Liberty Don’t Work as Good in Practice as it Does in Speech* (*Will Rogers)

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By Noah Cohen-Vogel

(UBC Arts One Michael Zeitlin seminar)

I went on a road trip with a couple friends up the east coast of the United States this summer. One friend, who’s big into theatre, played the soundtrack to Hamilton. This sparked the occasional political comment. “Say what you will about George Washington,” one companion remarked. “The most important thing he did was step down after two terms.” We agreed with him, of course. Democracy is important.

In theory, at least. But in practice?[1]

Democracy and the rights granted by the United States Constitution didn’t stop my country from continuing chattel slavery for almost a century, or from denying women representation in federal office until 1916, or from separating families in the modern day over illegal immigration disagreements. It didn’t prevent the relegation of Indigenous populations to reservations or residential schools. As Thomas King puts it, Native sovereignty is “antithetical to the American ideals of democracy, fair play, and free enterprise” (177).

I always get cynical―more so than usual, I suppose―after reading accounts of the cruelties White North America has perpetrated over the years. I think to myself: What’s the point of going to school if education doesn’t lead to moral action? This university is located on stolen Musqueam land, after all. Our land acknowledgements make sure we remember that. And, most of what we learn comes from a White, Westernized perspective that won’t teach us how to change the world for the better, at least on the front of civil rights.

Not that the education we do get on civil rights is that helpful anyway. At worst, we don’t do anything with the knowledge that generation after generation of Indigenous bands and tribes throughout North America have been subjected to disadvantageous treaties and subpar (to put it mildly) humanitarian conditions. At best, we get a history degree or something and spend our lives teaching students about these injustices, so they can ignore them in our stead.

Go into politics, I always consider, before the realization hits that a high-ranking political position has little chance of convincing North American governments to “recognize the rights of others” (King 39).

Another thing I always do is forget about all this, by the way. In case you thought I was getting too “woke.” After all, what could do? I’ve already mentioned my misgivings about politics, and unfortunately I’ve never found myself to be the radical type.

If you’re at all skeptical about the government’s role in the improvement of minority rights, both historically and contemporarily, King’s book The Inconvenient Indian: A Curious Account of Native People in North America will justify that skepticism. The previous quotation comes from my favorite passage in the book. It’s about Will Rogers, an influential Cherokee actor from the 1930s. “He also said, ‘We will never have true civilization until we have learned to recognize the rights of others.’ This last adage isn’t particularly funny, but then Rogers wasn’t always funny. Sometimes he was hilarious” (39).

Cynicism and humor are large components of King’s writing. He uses them so often that until the end of the book it can be tricky to determine if he’s suggesting anything be done about what he calls “Indian-White relations” (264). The last paragraphs of chapter six spring to mind, where he sarcastically proposes, “While pessimism and cynicism have been the salt and pepper in the stew that is Native-White history, there is no reason we can’t change the recipe” (158), before spending the next 33 pages discussing example after example of how “deprivations, depredations, broken treaties, government lies” (159) have continued to reflect that history even up until the modern day. But let’s examine what King actually recommends be done.

He doesn’t seem to imply that legal action holds no recourse for the Indigenous peoples of North America. He makes sure to mention that Nixon gave the Taos in New Mexico 48,000 acres, including their sacred Blue Lake, though the cynical reader would question why after 64 years the best America could do was return part of the land illegally stolen from the community. He makes sure to mention the Alaska Native Claims Settlement Act and the Nunavut Land Claims Agreement, both seen as victories even by many Indigenous people. But he also argues that the change from trust land to fee-simple land in the ANCSA caused “much of the land [to be] lost and the people scattered” (255), and that there is a “lack of necessary funds and assistance to establish and maintain an Inuktitut bilingual language program” (262) to ensure fluency in the Inuit tongue among Nunavut youth. I expect King’s point here is that these individual “wins” do not a long-term answer make. He says, “I hinted that I didn’t think that legal action was going to provide a solution to the problems that centuries of North American Indian policy and action had created. I suggested that the legal gauntlet created by legislation and the courts better served the powerful and privileged than it did Native people” (247).

What King does suggest is a concentration “on the issues of tribal membership and resource development” (202). To summarize the membership issue: because some Indigenous people aren’t recognized as tribe members, whether because of tribal rolls that claim to record “authentic” ancestry or because of blood quantum, they aren’t entitled to citizenry in a given Indigenous nation or to federal benefits granted to tribe members. What King is really putting up for debate here is how tribes regulate their own membership, not how it’s defined by federal governments. “Currently, the trend among bands and tribes in North America is to try to limit membership” (205), he says. “Aboriginal populations continue to grow, and the thinking is that tribal assets should only be used for the benefit of those who are ‘authentic,’ a term that is fraught with dangerous assumptions and consequences” (205). In an example on pages 204–5, King contends that the Cherokee leaders are the main obstacle to expanding membership, meaning it’s a domestic issue that actually has potential to be resolved. “Numbers can create strength” (206), he advises. I’ll address the importance of numbers later.

The resource issue is a font of controversy in Indigenous communities over garbage dumps, mines, and casinos as sources of income, given many reservations’ limited ranges of economic options. King argues that accepting environmental damage from dumps and mines on a reservation, despite the monetary appeal, “feels too much like Colonialism: Part Two” (210), but that the “relatively pristine” (210) gambling business could be worth the risk of attracting organized crime and intoxicants if the profits are used to buy land for the tribe. Obviously this argument is heavily predicated on the moral values of tribal leaders, but according to the author, those seem to be holding up nicely. “Instead of pursuing the American dream of accumulating land as personal wealth, the tribes[2] have taken their purchases to the Secretary of the Interior and requested that the land they acquired be added to their respective reservations and given trust status” (King 211). It’s at least refreshing to hear at least one plan that could actually make a difference: buying America back, one bit at a time.

Surely critics will comment about how the capitalist system that provides the basis for Indigenous oppression is now being used to expand Indigenous opportunities, but I think it’s reasonable to put irony aside for the sake of actual progress. If only because the last couple centuries have been defined by a lack of actual progress.

I don’t believe King intended for me to interpret his work as saying that everything is hopeless and there’s no point in doing anything, but it sometimes seems he thinks so. For example, King talks about the 1928 American report The Problem of Indian Administration, which was “obliged to say frankly and unequivocally that the provisions for the care of Indian children in boarding school are grossly inadequate” (115) due to rampant disease, overcrowding, and unfocused education. After the report, however, attendance at residential schools continued to grow, and “in the eighty-three years since the report was filed, the United States has never commissioned another study of its kind. Why would the government spend money… to ask questions to which it already knows the answers?” (116).

On peaceful protests, he brings up the commodification of land by non-Natives, the clearest examples being the Alberta Tar Sands project and Canada’s oil pipelines:

I know, I know, there are organizations that have been fighting this kind of ecocide for years, but unfortunately, they constitute only a small portion of the overall population. To be sure, they have had the occasional success, but there is little chance that North America will develop a functional land ethic until it finds a way to overcome its irrational addiction to profit. Unfortunately, there are no signs that that’s going to happen any time soon. (220)

 

The principle that North America will always act immorally out of love for profit, regardless of what protestors want, is doubtless applicable to human rights as well. Just look at any of the dozens of examples King gives of broken land treaties with Indigenous nations.

On the ineffectiveness of individual well-meaning politicians, King discusses the former Commissioner of Indian Affairs in the United States, John Collier. I remember being taught about Collier in high school history class. He was one of those few good men you hear about in history, like the Kurdish sultan Saladin in the 12th century, recognized for legitimately caring about the common man not out of partisan obligation but out of personal morality. He’s also a great figure to bring up in the “Look, we’re not all bad” argument you’ll hear from time to time, though since I’d likely include myself and many of my friends and family were I to make that argument, it’s probably a moot point―more subjective than universally negative or positive.

As Commissioner… Collier could influence policy and he could advocate for native people, but he could not control what the government actually did…. I have a soft spot in my heart for John Collier, but for all his determination and reasonable ideas, he was not destined to prevail. While Collier was able to slow the destruction, he was up against a political cabal that was not about to let one man change the ‘proper’ course of government Indian policy. (King 133)

“You see my problem,” King says, as if to provide a clean summary as to why we’re both so pessimistic about these topics. “The history I offered to forget, the past I offered to burn, turns out to be our present. It may well be our future” (192).

There’s an idea in sociology called Critical Race Theory, which I’m inclined to agree with, which basically proposes that American legal institutions exist only for the betterment of White society to the detriment of people of color. CRT is usually applied to African-American oppression in the United States. In the field of criminal justice, scholars like Paul Butler have raised the idea that existing institutions be thrown out and replaced entirely.

…it is better for some nonviolent Black offenders to stay in the Black community rather than be sent to prison. Accepting that the criminal justice system is fundamentally racist and will seek unjust means of punishment rather than rehabilitation, Butler argues that jury nullification, or the practice by which a jury acquits an offender they believe is guilty for political or racial considerations, is the best way to challenge the White supremacy of the criminal justice system. By making rehabilitation rather than punishment the focus of Black deviance, Butler argues that Blacks can begin to protect their own communities without dependence on or interference from White intervention. (Curry 168)

 

It can be misleading to draw direct parallels between institutionalized racism against African-Americans in the States and that of Indigenous peoples, but reading through The Inconvenient Indian, I could definitely see some areas of overlap with Butler’s theory. His proposal for jury nullification, for example, stems from an overrepresentation of people of color in American prisons. Let’s jump back to King: “Aboriginal people―who are 4 percent of the Canadian population―make up over 18 percent of the federal prison population” (170).

Check.

Furthermore, King makes it clear―both through his own inferences and quotes from other Indigenous authors―that many Native people would be in favor of living “without dependence on or interference from White intervention.” At the beginning of chapter eight, he quotes Vine Deloria, Jr.’s Custer Died for Your Sins: “What we need is a cultural leave-us-alone agreement, in spirit and in fact” (193). Even without a line so clear-cut, sovereignty is one of the issues King brings up time and time again throughout The Inconvenient Indian as a major sticking point for Indigenous-White relations.

Double check.

Now, if Butler’s interpretation of CRT does indeed line up with how White institutions have treated Indigenous peoples, we find ourselves in a bit of a logical predicament. “Aboriginal sovereignty, by the way, is a given” (194), King reminds us, and most nations have their own tribal courts with jurisdiction over their members. The concept of sovereignty[3] and tribal courts should accomplish Butler’s goal of judgment being kept within a community, away from White interference. But does it?

If you’ve been following the trend up until now, you’ve already guessed correctly. “Both [Ottawa and Washington] are concerned with cutting the cost of Native Affairs. They are certainly concerned with reducing the Indian estate. But they have shown little interest in prolonging the authority of treaties, and none whatsoever in encouraging stand-alone sovereign or semi-sovereign nations within the borders of either country” (King 197). And while tribal courts “maintain much criminal jurisdiction over their members…. The Indian Civil Rights Act…limits tribal punishment to one year in jail and a $5,000 fine…. In [all states besides AK, CA, MN, NE, OR, and WI], Indian on Indian crime in Indian Country may be prosecuted in federal court if the crime is one of those listed in the Major Crimes Act ” (“Tribal sovereignty in the United States”). So Indigenous nations can barely set their own punishments, and they can’t judge their own citizens in court if they’ve been accused of murder, manslaughter, rape, assault with intent to kill, arson, burglary, or larceny, all based on a document from 1885, which has since been expanded to encompass a number of other crimes which tribal courts also don’t have jurisdiction over.

Turns out CRT is right. White legal systems really are out to screw everyone else.

It’s important to note that I don’t think this is necessarily a flaw in the plan of jury nullification and rehabilitation. It’s something of a numbers issue (as we talked about earlier). The Black population in the States is greater than the total population of Canada, whereas the Indigenous populations of the two countries are <1% and 4% of the total, respectively. And within those already small numbers are dozens of bands and tribes with their own distinct cultures and modern conditions. While united African-American voters may have numbers that carry weight within the systems of the States (if they didn’t, gerrymandering and voter suppression wouldn’t be used), it seems unlikely that any major party in North America will be particularly willing to give Native sovereignty and legal jurisdiction the respect they deserve in the future as a result of political pressure. I’m skeptical that jury nullification is realistic for other reasons―we’ve already established that minorities trying to take governance into their own hands is “antithetical to the American ideals of democracy, fair play, and free enterprise”―but the shortcomings of Native-White legal interactions shouldn’t be taken as a defeat for Butler’s idea on how to fight legal bias against African-Americans in the United States.

After all this back-and-forth, I feel I’ve hit a brick wall. I asked earlier, “After all, what could do?” It seems as though there’s little opportunity. Maybe that’s partly King’s cynicism and partly my own, but apart from a few hopeful instances of Indigenous “victories” in treaties or land acquisitions, a lessening of the discrimination faced by the Native peoples of North America appears to rest solidly in the hands of political machines that are uninterested in making any significant changes to the status quo. And buying chunks of land won’t exactly be fast going, especially with resistance from non-Native communities and governments. Some bands and tribes don’t even have the means to start shopping.

Which brings me back to the land acknowledgement agreed upon by the University of British Columbia and the Musqueam who still technically own the land. I touched on it earlier. Before classes or ceremonies, it’s customary to say, “I would like to acknowledge that we are gathered today on the traditional, ancestral, and unceded territory of the Musqueam people.” If you’re feeling generous, you might even add that they speak hən̓q̓əmin̓əm. I appreciate that.

Especially to many of us international students, who are relatively unfamiliar with land acknowledgements, the oft-repeated and robotic nature of the saying can make it come across as stilted and overused. I’ve heard many of my fellow students question what, exactly, a land acknowledgement does for the Musqueam. I’ve thought about that too. It’s not as though UBC is abandoning the land, as if that’s feasible for the university. Kicking UBC out doesn’t seem to be a major policy goal of the Musqueam anymore, though that’s too much of an assumption to say for certain, especially for an outsider like myself. Hopefully all those historical partnerships and memoranda of understanding are sincere.

King speaks on the importance of retaining one’s identity in the face of hardship.

We’ve given away a great deal, we’ve had a great deal taken from us, and, if we are not careful, we will continue to lose parts of ourselves―as Indians, as Cree, as Blackfoot, as Navajo, as Inuit―with each generation. But this need not happen. Native cultures aren’t static. They’re dynamic, adaptive, and flexible, and for many of us, the modern variations of older tribal traditions continue to provide order, satisfaction, identity, and value in our lives. More than that, in the five hundred years of European occupation, Native cultures have already proven themselves to be remarkably tenacious and resilient. (265–6)

 

Perhaps the land acknowledgement is one of the Musqueam’s demonstrations of tenacity and resilience. As if to say, “Look, we know you’re going to school here, but we live here. We know many of you will forget about us if we let you. So we won’t let you.” A sort of metaphorical middle finger to the society that’s abused so many Indigenous bands and then turned around to, for the most part, ignore them.

The acknowledgement can also be seen as a declaration of safety for an Indigenous student’s identity. “For the first several decades, very few Indigenous people had access to education at UBC…. For many years, obtaining a university degree also meant losing one’s Indian status” (Chan). It can be taken as a polite formality or an expression of thanks. “[Professor Daniel] Justice encouraged people to think about acknowledgements in terms of entering someone’s home. ‘Most of us are not invited guests,’ he said. ‘We are visitors; maybe we are invaders. A lot of people want to do the acknowledgement because they are grateful, because they want to be respectful. Let that gratitude shape the acknowledgement. Let it live in the acknowledgement’” (Chan).

As you might expect, this kind of recognition is not without criticism.[4] Canada’s Truth and Reconciliation Commission aims to use acknowledgements to point out what’s specifically wrong with modern society rather than just make a general statement. “Aboriginal children are still being separated from their families and communities and placed in the care of child welfare agencies. Like the schools, child welfare agencies are underfunded, often culturally inappropriate, and, far too often, put Aboriginal children in unsafe situations. The child welfare system is the residential school system of our day” (Truth and Reconciliation Commission of Canada 4). Others are more pointedly judgmental, however. According to one report,

Influential scholarship has suggested that the ‘good’ of recognition is limited to cultural and psychological effects; it has little value for ‘transformation’ and in fact can hold in place structures that maintain material inequalities…. The political theorist Singh (2014, 57) goes so far as to suggest that ‘cultural claims themselves cannot present any deep challenge to the economic or political spheres or what might be called the material structures of society… (they are) self-regarding claims on the part of those who make them simply to be able to live their own lives as they see fit. These claims do not aim towards any greater social transformation or to make any contribution to the broader principles or norms of society. Culture here is subordinated to liberal-democratic norms, principles, and institutions that are themselves treated as acultural and universal.’ (de Costa 49-52)

 

The phrasing of acknowledgements also comes under attack: “Particularly with regard to state recognition of Indigenous identities, recognition strategies can be inherently essentialist, obscuring the fact that cultures depend for their coherence as much on their dynamism and ability to change as on the continuity of cultural practices” (de Costa 51). Remember that King wrote, “Native cultures aren’t static.”

UBC’s professors suggest “thinking about why an acknowledgement is being given and what it does for society and the ongoing relationship with Musqueam and other communities going forward” (Chan). Murray Sinclair, Chief Commissioner of the TRC, “explain[s], ‘I really don’t care if you feel responsible for the past. The real question is do you feel a sense of responsibility for the future because that’s what this is all about’” (de Costa 60). Researchers say,

…it may be worth exploring further a possible correlation between significant forms of self-recognition and material changes for Indigenous peoples or other cultural minorities, material changes that appear less consistent with acts that are limited to recognitions of the Other. If even partly true, in debates where Indigenous difference is contentious or misunderstood, a focus on self-recognition may actually prove more productive for Indigenous interests. (de Costa 64)

 

Delving deeper into this issue hasn’t led to my sought-after Right Answer to the debate over how to address past injustices or land acknowledgements. If anything, what I’ve learned is that you can take up any position and find someone willing to back you up. It’s telling, though, that recognition between settlers and Native cultures is criticized by multiple parties as limiting, disingenuous, or ineffective, while Indigenous self-recognition is widely viewed as empowering and productive. I don’t think UBC should stop using its land acknowledgement. I do, however, think the limits of the acknowledgement should be made clear. The university has been a leader in reconciliation efforts in British Columbia, with the establishment of the Residential Schools Research and Dialogue Centre and the Museum of Anthropology, as well as the recent Indigenous Strategic Plan. Recognizing, though, that as one of Canada’s foremost institutions, the university holds a lot of sway, the leadership hasn’t always been quick to wield its political influence in protest of abuses of power outside its own borders. Take the current Wet’suwet’en movement against Coastal GasLink’s (government-approved) natural gas pipeline, running through unceded territory. Student groups have thrown their support behind the protestors, but “‘UBC does not condone violence of any kind and [urges] people to strive for a calm and orderly resolution to the conflict’” (Ha and Livingstone). I wouldn’t consider the Wet’suwet’en blockades “violence of any kind,” but evidently that’s a controversial point. Regardless, UBC should reconsider its willingness to “challenge…the economic or political spheres or…the material structures of society.” Ultimately, the obligation to do this is enshrined in our mission statement: “Accountability: …being responsible for our conduct and actions and delivering upon our respective and reciprocal commitments” (“Vision, Purpose and Values”).

 

 

Works Cited

Chan, Wendy. “UBC professors discuss importance of territory acknowledgements.” The University of British Columbia, 2 Dec. 2016, https://ctlt.ubc.ca/2016/12/02/ubc-professors-discuss-importance-of-territory-acknowledgements/.

Curry, Tommy. “Critical Race Theory.” Encyclopedia of Race and Crime, SAGE Publications, Inc., 2009, pp. 166–9.

de Costa, Ravi. “Two Kinds of Recognition: The Politics of Engagement in Settler Societies.” The Limits of Settler Colonial Reconciliation: Non-Indigenous People and the Responsibility to Engage, Springer, 2016, pp. 49–66.

Ha, Andrew, and Emma Livingstone. “UBCC350 open letter calls on campus community to support Wet’suwet’en.” The Ubyssey, 24 Jan. 2020, https://www.ubyssey.ca/news/UBCC350-open-letter-Wetsuweten/.

King, Thomas. The Inconvenient Indian: A Curious Account of Native People in North America. Anchor Canada, 2012.

Rogers, William. There’s not a bathing suit in Russia & other bare facts. Albert & Charles Boni, 1927.

“Tribal sovereignty in the United States.” Wikipedia: The Free Encyclopedia. Wikimedia Foundation, Inc. 13 Nov. 2019. Web. 22 Nov. 2019, en.wikipedia.org/wiki/Tribal_sovereignty_in_the_United_States#Tribal_courts.

Truth and Reconciliation Commission of Canada. Canada’s Residential Schools: The Legacy:The Final Report of the Truth and Reconciliation Commission of Canada. Vol. 5, McGill-Queen’s University Press, 2015.

“Vision, Purpose and Values.” The University of British Columbia, https://www.ubc.ca/about/vision-values.html.

 

Footnotes

[1]Of course there are merits to the democratic system. The very fact that The Inconvenient Indianwas published shows off the fundamental democratic right to freedom of speech; China and Turkey, for example, both go to lengths to cover up comparable human rights transgressions. In truth, the above is a flashy and attractive line but not an absolute. I intend to demonstrate that democracies don’t fulfill their promises of equality: “democracy has to be more than two wolves and a sheep voting on what to have for dinner” (King 164).

[2]King lists the Oneida (NY), Shakopee Sioux (MN), Cherokee (OK), and Sycuan Band of the Kumeyaay (CA).

[3]There is another school of thought called Black nationalism which promotes empowerment of Black communities and resistance to assimilation, including the idea of separatism (self-determination and voluntary segregation from White culture). It doesn’t seem to me that Butler is arguing in favor of complete separatism, although the concept is worth mentioning since The Inconvenient Indiantalks about Indigenous sovereignty, not just tribal courts.

[4]In this paper, I’m referring only to “bilateral” recognition. “Trudy Gover observes ‘collateral’ forms of inter-tribal recognition, against the ‘bilateral’ recognition in which the state is the main locus of authority; such phenomena not only help shift identity processes away from positivist regimes such as descent and blood quanta, they support the ‘capacity of Indigenous peoples to form and maintain communities in the face of dramatic political, demographic and cultural upheaval and to do so by drawing on their relationships with each other’” (de Costa 52).