This document outlines an "American Indian Theory of Justice" that seeks redress for the injustices committed against Native Americans over the past three centuries. It summarizes how genocide, land theft, and forced assimilation amounted to "tremendous violence, treachery, and pure evil" that have left Native Americans in a state of poverty, poor health, and lack of self-governance. Existing theories of compensation and restoration are deemed inadequate. The proposed "Justice as Indigenism" approach calls for acknowledgement of wrongs, apologies, peacemaking, commemoration of injustices, compensation, land restoration, and major legal reforms to restore Native sovereignty and rights to self-determination. This would

1. Beyond Reparations: An American
Indian Theory of Justice
William Bradford
Presentation to the U New Mexico School of
Public AdministrationUniversity
14 February 2013

2. Age of Apology
• 1865 (40 acres/mule), 1988 (WWII Internment), late 1990s
(academy), 2008- (Obama)
• Nazi victims, J-Ams, Hawaiians, Korean civilians, African
Americans (Tuskegee, Rosewood, Dept Ag), IACHR (Awas
Tingni), war victims?
• Meta-wrongs/original sins, e.g., slavery (lost wealth, wrongful
death, discrimination) and Native claims
• Remedies: $, nonmonetary
• Redress not one size fits all
• Resistance: constitutional, doctrinal, political, practical

3. American Indian Claim for Redress
• Why Indians? Primacy v. Ethnic Elbowing?
• Hidden History: Can’t Redress what you Don’t Know
• Presentist Bias: Chicago Tribune’s “Indian Summer”
• Requires Factual Predicate
• Existing Reparations
Theories Inadequate
• Requires Indigenous
Theory of Justice

4. American Indian Claim
• Three centuries of “tremendous violence,
treachery, and pure evil” that have taken
the form of . . .
• Genocide
• Land Theft, and
• Ethnocide
. . . murdered millions, depopulated Indian land, and crushed
Indian self-government, leaving Indians the most materially
deprived and legally exposed group in U.S. (60% poverty, life
expectancy, property unprotected by 5th A, lowest ed attainment)

5. Genocide
• Conquest
• Slavery
• Ethnic Cleansing

6. Conquest
• Premised on belief of indigenous inferiority
• Discovery Doctrine: European nation became
sovereign of lands it “discovered” provided it
subjugated population through defensive war, and
according to Pope, all wars were defensive because
people were not Christian

7. Slavery
• Bounties for Indian slaves who were integral part of
colonial economies until replaced by African
Americans
• As late as early 20th
century, California
Indians captured
as slaves for
mines and brothels

8. Ethnic Cleansing
• Genocide: acts committed with intent to destroy, in
whole or in part, a national, ethnical, racial, or
religious group as such (killing, serious bodily/mental
harm, physical destruction, preventing births, forcible
transfer of children)
• Millions (up to 98%) killed through disease,
slaughter, slavery, starvation, aggressive wars,
Manifest Destiny

9. Land Theft
• Land is fundamental to physical/cultural survival,
identity, religion, culture
• Fraud and Firewater
• Conquest by Fiction
• Trust Doctrine
• Plenary Power
• Allotment to Present

10. Fraud and Firewater
• Indian cosmology mistakenly understood land treaties
to create shared domain and political ties
• Treaties written only in English/Dutch/Spanish
• Induced through alcohol
• Fraudulent, duressive, unconscionable

11. Conquest by Fiction
• Johnson v. M’Intosh (1823)
• European discovery (not Indian
occupancy) was ultimate title and
could be perfected by cession or
conquest because although the
U.S. was “born in sin” the
doctrine of inherent Indian inferiority under
international law was a part of U.S. law
• Thus, Indian property rights are “revocable
licenses” or “permission by the whites to occupy”

12. Trust Doctrine
• Cherokee Nation v. Georgia (1831)
• Indian tribes are “domestic dependent
nations” to whom the U.S., as ward,
owed only a judicially unenforceable
responsibility of good-faith dealings
• U.S. gained trust title to all Indian
lands within U.S. borders
• Majoritarian political pressure renders trust all but
unenforceable

13. Plenary Power
• Worcester v. Georgia (1832)
• Congress has “plenary power” over Indian affairs
to qualify and eliminate all tribal powers—
include exercise of sovereignty over land—by
express legislation
• Gave judicial imprimatur to wars designed to
force tribes into treaties ceding vast lands and
creating reservations
• Used in 1871 to strip Indian tribes of power to
enter into treaties with the U.S.

14. Allotment to Present
• Allotment Act (1887): subdivided
tribal land into parcels for individual
allottees severed from tribes
• Reduced contiguous tribal landmass,
exposed allottees to loss of land
through taxes and market forces,
transferred ¾ of remaining land to
non-Indian ownership, converted
reservations into patchwork quilts of tribal lands in trust/plots
owned in fee by whites/plots held by Indians no longer tribal
members, 95K Indians landless
• Absolutely unreviewable by judicial branch

15. Ethnocide
• Cultural Liquidation
• Suppression of
Self-Government
• Forced Assimilation

16. Cultural Liquidation
• “Kill the Indian to Save the Man”: Indian boarding
schools, parental alienation, forced religious
conversion
• Eradication/Vilification
of Indian Religion
Despite AIRFA: Makah,
peyote, eagle feathers,
sacred sites, access
rights

17. Suppression of Self-Government
• Legal Imperialism
• Political Domination
• Ethnodevelopmental
Suppression

18. Legal Imperialism
• Major Crimes Act (1885):
Indians “too savage” to permit
adjudication of felonies on
reservations
• CIO Courts: criminalizes
specifically Indian subject matter
(alcohol, religious expression)
• PL 280 (1954): States extended civil and criminal
jurisdiction over reservations within their borders
• ICRA (1968): incorporated Bill of Rights to tribal
governments
• Oliphant (1978): no tribal jurisdiction over criminal acts of
non-Indians on reservations

19. Political Domination
• Indian Reorganization Act
(1934): tribes reconstituted
and subjected to veto power
of SecInt
• Not government-to-govern-
ment but agency to agency,
with BIA as colonial governor
• Stifling regulations
• “Mother-may-I?”: can’t sell, lease, borrow
without express approval; political uncertainty

20. Ethnodevelopmental Suppression
• Reserved rights under treaties are
“temporary and precarious”
(Mille Lacs)
• Hunting and fishing pressured by
non-Indians, environmentalists,
other enterprises
• BIA makes little effort to achieve
cultural “goodness of fit” (bison
farming, honey, seeds)
• Makah bad, gaming good

21. Forced Assimilation
• Crush tribal governance and
culture, and land follows
• U.S. citizenship imposed
(1924): creates dual/split
loyalty
• Termination (1953): legislative
disappearance, led by former head of Japanese-
American internment, stripped away land, community,
dissolved tribal governments
• Relocation (1956): removed “best and brightest”
Indians to Northern cities and industrial jobs (Ford)

22. Existing Theories of Redress
• Justice as Supersession
• Justice as Compensation
• Justice as Restoration

23. Justice as Supersession: Theory
• Indians are Asian-Americans: may not
be first possessors!
• Indian land would have been divested
by some process other than white theft
• Injustice in dispossessing living non-Indians greater than injustice
suffered by long-dead Indians, which is a “dead history”
• Former Indian lands are indispensable to non-Indian owners, but
dispensable to Indians who have proven they can live without them!
• Even if whites hadn’t taken Indian land, equity requires Indians to
share
• Any $ due is purely symbolic at best, and a “handout” at worst
• Tribes should “wither away” in favor of Western liberal
cosmopolitanism and a “mongrel” identity that permits assimilation:
loss of right to self-govern as discrete, insular community is of
“trivial” moral/legal consequence and should even be encouraged

24. Justice as Supersession: Failures
• Not terribly subtle justification for
conquest and forced assimilation
• Exploits Indian resilience in face
of genocide and expropriation as
evidence against their claim: had
they been eradicated, only then
would they have a superior claim
to whites
• Ignores sacredness of land
• Establishes rules that “to the victors go the spoils,”
justice is perishable, getting rid of claimants has utility,
and a thief’s title can become good over time

25. Justice as Compensation: Theory
• Land acquired through fraud
or force must be restored or
$ paid, especially in re: sacred lands
• Causal connection exists between
deprivation of lands and denial of
rights to self-determine
• Requires offsets for $ already paid through trust
programs and ICC, plus a commitment device to
prevent reopening claims
• Limits on remedial class and on who pays
• Silent as to ethnocide, denial of rights to self-govern

26. Justice as Compensation: Failures
• Assumes commensurability of $ and land
• Undercompensates due to offsets and mistaken view
regarding trust doctrine: it is consideration for treaties, and
not $ for injuries
• Indian self-determination
is more valuable than $
and there isn’t enough $
to make non-Indian owners
part with their lands (worth
at least $1 trillion)
• Sparks intergroup conflict over resources: zero-sum game
• That which Congress can give, Congress can take away
(plenary power) so no commitment device is possible

27. Justice as Restoration: Theory
• Requires restoration of all Indian lands
(Midnight Oil approach, likened to
“radical social surgery”)
• Justice is not perishable: Indian land
is Indian land regardless of passage
of time
• Moral approach to redress
acknowledges, apologizes
for, and repudiates genocide
(TRCs, psychological support)
and ethnocide (funding Indian culture, NMAI)
• Acknowledge importance and supports some quantum of self-
determination with grants, subsidies, tax incentives, affirmative
action

28. Justice as Restoration: Failures
• Equity proscribes evacuation of all non-Indians
from all Indian land
• Recipe for majoritarian backlash
and further abridgement of
Indian resources and rights
(even war)
• Does not recognize, let alone engage, federal
Indian law as primary variable subordinating
Indians and preventing rebalancing of the moral
equation: “sorry” and $ and even land do not
reinvest sovereignty in tribes

29. Justice as Indigenism: Premises
• History is very much with us
• Indians were here first and have no other
homeland to which to run if need be
• Major legal reforms necessary to restore self-
government
• Joint authorship of harmonious future is crucial
• Pan-Indian consensus exists as to primary
objectives
• U.S. political legitimacy at home and abroad
hinges on affording justice to Indians

30. Justice as Indigenism: Steps
• Acknowledgement
• Apologies
• Peacemaking
• Commemoration
• Compensation
• Land Restoration
• Legal Reformation

31. Acknowledgement
• Acknowledging Indian claims stories displaces
mythical national genesis, softens hearts, erodes
theoretical bases of U.S. control of Indian land, culture,
and people
• American Indian Reconciliation Commission: debunk
sanitized national history, formal recognition of
wrongs, enable and disseminate a new national
creation-story throughout media/academy/culture
• Treats damaging effects on White character: stone-
heartedness, callousness, failure of empathy
• Issue remedial recommendations to Congress and
President

32. Apologies
• Obama Apology of 2009
was part of DOD
Appropriation and did
not include a Preamble
that described the “what?”
for which the U.S. was
apologizing
• Real “I’m sorry” improves probability of
nonrepetition
• Relieves burden of national guilt complex
• Advances process toward forgiveness

33. Peacemaking
• Cultural Hermeneutics:
need to bridge cultural
differences and explain
what Indian sovereignty
means to Indians while
assuaging non-Indian fears
of separatism, “special rights”
• Tribal Peacemaking (TMP):
process based on traditional
model of dispute resolution that aims at restoration of
harmony using shared values, norms, win-win approach,
consensus-based remedies, social obligations to reinforce
agreements, prospective, “fresh start” (Pizza Bandits Case);
held at Camp David and sacred lands?

34. Commemoration
• Concretizes findings of
AIRC and USITMP to
enscribe the truth on the
hearts and minds of
future generations and
ensures they will neither forget nor repeat the past
• Sites of Indian genocide, on the National Mall
• Renaming parks, forests, cities
• Wing in NAMI with focus on broken treaties and genocide
• Posthumous pardons for Indians charged with resisting genocide and
land theft
• Creation of centers for teaching Indian history, culture, and religion
so non-Indians can adjust perceptions
• Curricular modification in elementary schools

35. Compensation
• Impossible politically and practically to
discharge wrongful deaths, theft of tribal lands
and resources, and legal subordination
• Symbolic amount of $40 billion ($20K per
Indian individual) would allow tribes to extend
social support net for the poorest Indians; same
amount paid to Japanese Americans

36. Land Restoration
• Restoration of sovereignty and ownership (which are different
concepts) over Indian lands to the furthest limits of reason and
equity, with return of all sacred lands nonnegotiable
• Necessary precondition for exercise of powers of self-government,
wealth generation, propagation of culture, expression of religion
• Builds on notion of right to indigenous lands as a human right
expounded in DRIP
• Proscribes ejecting or disturbing private titles of blameless non-
Indian individuals
• Non-Indians on Indian land encouraged to live under Indian
sovereignty and laws, but can elect to accept 5th Amendment
compensation from the U.S. and relocate
• Accepts in-kind grants in lieu of restoration where appropriate

37. Legal Reformation
• Interconnected matrix of legal disability (plenary
power, unenforceable trust, judicial undermining
of treaties), refers Indian rights to property,
culture, religion, development, and self-
government to interpretation and suppression by
non-Indian majority, so reforms must include . . .
• Indian Autonomy Act: restore treatymaking
power, full internal sovereignty with exclusive
and complete jurisdiction save for foreign affairs
and defense (e.g. Liechtenstein, autonomy
regimes)

38. Legal Reformation cont.
• Omnibus Indian Rights Act: (1) create express
protections for Indian religion and culture (explicit
exceptions to ESA, inclusion of Indian representatives
to IOs, preemption of state laws; (2) create and fund
specific remedial trust programs based on bloc grants
free from BIA oversight, or else make one-time
payments and eliminate the trust; (3) establish Court of
Indian Affairs with original jurisdiction over Indian law
cases, Indian judges, and power to order restitution; (4)
invest in pan-Indian legal organizations, programs, and
universities to produce more Indian lawyers; (5)
convene a conference to repudiate and restate Indian
law, perhaps even to pre-Johnson v. M’Intosh

39. Legal Reformation cont.
• Constitutional Amendment: (a) amend the
Commerce Clause to renounce plenary power or
expressly limit the subject matter and issue-areas
in which Congress may treat tribes as wards to
defense and foreign affairs (examples in inter-
American system), (b) amend the 5th Amendment
to include Indian property not expressly
recognized by treaty or statute as within its
protection, (c) modify the Supremacy Clause or
add an amendment to specify that tribes are
superior to States in the federalist hierarchy, or are
at least immune from the reach of State laws

40. Reconciliation
• In exchange for U.S. acknowledgement and repair of gross
injustices suffered by Indians over the course of its creation
and expansion, restoration of a meaningful measure of land
to Indian tribes, and amendment of the legal and
political order to ensure respect
for and promotion of Indian
rights to self-determination,
Indians have a duty to grant
forgiveness
• Formal ceremony to begin a new
chapter
• Relegitimizes U.S. at home and
abroad

41. Generalization to Other Claims, Fields,
Disciplines
• All Native Public Polices have the Indian
claim for justice looming large as a factual and
moral predicate: cannot understand the
relationship between cause and effect without
understanding how law has been used to create
the problems and how law is central to the
solutions
• Native Public Policy integrates law,
economics, politics, culture, negotiation

42. Questions?