January 5, 2023

Looking Back (Before Looking Ahead) at Sovereignty, War and Wounded Knee

1973 was a year of transition. Richard Nixon's White House had officially ended the policy of termination and was proclaiming self-determination. But termination would not go quietly.



A New Year is always a wonderful time to consider where we’ve been. How did we journey to 2023?

A century ago, in 1923, many American Indians and Alaska Natives were still not citizens of the United States. And the process to gain citizenship was awful.

One route to citizenship was a “certificate of competency.” This document allowed an individual Indian to claim title to land and effect as their own person. The report of the Commissioner of Indian Affairs in 1923 described the process this way: “Ordinarily, if the Indian has attained the competency of the average white man his application for certificate or a patent in fee has been granted.”

Not that every tribal leader wanted citizenship in either the United States or Canada.

The Sole Deputy and Speaker of the Six Nations Council Deskaheh, also known as Levi General, traveled to Geneva and the League of Nations  to make the case for the Haudenosaunee. The Six Nations not only sought membership in the League, but also demanded full recognition under international law for sovereignty, or what he called, the “independent right of home-rule.”

In a letter to Sir James Eric Drummond, the Secretary-General of the League of Nations, Deskaheh gave notice on his right to be at that gathering.

“Under the authority vested in the undersigned, the Speaker of the Council and the Sole Deputy by choice of the Council composed of forty-two chiefs, of the Six Nations of the Iroquois, being a state within the purview and meaning of Article 17 of the Covenant of the League of Nations, but not being at present a member of the League, I, the undersigned, pursuant to the said authority, do hereby bring to the notice of the League of Nations that a dispute and disturbance of peace has arisen between the State of the Six Nations of the Iroquois on the one hand and the British Empire and Canada, being Members of the League, on the other, the matters in dispute and disturbance of the peace being set out in paragraphs 10 to 17 inclusive hereof.”

The Six Nations demands included an accounting of money held by the Dominion of Canada and “suspension of all aggressive practices by the Dominion of Canada upon the Six Nation peoples pending consideration of this application.”

The League of Nations ignored its own rules – and Deskaheh.

Back in the United States, the government had another mission. One of the top priorities was leasing oil rights in Indian Country. And this was done during terrible market conditions (think about that: the legal trustee was selling a commodity low on purpose.)

The Commissioner of Indian Affairs' annual report said: “Notwithstanding the overproduction of crude oil and low prices, leasing for oil and gas operations on restricted Indian lands was active and very successful last year, due considerably to the policy adopted during the depression of the oil industry of permitting lessees to hold their leases without drilling, except where existing conditions require wells to be drilled.”

To speed things up the government pushed tribes to reorganize governments. The Navajo Nation’s council was established in 1923 for that very purpose. A special envoy, former New Mexico Gov. Herbert Hagerman, was assigned the task of instituting a central tribal government.

The commissioner’s report said: “To promote better and more uniform administration of the affairs of the Navajo Tribe of Indians, particularly as to matters affecting their interests at large, such as oil, gas, and other mineral deposits, tribal timber and the development of underground water, regulations were approved January 27, 1923 … and the organization of a Navajo tribal council has been completed.”

Several newspapers objected to the shenanigans. A story published in Durango, Colorado, probably written by another newspaper, figured out the scandal, calling it the “2nd Teapot Dome” because of the favorable treatment to Standard Oil.

“To understand just what had taken place it is necessary to explain that the Navajos have governed themselves ever since the treaty of peace with the whites was signed in 1868 as a pure democracy. Every male of the age of 18 and upward was entitled to voice his sentiments in the councils of the tribe,” the newspaper said, praising the Navajo government as having “an absolute, equal suffrage democracy.”

The new council of 24 members led by Chairman Chee Dodge approved the oil leases.  The U.S. government held the royalties in trust – a system that was botched from the beginning (eventually leading to the $3.9 billion Cobell settlement in 2009.)

Other tribes went through a similar process with the BIA. The agency even worked out an agreement with the Bureau of Mines to supervise oil, gas and minerals on Indian lands with the “duty to see that mining operations are conducted efficiently and economically managed.”

We now know that did not happen.

This year also marks two centuries that began a series of Supreme Court decisions today known as the Marshall Trilogy. The first ruling in the series was 1823’s Johnson v. McIntosh, which sets the framework for land title. Walter Echo Hawk included this decision in his book, In the Courts of the Conqueror, the Ten Worst Indian Law Cases.

Or as the legal blog, Turtle Talk, described the case in a book review: “Writing for the majority, Chief Justice John Marshall declared that the “discovery” of America had given “exclusive title to those who made it”— namely, the European colonizers.”

A decision – even one described as one of the worst – remains hard to un-do. Yet that was also true fifty years ago when the United States promised to reverse the policy of termination.  The White House of Richard Nixon had officially repudiated the policy of termination – stripping tribes of treaty and property rights – and instead proclaimed self-determination as the official policy of the United States.

Termination as a policy would not go quietly.

Hearings were held in both the House and the Senate for three proposals to implement self-determination. One bill used existing law to allow for BIA contracting with tribes; a second proposal would have allowed tribes to directly absorb BIA and IHS programs (giving employees a five-year window as federal employees) and the third was that from Washington Sen. Henry Jackson with a legal framework for the “takeover” of federal programs. Jackson’s bill became the Indian Self-Determination and Education Assistance Act of 1975.

Then in 1973 the path forward was uncertain.

Franklin Ducheneaux, Cheyenne River, who had been the legal counsel for the National Congress of American indians (and went on to work in the House) told the American Indian Press Association in May 1973 that while self-determination “may be the wave of the future, the bills are very complex and complicated and have not received substantial support from Indian people.” Still, he said, NCAI favored the Jackson approach.

The opposition to self-determination centered on the idea that it was another version of termination. Some asked: Should the BIA and IHS even continue to exist?

One of the issues involved another act, the Snyder Act of 1921, that gives the BIA and the Indian Health Service permanent authorization. Most federal agencies need to be reauthorized by Congress every few years.

Ernie Stevens Sr., Oneida, said a repeal of the Snyder Act would give Congress more oversight over the agencies. NCAI President Leon Cook, Red Lake, said he had long called for a new direction and for Congress to “assume its constitutional role and authority … and bring to a screeching halt the present disastrous policy direction of this administration.”

However others warned that a repeal of the Snyder Act would cause problems down the road. Former Indian Affairs Commissioner Robert L. Bennett, Oneida, said “there is little assurance that the Indians will be able to influence the work of the substantive committees … and periodic authorizations are time-consuming and make long range planning very difficult.”

The Snyder Act remains the law today.

Two of the tribes that were terminated illustrate the transition that was going on. The Klamath were pressed to sell their timber to the United States in exchange for a per capita payment to tribal citizens.

The tribe was terminated in 1954 but under that act adults were given the opportunity to hold on to their tribal assets as a community. Those that held on had their assets held by a bank and had to vote every five years on liquidation. In 1969 that happened. Elnathan Davis, president of the Klamath lands committee, told the American Indian Press Association that he was sick about the sale. “The last of the Klamath Nation is going. They are taking it like it was a commodity and giving us a lot of inflated Yankee dollars in return.”

Today more than half of the Fremont–Winema National Forest is from that termination era land sale. This is a critical context for the current explorations about land back.

Another termination issue that surfaced in 1973 was restoration. At the 30th annual convention of the National Congress of American Indians in Tulsa a statement was read from President Richard Nixon. “I support the restoration of reservation status for the Menominee Tribe of Wisconsin. I hope before 1973 ends the Congress will send me a bill which accomplishes this restoration under the trust responsibility of the Secretary of the Interior. For at least twelve years the Menominees have worked, organized and campaigned to reverse the termination act of 1961. They are now within striking distance of success.”

The Nixon statement said he was eager to see the legislation on his desk.

“I especially want to see Congress repudiate and wipe off the books the decade-old statement of termination,” the presidential message said.

The Menominee Restoration Act was signed into law by Nixon on Dec. 22, 1973. This act affirmed and recognized the sovereignty to the Menominee Indian Tribe of Wisconsin.

One more note giving context: Several termination era laws remain on the books. Public Law 280, for example, allows six states jurisdiction over tribal citizens within their own lands. Tribes never agreed. “This law is a shameful relic of the United States’ Termination policy,’ wrote University of Minnesota professor Tadd Johnson, Bois Forte Band of Chippewa. “It’s still on the books, yet it’s part of an era that Richard Nixon declared to be over in 1970.”

An era of conflict from Vietnam to Wounded Knee

Secret peace talks in Paris led to the end of the Vietnam War in 1973. A cease fire between North Vietnam and the United States began in January and by March all combat units had left the country, except for military advisors and units protecting U.S. facilities.

The war’s tally was gruesome. More than 3 million Americans served, 58,000 died, and more than a thousand missing in action. Some 150,000 Americans were seriously wounded.

The National Museum of the American Indian said approximately 42,000 American Indians — one of four eligible Native people compared to about one of twelve non-Natives — fought in that war. “Many were drafted, but a large number volunteered, often citing family and tribal traditions of service as a reason,” the museum said. “Like many other Vietnam veterans, American Indians were often deeply traumatized by what they experienced. Upon returning home, many found solace and healing in tribal welcome, honor, and healing ceremonies. Others found hope and purpose in advocating for treaty rights and tribal self-determination.”

Perhaps the most newsworthy event of 1973 was the occupation of Wounded Knee. There are a lot of versions about what happened, ranging from a community civil war to quintessential Indigenous uprising.

One extraordinary telling of this story is a seven-part audio series – the Heart of all Oral History Project – that is a comprehensive overview of Lakota history told by elders.

“When we’ve learned our own history, it’s been taught to us by the Europeans - or their version of the interaction between Europeans and indigenous people - so this project gives voice to our perspective,” said the project’s advisor, Joseph Marshall III,  Sicangu Lakota, on the project’s web page. “The narrative being told by us is off-the-scale important for a lot of reasons, but simply because we’re telling our own story and we haven’t done that on a large scale ever.”

Three episodes in the series adds context to the story. In the words of the project: “The audio series is meant to replicate our oral tradition, where stories and the knowledge they contain were handed down from generation to generation through the spoken word. Our classroom was our tiwahes - our families - and our tiospayes - our communities.”

Embed first one and link to others <iframe title="Libsyn Player" style="border: none" src="//html5-player.libsyn.com/embed/episode/id/22470377/height/90/theme/custom/thumbnail/yes/direction/backward/render-playlist/no/custom-color/000000/" height="90" width="100%" scrolling="no"  allowfullscreen webkitallowfullscreen mozallowfullscreen oallowfullscreen msallowfullscreen></iframe>

One more note about 1973: Redbone’s hit song, “Come and Get Your Love” was released on the band’s fifth album, Wovoka. In January of 1974 the song hit the charts as a single, eventually reaching number 5. The single version was about two minutes shorter than the album version.

Like so many of these stories from the past century this is a song that remains relevant today, in recent years it’s been featured in all kinds of movies and shows ranging from Marvel's Guardians of the Galaxy to Reservation Dogs.  So now, as Officer Big says in that show, “It’s part of your culture.”

Lead image: Iroquois Commission with Deskaheh in front of the Athénée Palace, Geneva, 1923.

About the author

Mark Trahant

Mark Trahant is editor-at-large for ICT and is based in Phoenix. He has been a professor at the University of North Dakota, the University of Alaska Anchorage, the University of Idaho and the University of Colorado. He is a member of the American Academy of Arts and Sciences.

Trahant has been a reporter for PBS’ Frontline series and was the editorial page editor of the Seattle Post-Intelligencer. He has also worked for The Arizona Republic, Salt Lake Tribune, The Seattle Times, the Navajo Times Today, and the Sho-Ban News. He is a member of the Shoshone-Bannock Tribes and can be found on Twitter @TrahantReports.