because, and again this is what the founders believed to a man, Indians are a vanquished race. They won’t be here two to three generations.
BILL MOYERS: When I talked to the writer Ta-Nehisi Coates recently here he said that African-Americans today are bound, tethered by the reality, the mythology and the legacy of slavery. What is, what are you saying is the equivalent of that phenomenon for Indians?
ROBERT A. WILLIAMS, JR.: It’s the history of dispossession. You know, very much like African-Americans, the history of America is taking away resources, whether it’s labor or whether it’s land from one racial group to give them to the dominate racial group. So in that sense, there is a very similar experience.
But the dispossession experience that, you know, African-Americans were dispossessed of the land by being brought over here in slave ships, whereas Indians were on the land and fought literally wars against Europeans for control of that land. And that history of dispossession, you know, if you look at the treaties, it’s very interesting. Everyone thinks that Indians were ripped off in their treaties. If you look at the first round of treaties from about 1800 to the Civil War, tribes secured over 150 million acres. I think it may have been 144 million acres in those treaties. That’s a large amount of real estate.
In the 1880s after tribes were finally defeated in the Indian Wars and put onto reservations, Congress passed the 1887 General Allotment Act. And that act ended up dispossessing tribes of 90 million acres. Most of it turned over to white homesteaders. Most of those acres being primed the best lands on the reservation. And so that history of dispossession was also accompanied by a history of forced assimilation whether it was in residential schools, whether it was in dismantling traditional tribal governance structures. And so it’s that, it’s what’s been taken away. And the justifications for that is that you’re not as good as us. Our systems are better. Our modes of education. Our ways of owning land, our ways of working have been continually cited to Indians as the reason for these government policies.
BILL MOYERS: You’re savage and we’re not. Even though we come from a continent, Europe, that was racked by blood and violence and cruelty beyond measure. But that term savage never stuck to the white European the way it did to the American Indian.
ROBERT A. WILLIAMS, JR.: No that’s right. And it was a generic term. It was used wherever— you see the term used in Australia to describe the aboriginal people.
BILL MOYERS: Savagery.
ROBERT A. WILLIAMS, JR.: Savagery. You—
BILL MOYERS: It’s in the Declaration of Independence.
ROBERT A. WILLIAMS, JR.: It’s in the, yeah. It was a word that Westerners used to, again, to consciously differentiate them from non-Westerners, to assert that superiority, that cultural superiority. It goes back to the British Empire, and again, you know, what was the purpose of the British Empire? To bring civilization to the savage no matter where they were, whether it was India or Asia or Australia or whatever. It’s that civilizing mission that characterizes so much of the history of Western colonialism.
So what this ideology, what this myth did was really excuse America for the disappearance of the Indian. It wasn’t our fault. They were just an inferior race. And so Marshall adopts that. And the tragedy and the present-day circumstances of that decision are that those racial attitudes are so deeply embedded in these foundational principles of American Indian law.
BILL MOYERS: So has there been any improvement in the way Native Americans are treated in the John Roberts court more recently?
ROBERT A. WILLIAMS, JR.: No. In fact, Native American Rights Fund has a project called the Supreme Court Project. And quite frankly, it’s focused on trying to keep cases out of the Supreme Court. This Supreme Court, Justice Roberts is actually, hard to believe, was probably worse than the Rehnquist Court. If you look at the few decisions that it’s issued.
And Justice Rehnquist as before he became chief justice had written several highly negative stereotype charged opinions about Indians. One was a horrible case called Oliphant v. Suquamish Indian Tribe which denied tribes the right to criminally prosecute non-Indians who commit crimes on their reservations. That decision has had horrible consequences for law enforcement on Indian reservations. But in that opinion Justice Rehnquist cites language from the 1830s to explain why whites didn’t trust tribes to exercise criminal jurisdiction. They were savages.
BILL MOYERS: I was shaking my head as I read “Savage Anxieties” and “Like a Loaded Weapon” to realize the real meaning of that term, “the long arm of the law.” Because what you’re describing here, a Supreme Court decisions in 1823 and 1830 and that era that still shape how the Indian, the people who were here before John Marshall and the others, are seen, perceived, and governed.
ROBERT A. WILLIAMS, JR.: Well, I did my job then. Thank you. Well, I actually developed that title thinking it worked both ways. You know, if you’re an Indian, you could be very anxious about some of the Supreme Court’s decisions, some of the decisions of policy makers, so maybe a little bit of irony there. But I think our “Savage Anxieties,” when I titled the book, I really wanted to focus people on the challenge that tribes in this country, as well as indigenous peoples around the world, are confronting Western civilization with.
And that’s the challenge of them saying, we don’t want to go your way. You know, we want to maintain our culture. We want a land base. We want a right to govern ourselves. And everybody who steps onto that land base, according to our ways, according to our traditions, according to our law. And that’s something that the West has never accepted.
What we’ve had is 500 years of taking away from tribes. And it’s going to be very hard to start giving back and to start recognizing those things were taken from tribes. Indian people don’t regard that as a permanent situation. It’s just a project that needs to be worked on. And that is the project. And that continual work that Indian leaders, indigenous peoples are doing throughout the world, is getting back what was taken away.
BILL MOYERS: If there were one stereotype you could immediately change what would it be?
ROBERT A. WILLIAMS, JR.: That Indians are lawless people, okay. And I would change that because it’s probably the most harmful stereotype. I’ll give you one other example about the San Carlos case. One of the prime backers of that land bill was a Republican Congressman, a Paul Gosar. And when he was challenged by an Apache on this bill, he said, well, you know, Indians are wards of the federal government. This happened recently. A member of Congress from Arizona whose district includes lots of Indians characterized Indians as wards of the federal government. That’s a 19th century notion.
That congressperson is obviously stuck in the 19th century when he thinks about Indians. How is that person going to legislate and treat Indians fairly and respect their rights when he has this sort of infantilized image of Indians as not being, you know, up to the same level of responsibility as everybody else? But I make this point in my books: until we start attacking the root of the historical problems of discrimination against Indians, and those Indians begin in these stereotypes, that Indians are less civilized than us, they’re less able to exercise self-governing functions. Until we get to the roots of those problems, we’re not going to change legislation. We’re not going to change the hearts and minds of the Supreme Court.
BILL MOYERS: The past is really the invisible hand at our back, isn’t it?
ROBERT A. WILLIAMS, JR.: Well, and that’s the problem today. Many of the situations that we’ve talked about whether it’s the San Carlos, whether it’s the Navajo fighting for their land rights or fighting to develop their land to try and provide decent jobs on the reservation.
The backdrop to all that, the reason that we have those battles is that history of dispossession. The story isn’t over for American-Indians. You may think, you know, Americans may think, well, you know, Indians are in the past, we don’t have to worry about that anymore. But like those guys that signed that treaty with X, Indians knows those treaties were oftentimes negotiated under duress. You know, how can you give away a sacred land? You know, how could any tribal member think about giving away something that means so much to the tribe?
It’s just impossible to conceive. And so whether or not it may have been through the Indian Claims Commission in the 1950s or whether through a treaty or through Congressional legislation, the fact that the tribes may not have Western fee simple title of that land doesn’t mean there’s still a strong connection there. And you’re going to see tribes continue to assert that.
BILL MOYERS: Robert Williams, let’s continue this conversation online, and thank you for being with me.
ROBERT A. WILLIAMS, JR.: I’d very much like that. Thank you, Bill.
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