Colonialism Is Crime 0813598710, 9780813598710

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Colonialism Is Crime

Critical Issues in Crime and Society Raymond J. Michalowski, Series Editor Critical Issues in Crime and Society is oriented t­ oward critical analy­s is of con­ temporary prob­lems in crime and justice. The series is open to a broad range of topics including specific types of crime, wrongful be­h av­ior by eco­nom­ically or po­liti­cally power­f ul actors, controversies over justice system practices, and issues related to the intersection of identity, crime, and justice. It is committed to offering thoughtful works that ­w ill be accessible to scholars and professional criminologists, general readers, and students. For a list of titles in the series, see the last page of the book.

Colonialism Is Crime

M a r i a n n e   O. Ni e l s e n L i n da  M . Roby n

Rutg e r s Unive r sity P re s s New Brunswick, Camden, and Newark, New Jersey, and London

Library of Congress Cataloging-in-Publication Data Names: Nielsen, Marianne O., author. | Robyn, Linda M., author. Title: Colonialism is crime / Marianne O. Nielsen, Linda M. Robyn. Description: New Brunswick, Camden, and Newark, New Jersey : Rutgers   University Press, 2019. | Series: Critical issues in crime and society |   Includes bibliographical references and index. Identifiers: LCCN 2018058706 | ISBN 9780813598710 (pbk.) Subjects: LCSH: Indigenous peoples—Crimes against. | Indigenous   peoples—Legal status, laws, etc. | Colonization—History. Classification: LCC HV6322.7 .N53 2019 | DDC 362.8808—dc23 LC record available at https://lccn.loc.gov/2018058706 A British Cataloging-­in-­P ublication rec­ord for this book is available from the British Library. Copyright © 2019 by Marianne O. Nielsen and Linda M. Robyn All rights reserved No part of this book may be reproduced or utilized in any form or by any means, electronic or mechanical, or by any information storage and retrieval system, without written permission from the publisher. Please contact Rutgers University Press, 106 Somerset Street, New Brunswick, NJ 08901. The only exception to this prohibition is “fair use” as defined by U.S. copyright law. The paper used in this publication meets the requirements of the American National Standard for Information Sciences—­Permanence of Paper for Printed Library Mate­ rials, ANSI Z39.48-1992. www​.­r utgersuniversitypress​.­org Manufactured in the United States of Amer­i­ca

For my ­father, Harry Nielsen, who has supported me with love and generosity of spirit through all my adventures. Marianne For my stars in the sky: Rick, Amy, Kristin, Lauren, and Sierra. Linda

Conte nt s Foreword by Donald L. Fixico

ix

1

Introduction: Crimes against Indigenous P ­ eoples

1

2

Breaking and Bending the Law Historically

26

3

Fraud, Theft, and the Trail of Broken Treaties

41

4

Massacres to Murder: Vio­lence against Indigenous ­Peoples

65

5

Institutionalized Torture and Pedophilia: Boarding Schools for Indigenous ­Children

88

6 7 8 9 10

Conquest by Rape and Vio­lence: Crimes against Indigenous ­Women

115

The Conestoga Indians, Hate Crimes, and Domestic Terrorism

146

Stolen Land to Stolen Oil: The Theft of Indigenous Po­liti­cal Economies

163

Would You Drink This W ­ ater? Crimes of Pollution and Toxic Dumping on Indigenous Lands

181

Fighting Back: Colonial Settler Responsibilities and Indigenous Action

203

Acknowl­edgments Notes References Index

227 229 231 255

vii

Foreword Donald L. Fixico

Since Columbus arrived in the Western Hemi­sphere, colonialism and crime

together have critically impacted American Indians and their homelands. This historic encounter in 1492 inspired colonialism, leading to many kinds of crimes against Indigenous ­peoples when the Spanish, French, Dutch, and Rus­sians claimed vari­ous parts of North Amer­i­ca. This invasive exploita­ tion has continued to the pre­sent, and it persists. Some call it the manifest destiny of civilization, but ­u nder the microscope of criminology, colonial­ ism is directly related to crime. Previous lit­er­a­ture has presented Indigenous ­people as mere victims, but ­t here is much more to the story of colonialism involving Native ­peoples, just as t­ here are two sides of a coin. The pro­cess of colonialism is scrutinized here to render a new interpretation—­ ­ colonialism yielded crime. Mari­ anne O. Nielsen and Linda M. Robyn argue convincingly that colonialism is a state crime steeped in vio­lence and intimidation. As a part of colonial­ ism, the colonizer created narratives that yielded a mainstream history of oppressing Indigenous p­ eople. But who speaks on the behalf of the victim­ ized communities? When a subaltern is created, t­here is opportunity for ­those who have been harmed to be heard. H ­ ere, their voices and perspec­ tives emerge in response to the victors’ narratives. According to the authors, the time is well overdue to analyze the consequences of colonialism. This examination of colonialism in toto calls for serious attention to previously overlooked repercussions of cultural imperialism. Nielsen and Robyn charge that colonialism v­ iolated and continues to violate Indigenous ­human rights, and that it is social injustice, racism, and wrongdoing. From settler colonialism to state colonialism, Indigenous p­ eople have been subju­ gated into an inferior role and forced to accept white superiority. State poli­ cies, programs, and laws have kept Indigenous p­ eople ­u nder control, while governments at all levels and the colonizers in roles from outlaws to po­liti­ cal leaders have seized Native homelands and resources, and even enslaved, kidnapped, raped, and killed Indigenous ­peoples. Presently, an estimated ix

x

Foreword

370 million Indigenous p­ eople live in 5,000 communities in 90 countries around the world, and 5.1 million Native ­people of nearly 600 tribes on 326 reservations are in the United States. Overall, Indigenous p­ eople make up less than 6 ­percent of the world’s population of nearly 8 billion p­ eople, and own less than 18 ­percent of the inhabitable land on earth (Hall and Gan­ dolfo 2016; Fixico 2012). The impact of colonial crime has created an ongoing legacy that has benefited the colonizers while disempowering American Indians in the United States and First Nations p­ eople in Canada as well as Indians in Mexico. In the United States alone, American exceptionalism emerged from the car­ nage involving Indians during the late 1800s. All of this has been allowed by settler and state colonialism, in the name of civilization. This volume is a clarion call for scholarly attention to refute colonial ideology that justifies domination of American Indians with l­ittle regret. While colonial rhe­toric has suggested American Indians represented a ­dying race of less than 238,000 survi­ vors in 1900, ­today’s real­ity shows that the Indigenous population has surpassed the original estimated Indian population at the time of Columbus. Indians have always been h ­ ere, and their tribal nations have been equipping themselves with mainstream ways, including gaining knowledge in federal law and developing resources to address more than 200  years of injustice. This book challenges every­one to see the other side, in that American colonialism has caused endless crimes against American Indians and this long history of wrongdoing needs to be re-­examined and changed for the better.

Colonialism Is Crime

C hapte r   1

Introduction C rim e s against Indig e nou s P ­ eople s Settler colonials often think of colonialism as existing in the distant past, if it is acknowledged at all. The idea that colonialism is ongoing is widely considered fanciful, if not downright malicious (Razack 2015, 16).

This book is “downright malicious.” Its basic premise is that the colonization of Indigenous ­people was and is an ongoing crime of devastating proportions. We argue that u ­nless we understand how the effects of colonialism continue into the pre­sent, we ­w ill never understand the relationship between Indigenous ­people and criminal justice systems in settler socie­t ies. Colonial pro­cesses continue to oppress Indigenous p­ eoples in countries invaded by settler-­colonists. This is accomplished through cultural imperialism, exploitation, marginalization, disempowerment, and vio­lence (Young 2011). As criminologists, we take special interest in the fact that colonial goals ­were most often criminal at the time they ­were committed. This is not just a curious historical artifact. The consequences of this oppression and criminal victimization is the critical f­actor that explains why Indigenous ­people ­today are over-­represented as victims and offenders in the settler criminal justice systems in many parts of the world. Colonialism is a classic state crime that relies on vio­lence and the threat of vio­lence to achieve po­liti­cal and economic ends. We argue that it is not pos­ si­ ble to understand the relationship between Indigenous ­ people and criminal justice systems in the countries created out of their ancestral homes ­u nless we recognize and analyze the impact of this vio­lence not only on Indigenous p­ eoples in the past but on Indigenous communities ­today. For many individuals who live in settler-­colonized countries ­today, colonialism enabled their ancestors to leave the “Old World” and ­settle in North Amer­i­ca, South Amer­i­ca, Australia, New Zealand, South Africa, and other lands. Few of the descendants of colonizers consider the destructive

1

2

Colonialism Is Crime

consequences of colonialism for the Indigenous inhabitants. Other colonial enterprises originating in Japan, China, and Rus­sia spread around the globe as well, impacting Indigenous p­ eoples with similarly dire results. This book focuses primarily on countries colonized by Britain: Australia, Canada, New Zealand, and especially the United States of Amer­i­ca, ­because their experiences of colonialism w ­ ere and are similar, as is the relationship of Indigenous p­ eople with the criminal justice system of each country. From the point of view of the Indigenous ­people of North Amer­i­ca and other colonized countries, colonialism is an ongoing pro­cess of invasion and oppression, a centuries-­long crime, resulting in the destruction of lives, communities, cultures, ­human rights, and other grave social harms. At the time of contact, Indigenous ­peoples immediately began to suffer a number of dif­fer­ent forms of victimization, from physical illness and displacement to rape and death. For many Indigenous p­ eople, the historical impacts of colonialism such as po­l iti­cal, economic, and social marginalizations, and the over-­representation of Indigenous p­ eople in the criminal justice system, are just facts of everyday life. Colonialism impairs Indigenous communities collectively and individually; the strug­g le to achieve justice is constant. In response to Indigenous ­peoples’ efforts to achieve reparations and restoration of resources, unsympathetic settler descendants vehemently object and claim that the crimes of colonialism rest in the past. Commonly held non-­ Indigenous racial resentments ­toward ­people of color include that ­people of color should “get ahead on their own and should not rely on help from the government” (Tuch and Hughes 2011, 149). For Indigenous ­people specifically, related attitudes are that Indigenous p­ eople should “Get over our ‘invasion’. . . . ​How well would they have gotten along without all of our advancements?” and “The notion of one culture having to pay another ­because they ­were stronger is insane. Since the dawn of our species dif­fer­ent factions of h ­ umans have been killing each other for resources” (Debate​.­org, n.d.). Prejudicial ideologies against Indigenous groups are not restricted to the United States. Māori in New Zealand have been told by prominent non-­M āori to “stop whingeing and pull themselves up by their own bootstraps” (Belich 2001, 487). This book is an attempt to explain why the past is the pre­sent, and supports the argument that Indigenous p­ eople cannot “ just get over it.” The victimization of Indigenous ­peoples is too serious to be forgotten. Moreover, victimization continues—­see, for example, the controversy and conflict over the Dakota Access Pipeline. ­W hether we acknowledge it or not, both Indigenous and non-­Indigenous ­people are all living with the consequences of past colonial crimes. As William Faulkner wrote in 1951, “The past is never dead. It’s not even past.” It continues ­today as Indigenous ­peoples fight for basic h ­ uman and civil rights.

Introduction

3

This book argues that it is time that settler descendants and the po­l iti­cal leaders of their governments recognize the all-­encompassing, harmful, and ongoing impact of colonialism on con­temporary life. In the interests of ­human rights, ­human equality, and social justice, the tide needs to be reversed. A renewed awareness of historical colonial crimes and their continuing harmful impacts on Indigenous ­peoples is an impor­t ant first step. Many of us see Indigenous p­ eople through settler eyes. We w ­ ill use the term “settlers” in this book for the non-­Indigenous inhabitants of colonized countries, both past and pre­sent. Thanks mainly to the inaccurate and inadequate information we get in schools, from the media, and from our peers and families, we judge Indigenous history, Indigenous cultures, Indigenous lives, and all ­t hings Indigenous by a northern Eu­ro­pean settler standard. In this way, we practice cultural imperialism (Young 2011). Even many of us who are Indigenous do this as a result of internalized oppression. Assimilation and control by colonial governments, boarding schools, and churches did not succeed completely in eradicating Indigenous culture and custom, but they did infect the thinking of many Indigenous ­people. Eurocentric education continues to reinforce assimilation and supposed non-­Indigenous superiority, yet most Indigenous p­ eople and many non-­Indigenous ­people have come to realize the injustice, as well as the inadequacies of such indoctrination. The viewpoints of the Indigenous recipients of colonization—­those who w ­ ere victimized by it—­h ave not been given equal time in writings about colonization. ­Today, the term Indigenous ­peoples “refers broadly to the living descendants of pre-­invasion inhabitants of lands now dominated by ­others” (Anaya 1996, 3). In the United States, they are Native Americans (a term that ­w ill be used ­here to include American Indians, Alaskan Natives, Native Hawaiians, and p­ eople of mixed Indigenous descent). In Canada, they are First Nations and Aboriginal ­peoples. In Australia, they are Indigenous Australians (previously referred to as Aboriginal Australians), and in New Zealand, they are the Māori. How would the Indigenous ­people before contact see Indigenous history as it unfurled, and how would they see the impacts of colonialism on the current lives of Indigenous ­people? Before-­contact Indigenous ­people would very likely see a history of injustice ­toward Indigenous ­people and wrongdoing so serious, comprehensive, and lethal that it is considered genocidal by many ­today. They would see that colonization was comprised of a steady stream of criminal acts. As Black Hawk, a Sauk leader, described the settlers in 1835, “An Indian who is as bad as the white men, could not live in our nation; he would be put to death, and eat up by the wolves. The white men are bad schoolmasters; they carry false looks, and deal in false actions; they smile in the face of the poor Indian to cheat him; they shake them by the hand to gain their confidence,

4

Colonialism Is Crime

to make them drunk, to deceive them, and ruin our wives. We told them to let us alone, and keep away from us; but they followed on, and beset our paths, and they coiled themselves among us, like the snake. They poisoned us by their touch. We are not safe. We live in danger” (Black Hawk 1995, 155). Most Indigenous p­ eople would observe that the pro­cesses of colonialism laid the path to the current oppression and victimization of Indigenous individuals, communities, and nations. They would know implicitly that Indigenous p­ eople need the right to return to their own definitions of “life, liberty, and the pursuit of happiness.” Indigenous p­ eople need the power to decide for themselves how they want to live, govern, operate their social institutions, define their values, and interact with non-­Indigenous neighbors. In other words, to borrow modern vocabulary, their sovereignty as First Nations needs to be respected and upheld. What Is C oloni al i sm ? Colonization is such a common fact in world history that few think about it anymore—­u nless they are Indigenous ­people for whom its impacts are a fact of everyday life, or they are scholars. Osterhammel (1997, 16–17) defines colonialism as “a relationship of domination between an indigenous (or forcibly imported) majority and a minority of foreign invaders. The fundamental decisions affecting the lives of the colonized ­people are made and implemented by the colonial rulers in pursuit of interests that are often defined in a distant metropolis. Rejecting cultural compromises with the colonized population, the colonizers are convinced of their own superiority and their ordained mandate to rule.” As Blaut (1993, 20, 184) explains, colonialism was and is an “im­mensely profitable” enterprise, and it was also im­mensely successful. This success was primarily the result of the horrific impacts of the diseases brought by the colonizers. What is now known as central Mexico lost nearly 90 ­percent of its population to disease during the sixteenth ­century, for example. The Eu­ro­pe­a ns also had a relative advantage in military technology that on its own would likely not have led to such widespread success, but the destruction of population and resulting social disor­g a­n i­za­tion caused by disease gave the colonizers the advantage (Blaut 1993; Lane 1997). Colonized countries, with few exceptions, have mythologies of daring settlers braving the empty wilderness and fighting off savage, unreasoning primitives to stake their claims and make new lives for themselves and their descendants in their New World. T ­ hese myths con­ve­niently leave out that the wilderness was not empty, nor ­were the p­ eoples inhabiting ­these lands primitive, unreasoning, or savages. The inhabitants ­were defending their homelands from invaders who wished to kill or enslave them and steal their ­children,

Introduction

5

spouses, homes, farmlands, food, and other resources. However, as the cliché goes, winners write the histories, and in order to feel good about their own history, settler-­colonists distort it so that Indigenous ­peoples and other non-­ white, non-­Europeans are glossed over or left out of the histories (Loewen 1995). To paraphrase James Loewen (1995, 291), ­these cultural lies about Indigenous ­peoples have been woven into the fabric of settler socie­ties. Such Eurocentric politicization of history certainly does not allow the idea that crimes ­were the basis for the establishment of the settlers’ so-­called homeland. Laws that ­were advantageous to settlers ­were among the main tools used to coerce dispossession and marginalization. ­T hese laws created an environment in which settlers could steal Indigenous land and resources for their own purposes with impunity. The resisting Indigenous population had to be removed or controlled so as to make this exploitation as painless as pos­si­ble for the settlers. Racist ideologies of white Christian superiority and Indigenous p­ eoples’ inferiority ­were used to justify this theft and vio­ lence in countries colonized by Eu­ro­pe­a ns. Law was a valuable settler tool; the breaking, misuse, manipulation, and writing of new laws allowed acts such as murder, sexual assault, kidnapping, fraud, and theft of resources against Indigenous ­peoples on a breathtaking scale. Such laws ­were also used to discredit Indigenous ­people so their claims to their own lands and resources seemed illegitimate in comparison to t­hose of the settler society, government, and corporations. Crime has been and continues to be a tool of ­those in power. In the past it was a blunt instrument; ­today it is more sophisticated, relying on the manipulation of law and lawmakers so that racist and discriminatory laws have become institutionalized. Colonial authorities ­ were familiar with the history of the Roman Empire and the British Empire and its colonization of Scotland, Wales, and Ireland. As Razack (2015, 25) describes, “Although it was certainly true that London could not easily halt the colonial proj­ect, . . . [the] Eu­ro­pean colonial powers knew the outcome of their settlement proj­ects, most desired it, and, importantly, law aided and abetted it.” Colonial authorities knew what the impacts of colonialism would be on Indigenous ­peoples. Why Is Coloni al i sm Cri m e ? Although not usually thought of as such in modern-­d ay society, colonialism in the United States, Canada, Australia, New Zealand, and other Indigenous lands was only made pos­si­ble by a broad range of crimes that ­were illegal ­u nder the laws of the time and deliberately perpetrated by settler-­colonists and governments. ­These ­were accompanied by injurious acts that w ­ ere criminal from the perspectives of their Indigenous victims but also, in many instances, morally reprehensible in the eyes of impor­tant

6

Colonialism Is Crime

members of the colonial society. Furthermore, some acts that ­were illegal at the time w ­ ere quickly made l­egal. Certainly, when re-­evaluated from the perspective of con­temporary international law and social harms theory, colonialism can be seen as “criminal” and a type of state crime as it is defined by Penny Green and Tony Ward (2004, 2): “state orga­n izational deviance involving the violation of ­human rights.” States legally control the use and threat of physical vio­lence and apply it ­u nder rules that they set for themselves and which are considered legitimate by the shared beliefs of their citizens. If the citizens begin to believe that the state is violating its own rules, then they see the state as illegitimate and/or immoral (Green and Ward 2004, 3–4). States violate h ­ uman rights if they do not follow the “international law, domestic law, and social morality” defined by international organ­ i zations, other states, and other agencies inside and outside the offending state. State crime is a form of orga­n izational deviance that is carried out as part of the “operative goals of a formal organ­ ization” though they may not be the public goals of the organ­i zation (Green and Ward 2004, 6). The way to tell if an illegal act is an operative goal is to watch for the organ­ization’s reaction to law breaking. For example, as w ­ ill be seen l­ater, the colonial governments at first did not stop or prevent the sexual assaults of Indigenous school c­hildren by their supposed teachers. The assimilation and control of the “inferior” Indigenous ­children was more impor­t ant than their health and protection. Why did colonial governments believe they could get away with ­these crimes? As Ron Kramer, Ray Michalowski, and David Kauzlarich (2002) suggest, they had goals to achieve (wealth acquisition), the illegal means ­were available and attractive, and t­here was no one to stop them. ­Human rights standards w ­ ere in their infancy. ­Today, ­human rights conventions set the standard for the incorporation of ­human rights into the laws of colonial governments. ­These ­human rights as described by Green and Ward (2004, 7) are: “­Human beings have certain needs that are fundamental in the sense that without them they cannot be effective purposive agents, able to pursue their chosen goals and participate in society. T ­ hese include, at the most basic level, needs for freedom from physical restraint and debilitative pain, and for food, clothing and shelter. They also include, for ­human beings living in modern po­liti­cal socie­t ies, needs such as education and the opportunity to participate in cultural life and the po­liti­cal pro­cess.” Society has the obligation to ensure individual members possess t­hese rights. The force of law is one way to guarantee them (Green and Ward 2004, 7). But law came to be defined by the courts of the conqueror, according to Walter Echo-­Hawk (2010), and ­t hese are the laws u ­ nder which Indigenous ­people lived in colonial times and must now function. T ­ hese laws ­were used to oppress and exploit Indigenous ­peoples and therefore violate

Introduction

7

their ­human rights. Many of t­hese laws are still on the books in the four countries u ­ nder consideration: Australia, Canada, New Zealand, and the United States. It is the settlers’ or conquers’ law that is referenced most often in this book. At the beginning of the colonial pro­cess, colonial state crimes encompassed very overt forms, such as mass murder, genocide, kidnapping, fraud, and theft. As Echo-­Hawk (2010, 15) states, “For Indigenous p­ eoples, colonialism was a harsh, life-­altering experience ­because it invariably meant invasion of their country, appropriation of their land and natu­r al resources, destruction of indigenous habitats and ways of life, and sometimes genocide and ethnocide.” Some of the violent acts ­were ­legal by the settlers’ laws; they w ­ ere a reflection of the con­temporary non-­Indigenous mores that held life cheap, especially the lives of ­t hose who ­were non-­Christians and ste­reo­ typed as subhuman and the savage Other. As such, Indigenous p­ eoples’ property was fair game as well. Even then, however, many non-­Indigenous ­people saw some of ­t hese acts as illegitimate. We ­w ill refer to such acts sanctioned by settler law as “­legal crimes” throughout this book. Many of the acts committed by settlers and settler governments w ­ ere actually not l­egal, even by their own laws. It should be noted that some of the “illegal crimes” w ­ ere exactly the same as the l­egal crimes—­theft, murder, rape, assault, and kidnapping. It depended on the period in history, the colony, and, of course, the specific law. Crime is and continues to be defined with g­ reat fluidity, especially when t­here is profit to be had through the exploitation of ­others. As Michalowski (1985, 15) states, it is a myth that ­there is “universally consistent definition of theft and vio­lence as criminal acts.” This is evident as some of ­t hese illegal acts, such as the theft of certain resources and lands, quickly became ­legal (i.e., ­legal crimes) as state officials and corporations who had a ­g reat interest in acquiring more Indigenous resources lobbied to make them so. Together they committed state-­ corporate crimes where “deviant state actions intersect with the criminal actions of corporations to produce massive ­human rights and environmental violations” (Green and Ward 2004, 28). ­These can be ­either initiated by the state or facilitated by the state (Kramer, Michalowski, and Kauzlarich 2002). Examples in this book of state-­i nitiated crimes include the Trail of Tears, in which the Cherokee w ­ ere removed illegally from their land by the U.S. government and the state of Georgia, working together with land companies. The majority of crimes described in this book are state facilitated in that the state did l­ittle to nothing to prevent them, punish the perpetrators, or compensate the victims. It should be noted, however, that some previously l­egal crimes such as sexual assault eventually became illegal to reflect the changing mores of the times. This ­human rights definition of colonialism as crime is the first definition used in this book.

8

Colonialism Is Crime

­ uman Right s H Indigenous p­ eoples are ostensibly protected and guaranteed fair and equal treatment by the laws of the country in which they live. However, ­there is a ­great deal of evidence that this does not happen on a consistent basis, individually or institutionally (see Truth and Reconciliation Commission 2015; Nielsen and Silverman 2009; National Inquiry 1997; Jackson 1988). The United Nations Declaration of the Rights of Indigenous ­Peoples was conceived to protect and maintain such rights: “[The General Assembly] Solemnly proclaims the following United Nations Declaration on the Rights of Indigenous ­Peoples as a standard of achievement to be pursued in a spirit of partnership and mutual re­spect” (UN 2007, 4, italics in the original). For the purposes of this book, Articles 2, 3, 5 and 34 (UN 2007, 4, 10) are the most relevant. ­These are the articles that have been and are still most frequently ­v iolated in the four countries upon which we develop our arguments. We pre­sent them ­here for the reader’s reference: Article 2: “Indigenous ­peoples and individuals are f­ree and equal to all other ­peoples and individuals and have the right to be ­free from any kind of discrimination, in the exercise of their rights, in par­t ic­u ­lar that based on their Indigenous origin or identity.” Article 3: “Indigenous p­ eople have the right to self-­determination. By virtue of that right they freely determine their po­l iti­cal status and freely pursue their economic, social and cultural development.” Article 5: “Indigenous p­ eoples have the right to maintain and strengthen their distinct po­liti­cal, ­legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the po­liti­cal, economic, social and cultural life of the State.” Article 34: “Indigenous ­peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international h ­ uman rights standards.” Other UN conventions that particularly apply to Indigenous p­ eople are: Convention of Prevention and Punishment of the Crime of Genocide (1948),1 International Convention on the Elimination of All Forms of Racial Discrimination (1966), International Covenant on Economic, Social and Cultural Rights (1966), Covenant on Civil and Po­liti­cal Rights (1966), Convention on the Rights of the Child (1989) and Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984). It would be anachronistic to label early colonial interactions as

9

Introduction

­Table  1 - 1 UN Conventions Ratification by Country

Country

Year Signed

Year Ratified or Accession Occurred

Convention on Prevention and Punishment of the Crime of Genocide (1948)

Australia Canada New Zealand United States

1948 1949 1949 1948

1949 1952 1978 1988

International Convention on the Elimination of All Forms of Racial Discrimination (1966)

Australia Canada New Zealand United States

1966 1966 1966 1966

1975 1970 1972 1994

International Covenant on Economic, Social, and Cultural Rights (1966)

Australia Canada New Zealand United States

1972 n/a 1968 1977

1975 1976 1978 Not ratified

Covenant on Civil and Po­l iti­cal Rights (1966)

Australia Canada New Zealand United States

1972 n/a 1968 1977

1980 1976 1978 1992

Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment of Punishment (1984)

Australia Canada New Zealand United States

1985 1985 1986 1988

1989 1987 1989 1994

Convention on the Rights of the Child (1989)

Australia Canada New Zealand United States

1990 1990 1990 1995

1990 1991 1993 Not ratified

Declaration of the Rights of Indigenous ­Peoples (2007)

Australia Canada New Zealand United States

Voted no Voted no Voted no Voted no

2009 2010 2010 2010

Convention

Sources: United Nations Treaty Collection, https://­t reaties​.­u n​.­org ​/­; Indigenous Foundations, https://­i ndigenousfoundations​.­a rts​.­ubc​.­c a​/­u n ​_ ­declaration ​_­on ​_­t he ​_ ­r ights​ _­of ​_ ­i ndigenous ​_ ­peoples.

crimes using ­t hese conventions, but some of the crimes such as the kidnapping and assimilation of Indigenous c­ hildren by boarding schools still continued a­fter the countries involved signed the related conventions. Also, ­these conventions make excellent standards against which to assess if ­legal crimes v­ iolated Indigenous ­human rights and created social harms. T ­ hese conventions ­w ill be variously used in l­ater chapters to illustrate the harmful nature of some colonial acts. ­Table 1.1 indicates that ­these four countries (the United States, Australia, Canada, and New Zealand) ­were somewhat unenthusiastic about approving

10

Colonialism Is Crime

and ratifying some of ­these conventions, with the reluctance to ratify the UN Declaration of the Rights of Indigenous P ­ eoples the most telling. Current-­d ay international laws, agreements, and covenants that support the increase of Indigenous sovereignty, such as this declaration, ­were fought by the settler governments. ­Those who fought the strongest ­were t­hose with the most to lose eco­nom­ically if Indigenous p­ eoples gained more control of their lives and resources. The United States was the last of the four hold-­out governments to sign. In keeping with their reluctant support, several of ­these country’s po­liti­cal leaders emphasized that the declaration was not legally binding and basically went against the rule of law in their country. For example, Australia’s minister for Indigenous affairs stated, “­There should only be one law for all Australians and we should not enshrine in law practices that are not acceptable in the modern world” (BBC News 2007). In addition to the violation of ­human rights definition above, and the social harms definition to be introduced shortly, ­there is another way to define colonialism as crime. This is the ­legal definition, as defined by settler laws. ­Legal A common definition of crime in settler society t­oday is “an offense which goes beyond the personal and into the public sphere, breaking prohibitory rules or laws, to which legitimate punishments or sanctions are attached, and which requires the intervention of a public authority (the state or a local body)” (Marshall 1994, 96). T ­ here are three players h ­ ere—­the offender, the victim (though they are not ­really part of the definition u ­ nless they are the “personal”), and the intervening public authority. In other words, crime is defined by the rules or laws of a public authority, and the offender and victim must abide by them. Since ignorance of the law is no excuse, this means they must obey such laws, even if they do not know they are ­u nder the jurisdiction of the public authority or never agreed to be ­u nder its authority. That is what happened to Indigenous p­ eople—­the settlers’ acts against Indigenous ­people ­were criminal ­u nder Indigenous laws, and though Indigenous laws w ­ ere recognized as legitimate during the period of early colonialism in at least three of the countries ­u nder discussion, ­little was done by colonial governments to prevent or stop the settlers (see Deloria and Lytle 1983). As settler numbers increased and disease and vio­ lence ravaged the Indigenous populations’ numbers, settlers proclaimed their laws to be the only ones, w ­ hether Indigenous ­people agreed or not. A legalistic definition of crime is appropriate to our discussions when looking at how settler laws are used to exploit and control Indigenous populations. The invaders used

Introduction

11

the Eu­ro­pean ideologies of the time to legally define Indigenous ­peoples as inferior and hence, legitimate exploitable resources (Williams 1983). Questions of who writes the rules or law and who controls the public authority are not raised in a legalistic definition as the one above, yet ­t hese are vital questions if the victim or offender is a member of a group disadvantaged by lack of ­legal and po­liti­cal power. Law is the key to understanding the marginalization of such groups: “Law is a societal mechanism that provides the group in power with strong means of control over other, less power­ ful groups. . . . ​Laws are formulated so that they express the values and interests of the dominant group, and to restrict the be­hav­ior common to less power­ful groups” (Williams and McShane 1994, 170). The law was used to control Indigenous ­peoples to further the interests of the settler-­colonists. Laws can be written by the power­ful to retain their power by keeping disadvantaged groups po­liti­cally marginalized and mired in their disadvantages. If the laws are not sufficient to accomplish this, the laws can be manipulated or broken as needed, with few repercussions if the offender—­ individual, organ­ization, or government—­h as sufficient status and power. Crimes by governments are particularly relevant to Indigenous ­peoples. According to Michalowski (1985, 384), “To retard or suppress forms of organ­ization threatening to capitalism, the state must frequently violate its own laws concerning civil and po­liti­cal liberties, as well as act in a variety of ways contrary to the spirit of democracy. Preservation of legitimacy, however, requires that ­t hese violations ­either be hidden or justified on the basis of averting some greater danger” (emphasis in the original). Past and pre­sent colonial laws are manipulated or subverted in such a way that, though the acts committed are illegal, no arrests are made and no prosecutions occur. This can occur for specific, power­ful individuals or organ­izations within a country, but it can also occur on the international level between sovereign nations, as happened between Indigenous ­peoples and Eu­ro­pean governments. Modern-­d ay violations of law are still seen as acceptable by corporations that seek to exploit Indigenous p­ eoples with l­ittle or no consequences (Lasslett 2014). Social harms, the third way to define crime, is not their concern. Social Harms The social harms perspective focuses on in­equality in its definition of crime, rather than law. In fact, as Michalowski (1985, 405) puts it, “Crime must be defined in a way that evaluates wrongful be­h av­iors on the basis of the severity of the harm done regardless of the class origin of the offense” (italics in the original). Social harms theory is firmly grounded in European-­ based theoretical traditions, specifically critical criminology, and suffers

12

Colonialism Is Crime

from the biases of t­ hose traditions (see Blaut 1993), but some of the concepts are quite applicable in explaining the theme of this book. Matthew Ford (2008, 397–398n68) quotes Dressler, who defines social harm “as the negation, endangering, or destruction of an individual, group or state interest which was deemed socially valuable.” This immediately raises the question: who deems what interest is socially valuable? The invaders obviously did not consider Indigenous lives, communities, and cultures valuable interests, and proceeded to destroy them with g­ reat fervor and, in some countries, horrific vio­lence. The Indigenous victims certainly considered ­these interests to be of ­g reat value, but this is not reflected in the colonial history books. The social harm interpretation of crimes is most common in the theoretical analyses of white-­collar crime but is also a very appropriate framework to use in the analyses of historical crimes of a much wider scope. Ford (2008, 396), states the severity of the crimes “can be evaluated by reference to four categories: (1) the amount of monetary loss, (2) the ‘spread’ of the events over time and place, (3) the nature of the victim, and (4) the presence and nature of violation of trust.” His analy­ sis is from a clearly non-­ Indigenous, cap­i­tal­ist point of view, but it provides a framework to understand the impact of social harms. The key to the use of social harms theory in discussing colonial crimes is the clash of interests between the invaders of Indigenous lands and the Indigenous inhabitants during the first part of the colonial period when the invaders w ­ ere intent on economic exploitation and control, and the inhabitants on preserving their lives, communities, cultures, and social institutions. ­Because of the widespread and immediately devastating impacts of diseases brought by the invaders, the Indigenous inhabitants ­were able to offer minimal re­sis­tance to their violent invasion (Stannard 1992a). The violation of trust caused by colonialism occurs as settler-­r un governments aid and abet corporations in stealing Indigenous lands and resources through specially crafted laws, and fail to protect their Indigenous wards as defined by law. The colonial governments allow social harms or “analogous social injuries” in that t­hese are “legally permissible acts or sets of conditions whose consequences are similar to ­t hose of illegal acts” (Michalowski and Kramer 2006, 13). In the United States, the Cobell case (discussed further in chapter  8) is just one example where American Indians had to sue the federal government to get back a small part of the funding supposedly held in trust for them for 125 years (Echo-­Hawk 2010). From the Indigenous perspective, then, colonialism caused devastating and ongoing social harm. The physical and violent consequences (see Ford 2008, 384n7) that resulted from colonialism are still causing harm to the lives of Indigenous ­peoples ­today.

Introduction

13

Inve stigati ng C oloni al Cri m e ­A fter someone asked one of the authors why colonialism was impor­t ant to criminology, she repeated the question in bemusement to a session audience at a national conference. A student participant looked askance at the questioner and asked, “How do you explain ­water to a fish?” The other Indigenous participants in the session nodded vigorously. They understood; to them, criminal justice and Indigenous lives are indelibly linked, and not for the better. The criminal justice system was and continues to be a power­ ful instrument of oppression for Indigenous ­peoples in colonized countries around the world. Colonialism was and is aided and abetted by law, police, courts, and prisons. Colonialism is the w ­ ater in which criminologists swim. It is impor­tant to investigate the relationship between crime, criminal justice, Indigenous ­people, and colonialism for eight other reasons: 1.  Many ­people who live ­today in countries colonized by settlers coming from Spain, ­England, France, and other Eu­ro­pean powers, and then ­later coming from elsewhere in the globe, have l­ittle knowledge of the impacts of colonialism on the Indigenous p­ eople their ancestors invaded because Indigenous p­eople are not part of the culturally dominant ­ group; they are part of the Indigenous Other (Young 2011), at best a quaint afterthought for non-­Indigenous society. Few settler descendants understand the relationship between criminal justice and Indigenous ­peoples t­oday, since to do so it is necessary to understand colonial history and its continuing direct and indirect impacts. 2.  Colonialism means that the history and living conditions of Indigenous ­people contradict the ideals of equality and ­human rights proclaimed by most colonial countries. Indigenous p­eoples are still oppressed (Young 2011). Many are exploited eco­nom­ically through low-­paying jobs, have ­little access to employment on impoverished reservation and reserve communities, or lack the skills for professional jobs due to low educational achievement. For the majority of Indigenous ­people, marginalization also means higher mortality rates, higher suicide rates, more sexual assaults on ­women, higher incarceration rates, and higher alcohol-­related crime rates (Monchalin 2016; Nielsen and Silverman 2009; National Inquiry 1997; Walker 1990). This marginality, or social exclusion as it is more broadly called, 2 is the result of early and continuing colonial pro­cesses that force Indigenous ­peoples into disadvantaged positions in the socie­ties that now occupy Indigenous lands. They are marginalized by “being expelled from useful participation in social life and thus potentially subjected to severe material deprivation and even extermination” (Young 2011, 53). As w ­ ill

14

Colonialism Is Crime

be seen as this book progresses, Iris Young’s statement accurately sums up much of Indigenous history in all four countries. Nevertheless, this relationship between colonialism and present-­d ay marginalization and social exclusion is “mysterious” to settlers (Razack 2015, 103), rather like the ­water in which the fish and criminologists swim. 3.  Indigenous ­peoples have special historical, ­legal, and po­liti­cal relationships with the colonial state that still define their lives and t­ hose of the settlers t­oday. ­T here are entire bodies of law that apply only to Indigenous p­ eople, and specialized state bodies to deal with them in each colonized country. T ­ hese laws and policies have repercussions in the administration and experience of justice both on and off Indigenous lands. ­T here have been government and academic studies into the poor relations between Indigenous p­ eoples and ­t hese justice systems, and the ­causes of the over-­representation of Indigenous offenders and victims in the criminal justice systems, but t­hese studies, while useful, comprehensive, and well-­intended, do not look at the criminal characteristics of colonialism nor at Indigenous p­ eoples as victims of crime. As Razack (2015, 19) writes, “Acknowledgement does not extend to responsibility.” Indigenous ­ people are relatively powerless to resist exploitation ­because laws proclaim them wards, or in the United States, domestic dependent nations over whom the colonial government has plenary power, which means that the U.S. Congress could legislate them out of ­legal existence. They have equivalent statuses in other countries so that they do not control completely their social institutions, lands, and resources. This is why increasing sovereignty and self-­determination are such impor­t ant objectives for Indigenous p­ eoples worldwide. 4. Colonialism has not ­stopped; it is an ongoing proj­ect that affects most aspects of Indigenous life, including relations with the criminal justice system (Razack 2015). As Sherene Razack (2015, 30) writes about Canada, “Inquests, commissions of inquiry, and royal commissions, places where the state defines ‘the Aboriginal prob­lem’ and articulates strategies for reform, have only rarely acknowledged that colonialism had, and (even more rarely acknowledged) continues to have, a profound impact on the status of Indigenous p­ eoples and their experiences in the criminal justice system.” States and corporations continue to dispossess and exploit Indigenous ­peoples by wresting away or controlling the remaining resources and land that Indigenous p­ eoples have fought for and still keep. It is impor­t ant to remember that colonization is not only the history of the Indigenous ­ people who ­ were invaded; it is also the history of the settlers-­colonists who benefited, ­whether they came early or ­later. It still affects relations between states and Indigenous ­peoples as Indigenous ­people and nations resist such

Introduction

15

incursions and fight to decrease their powerlessness by increasing self-­ determination and sovereignty over their own lives and communities. Despite theoretical arguments by other scholars in other writings to the contrary, the idea of postcolonialism w ­ ill be treated as an oxymoron in this book. 5.  Indigenous p­ eople have not gone away; they are not the fading race that colonial ideology proclaimed. They are survivors. They w ­ ere not and have not been destroyed by systematic vio­lence, though they still suffer from it (Young 2011). Some have assimilated into settler society, and some are traditionalists living on reservations or traditional lands who follow traditional life as much as pos­si­ble. Some have been excluded so severely that they have given up and merely exist as best they can on the streets and in homeless shelters, but the vast majority have found a place where they contribute as citizens and also as Indigenous community members keeping Indigenous culture and languages alive. Indigenous ­people are actually a growing proportion of the population in most colonized countries. They still live with the oppression produced by colonialism, however; it is an indelible part of Indigenous life. 6. Indigenous ­peoples are successfully adapting their cultures to the con­temporary world, despite all of the negative impacts of colonialism. Their cultures are diverse and dif­fer­ent from non-­Indigenous society. They are dynamic, not static and stuck in the past. They share many values of justice with non-­Indigenous socie­ties, but their expectations of how justice is accomplished and the meaning of justice may be dif­fer­ent and may lead to misunderstandings, even conflict. T ­ hese differences, however, should be celebrated; b­ ecause of them, Indigenous p­ eople have made many significant, lasting contributions to the cultures and structures of colonized countries (Weatherford 1988). T ­ oday, for example, some of the most innovative and effective criminal justice programs are emerging from Indigenous communities. Despite the issues that have been identified with some of ­these programs (mostly caused by state interference), ­family conferencing for juveniles began in the Māori communities of New Zealand, peacemaking began in Navajo communities, and sentencing circles began in Indigenous communities in northern Canada. Aboriginal-­r un healing lodges in Canada, which are not exactly prisons, have among the lowest recidivism rates of any correctional institutions in the country (Nielsen 2016). “Began” h ­ ere actually means t­ hese practices, when community-­owned, are modern adaptations of e­arlier versions that developed thousands of years ago, with changes occurring as needed and as required by non-­Indigenous state laws and policies. 7.  Colonialism means many Indigenous ­people still suffer from cultural imperialism so that their identities “are defined from the outside,” and

16

Colonialism Is Crime

non-­Indigenous members of society ste­reo­t ype them (Young 2011, 59). ­Because they are seen as this inferior “Other,” many face discrimination in housing, in stores, and on the street. Many find hate crimes to be a normal part of life, as are slurs, racist jokes and other microaggressions that “ just wear you down” and isolate them from settler society (Perry 2008; Cunneen 1997). Many settler descendants see Indigenous ­people as “social junk”—­ that is, troublesome individuals who provide witness to the ongoing, life-­threatening impacts of colonialism through ­mental illness, alcohol or drug abuse, or acute poverty. ­These ­people may well be victims of intergenerational post-­traumatic stress disorder (also called historical trauma), a natu­ral result of historical genocide and ethnocide (Duran and Duran 1995), but instead of receiving effective assistance they are ste­reo­typed and dehumanized. They may become victims of brutality (sometimes lethal) or suspicion and callous indifference from criminal justice and medical personnel (see Razack 2015 for research related to Canada and Australia). Such settler descendant attitudes may be partly based on media ste­reo­t ypes and myths with their origins in colonial ideologies of Indigenous savagery, vio­lence, and indolence. ­These images are found in school textbooks, on tele­vi­sion, in movies, on websites run by hate groups, in everyday conversation, and in jokes. ­These myths about Indigenous ­people permeate colonized countries. As Rosado (1999) states, racism w ­ ill continue as long as individuals think they need it. Emphasizing the savagery of Indigenous military allies once served as weapons of fear for warring colonies, and then l­ater as justifications for massacres and other vio­lence against Indigenous ­peoples (Trigger 1985). Now ­there are ste­reo­ types and misconceptions of (the very few) wealthy “casino tribes,” perhaps to justify cuts to the government funding that is obligated by treaties and federal laws. Such attitudes if ­adopted by members of the criminal justice system may mean Indigenous p­ eople experience discrimination in the criminal justice system, as documented, for example, in Canada by the Marshall Inquiry (1989) and Judges  A.  C. Hamilton and C.  M. Sinclair (the Manitoba Inquiry) (1991), in New Zealand by Moana Jackson (1988), in Australia by the inquiry into Aboriginal Deaths in Custody (see Gannoni and Bricknell 2019), and in the United States by the authors in Silverman and Nielsen (eds., 1996) and Nielsen and Silverman (eds., 2009). Such treatment means that Indigenous ­people may be afraid to call the police for help, or may get a harsher sentence in court, or get a longer stay in prison. Discrimination may mean Indigenous ­people have a lower chance of getting probation or parole. It may mean having a greater chance of g­ oing to prison than g­ oing to college.

Introduction

17

The bare bones of the continuing prob­lems between Indigenous ­peoples and the criminal justice systems of their countries can be seen in incarceration statistics. Statistics on incarcerated offenders are the most comparable among countries, since each government mea­sures and rec­ords differently the contacts between its citizens and its criminal justice system. It is no coincidence that Indigenous ­people in most colonized countries are over-­represented in their criminal justice systems. In Australia, as of 2017 Indigenous Australians are 27  ­percent of the adult incarcerated population but are only about 2 ­percent of the adult Australian population (Australian Bureau of Statistics 2017). In Canada, 28  ­percent of t­hose admitted to provincial or territorial prisons and 27 ­percent of ­those admitted to federal prisons are Aboriginal ­people, yet Aboriginal p­ eople constitute just 4.1 percent of the population (Malakieh 2018). In New Zealand, Māori are more than 50 ­percent of the prison population and about 15  ­percent of the general New Zealand population (New Zealand Department of Corrections 2018; Statistics New Zealand 2015). In the United States, the picture is more difficult to determine since ­there are issues with data collection (see Long et al. 2008). Native Americans make about 1.7  ­percent of the total U.S. population (U.S. Census 2012), but American Indians have much higher over-­representation in prisons in some states. In states that collect American Indian/Alaskan Native/ Native Hawaiian status for prisoners (and not all do), the most dramatic over-­representations are in Hawaii (39 ­percent of incarcerated, 10 ­percent of total), Alaska (38 ­percent of incarcerated, 15 ­percent of total), North Dakota (29  ­percent of incarcerated, 5  ­percent of total), South Dakota (29 ­percent of incarcerated, 9 ­percent of total), and Montana (22 ­percent of incarcerated, 6 ­percent of total) (Sakala 2014). As well, tribal jail figures contribute to over-­representation, with 2,540 inmates held in 80 Indian country jails in 2012 (Minton 2017). Unfortunately, statistics are not readily available from local municipal jails where many Indigenous p­ eople are held when they commit minor or misdemeanor offenses. T ­ here is no research concerning the victimization of Indigenous individuals that would result in an easy comparison, although studies in the United States and Canada suggest that t­here is a similar over-­representation trend to the one found with incarceration (Perry 2004; Perreault 2011). 8.  Fi­n ally, Indigenous p­ eoples resisted and continue to resist continuing victimization on many levels, and with ­g reat effort in order to preserve their socie­t ies, culture, and lives. Originally, lack of re­sis­tance to Eu­ ro­ pean diseases destroyed uncountable numbers of Indigenous inhabitants, as did the vio­lence, slavery, and starvation that followed as

18

Colonialism Is Crime

the settlers stepped up their invasion in the face of dwindling Indigenous numbers. Indigenous re­sis­tance was made much more difficult by the social disor­g a­n i­z a­t ion that followed (Shoemaker 1999). Physical and cultural re­sis­t ance has been augmented by new developments in Indigenous programming, media initiatives, networking, and lobbying efforts. Indigenous nation rebuilding is well underway. Impact s of Coloni al C ri m e If colonialism no longer leads to massacres and war in most colonized countries (though t­here are exceptions), it still leads to the devaluation and exploitation of Indigenous ­people. Colonial crimes have not ­stopped. Since contact with Eu­ro­pe­ans and the colonization that followed, Indigenous ­peoples have been the victims of genocide, hom­i­cide, enslavement, sexual assault, child abuse, hate crimes, theft, and fraud, all of which w ­ ill be discussed in this book. The colonial criminal justice system was in­effec­t ive in stopping such victimization, and many, including the authors of this book, would argue it still is. In many ways, the relationship ­today between the criminal justice system and Indigenous p­ eoples is a continuation of the frontier with colonial practices still being used by criminal justice system members (Razack 2015, 104). Indigenous communities are among the most marginalized—­ economically, po­liti­cally, and socially—in the United States, Canada, Australia, New Zealand, and elsewhere (Coates 2004; Goehring 1993). T ­ here are many violations of h ­ uman rights and justice system distortions that affect Indigenous groups ­because of the colonial mechanisms used against them: vio­lence, discriminatory and acquisitive laws, economic de­pen­dency from the loss of lands and resources, cultural and language loss as a consequence of boarding schools and assimilationist government policies, and the weakening, distortion, and loss of social institutions such as f­amily structure, leadership, education, and social control. Although t­here is an increasing amount of research on the current ills faced by Indigenous ­peoples, such as over-­representation in the criminal justice system, environmental degradation of Indigenous lands, poverty, and alcohol and drug abuse (see for examples: National Inquiry 1997; Nielsen and Silverman 2009; Truth and Reconciliation Commission 2015, Saggers and Gray 1998), ­t here is very ­l ittle discussion of the way ­t hese harms are a continuation of historically established practices against Indigenous ­peoples. For example, in the United States and Canada, Indigenous ­women are more likely to be sexually assaulted by white men than by Indigenous men (Perry 2004; Hamby 2009; McGillivray and Comaskey 1999). To what extend did their boarding school systems contribute to this sad fact? Native Americans are more likely to be arrested for alcohol-­ related offenses

Introduction

19

(Silverman 2009). How did alcohol come to play such a large role in Native American social prob­lems? Native American communities and individuals suffer serious health prob­ lems from environmental crimes, such as the dumping of toxic materials like uranium tailings on the Navajo Nation (Robyn 2009) and the Gold King Mine spill, for which the Environmental Protection Agency refuses to pay reparations. How is it that toxic materials appear disproportionately on American Indian lands? As we ­w ill see, crimes against Indigenous individuals and communities still continue and are more likely to be carried out by non-­Indigenous perpetrators. Indigenous families still suffer from the intergenerational impacts of the boarding/residential schools, Indigenous w ­ omen are more likely to be the victims of sexual crimes than non-­Indigenous ­women, and Indi­ genous p­ eoples are still affected by hate crimes. Indigenous communities are still being victimized by environmental crimes committed by corporations abetted by governments, and colonial governments and corporations still try to steal their land and resources. The reasons that t­hese crimes continue include the following f­actors: (1) colonialism is still profitable, (2) Indigenous ­people are still marginalized and seen as exploitable and powerless by t­hose who wish to steal their resources, and (3) cultural imperialism still labels them as the Other, though the ste­reo­t ypes of the early colonial period have changed from t­ hose of dangerous p­ eople who made threatening colonial military allies to t­hose of “social junk.” Indigenous p­ eople who are not part of the economic structure, who are not po­l iti­cally supportive of the governing structure, and who have not bought into colonial ideology are now seen as a surplus, prob­lem population that challenges the social relations of production. They may do this as social junk who, for example, steal from ­t hose wealthier, do not work as productive citizens, take drugs or alcohol instead of being good consumers, have not been socialized into productive roles, or do not support “the ideology which supports the functioning of cap­i­t al­ist society” (Spitzer 1975, 642). The impact of colonialism has been to coerce many Indigenous ­people into one or more of ­these junk categories though marginalization and historical trauma. As Spitzer (1975, 643) explains, such a group is both vulnerable and threatening at the same time: “The marginal status of ­ t hese populations reduces their stake in the maintenance of the system while their powerlessness and dispensability renders them increasingly susceptible to the mechanisms of social control.” At the time of first contact and for several hundred years thereafter, Indigenous p­ eoples ­were valuable as trading partners, military allies, and plantation and ranch workers, but as disease and increasing settler numbers took their toll, Indigenous ­peoples became surplus, obstacles to be removed instead of useful members of the population. They hindered the profitable

20

Colonialism Is Crime

pro­cess of settler invasion through re­sis­tance to the tide; as p­ eoples and nations they refused to all die away, they refused to be all assimilated, and they refused to leave the spaces settlers now saw as theirs. ­Those who do not assimilate require control. Social junk is “from the view of the dominant class . . . ​a costly yet relatively harmless burden to society” (Spitzer 1975, 645). Controls are used to regulate and contain the population since it is usually withdrawn from society, not needing to be eliminated or suppressed, although its very existence can cause control prob­lems. Unfortunately, indifference to Indigenous p­ eoples is part of settler society ideology. The homeless, ill, addicted Indigenous person who is the one most members of settler society picture when they think of Indigenous ­people is a reminder of the crimes and wounds caused by colonialism, and they are controlled by police and health professionals to remove them from the city or street where, as social junk, they are seen as not belonging, (see Razack 2015, 56). Many settler criminologists would agree that Indigenous ­people currently are not “relatable victims.” Indigenous p­ eople need to be seen as “worthy victims”—­t hat is, as victims who deserve the sympathy and care of the system and its members. Victimization of Indigenous ­peoples has become normal in colonized countries. It is expected by Indigenous p­ eoples that they w ­ ill be victimized by corporations, governments, and settler individuals. It is part of their history, and u ­ nless ­things change, it w ­ ill continue to be part of their pre­sent and their ­future, particularly in their relationship with the criminal justice system. According to Razack: First, the vio­lence of colonialism, considered safely in the past, is recognized, although it is often described not as vio­lence but as misjudgment. Second, Indigenous ­people are considered to have been deeply damaged and rendered dependent by colonialism. Third, the police and ­others respond to the damaged populations they deal with professionally, but also inefficiently and arrogantly. Fourth, Indigenous p­ eoples have to be helped to recover from colonization, and the police have to be more culturally sensitive as they assist them to do so. U ­ nder this scenario, colonialism becomes something that happened to Indigenous ­peoples in much the same way that small pox decimated the Shuswap, through no direct fault of the colonizers. Colonization is not understood as something that also produced white settlers and their entitlement to the land, and the most settlers can be guilty of is not understanding the historical situation into which they haplessly wandered. What this narrative leaves out, of course, in ongoing settler vio­ lence and its source in an ongoing white supremacist colonial proj­ect (Razack 2015, 105).

Introduction

21

Social dynamite is another m ­ atter altogether ­because it is a type of prob­lem population that could actively “call into question established relationship, especially relations of production and domination” and tends to be “more youthful, alienated and po­liti­cally volatile than social junk” (Spitzer 1975, 645–646). Indigenous ­people ­today remain a prob­lem population to the settler state b­ ecause they are fighting their oppression: they do not conform to the stories told by settler society; they are not ­dying races; very few are passively withdrawing from non-­Indigenous socie­ties; and they are not assimilating in the way settlers originally envisioned. They are fighting to maintain and self-­determine their own cultures and languages and how they change. They are fighting for a greater degree of sovereignty and to take back control of their lives, communities, and ­futures. Even t­hose who have succumbed to the horrors of the past and pre­sent and self-­medicate with alcohol and drugs refuse to quietly dis­appear; they remain where they are seen, are troublesome, and must be controlled by the criminal justice system. Even as social junk, they function as social dynamite—­they are a reminder of the colonial crimes committed against them. What G ood ­Wi l l I t D o to W rite about C oloni al C ri m e ? The settler descendants of the perpetrators are still benefiting from colonial crimes t­oday, although most settler descendants would deny it vehemently. That is the first and foremost reason this book exists—­because more voices are needed to make this connection between the modern disadvantages of Indigenous ­people, the crimes of colonialism, and the modern advantages of settler descendants. As Razack (2015, 19–20) states about Canada, “Although Indigenous p­eople repeatedly register the connection between colonial vio­lence and accountability, their voices are seldom heard.” This book hopes to speak on behalf of t­ hose ­silent voices, and to add to them. The victimization of Indigenous p­ eoples historically and t­ oday needs to be acknowledged by reluctant members of settler society, including criminal justice personnel. Unfortunately, based on ste­ reo­ t ypes and racism, Indigenous p­ eople are not seen as deserving of non-­Indigenous sympathies ­because they are reminders of the colonial past. They should “ just let it all go.” It is impor­tant for every­one to understand the enduring trauma that Indigenous p­ eoples still suffer (Duran and Duran 1995). Colonialism is not gone; it is a lived everyday experience for most Indigenous ­people, even ­those who are professionals, members of the upper and ­m iddle class, who defy the popu­lar ste­reo­types. The contribution of colonialism to the current Indigenous over-­ representation as individual victims and offenders needs to be seen as a relevant circumstance for their treatment and their punishment. In Canada, for example,

22

Colonialism Is Crime

the Supreme Court of Canada confirmed that the social history of an Aboriginal offender (also known as Gladue f­ actors) is to be considered when the interests of an Aboriginal offender are at stake: 1) Effects of the residential school system. 2) Experience in the child welfare or adoption system. 3) Effects of the dislocation and dispossession of Aboriginal p­ eople. 4) F ­ amily or community history of suicide, substance abuse and/or victimization. 5) Loss of, or strug­gle with, cultural/spiritual identity. 6) Level or lack of formal education. 7) Poverty and poor living conditions. [and] 8) Exposure to/membership in Aboriginal street gangs. (Office of the Correctional Investigator 2013, 31) The connection between colonial crimes and ­today’s marginalization of Indigenous ­peoples needs to be clarified for scholars and students of history, criminology, and other social sciences who are concerned about justice and the so-­ called Indian Prob­ lem, Māori Prob­ lem, or Aboriginal Prob­ lem. They need to see that the Prob­lem is r­ eally a Colonial Prob­lem. Indigenous and non-­Indigenous advocates, working to improve Indigenous quality of life, their access to resources, and their access to basic ­human rights, need support in arguing that colonialism is still occurring and that the motivations for it have not changed. The greed, exploitation, racism, and dehumanization that underlie colonial-­era laws and policies need to be exposed. If advocates attack ­these basic settler motivations and reveal them for what they are, they may be able to discredit the criminals. Members of settler society need to see Indigenous p­ eoples as deserving reparation and restoration of their resources. The modern-­d ay perpetrators of their victimization need to be held accountable. Settler socie­t ies need to develop a general feeling of accountability to Indigenous groups and individuals for the crimes of the past and pre­sent. State policy makers must take into account the under­lying motivation of such policies. By law as defined in treaties and current-­d ay legislation, it is their job to improve the rights and lives of Indigenous p­ eople, to prevent further loss of resources, to prevent Indigenous victimization, and to protect Indigenous p­ eoples’ ­human rights. The last chapter in this book covers in more detail the many dif­fer­ent kinds of amelioration needed. By the end of this book, it w ­ ill be clear to the reader that settler-­based criminology has always had more focus on victimizers than victims—­how to stop the offenders or prevent their criminal acts. U ­ ntil now, the criminological focus has been mainly on Indigenous p­ eoples as individual offenders and victims, as vulnerable populations that plague the criminal justice systems of colonized countries by their disproportionate numbers. In this book, we see Indigenous p­ eoples as the resilient survivors of their long history of victimization. Many suffer from intergenerational trauma as well as

Introduction

23

the loss of lands, culture, language, and so on. They are individual offenders and victims ­today for reasons that reach far back into history. In order to understand this pro­cess, we need to focus on the settler perpetrators. Then we need to hold the descendants of ­these perpetrators accountable and require them/us to make reparations, since settler society is still benefiting from the crimes. It is impor­t ant to remember, however, that few non-­Indigenous ­people are the so-­called ideal offenders described in popu­lar fiction. They are not malicious, evil perpetrators of crimes bent on oppressing Indigenous p­ eoples even further. Mainly, they are apathetic. They have l­ imited experience with Indigenous p­ eoples. They have ste­reo­types based on the media and the occasional sighting of a very vis­i­ble Indigenous person among the many indigent street ­people we unfortunately have in our socie­ties. They have been taught l­ ittle to nothing of Indigenous culture and history in school, no ­m atter their level of education. They ­don’t understand what all the fuss about sovereignty and culture and identity and sports mascots is about, if they have even heard of it. It’s all in the past, right? Wrong. ­Until ­people address the past, we cannot achieve social justice, we cannot move forward in ending the marginalization of Indigenous ­peoples and ensuring their h ­ uman rights. As we teach about colonial history, we need to acknowledge and take responsibility for the real impacts on Indigenous ­people in the past and ­today. ­T hese colonial criminal acts changed the face of the world, not just for the Indigenous p­ eoples who w ­ ere their victims but for the non-­Indigenous colonizers and their descendants who benefit from ­t hese crimes. To achieve social justice, change is needed. Th e Book This book argues that Indigenous ­peoples ­were victims of criminal acts (­legal and illegal) since their contact with Eu­ro­pean invaders and are still the victims of criminal acts t­ oday. They have been victimized by the actions of colonial government, corporations, and individuals, and by laws that have been manipulated by t­hose with power and a lust for Indigenous resources. We argue that in order to achieve both criminal and social justice for Indigenous p­ eoples, settler society must be held accountable to the victims of its predations, and t­ hose who have benefited must pay. Chapter 2 focuses on historical violations and perversions of law used to subdue Indigenous p­ eoples. It reviews three impor­tant historical examples: (1) the Doctrine of Discovery, a law based on deliberately false assumptions, (2) the questionable use of papal bulls by Spain, and (3) the refusal by President Andrew Jackson and the state of Georgia to obey the U.S. Supreme Court in order to steal Cherokee land.

24

Colonialism Is Crime

Chapter 3 describes crimes of the United States and other governments against Indigenous ­people that led to Indigenous land being stolen through the infamous “Trail of Broken Treaties.” Additionally, the illegalities surrounding the Treaty of Waitangi in New Zealand are described. In the Māori language version of this treaty, the colonial government deliberately lied to the Māori about their relationship with the British Crown. Chapter  4 describes the physical vio­ lence used against Indigenous ­people, some of it legally protected, as it occurred in the midst of wars against Indigenous ­ Others in the United States and New Zealand, for example. Much of it was simply murder, with the perpetrators of the massacres and murders well aware of the illegality of their actions, such as occurred in Australia and the United States. The colonial ideology that justified such vio­lence is described. The continuation of violent victimization of Indigenous ­people in the modern day is described. This is linked to present-­d ay statistics on vio­lence against and by Indigenous ­peoples, including the role of alcohol and drugs, and how they are related to historical trauma and intergenerational post-­t raumatic stress disorder. Chapter  5 describes how boarding and residential schools led to the physical and sexual abuse of Indigenous c­hildren, as well as intergenerational trauma and its impact on current-­d ay Indigenous ­peoples who are still trying to overcome the consequences. It begins with the “­legal” kidnapping of Indigenous c­ hildren and the resulting physical abuse up to and including death, and the sexual abuse that many of them suffered not only historically but in the modern day from such schools in the United States, Canada, and Australia. Chapter 6 centers on crimes against Indigenous w ­ omen in the United States and Canada. It begins with the colonial ideology of Indigenous inferiority and patriarchy and how this led to rape as part of conquest. To some extent, this is still used to justify the high sexual victimization rates of Indigenous w ­ omen that exist t­oday and the devaluing of female leadership in most Indigenous groups. The involuntary sterilization of Native w ­ omen in the twentieth ­century is also analyzed. Chapter 7 focuses specifically on hate crimes against Indigenous p­ eople, showing how historical vio­lence and current hate crimes have the same po­liti­cal goals. The chapter begins with the murder of twenty peaceful, Christian Conestoga Indians in Lancaster County Pennsylvania in 1763 and analyzes this massacre as domestic terrorism. It proceeds to show how early colonial ideology that justified hate crimes contributes to the characteristics of hate crimes and other violent crimes against Indigenous ­peoples ­today in the United States, Canada, and Australia. Chapter  8 focuses on the collaboration of the state and corporations, primarily in the United States but also making reference to Canada,

Introduction

25

Australia, and New Zealand. The chapter discusses how states and corporations steal the economic resources of Indigenous ­peoples, legally through law and illegally through variations on domestic terrorism. Chapter  9 describes historical and current-­d ay environmental crimes perpetrated against Indigenous p­ eople and their lands, including dumping uranium tailings on Navajo Nation lands, mining on Indigenous Australian and Māori lands, and the hydroelectric proj­ects, tar sands, and oil pipelines in Canada. Chapter 10 concludes the book with suggestions for settler colonial initiatives that could lead to amelioration of the impacts of colonial crimes, and a description of Indigenous initiatives to prevent and remediate criminal acts of the past and pre­sent, such as the use of customary law, international courts, community organ­izations, media, and Indigenous research protocols.

C hapte r   2

Breaking and Bending the Law Historically

Three infamous historic examples illustrate how law has

been used to further colonial exploitation of Indigenous p­ eoples, and how the ground was laid for subsequent exploitation. The historical examples in this chapter of law breaking and bending in ser­v ice of colonial exploitation are spread over nearly 600 years of colonial expansion and most of the colonized world. The infamous l­egal fictions of terra nullius and the doctrines of discovery and conquest are first described, then the twisty and illegal use of papal bulls by the conquistadores in North and South Amer­i­ca, and fi­n ally, American President Andrew Jackson’s illegal removal of the Cherokee and other American Indian Nations from their legally owned lands. Colonial crime has not been confined to colonial settler states a­fter their in­de­pen­dence from their Eu­ro­pean found­ers; colonial crimes started long before that and w ­ ere intertwined with ­every step colonizers took on new land. The potential for profit from the new and seemingly endless resources brought back to Eu­rope led to serious plans by rulers and colonial corporations to colonize Indigenous lands. According to Osterhammel (1997, 72), “Without exception, foreign trade in the colonies was in the hands of foreign businessmen, acting as royal officials, chartered companies, specialized colonial agencies, or multinational concerns.” Imperial and then colonial governments got their funding through taxation of settlers and corporations. The resources of interest included slaves, furs, tobacco, gold, spices, silk, and other valuables. Imperial Eu­ro­pean powers and corporations made heavy investments in research and development—­t hat is, in outfitting explorers and missionaries. The potential exploiters of t­hese “new worlds” needed to know what the resources ­were, where the resources ­were, how to get to them and who controlled them. Terra nullius and the doctrines of discovery and conquest ­were developed as ­legal fictions in order to take the lands already occupied by Indigenous p­ eople; papal bulls w ­ ere used by the conquistadores to justify by (Eu­ro­pean) law the subjugation of Indigenous p­ eoples; and American law was defied by President Andrew 26



Breaking and Bending the Law Historically

27

Jackson and his allies in order to take the already developed lands of the Cherokee and other American Indians. ­L egal Ficti on: Te rra Nullius and th e Doc t ri ne of D i scove ry During the earliest years of Eu­ro­pean contact with Indigenous ­people, Eu­ro­pe­a ns justified their exploitation and destruction of Indigenous ­peoples by means of self-­interested interpretations of international law. Spain and Portugal relied on decrees from the Pope. Monarchs like Henry VIII of ­England did not see themselves subject to the Catholic Church, and o ­ thers assumed b­ ecause of their powers of divine right, they “could proceed without the Pope’s blessing” (Nichols 2009, 146). Papal decrees or bulls focused on justifying war against infidels so that non-­Christian lands could be acquired; however, the Indigenous p­ eoples of what became Australia, Canada, New Zealand, and the United States, w ­ ere not conquered through war, which made the use of ­these ­legal fictions problematic even by the laws of the time.1 When Eu­ro­pe­a ns first set foot on Indigenous lands, they saw cleared, planted fields and well-­kept villages, and in parts of the Amer­i­cas, large clean cities complete with irrigation and sanitation systems. They also observed groups that moved systematically from summer to winter homes and hunting grounds. ­There ­were physical infrastructures and trade networks. ­There ­were many dif­fer­ent po­liti­cal, religious, ­legal, and social systems. ­There ­were numerous cultures and languages. T ­ here ­were warring neighbors and subordinate groups e­ ager to escape their dominators. T ­ here ­were many Indigenous p­ eople inhabiting the lands, perhaps as many as 2 to 7 million in North Amer­i­ca, between 1 and 3 million in Australia, and about 100,000 in New Zealand (Pool 2012; Shoemaker 1999; Lane 1997). 2 With this in mind, we turn to an exploration of how Eu­ro­pe­a ns first justified their invasion of ­these lands: through an international law declaring ­t hese lands to be empty. Terra nullius (or “land that belongs to no one”) was a l­egal fiction that came from the 1095 Papal Bull Terra Nullius issued by Pope Urban II, which permitted Christians to take any land known or yet unknown occupied by non-­Christians, without the permission of the ­people who lived t­ here. According to this international law, they could not own the land since they “lived in a state of nature” (Nayar 2015, 153). This idea was the root of the Doctrine of Discovery, another l­egal fiction: “­u nder this fiction, discovery was used to uphold colonial claims to Indigenous lands and to bypass any claims to possession by the natives in the ‘discovered lands’ ” (Anaya 1996, 22). ­L egal theorists in ­England and France agreed that ­u nder the Doctrine of Discovery, the two keys to taking Indigenous lands ­were current occupancy and ­actual possession, so that “lands not put to the

28

Colonialism Is Crime

highest agricultural use (again, as defined by Eu­ro­pe­a ns) w ­ ere essentially ‘vacant’ or in a state of ‘waste,’ subject to Eu­ro­pean discovery and occupation” (Pommersheim 2009, 95). This eliminated any rights of Indigenous ­people to their own property since they had no say in defining “agricultural usage.” The stated motives b­ ehind the original expeditions of exploration of Indigenous lands was “the expansion of the true faith and conversion of the indigenous population,” that is, to bring Chris­t ian­ity to Indigenous ­peoples; however, as Green (1989, 25) comments, the expeditions w ­ ere “acquisitive” and “predatory” in nature. T ­ here was no mention in royal documents, French or En­g lish, about getting the consent of the Indigenous p­ eoples in establishing habitations or colonial law (Green 1989, 28, 30). Terra nullius and especially the Doctrine of Discovery w ­ ere central to the colonial laws regarding the exploitation of Australia, Canada, and New Zealand (Pommersheim 2009) as the Doctrine “perpetuates a second-­class national status for tribal nations and relegates individual Indians to a second-­class citizen status, b­ ecause it strips tribes and individuals of their complete property rights” and reserves full property rights—­that is, owner­ship—­only to the “discoverers” (Wilkins and Lomawaima 2001, 20). It should be noted that ­there was variation at first among the colonial invaders; the En­g lish and ­later the Americans ­were much more interested in assuming t­hese occupancy rights than the French (Wilkins and Lomawaima 2001). The colonies continued this ­legal fiction of discovery, which was “routinely involved . . . ​ to justify the acquisition of Indian lands” (Pommersheim 2009, 95). In the United States, for example, the colony of Mary­land used it in 1638 to take lands from local Indians (Pommersheim 2009), and it became the driving force ­behind Manifest Destiny (Nayar 2015), the ideology used to justify the theft of lands in the western part of the United States. In summary, terra nullius and the Doctrine of Discovery ­were laws made by colonizers without the consent of Indigenous ­peoples to justify stealing Indigenous lands and resources. They ­were not ­legal to Indigenous ­peoples, and by the standards of modern international law, social harm theory, and ­human rights violations the actions they sanctioned are all criminal acts ­today. Th e Spanish Conque st of Me soam e ri ca The Doctrine of Discovery meant colonizers did not have to pretend to conquer the lands, as did the Spanish who used the Doctrine of Conquest. Unlike the British and French colonizers, the Spanish colonizers ­were interested not only in acquiring resources, they ­were ­u nder papal ­orders to “ensure that the gospel be preached to all nations” (Deloria and Wilkins 1999, 4). This doctrine originated in the decree or bull Inter Caetera by



Breaking and Bending the Law Historically

29

Pope Alexander VI, which declared that only Christian rulers could legitimately claim owner­ship in the New World and then gave most of it to the Spanish Crown (Vera 2012, 456), with other Catholic-­professing countries receiving smaller portions. The l­egal arguments of Catholic theologians and ­lawyers provided the foundation on which this was l­egal ­u nder international law. ­These decrees ­were based in an ideology that in­equality was a natu­r al condition for ­humans, that this in­equality was divinely willed, and that “Christian government was the universal government that divine authority intended for all mankind” (Williams 1983, 21). Indigenous ­peoples ­were seen as subhuman and unable to recognize “the lordship of the church”—­u nlike infidels, they w ­ ere incapable of possessing property and po­ l iti­ cal power (Christian 1989, x). This served as justification for the church to attempt to control and exploit the land and p­ eoples of the Western Hemi­sphere (Williams 1983). The Spanish monarchs asked for and received papal-­conferred rights to take the wealth of the New World as a reward for civilizing and Christianizing “the natives” on behalf of the pope (Williams 1983, 35–36). The Indies became the first target of exploitation. Columbus, as governor of Hispaniola, was charged with developing wealth for the Crown, of which he could keep 10  ­percent (Oudijk and Restall 2007). Indian slaves w ­ ere captured to work in gold mines for Spanish mine o ­ wners and to export overseas. The invaders w ­ ere “not soldiers in a formally structured army but armed members of companies of exploration, conquest and—if successful—­ settlement. ­These men hoped that military activities would give way as soon as pos­si­ble to the business of settlement, permitting Spanish merchants to follow” (Oudijk and Restall 2007, 38). They had l­ittle regard for “inferior” Indigenous lives, seeing them as obstacles to obtaining riches and/or ­labor to be exploited. This attitude led to genocide. As Echo-­Hawk (2010, 15) describes: “More than twelve million Indians died during the first forty years ­after Columbus landed as Spaniards infected, killed, tortured, terrorized, and destroyed each native civilization they encountered.” One such method of exploitation was the encomendero system, which was a system of slavery justified by reference to the papal grant to Spain (Williams 1983, 39). The encomendero prescribed that Spanish slave-­owners ­were responsible for military ser­v ice to the King, protecting the Indians, and making them work through the encomienda system (a grant that allowed the holder to force Indigenous l­abor). They paid financial tribute to the king in the form of repartimiento (a period of forced l­abor). Williams (1983, 39) quotes King Ferdinand’s order: “­Because of the excessive liberty the Indians have been permitted, they flee from Christians and do not work. Therefore, they are to be compelled to work, so that the kingdom and the Spaniards may be enriched and the Indians Christianized.” The encomienda

30

Colonialism Is Crime

laws w ­ ere affirmed by the Burgos legislation in 1514, and controlled all aspects of Indian life: Indians ­were to be located in new villages, closer to the civilizing influence of the Spaniards, and their old dwellings destroyed “so that they might lose the longing to return to them.” Churches and religious instruction ­were to be provided, ­children baptized, marriage encouraged, and nakedness forbidden. Sons of Indian caciques w ­ ere to be entrusted to Franciscan missionaries for four years of intense religious and secular education. All other Indians w ­ ere compelled to give nine months annual ser­v ice to individual Spaniards—­“to prevent their living in idleness and to assure their learning to live and govern themselves like Christians.” (Williams 1983, 44) As Williams (1983, 43) points out, “the Indians’ consent to be ruled was essentially immaterial to the draf­ters of the code.” The code continued to legally justify the “outright appropriation of Indian resources, in this case Indian ­labor, as a means to facilitate the overarching goal of assimilation” (Williams 1983, 44). It was considered appropriate that the Indians pay by their ­labor for the privilege of being administered by the Spanish hidalgos (minor aristocracy). The conquistadors spread into North and South Amer­i­ca, bringing their genocidal practices and greed with them. Columbus began the vio­ lence in Hispaniola: “Soldiers invaded villages with mastiffs and rounded up w ­ hole populations. The inhabitants w ­ ere killed or shipped to the slave market in Spain. T ­ hose who resisted had their ears or noses cut off. Some ­were burned alive; o ­ thers w ­ ere hanged” (Nies 1996, 70). This vio­lence was not ­limited to the Ca­r ib­bean. Francis (2007, 97–98) describes the establishment of the encomienda system in Colombia, quoting from a letter of July 8, 1539, from Captain Juan de San Martín and Captain Antonio de Lebrija to King Charles V about their activities from 1537 to 1539, Moreover, for the well-­being of the native ­peoples of this land, and even for Your Majesty’s own benefit, it occurred to Jiménez and to us that the Indians should be entrusted to the deserving individuals who worked to carry out the conquest, pacification and discovery of this land, in order to supply them with food, clothing, and other necessary items for their use. That was done and some caciques have been entrusted in encomiendas to certain Spaniards, u ­ ntil such time that Your Majesty decree what best serves his interests. . . . ​The caciques not given in encomienda are the cacique of Bogotà, the cacique of Tunja, and Somyndoco, lord of the emerald stone mines. T ­ hese three remain f­ ree u ­ ntil your Majesty decrees what best serves his interest in this ­m atter.



Breaking and Bending the Law Historically

31

The Requerimiento basically gave Indians the choice of putting themselves ­u nder the dominion of the church and the Spanish monarchy, or death: But if you do not do this or if you maliciously delay in ­doing it, I certify to you that with the help of God we s­hall forcefully enter into your country and small make war against you . . . ​a nd s­ hall subject you to the yoke and obedience of the Church and of their highnesses; we ­shall take you and your wives and your c­ hildren and ­shall make slaves of them, and as such ­shall sell and dispose of them as their highnesses may command; and we ­shall take away your goods and ­shall do to you all the harm and damage that we can, as to vassals who do not obey and refuse to receive their lord and resist and contradict him; and we protest that the deaths and losses which s­ hall accrue from this are your fault, and not that of their highnesses, or ours, or of ­t hese soldiers who came with us. (Requerimiento, cited in Williams 1983, 47) In practice, Stannard (1992a, 66) added, “The Spanish usually did not wait for the Indians to reply to their demands. First the Indians ­were manacled; then, as it w ­ ere, they w ­ ere read their rights” (emphasis in the original). Stannard quotes a Spanish conquistador who described such a scene, “­A fter they have been put in chains, someone read the Requerimiento without knowing their language and without any interpreters, and without e­ ither the reader or the Indians understanding the language they had no opportunity to reply, being immediately carried away prisoners, the Spanish not failing to use the stick on t­hose who did not go fast enough.” Nies (1996, 73) observes that, “it is ludicrous to imagine the Indians understood what the Spanish ­were saying when they read the Requerimiento in Spanish.” Taylor (2003, 155) points out that it was unlikely that even the Spanish official reading the proclamation understood it, ­u nless he had ­legal training. If the Indians did not obey the terms of the Requerimiento, this justified their resources being confiscated and war being made against them by the conquistadors. The fact that they had no knowledge of the law or even of the Spanish language was not relevant. This incorporation of the Indians into the jurisdiction of the pope via the Spanish colonial governors, and the Spanish intervention into all aspects of their lives, communities, and social institutions, remained “devastating” u ­ ntil the law was fi­n ally abolished in 1556 (Williams 1983, 48). The law that replaced it, though, was only marginally better. Spanish missionaries found the treatment of the Natives appalling and returned to Spain to plead for justice for them with the King, who was not pleased with them (Williams 1983, 42). Dominican F ­ ather Bartolomé de Las Casas, who arrived in Hispaniola in 1502, traveled back to Spain on several occasions to protest, ineffectually, the treatment of the Indians

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Colonialism Is Crime

(Castro 2007). He claimed that more than 40 million died as a result of Spanish depredations by 1560 (Echo-­Hawk, 2010, 16). ­There is some argument ­today that much of this death was caused by the introduction of diseases, but t­here are also many well-­documented incidents of massacres, torture, and other forms of extreme vio­lence (Stannard 1992a and 1992b). The injustices of the early Spanish colonial empire ­were an affront to other early Spanish theologians and ­legal thinkers as well, many of who deemed the Spanish conquest of the New World as having taken place in an “unlawful manner” (Koskenniemi 2011, 9). As the Spanish entered the Re­n ais­sance era, humanist thought of the time found t­hese laws “perverse, unjust and tyrannical” (Hanke, cited in Williams 1983, 65). Unfortunately, de Las Casas was not the most influential of the lawyer-­t heologians, and his paternalistically benevolent views did not prevail or prevent the continuing Spanish injustices (Taylor 2003, 157; Castro 2007, 9). The ­legal views of Franciscus de Vitoria w ­ ere much more acceptable to the Crown. He challenged the papal colonial empire and proposed new laws based on the rights of sovereigns, not the church. He stated that “natu­ ral law” recognized the rights of Indigenous p­ eoples to their own land and resources, which had not been recognized u ­ nder the old laws ­because ­t hose laws presumed Indians’ lack of Chris­t ian­ity as reason enough for declaring Spanish domination over the Indians’ “illegitimately held” lands (Vera 2012, 458; Williams 1983, 73). By ­doing so, he basically “ jettisoned the doctrine of discovery” (Wilkins and Lomawaima 2001, 27) and replaced it with the Doctrine of Conquest. De Vitoria argued that Indians “possessed inherent natu­ral rights common to all rational men and that ­these rights could not be ­v iolated by pain merely on the grounds of ‘baseless’ papal grant of land” (Williams 1983, 77). He codified what he saw as international l­egal norms into the “Law of Nations” and declared that the Indians’ knowledge or ac­cep­t ance of them was “immaterial” since the ideas b­ ehind his laws w ­ ere accepted by the majority of the “world’s civilized states” (Williams 1983, 85). T ­ hese laws included the rights for the Spanish to enter their country, to let Spaniards have ­f ree and open trade with Indians, to let Spaniards take Indians’ resources since t­hese ­were shared by all, and for Indians to accept Chris­tian­ity taught by Eu­ro­pe­a ns. ­T hese provisions may sound very modern and humane ­u ntil the final law is seen—if the Indians refused any of ­t hese rights then it was legitimate for the Spaniards to build forts and lawfully make war on them (Williams 1983; 1990). In summary, according to Williams (1983, 85), de Vitoria’s Law of Nations declared that: “The Indians might be subjected to Spanish rule for denying the Spanish conquistadores ­f ree passage in their territory, preventing Spanish merchants from making their profit, refusing to share communally held wealth, or hindering the propagation of Chris­t ian­ity. Any of ­t hese actions



Breaking and Bending the Law Historically

33

by the Indians would constitute transgressions of the Law of Nations for which the Spaniards could wage a just war and assume all the rights of conquest.” De Vitoria also promulgated the idea of Indians as c­ hildren or wards of the colonizer. According to Williams (1983, 93), he saw the Indians as lacking “the social, po­liti­cal, and ­legal maturity that might enable him to conform his conduct to the universally obligatory norms contained in the Law of Nations. This immaturity justified, and in fact, required the infantlike Indian be subjugated by his discovering and superior Eu­ro­pean guardian, regardless of w ­ hether the Indian understood or consented to the validity of this guardianship.” T ­ hese arguments w ­ ere paternalistic and “failed to re­spect Indian identity, never for a moment treating them as equal to Eu­ro­ pe­a ns” (Koskenniemi 2011, 10). All of ­t hese arguments justified the dispossession of Indians of their land, resources, and lives, even by the most brutal means of massacre, torture, and a “just and ­legal war” (Echo-­Hawk 2010, 18). ­Under international laws of conquest, “­t hose who discovered and conquered other lands ­were entitled to them, their riches, and their spoils. The conquered ­people could be treated as slaves, banished to other lands, or assimilated into the society and institutions of the conquering ­people” (Deloria and Lytle 1983, 2). Despite the cruelty and exploitation, it is unlikely that the Spaniards would have been able to establish their empire without the assistance of Indian allies who provided troops (voluntarily and involuntarily), tactical guidance, supplies, and weapons for the invaders. In Mexico, this cooperation was a means of reshuffling the power structure that occurred with the Spanish invasion and the fall of Tenochtitlán, the Aztec capital city (Matthew and Oudijk 2007, 319–320). The subordinate city-­states despised the Aztecs who “stole their ­children as slaves or sacrifices, and bitterly resented the wealth the Aztecs extorted from them in tribute” (Nies 1996, 82). As Schroeder (2007, 23) points out, war and conquest ­were normal parts of life in Mesoamerica. Many Indigenous groups used ­these alliances to improve their status and privileges, to keep their cultural identity and autonomy ­whole, and to keep themselves exempt from the encomienda system. T ­ hese Indigenous allies w ­ ere never seen as equals by the Spanish, however; they saw them as subordinate beings (Schroeder 2007, 19). The papal decrees w ­ ere used to equate the discovery of an inhabited continent with its conquest. In the case of Indigenous lands, however, the grounds for declaring war ­were completely trumped up, as the example of the conquistadors shows clearly. Echo-­Hawk (2010, 129) calls their use of the Doctrine of Conquest a “foolish ­legal fiction.” The crimes of the conquistadores ­today would be clearly labeled genocide, murder, fraud, and theft, and ­ were called so by vari­ ous missionaries at that time. By the

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standards of social harm and h ­ uman rights, ­there is l­ittle debate that the actions of the conquistadors w ­ ere all of t­ hese. Th e Ch e roke e Trai l of Tear s The Cherokee Trail of Tears was perpetrated by U.S. President Andrew Jackson. He ignored the ruling of the U.S. Supreme Court and cooperated with the state of Georgia when that state illegally expropriated federal government rights that in theory protected American Indians. The result was the death of tens of thousands of American Indians by murder and starvation, and the theft of their land and resources, which the Indians legally held by American law. The Cherokee and other American Indians in the southeastern United States adapted well to the new ideas and economies of the invading Eu­ro­ pean settlers. The Cherokee ­adopted Euro-­based culture not only b­ ecause many Cherokee saw some aspects of it as preferable to their former lifestyles but also “by adopting white culture, the Cherokees hoped to gain white re­spect. Acculturation then was partly a defensive mechanism to prevent further loss of land and extinction of native culture” (Anderson 1991, viii–ix). The Cherokee developed a written language, established schools, developed written laws, and set up their own newspaper. Some built plantations and owned slaves (Anderson 1991, ix). They developed their own demo­cratic government and constitution (Perdue and Green 2007, 38–40). The first treaty between the American government and the Cherokee was negotiated in 1817 and included a promise that any Cherokee who moved west of the Mississippi River would receive government assistance. The treaty also offered citizenship and a small reservation in North Carolina for any who chose to apply and stay. About 1,500 to 2,000 Cherokee moved west voluntarily, another small group took the offer of a reservation, and the rest refused to go (Anderson 1991, xi). The 1827 Cherokee constitution claimed sovereignty over all tribal lands, a claim the state of Georgia insisted ­v iolated the U.S. Constitution (Anderson 1991, xi). Settler colonists at the time believed strongly in innate white superiority and that “However ‘civilized’ an Indian might appear, he retained a ‘savage’ nature” (Anderson 1991, xi). President Jackson “called upon Congress to provide an act for Indian removal. Less than two weeks ­later, Georgia, assured of presidential sympathy, passed a series of laws that abolished Cherokee government, began the enforcement of state law in Indian country, and authorized a survey of Cherokee land that was to be distributed by lottery to Georgia citizens” (Anderson 1991, xii). Georgia’s laws passed in 1828 ­were unconstitutional and illegal since they usurped federal jurisdiction (Nies 1996, 243), but they w ­ ere not challenged by the federal government (Anderson 1991, xii). ­T hese laws w ­ ere in



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response to a po­l iti­cal promise made by the federal government in 1802 that it would extinguish Indian land title soon within Georgian territory, which had not happened yet (Davis 2008–2010, 51). In 1829, gold was discovered on Cherokee lands, leading to further pressure for Cherokee removal (Kimberly 2012, 103). President Jackson removed all protective federal troops, ignored the supposedly legally binding treaty with the Cherokee, and “gave ­free hand to the Georgia militia. State officials enforced the rights of white trespassers over Cherokee rights” (Nies 1996, 244). Georgia proceeded to enact a series of laws nullifying Cherokee laws, including land rights and holding po­ l iti­ cal meetings, and prohibiting Cherokee gold prospecting (Kimberly 2012, 104). In 1830, the Indian Removal Act, which had been proposed to Congress by Georgia’s senators and congressmen, was passed (Nies 1996, 243; Kimberly 2012, 105). The Cherokees took their case to the U.S. Supreme Court and in the famous Worcester v. Georgia decision (1832), the Supreme Court “recognized the Indians’ right to self-­government and the obligation of the U.S. to protect the right” (Nies 1996, 246). The decision states, “The acts of Georgia are repugnant to the Constitution, laws and treaties of the U.S.” (Marshall, cited in Nies 1996, 246). It ruled that the state of Georgia had exceeded its authority by extending state law into Cherokee lands (Anderson 1991, xii). According to Nies (1996, 247), President Jackson encouraged the state of Georgia to ignore the decision and responded, “John Marshall has made his decision, now let’s see him enforce it.” Since the 1830s, Georgia’s state policies “had encouraged the harassment of the Cherokees. The federal government did nothing to protect them. This was part of Jackson’s plan to ‘build a fire ­u nder them’ ” (Gilbert 1996, 23). The Georgia lottery proceeded, and in 1833, the Cherokee w ­ ere attacked by the Georgia militia, “forcibly evicted and their fields and livestock w ­ ere seized.” Their land, plantations, homes, and businesses ­were taken (Nies 1996, 248). In 1834, one of the Cherokee leaders who did not represent the Cherokee ruling council illegally signed the Treaty of New Echota in exchange for $5 million and agreed to move west (Nies 1996, 248). This fraudulent treaty was rejected unanimously by the Cherokee Council, but the U.S. Senate ratified it anyway, despite huge public outcry by newspapers and a growing body of private citizens and government officials opposed to it (Gilbert 1996, 23–24). The Cherokee Council tried unsuccessfully throughout 1834 and 1835 to have it annulled. The Cherokee w ­ ere given two years to voluntarily move west of the Mississippi or they would be removed forcibly (Nies 1996, 248). About 2,000 of the population of 14,000 moved; the rest remained, believing that the demo­cratic ideals of the United States would protect them (Anderson 1991, xii; Perdue and Green 2007, xvi).

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In 1838, the remaining 14,000 Cherokee w ­ ere rounded up at bayonet point by 7,000 federal troops, assisted by the Georgia militia. They ­were allowed to take only minimal belongings. They ­ were marched for six months, through the winter, to the “Indian territory” west of the Mississippi. In 1838, President Martin Van Buren in his State of the Union Address said about the Cherokee, “They have emigrated without any apparent reluctance” and “The government’s dealing with the Indian tribes have been just and friendly throughout” (quoted in Vander Hook 2010, 77). In truth, an estimated one out of four Cherokee died en route from starvation, exposure, and disease (Nies 1996, 251). The horror of the trip was unimaginable. Detailed historical accounts can be found in many books, including Ehle (1988), Gilbert (1996), and Perdue and Green (2007). The Cherokee ­were the largest Indigenous group to undergo removal in the United States, but other tribes w ­ ere displaced as well. The Choctaw ­were removed in 1830, the Creeks in 1832, and the Chickasaw in 1837– 1838, all of whom suffered huge numbers of deaths (Nies 1996, 245, 247, 252; Thornton 1991). According to Nies (1996, 245–246), “of the 13,000 Choctaws who migrated, 4,000 died of hunger, exposure, or disease. Another 7,000 refused to move and stayed in Mississippi, where they became subject to state laws and ­were legislated out of tribal existence.” Tribes from New York and other northeastern states w ­ ere removed to Wisconsin and then further west (Satz 1991, 38–39). The Navajo suffered through the Long Walk of 1863–1864 in their removal to Bosque Redondo. “More than 8,000 Navajo—as well as some Mescalero Apache who had not fled south—­were marched 350 miles through spring blizzards from Fort Defiance to Bosque Redondo . . . ​the soldiers shot anyone moving too slowly, raped w ­ omen, and shot the el­der­ly . . . ​m any froze to death. O ­ thers starved or became sick” (Nies 1996, 269–270). The Trail of Tears nearly destroyed the Cherokee ­people. A ­ fter their arrival in the new territory, the survivors not only had to deal with their losses but with the supporters of the New Echota Treaty who ­were already well established t­ here and wished to retain their po­liti­cal power. The Cherokee Civil War between t­hese two groups lasted from 1839 to 1848. For a short period of time, Cherokee society went into a re­n ais­sance, but the American Civil War drew some to the Union side and some to the South. In 1872, the new railroads brought floods of settlers wanting Cherokee land. Thousands of squatters snuck onto Cherokee land and stole timber, food, and other goods from the prosperous nation. “In addition, federal troops refused to remove intruders as they w ­ ere required to by law” (Strickland and Strickland 1991, 120). A series of laws and acts followed that forced the Cherokee to cede their new lands or outright confiscated them (Strickland and Strickland 1991).



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What began as a presidential refusal to follow a Supreme Court decision that was an illegal act led to an illegal treaty, which led to Indigenous deaths on a massive scale. T ­ hese criminal acts, most of which w ­ ere also considered crimes then, would be prosecuted as fraud, theft, and hom­i­cide by t­oday’s standards, and by the standards of social harm and h ­ uman rights. Discu ssion of C oloni al Cri m e s Walter Echo-­Hawk (2010, 16–17) in his book In the Courts of the Conqueror asks, “Was the conquest and colonization of the New World ­legal?” Our answer is no. Laws can be deliberately created and manipulated by the power­f ul to justify greed, vio­lence, the violation of h ­ uman rights, and other ­g reat social harms, and can be imposed on powerless ­others. Colonial law was imposed, undemo­cratic, unjust law. Even so, the power­ful broke t­hese laws without remorse or punishment causing ­g reat social harm to Indigenous ­people. The colonial invaders ensured that their crimes ­were ­legal in their own eyes by writing and rewriting laws. As Echo-­Hawk (2010, 16–17) summarizes, “Colonialism was legalized by the law of nations developed by the Eu­ro­pe­a ns during the colonial era. That body of law was developed largely to facilitate the conquest and colonization of the New World.” For example, as Stannard (1992a, 66) writes about the Spanish use of the Requerimiento in Mesoamerica, “The proclamation was merely a legalistic rationale for a fanatically religious and fanatically juridical and fanatically brutal p­ eople to justify a holocaust.” As shown in the examples above, laws have been used as rationales by colonial powers to justify their greed and vio­lence, when they have not outright broken their own laws with no repercussions. Some of their “­legal” crimes ­were also crimes as defined by social harm and ­human rights conventions. As mentioned in chapter  1, Ford (2008, 396) described four characteristics that can be used to define social harm: the amount of monetary loss, the “spread” of the events over time and place, the nature of the victim, and the presence and nature of violation of trust. ­These are clearly relevant to the acts of the colonial invaders. The loss—­ monetary and other­w ise—to Indigenous ­peoples is extreme and unquantifiable. The crimes happened in relatively short periods of historic time, but their impacts continue in the marginalization and powerlessness of Indi­ genous p­ eoples. The victims resisted to the best of their abilities but ultimately ­were defeated by disease, 2 vio­lence, law, and sheer numbers. Fi­n ally, the relations of trust that the colonial powers swore to uphold ­were broken by the state within months. Governments have kept breaking them ­u ntil the modern day. In terms of h ­uman rights violations, racism and exploitation w ­ ere inherent in colonial laws and are echoed in current laws in settler countries

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about their Indigenous inhabitants. Perhaps the overt genocide is gone, but the paternalistic and exploitive laws live on. According to Moses (1994, 27), “A malicious guardian has the ability to do g­ reat harm to his ward, for it is in the very nature of the relationship that the ward’s diminished l­egal capacity frustrates his ability to exercise the necessary remedy. This is not an analogy between indigenous p­ eoples and the State—it is the exact status of that relationship.” He continues, “It can hardly surprise us if indigenous ­peoples’ rights have been steadily diminished ­u nder such a system; nor is it inconsistent that States cite the supremacy of the ‘rule of law’ whenever indigenous p­ eoples object to the injustice of the pre­sent arrangements. The rule of law invariably serves the purposes of the State, and was promulgated, please recall, without the participation or knowledge of the indigenous ­peoples.” Conclusion The conquistadors’ manipulation of church rulings on Indigenous sovereignty in Mesoamerica and elsewhere, the development and use of ­legal fictions such as terra nullius and the Doctrine of Discovery, and President Andrew Jackson’s defiance of the Supreme Court’s ruling to set in motion the Trail of Tears for the theft of Cherokee lands are examples of historical crimes as defined by laws of the time, social harm theory, and ­human rights conventions. In ­those rare cases where colonial laws supported the sovereignty of Indigenous ­peoples, the laws w ­ ere manipulated or ignored to aid the acquisition of Indian lands and resources. From a social harm or h ­ uman rights perspective, law was used in an illegal manner all through colonization. We would hold that the perpetrators would be tried for t­hese acts ­today. Ultimately, the lesson learned from t­hese historical examples is that the interests of the state are prioritized over Indigenous ­peoples’ ­human rights, even if the results of that prioritization are crimes of jaw-­d ropping proportions, from w ­ holesale fraud to vio­lence to genocide. As described in this chapter, the early use of laws to legitimize illegal government activities has laid the ideological, po­liti­cal, and l­egal foundations for the continuing modern-­d ay victimization of Indigenous p­ eople by corporations, governments, and individuals. American courts, for example, have been using the Doctrine of Conquest quite inaccurately, beginning in at least 1823 with Johnson v. M’Intosh, and continuing ­u ntil ­today. Some American justices continue to argue that conquest should be the basis for federal law regarding Indian land (Wilkins and Lomawaima 2001), but very few American Indian nations lost their land to wars; most lost them through treaties and purchase. Even though the fiction was rejected in Worcester v. Georgia (1832) and is c­ounter to the status of Indian nations as domestic dependent nations (Echo-­Hawk 2010), it has kept rearing its ugly head,



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perhaps b­ ecause it provides “ justification” for theft and fraud as the treaties were repeatedly broken in the United States and as resource theft ­ continues. Since the mid-­twentieth c­ entury, jurisprudence in Australia, Canada, and New Zealand has confronted the past and acknowledged “historical errors” of ideas such as terra nullius, the Doctrine of Discovery, and the Doctrine of Conquest (Pommersheim 2009, 292; Echo-­Hawk 2010). The Mabo decision in Australia put the final coffin in the nail of terra nullius ­there by discarding the concept and finding it inappropriate for use in domestic laws (Anaya 1996, 140). The decision stated that terra nullius was “false in fact and unacceptable in our society” (quoted in Echo-­Hawk 2010, 438). In the United States, this has not been the case. As Pommersheim (2009, 293) explains, the Rehnquist Court, for example, in United States v. Sioux Nation described American Indians as “sharing in the villainy” of colonization. Pommersheim (2009, 293) concludes that Americans are “unable to confront the past or even acknowledge its depredations.” Even so, the Doctrine of Discovery is ­u nder scrutiny by American ­legal scholars as it, like the Doctrine of Conquest, continues to color American Indian law (Wilkins and Lomawaima 2001). Echo-­Hawk (2010, 438) believes that the Doctrines of Discovery and Conquest are equally antiquated, stating, “The doctrines of discovery and conquest cannot command slavish adherence where they defeat the values of justice and ­human rights ideals in modern American life. The function of law is to serve changing society, not to hold it prisoner to an unjust past.” Like racism, t­hese ­legal fictions continue ­because they serve the interests of American (and other) non-­Indigenous society by “supporting its claim to be superior, po­liti­cally and territorially to indigenous nations” (Wilkins and Lomawaima 2001, 20). They deprive Indigenous ­people of  control of their most impor­tant resource—­their land (Wilkins and Lomawaima 2001). While it is true that laws such as the American Indian Religious Freedom Act (1978) have been passed to try to lessen the impact of colonization, ­there have been many more laws passed to perpetuate it, such as the Tribal Law and Order Act (2010). As w ­ ill be explored in chapter 10, Indigenous ­peoples have tried to use the national and international courts to stop the wave of current-­d ay injustices and get restitution for past injustices, but this path is not an easy or effective one. With few exceptions, the courts serve the national interest—­a nd the “national interest” is defined by the state to exclude Indigenous p­ eoples. As Moses (1994, 27) points out, the state controls the law, the definition of rights u ­ nder the law, the enforcement of the laws, the prosecution of the laws, and the courts, including the ones that that are the courts of last resort. As Echo-­Hawk (2010, 4) writes about the

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United States, “Only rarely in U.S. history has the law served as a shield to protect Native Americans from abuse and to further their aspirations as indigenous p­ eoples. The law has more often been employed as a sword to harm Native ­peoples by stripping away their h ­ uman rights, appropriating their property, stamping out their cultures, and, fi­n ally, to provide l­egal justification for federal policies that have, at times, resorted to genocide and ethnocide” (emphasis in the original). His words can be used to also describe the use of law against Indigenous ­peoples in Australia, Canada, and New Zealand. Change is needed. Stating that ­these acts ­were criminal and that the laws continue to support colonialism does not make change happen. But the real­ ity of ­ t hese violent and fraudulent historical acts serves “as a grim reminder of what can happen to a po­l iti­cally powerless minority in a demo­ cratic society” (Anderson 1991, 43). How do we make our socie­ties’ more demo­cratic, established as they ­were on the premise of democracy only for some? How is it pos­si­ble to “root out the vestiges of racism and colonialism in the law and replace them with ­legal princi­ples more in keeping with the postcolonial world,” as Echo-­Hawk (2010, 5) asks? ­There are few answers. As Michalowski (1985, 405) states, ultimately “­there must be a fundamental reduction in economic, po­liti­cal, and social in­equality.” Indigenous p­ eople are among the most unequal members of colonized countries. Law can be used to reduce in­equality, but historical pre­ce­dent shows that it is more likely to do the opposite when it comes to the lives and rights of Indigenous p­ eoples.

C hapte r   3

Fraud, Theft, and the Trail of Broken Treaties

This chapter focuses on the use of treaty law to commit fraud against Indigenous ­peoples in New Zealand and the United States of Amer­i­ca. Treaty making in Canada is ongoing and continues to be a practice replete with prob­lems (see Montchalin 2016). A version of treaty making also recently has started in Australia, ­a fter the Mabo decision cleared the way for Indigenous Australian land claims (see Anaya 1996). In this chapter, the fraud instigated by the deliberate misinterpretation of the Treaty of Waitangi in New Zealand is described followed by the thefts resulting from the trail of broken treaties in the United States, and then a brief discussion about the historical lack of treaty making in Australia. Fraud does not sound like a particularly serious or violent offense, but when it is carried out on a massive scale, fraud takes away—­steals—­all means of feeding and caring for your f­ amily, your community, and yourself. Nationwide starvation, disease, disor­g a­n i­z a­t ion, and death are the result. As perpetrated against Indigenous p­ eople, it is a truly terrible, even genocidal, offense. Treaties between colonial powers ­were common, as they established colonial territories to explore and exploit. In the Eu­ro­pean mindset, occupation of t­ hese areas was legally justified through the Doctrine of Discovery and Doctrine of Conquest (see chapter 2). Huge tracts of Indigenous Africa, for example, w ­ ere traded back and forth through treaty making among Portugal, Belgium, Britain, France, Italy, the Ottoman Empire, and Germany in the 1800s and 1900s (Reinhard 2011). In North Amer­i­ca, New Zealand, and other areas, treaties w ­ ere also signed with the original Indigenous inhabitants, in addition to the Eu­ro­ pean competition. At the time such treaties w ­ ere signed, they w ­ ere considered part of international law; they w ­ ere supposedly “binding agreements between sovereigns” (Pommersheim 2009, 3). Wilkins and Lomawaima (2001, 251) define treaties in this way: “Treaties are constitutionally

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privileged as the supreme law of the land and are legally binding statements of federal and tribal intent and responsibilities.” At first, treaties w ­ ere designed to establish peace and to achieve military or trade alliances between the colonists and Indian nations. L ­ ater, they focused on acquiring Indigenous land and Indigenous-­controlled resources such as oil, gold, and ­water. Treaties between nations ­were an accepted part of international law; they w ­ ere also a cheaper alternative to war, as the colonial governments found out in the United States and New Zealand. The Canada colonial government also added cost into its decision to age war or not against Aboriginal p­ eoples (Miller 1991, 162). The Indigenous signatories to treaties, especially in l­ater years, signed reluctantly but in good faith. Not so the colonial signatories. It quickly became obvious to their Indigenous victims that the treaties w ­ ere fraudulent. All of the treaties in North Amer­i­ca and New Zealand w ­ ere broken by the colonists and the colonial governments within short periods of time—­ the amount of time depending on when the land or resources came into demand. ­These ­were clearly illegal actions by both the laws of the time and ­today. As Van ­Every has noted, “The interminable history of diplomatic relations between Indians and white men had before 1832 recorded no single instance of a treaty that had not been presently broken by the white parties to it . . . ​however solemnly embellished with such terms as ‘permanent,’ ‘forever,’ ‘for all time,’ ‘so long as the sun s­ hall rise” (quoted in Zinn 2003, 142). Although many scholars argue, as does Green (1989, 3), that it is necessary “to examine the validity of the acquisition of current titles in accordance with the princi­ples and customs that ­were valid at the time when the title was claimed to have been established, and not now when its validity may be challenged,” our point is that the treaties w ­ ere broken and therefore laws w ­ ere broken. Green’s point implicitly accepts the validity of colonial law and its exploitive methods of Indigenous resource acquisition; it does not take into account the social harm to the original resource holders nor the criminal nature of the activities from the point of view of the Indi­ genous ­peoples. The next section is a discussion of the fraud perpetrated by the British colonial government in New Zealand by means of the deliberate mistranslation of the Māori version of the Treaty of Waitangi. This section is followed by a description of the treaty-­m aking pro­cess in the United States, with reference to several infamous treaties and their deliberate violation. It should be noted that it is often mentioned in American history books that Indians broke treaties. Some groups did, but on the ­whole they did so ­u nder provocation—­for example, when the colonial government broke the treaty first by not sending promised food and supplies, or the colonial government



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refused to remove squatters on Indian land despite treaty language that obligated them to do so. New Zealand/Aotearoa: Th e Treaty of Waitang i New Zealand was named by Dutch explorer Abel Tasman in 1642, but a cultural misunderstanding leaving several Dutch sailors and Māori ­people dead discouraged further relations. Between 1769 and 1777, British Captain James Cook and two French explorers experienced similar unfortunate international incidents with the Māori (O’Malley et  al. 2010, 8). At that time, Eu­ro­pean colonial powers had ­little interest in settling this faraway land, which was already well occupied by a society of Indigenous p­ eople with a thriving economy and society, who w ­ ere very experienced in warfare (Network Waitangi 2012, 8). By the 1800s, a small population of Eu­ro­ pean w ­ halers and traders lived ­t here and w ­ ere welcomed by the Māori, who liked the new trade goods. The Māori quickly ­adopted literacy and Western economic strategies, such as building and owning ships, operating mills, and farming and exporting potatoes and wheat (Network Waitangi 2012, 8, 9). Within a short period of time, the settlers became more numerous and more lawless, ignored Māori owner­ship of the land (defining it as “wasteland”), and enslaved and killed some Māori, especially on the south island. The Māori appealed to King William IV of ­England and British colonial officials in New Zealand with l­ittle practical success (Network Waitangi 2012, 9, 17). A British Crown representative, Resident James Busby, was appointed to go to New Zealand in 1833 and protect British trade interests, and also protect the Māori from settler vio­lence. In 1835, he collaborated with Māori rangatira (leaders) to write the He Wakaputanga O Te Rangatiratanga O Nu Tireni, the Declaration of In­de­pen­dence of New Zealand, which was signed October  28, 1835, at Waitangi by the hereditary chiefs and heads of the northern part of New Zealand and witnessed by Busby as the British Crown representative. The rangatira designated themselves an in­ de­ pen­ dent state ­u nder the title of the United Tribes of New Zealand (Network Waitangi 2012, 9, 43). It was l­ater signed by fifty-­t wo southern rangatira. Busby’s concern was mainly about the intentions of other nations, especially France, to claim New Zealand (Network Waitangi 2012, 9). The formation of the New Zealand Com­pany—­a corporation made up of private investors determined to colonize the country—­ was also a concern. The Māori ­were unhappy about the lawless and unruly be­h av­ior of the En­g lish settlers especially regarding land dealings, but wanted to continue their valuable trading relations, as did the British Crown (O’Malley 2010; TRC/AWEA 2008).

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As a result, “Busby forwarded the Declaration to Britain, which formally recognized New Zealand’s sovereign in­ de­ pen­ dence in 1836” (Network Waitangi 2012, 10). The declaration and Māori authority ­were ignored by the incoming Pakeha (settlers), whose presence was not sanctioned by the British Parliament, to the point that the Māori rangatira proposed a treaty with Britain so that the colonial officials would better control ­these invaders. Parliament instructed the new colonial official and “Official Protector” Captain William Hobson, to negotiate such a treaty (Network Waitangi 2012, 10–11; Orange 1992). In 1840, he presented Māori leaders with a treaty that would formalize their relationship with Britain, and allow the British Crown to buy land in anticipation of the rush of British colonists to come (O’Malley et al. 2010). The Māori language version of the Treaty of Waitangi, called Te Tiriti O Waitangi, was signed on February  6, 1840, by Captain Hobson representing Queen Victoria, and eventually by more than 500 Māori leaders of New Zealand. The En­g lish version was signed by thirty-­n ine Māori leaders but not by a Crown representative (Orange 1992, 1). The two versions differed markedly in key phrases. The Māori version stated clearly that Māori retained authority and sovereignty. The En­glish version stated that the Māori gave their sovereignty to the En­g lish Crown (Network Waitangi 2012, 12). The En­g lish negotiators failed to mention the difference (Orange 1992, 1). This was no m ­ istake. According to Network Waitangi (2012, 11), “a treaty is a legally binding international instrument agreed and signed by two or more sovereign nations. The Treaty of Waitangi is thus an agreement which forms a contract or covenant between the Crown and the Māori hapu [­people] through their rangatira.” The Māori version, when translated directly into En­g lish, states, in the Preamble, “Victoria, the Queen of E ­ ngland, in her gracious thoughtfulness to the Rangatira and Hapu of New Zealand, and in her desire to preserve to them their authority and their land, so that peace and quietness may be kept with them, has thought it right to send a chief (officer) as one who ­w ill negotiate with the Māori ­people of New Zealand . . .” and in the second article, “The Queen of E ­ ngland acknowledges and agrees to the absolute authority (Tino Rangatiratanga) of the Rangatira, Hapu and all the ­people of New Zealand over their lands, villages and every­t hing that is held precious” (Network Waitangi 2012, 45). The En­ g lish version changed one key phrase in the Preamble from “to preserve to them their authority and their land” in the Māori version to “and anxious to protect their just Rights and Property . . .” in the En­g lish version (Network Waitangi 2012, 46). The second article was also dif­fer­ent, completely leaving out the words “acknowledges and agrees to the absolute authority . . .” found



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in the Māori version and instead reads in En­g lish, “Her Majesty the Queen of E ­ ngland confirms and guarantees to the Chiefs and Tribes of New ­Zealand and to the respective families and individuals thereof, the full exclusive and undisturbed possession of their Lands and Estates, Forest, Fisheries and other properties” (Network Waitangi 2012, 47). In other words, the Māori version of the treaty guaranteed the Māori their sovereignty, po­liti­cal rights, and authority; the En­glish version took t­hese away. The Māori argue that the Māori version of the treaty has primacy ­because (1) it was signed by both the Crown representative and the vast majority of Māori leaders; (2) the Māori signatories of the En­g lish version signed it based on problematic explanations from En­g lish missionaries and ­others; and (3) international ­legal princi­ples recognize the pre­ce­dence of the Māori version (TRC/AWEA 2008, 1). T ­ here is also the well-­taken point that the Māori had no reason to cede their authority. As Network Waitangi (2012, 14) states, “the population was something like 200,000  Māori and about 2,000 Pakeha at the time of signing. It is absurd to suggest that t­ hose rangatira who signed Te Tiriti would have voluntarily given up their power to a foreign entity, ­after having declared their national sovereignty and in­de­pen­dence just five years previously.” Ranguini Walker speculates that the two missionaries responsible for translating the En­g lish version of the treaty into Māori deliberately mistranslated ­because, among other reasons, they knew the chiefs would not have signed a version that stated they ­were giving up their sovereignty. Since the two missionaries had large land holdings, they had a vested interest in making sure the treaty was signed (Walker 1990, 91). As a result, “subsequent to the signing of the Treaty, the Pakeha behaved ­towards the Māori on the assumption they held sovereignty, while Māori responded in the belief that they had never surrendered it” (Walker 1990, 93). Orange (1992, 2) states, “A ­g reat deal of confusion over the treaty arises from the way it has been used to further what the dif­fer­ent parties have each considered legitimate interests and to validate certain assumed rights. Eu­ro­ pe­a ns in par­tic­u ­lar, have shifted their position on the treaty to suit their purposes.” As more settlers arrived, they ­were not as dependent on the Māori for trade and survival as ­earlier Eu­ro­pe­a ns, and had ­little regard for any previous l­egal contracts. By 1860, the Māori w ­ ere less than 50 ­percent of the population, from their previous 99 ­percent at the time of the signing of the declaration, and their land was being taken at an increasing rate (TRC/AWEA 2008). Introduced Eu­ro­pean diseases and tribal wars fought with newly introduced muskets decreased the Māori population by 40 ­percent by 1840 (Walker 1990, 80). The result: the Treaty of Waitangi and other agreements between the Crown and Māori groups ­were of ­little concern to the new settlers. As the waves of settlers kept coming, vari­ous

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colonial officials acquired Māori land through coercion and broken promises, and settlers attacked and killed Māori individuals and communities (Walker 1990, 110, 114). Such broken promises are illustrated by a letter from one British purchase agent to his superior: “I should feel that I had made myself party to a gross fraud practiced upon the Māoris in agreeing to give only £ 200 for the land which we have already sold at such a very dif­ fer­ent price” (Walker 1990, 109). The colonial government was incapable of and/or unwilling to provide law and order. In 1860, the Taranaki Land War was deliberately provoked by the colonial governor ­because the Māori “had far more lands than they needed” and as a means of hastening land acquisition (Walker 1990, 113). In 1863, Waikato was invaded by colonial troops on the grounds that the Māori ­were rebelling (Walker 1990, 114, 122). T ­ hese “sovereignty wars” continued ­u ntil about 1865, with neither side decisively winning (Walker 1990; Durie 1998). The colonial government instead resorted to the use of legislation to justify acquiring Māori lands through a series of acquisitive laws (Walker 1990, 135–142). Māori sovereignty was legally proclaimed a non-­issue in Wi Parata v. Bishop of Wellington (1877), when the judge ruled that since the Māori “­were incapable of performing the duties and therefore assuming the rights of a civilized community” (cited in Robinson 2010, 262) they could not possess or give up their sovereignty. In Judge James Prendergast’s eyes, this nullified the Treaty of Waitangi (Robinson 2010, 262). His ruling was overturned by the British Privy Council in 1901, but it was to act, inaccurately and fraudulently, as a pre­ce­dent in New Zealand law for de­cades (Robinson 2010, 262). Only four years ­a fter the 1877 decision, it was used as the basis for a military attack on the Māori settlement in Parihaka. As Robinson (2010, 263) describes, “Official attitudes to Māori had hardened since the early years of settlement; they ­were no longer treated as intelligent ‘noble savages’ fully capable of Christian civilization, but simply as savages. Prendergast CJ used this term in his decision . . . ​to reinforce his argument that although Māori had clearly lived in New Zealand before the British, their native title could not be legally recognized.” The New Zealand government began to consider the Treaty of Waitangi as “a nullity” (Tauri 2015, 243) and the Suppression of Rebellion Act of 1863 that “allowed for the arrest of Māori who w ­ ere defined as rebels, generally defined as ­those who refused to sell, resulting in the confiscation of their lands” (Tauri 2015, 243). Basically this act made it a criminal offense for Māori to refuse to sell their land. As Penetito (2010, 3) states, “It w ­ asn’t just about governments, ­because big business, entrepreneurs and charlatans of all descriptions played a central role in removing Māori assets and registering them ­u nder private owner­ship.”



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The Eu­ ro­ pe­ a n/Pakeha efforts to delegitimize the treaty continued despite the Treaty of Waitangi Act in 1975, which established the Waitangi Tribunal to interpret the princi­ples of the treaty and to hear land claims. The tribunal makes recommendations to parliament but has no binding power (Byrnes and Ritter 2008, 58; Walker 1990, 212). According to the Treaty Resource Centre (TRC/AWEA 2008, 2), “The beginning of the 21st  ­century has been characterized by a curtailment, and in some cases reversal, of previous pro­g ress as the government has responded to perceived public dissatisfaction with Treaty-­identified strategies.” Leading ­legal scholars argued that the Treaty of Waitangi was not ­really a treaty ­u nder international law b­ ecause the Māori governing structure was not capable of forming a state in the form recognized by the colonial powers—­that is, with a supreme ruler or ruling body, a clearly marked territory, and a written l­egal code (Robinson 2010, 264, 267). L ­ egal historian Robson (quoted in Robinson 2010, 265) wrote in 1954, for example: “In 1839–40 international law deemed, as it still does, that savage tribes are incapable of exercising sovereignty. This so-­called Treaty could therefore not properly be considered a treaty, and could not be valid as an instrument of cession.” This view was aimed specifically at denying Māori ­legal recourse to the treaty, especially regarding land rights (Robinson 2010, 270). Such thinking informed ­legal theory u ­ ntil the 1970s when historian Ruth Ross thoroughly examined the translations of the treaty, concluding that the differences in translation w ­ ere significant and that the Māori version was the true version (Robinson 2010, 269). Nevertheless, the “desire to avoid allowing the Treaty to have a true part in the New Zealand ­legal system remains to this day” (Morris, quoted in Robinson 2010, 272). Robinson (2010, 276) summarizes the current-­d ay non-­M āori ­legal view of the treaty as being symbolic, in that it has no real power and does not obligate the government to grant Māori rights. As Byrnes and Ritter (2008, 67), summarize, “The evidence suggests that the Crown does not see the Treaty as an ongoing social contract, but in terms of a wound that must be healed, an illness that demands attention, which, when mended, ­w ill purge the Crown of its paternalistic responsibilities and thus allow Māori to participate in the nation-­state and contribute to the greater good.” ­There is ­little doubt that this mistranslation of the treaty was fraud at the time and continues to be seen as such by its Māori victims. That this fraud has become the basis for current-­d ay New Zealand law and that the settler descendants continue to maintain its legitimacy in order to keep and acquire more Māori land and resources is certainly fraud through the lenses of social harm theory and h ­ uman rights conventions.

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Th e Unite d State s of Am e r­i­ca : Th e Trai l of B roke n Treati e s In the United States, ­t here ­were two general eras of treaty making: the first during the American colonial era (1607 to 1850) when Indian nations ­were equal partners in treaty making and their inherent sovereignty was recognized, and the second afterward ­u ntil 1871 when treaty making as such was ended by Congress (DeJong 2015). The g­ reat majority of t­hese treaties w ­ ere to ensure military alliances between colonial governments and Indian nations or as signs of friendship. A smaller number w ­ ere focused on trade and commerce, and the fewest ­were aimed at land transfer (DeJong 2015, 4). Indian nations and the colonists had very dif­fer­ent ideologies concerning treaties. For the Indians, treaties w ­ ere “sacred moral pledges, [but] colonists considered them secular business transaction that could be amended or discarded according to prevailing po­ l iti­ cal considerations” (DeJong 2015, 4). The narrative of nationalistic Manifest Destiny (see chapter 2) was used by the colonial governments and the colonial corporations, such as the railroads, which worked hand in hand to justify their expansion westward and the double-­dealings that ensued (Macdonald 2009). As Robyn (2006, 186) writes, in 1778 President George Washington negotiated a treaty with the Delaware Indians that essentially established the structure of the legal-­political relationship with all Indian tribes in the United States. Immediately a­ fter the War of In­de­pen­dence, more than 600 treaties ­were negotiated, but only about two-­t hirds of the 600 treaties ­were ratified and therefore enforceable. According to DeJong (2015, 4) “most of the ratified treaties remain in force t­oday and possess a status equal to treaties the United States signed and executed with other nations.” The  U.S. Constitution declares such treaties to be “the supreme law of the land.” More than 200, however, of the treaties that American Indian nations negotiated in good faith ­were not ratified by the U.S. Senate (DeJong 2015, 35). Examples of unratified treaties include the eigh­teen treaties negotiated by federal commissioners in California in 1851 and 1852 in the wake of the gold rush, during which gold seekers indiscriminately attacked tribal nations so that “several dozen became extinct” (DeJong 2015, 29). The U.S. Senate refused to ratify ­t hese treaties based on two grounds: (1) that the California Indians’ land rights had been extinguished through Spain’s right of discovery, which the United States had inherited u ­ nder the Treaty of Guadalupe Hidalgo, which ceded California to the United States, and (2) pure greed, ­because they feared gold on unceded lands might not be discovered (DeJong 2015). The invasion of settlers brought their foreign diseases with them as they overran California in search of gold. In addition, U.S. government-­sanctioned



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genocide wiped out huge numbers of Native populations—­called ethnic cleansing t­ oday—­w ith approximately 120,000 California Indians killed in a twenty-­two-­year period. Estimates are that by 1870 only 30,000 Indians from vari­ous tribes w ­ ere left living in California as a result of the gold rush, and that by 1900, fewer than 16,000 California Indians had survived the invasion of their homelands. Approximately 134,000 California Indians ­were lost during this fifty-­t wo-­year period while the U.S. government was in control of California (Ballard n.d.). Based on ­these 600 treaties, the land held by Indians in the United States was reduced by 95 ­percent between 1800 and 1900 (Nies 1996, 223). Many of the l­ater treaties w ­ ere forced on the Indian nations (DeJong 2015) and all of them ­were broken by the settler-­colonists, the colonial government, or both. As Nies (1996, 224) writes, “The government saw no reason to abide by treaty provisions.” T ­ hese crimes occurred even though colonial leaders at the time called such law breaking “an indelible stain on the honor of the country and its citizens” (DeJong 2015, 4). While t­here are many examples of treaty violations from which to choose, we ­w ill focus in this chapter on just seven: the Walking Purchase (1737), the Treaty of Greenville (1795) and the ensuing 1837 Pine Tree and 1842 Copper Treaties, all with the Chippewa (also called the Ojibwa and Anishinabe); the First Treaty of Ft. Laramie (1851); the Treaty with the Navajo (1868); and the Alaska Native Claims Settlement (1971). This section w ­ ill also briefly describe the unconstitutional role of the Supreme Court in limiting Indian rights. The reader can also find additional treaty violations in the previous chapter regarding the land theft from the Cherokee by the state of Georgia and the American government through the fraudulent Treaty of New Echota (1834–35). For excellent overviews of all the many treaties between the United States and Indian nations, see DeJong (2015) and Prucha (1994), and for excellent ­legal analyses of the legislation that abrogated some of t­ hese treaties, see Echo Hawk (2010) and Wilkins and Lomawaima (2001). Indian nations in North Amer­i­ca ­were old hands at treaty making, having negotiated treaties among themselves for millennia. In North Amer­i­ca, Spain and France w ­ ere not particularly interested in obtaining indigenous lands; they ­were more interested in trade, military and po­liti­cal allies, or po­liti­cal jurisdiction in Spain’s case, and signed a relatively small number of treaties to that effect. Britain, however, was interested in establishing treaties to obtain land as well as allies and trade, so that between 1607 and 1775 Britain and American Indian tribes negotiated 175 treaties (Wilkins and Lomawaima 2001). Britain needed land for the burgeoning number of settler-­colonists who w ­ ere “endeavoring to acquire Indian lands, through

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fair means or foul” (Wilkins and Lomawaima 2001, 37). Unfortunately for the En­g lish colonial government, a “multitude of trou­bles, however, marred the smooth transfer of Indian land title to the En­g lish, including the chaotic mix of En­g lish economic, moral, and po­liti­cal motives, conflicting policies among the individual colonies, and the international competition from Spain and France. In addition, individual colonists, land speculating companies, colonial governments, and the Crown itself, rarely shared common interests or attitudes t­ oward the tribes” (Wilkins and Lomawaima 2001, 34). Examples of fraudulent treaty making began in early colonial times. It can be argued that many colonial governments had no intent of honoring the treaties, despite them being law. The Walking Purchase (1737) In 1737, William Penn’s son—­who did not share his ­father’s attitudes toward respectful and honest relations with the Indians—­ ­ negotiated the Walking Purchase with e­ very intention of cheating the Delaware Indians out of their land. The agreement was made with the understanding that the colonists could have as much land as a man could walk in a day and a half. Instead of following the intent of the agreement, the colonists hired three athletes to run the course and cleared the land of trees and brush in their path. One man covered 65 miles consisting of about 1,200 square miles of land that the Indians had already cultivated and planted. The Delaware ­were outraged and refused to move, though they w ­ ere soon forced out (Nies 1996, 175–176). The Treaty of Paris (1783) and the Northwest Ordinance (1787) During the first few years a­fter the War of In­de­pen­dence, the new United States was somewhat fragile, concerned about its international reputation, and wished to keep good relations and peace with the Indigenous nations on its borders. It was also concerned with clarifying rights to the land that American citizens already occupied, and assuring tribes “that their territorial rights and bound­a ries would be respected, lest the tribes align with Spain or ­Great Britain” (Wilkins and Lomawaima 2001, 37), which was still a possibility since the Indian nations ­were sovereign and their relationship with the United States defined by international law. The Treaty of Paris ending the American Revolution in 1783 partitioned North Amer­i­ca between ­Great Britain and the United States, with the G ­ reat Lakes region westward being beyond American control. Basically, ­Great Britain and the thirteen colonies carved up the Indian homelands, including t­hose of the Chippewa, without consulting them (Satz 1991, 3). By 1787, American officials a­ dopted a set of princi­ples to deal with Indians that ­were incorporated into the Northwest Ordinance of the same year. It declared, “The utmost good faith s­ hall always be observed t­ owards the Indians lands, and property



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s­hall never be taken from them without their consent; and their property, rights and liberty, they never ­shall be invaded or disturbed” (Continental Congress, quoted in Satz 1991, 4). The Indian nations wanted recognition that they w ­ ere in­de­pen­dent, that they maintained jurisdictional control over their territories, and that trade with the American colonies would be unimpeded. Secretary of War Henry Knox briefed President George Washington that if the country wanted to expand westward into Indian country it would have to be done by “purchase rather than by conquest” (Prucha 1984, 49). Knox believed that the United States needed peace on all its frontiers in order to address issues facing westward expansion. Concerns “over negative world opinion of the new republic, the probability of intense tribal re­sis­t ance, and the costs of warfare in dollars and lives reinforced Secretary of War Henry Knox’s views that the United States should operate its Indian policy from princi­ples of humanity and honorable intentions—­ not conquest” (Wilkins and Lomawaima 2001, 40). Treaties ­were the tools to accomplish this. The Treaty of Greenville (1795) An example of the new American princi­ples is found in the first treaty negotiated by the Washington administration with the Chippewa and other Indian nations, the Treaty of Greenville (1795), which was signed a­ fter their defeat by the American military. The Indian nations ended up ceding the southern part of what is now Ohio, part of present-­d ay Indiana, and sections of Illinois. The signatories included 1,100 representatives from twelve nations (Nies 1996, 217). This treaty declared that in order to promote a “strong and perpetual peace” between the United States and the Indians of the G ­ reat Lakes tribes that the nations w ­ ere the only “legitimate proprietors of their remaining territory” (Kappler, quoted in Satz 1991, 5). It established a firm boundary between Indian lands and American lands and stated, “The Indian tribes who have the right to ­those lands, are quietly to enjoy them, hunting, planting and dwelling thereupon so long as they please, without any molestation from the United States; but when ­those tribes, or any of them, s­ hall be disposed to sell their lands, or any part of them, they are to be sold only to the United States; and u ­ ntil such sale, the United States ­w ill protect all the said Indian tribes in the quiet enjoyment of their lands against all citizens of the United States, and against all other white persons who intrude upon the same” (Wilkins and Lomawaima 2001, 45–46). This last promise, of course, turned out to be completely false. As more and more speculators and settler-­colonists came to the United States to take advantage of the wealth therein, they ­v iolated the treaty again and again, as did the colonial government, so that only twenty years l­ater, u ­ nder o ­ rders from President Andrew Jackson, “the new Northwest Territory governor,

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William Henry Harrison, ­v iolated the treaty” (Nies, 1996, 217). Harrison had ­orders from Jefferson to achieve more land cessations. “Harrison did not disappoint the president, securing large land cessions from the Delaware, Shawnee, Piankeshaw, Creek, Choctaw, Kickapoo, Ottawa, Potawatomi, Osage, Miami and other tribes in addition to the Kaskaskia” (DeJong 2015, 27). When the land cessions by the Sauk and Fox ­were added in, multiple millions of acres had been ceded. American officials increasingly resorted to bribery, deception, economic coercion, threats, and sometimes brute force to secure Indian signatures. The treaty-­m aking pro­cess served as a con­ve­ nient means of sanctioning federal land grabs ­u nder the guise of diplomacy (Satz 1991). Indian Re­sis­tance to Treaty Making ­These land grabs did not sit well with many Indian nations, and some leaders such as Shawnee Chief Tecumseh resisted further treaty making and demanded that a treaty that had been signed in Fort Wayne in 1809 by “chiefs of dubious legitimacy” be rescinded (DeJong 2015; Nies 1996, 231). This Fort Wayne treaty “established a pattern of fraud and double dealing by territorial governors with local chiefs, and broke the princi­ple of the Greenville Treaty” (Nies 1996, 231). Tecumseh worked to form an alliance with other Indian nations. Governor Harrison, knowing that Tecumseh was traveling, de­cided that “a bold stroke was needed to restore his popularity with land-­hungry settlers. Using a minor strug­g le between Indians and neighboring white settlers on the Tippecanoe, Harrison led a force of 900 troops to the Shawnee village. . . . ​The B ­ attle of Tippecanoe, as Harrison named it, effectively broke up the Shawnee nation, restored Harrison’s popularity, and established his military reputation” (Nies 1996, 234). When Tecumseh came home, he found “his village in ruins, his p­ eople scattered, and their ­w ill broken” (Nies 1996, 234). As a result, Tecumseh aligned himself with the British in the War of 1812, where he died, and Harrison used his military reputation to become president of the United States (Nies 1996). ­A fter the War of 1812, Indigenous nations w ­ ere often at a serious disadvantage in treaty signing. They w ­ ere perceived to be enemies of the United States since in both the Revolutionary War and the War of 1812 a significant number (though not all) aligned themselves with the British in the hopes of driving the avaricious Americans away. Not surprisingly, American treaty commissioners de­cided to reinforce the American presence in the ­Great Lakes with a show of military strength. The Chippewa w ­ ere warned, as recorded in the Journal of Proceedings ­under the Treaty of Fond du Lac, “You have never seen your g­ reat ­father’s arm. Only a small particle of it . . . ​but it is only a very ­little bit of his fin­g er. . . . ​We advise you as friends and ­brothers not to offend your g­ reat ­father . . . ​listen to him; then you w ­ ill be



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happy and this is what your ­g reat ­father wishes you to be. It is with yourselves to be so, or not” (Edwards, quoted in Satz 1991, 8). As American colonial numbers increased and as negative attitudes against American Indians hardened, treaty signing became more coercive, in that undue pressure through threats of vio­lence and starvation w ­ ere placed on the Indigenous signatories, which ­today would make such agreements illegal. As well, few Indigenous leaders could read En­g lish, French, or Spanish, and none understood l­egal terminology and intent. John Cardani, a scholar well acquainted with the jurisdictional maze of current federal/state/tribal law, once gave an example of such treaty making in a lecture for a class instructed by Nielsen; it is paraphrased h ­ ere: Imagine that you are sitting in your comfortable h ­ ouse with your spouse and three c­ hildren enjoying an eve­n ing TV show and a knock comes at the door. A man is standing t­ here waving a piece of paper and speaking gibberish. He becomes more demanding, shoves a pen at you and points to a line on the last page of the document. He clearly wants you to sign it. You try to tell him you ­can’t read the document and (perhaps) would like to consult your ­lawyer. He signals ­behind him and armed men take a stance at his back, and a tank rolls up with its gun turret pointed at your home and your ­family. Do you sign or not? Translate this scenario to an Indian village, colonial administrators, and soldiers with Gatling guns (nineteenth-­century machine guns), and Car­ dani’s point is well made. The Pine Tree Treaty (1837) In order to pay back a debt owed to fur trading companies, in 1830 President Andrew Jackson de­cided to use “national” Indian debt as a way to secure tribal land cessions. The excuse for the land grab was that Indians had been given the highest quality goods in exchange for cheap animal pelts and needed to cede more lands in compensation (Satz 1991, 10). The Jackson-­sponsored Removal Act of 1830 discussed in chapter 2 applied to the G ­ reat Lakes Chippewa as well as o ­ thers, so that by the mid-1830s, large portions of southern Wisconsin ­were opened to settler-­colonists, and colonial policy makers ­were ­eager to secure Chippewa lands in northern Wisconsin as well (Satz 1991). Governor and ex-­officio Superintendent of Indian Affairs Henry Dodge assured Congress before negotiations began that every­thing was squared away and that the Chippewa and Winnebago Indians had asked him to “dispose of ­t hose lands” ( Jones, cited in Satz 1991, 13). Dodge testified that 1,000 men, w ­ omen, and c­ hildren w ­ ere pre­sent to discuss this cession, but ­later reported that was not actually the case (Satz 1991). Dodge wanted 9 to

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10 million acres of land as part of the cession, not for settlers but for entrepreneurs who w ­ ere demanding cheap pine timber from the vast forests of northern Wisconsin to offset the high cost of timber from New York and Pennsylvania (Satz 1991, 14). The federal Indian Trade and Intercourse Act prohibited settler logging on Indian lands without special permission (Satz 1991, 14). A land cession treaty would provide ­legal access to the timber. Fur traders ­were also in ­favor of land cession since this would decrease Chippewa hunting grounds by forcing them off the land, thus leaving the fur animals to the fur com­pany. This incident is a typical example of fraud in treaty making and state-­facilitated corporate crime, as are the treaties that follow (see also chapter 8). The Copper Treaty (1842) Along with the rich timber resources colonial lumberjacks harvested in the woodlands of northern Wisconsin ceded to them by the Chippewa in the 1830s and 1840s, new reports of massive copper deposits along Lake Superior led to more land cessions demanded of the Chippewa Indians. It was unlikely that any effort to outright remove the Chippewa from Wisconsin would succeed. As La Point, Wisconsin, subagent Daniel Bushnell advised Governor Dodge in 1839, “The Indians would have to change their habits entirely and would expose themselves to their natu­ral ­enemy, the Sioux,” and any effort to remove them would be “highly improper, and inhumane” (Satz 1991, 30–31). Bushnell reported that the Indian bands “subsist . . . ​by hunting, fishing, and on the wild rice found in the lakes and rivers,” and that any attempt to remove them and deprive them of their “usufructuary right” ­u nder the 1837 treaty would mean strong opposition (Satz 1991, 30–31). In response to the large copper discovery in the same area, the Michigan state legislature appointed geologist Douglas Houghton as director of the newly created Department of Geology (Satz 1991, 33). Many mining companies ­were e­ ager to profit from the copper that dotted the entire Lake Superior region. War Department officials wanted all the copper and therefore all Indian title to the land. ­T hose who wanted to gain patronage positions in the War Department offered their ser­v ices to influence the Indians to move, as evidenced by an 1841 letter from L. M Warren (Satz 1991, 33). It is no surprise, then, that in 1842, the commissioner of Indian Affairs, T. Hartley Crawford, called for the acquisition of “all Chippewa lands in the region,” noting control of the southern short of Lake Superior was “very impor­t ant” to American interests (Satz 1991, 33). Even though the pro­cess of obtaining more Indian lands was not easy, the Copper Treaty of October 4, 1842, accomplished it well. Official documentation of this treaty is scant ­because no journal was kept or at least not forwarded to the commissioner of Indian Affairs; Keller writes that,



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“government documents are ­silent on the event” (Satz 1991, 10). One piece of evidence of how the treaty was made is that Treaty Commissioner Stuart responded to a letter from Reverend David Greene of the American Board of Commissioners in Washington asking ­whether the Chippewa would not be expelled from their native lands to s­ ettle in another place (Satz 1991, 37). Other witnesses to the treaty discussions included Reverend Leonard  H. Wheeler and his interpreter Henry Blatchford. Blatchford kept a journal of the events transpiring in the meetings and discussions of this treaty (Satz 1991, 37). The written evidence indicated the commissioner “used heavy-­ handed tactics to secure the treaty” (Satz 1991, 37). The Chippewa w ­ ere informed that other tribes had “been sent west of the Mississippi to make room for the whites” (Stuart, quoted in Satz 1991, 37), and that land desired by whites may “one day be required.” The participating chiefs argued that they had not surrendered all rights to minerals on their lands, and that the Chippewa had been deceived by the treaty commissioners. Chief White Crow from Lac du Flambeau suggested ­t here ­were discrepancies between what the Chippewa understood the treaty provisions to be and what the white negotiators actually said (Satz 1991, 38). As witnessed by Alfred Brunson, La Pointe subagent, Methodist minister, and Wisconsin pioneer, the Chippewa ­were not given enough time by ­Stuart to deliberate the conditions set forth in the treaty. Brunson stated, “The Indians did not act f­ree & voluntary, but felt themselves pressed into the mea­ sure.” According to “several reputable witnesses,” Stuart had told the ­Chippewa that “it was no difference w ­ hether they signed or not” b­ ecause “the Government would take the land” (Brunson, quoted in Satz 1991, 38). More Crimes in Treaty Making From the point of the Chippewa treaties onward, many other colonial government leaders simply refused to negotiate so that, for example, the head of the Military Department of New Mexico in 1862 declared, “­T here ­w ill be no negotiation with the Indians” and ordered that any Apache or Navajo man “be shot on sight” (Nies 1996, 268–269). In addition to extortion and threats of vio­lence, t­here w ­ ere also more issues with fraud during the treat-­signing pro­cess. As Echo-­Hawk (2010, 75) reports, concerning one treaty to reallot Indian lands to settler-­colonists, The central ­legal flaw in securing the so-­called agreement was the fraudulent manner in which Indian signatures ­were obtained by the government. The treaty required that no cessations of the reservation could occur without the consent of at least three-­fourths of the adult male population of said reservation, and the commissioners could not persuade that many Indians to sign. Thus, the commissioners lied to the

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Indians about the purchase price, claiming they would receive more money by selling out (twenty-­five dollars per person) than by their current lease income (which was in real­ity, seventy-­five dollars per person annually). Desperate, the commissioners and their interpreter began working b­ ehind the scenes to coerce ­t hose Indians who worked for the government to sign the agreement, some ­were simply ordered to sign, and the interpreter signed for ­t hose who refused. Troops w ­ ere called in when the Indians reacted with anger to the fraud in this par­t ic­u ­lar case, but even so, the necessary three-­fourths signatures w ­ ere never acquired. Nevertheless, Congress accepted the Jerome Agreement as valid in 1900, thereby violating the Medicine Lodge Treaty of 1867 that had guaranteed the Kiowa their land forever (Echo-­Hawk 2010). First Treaty of Fort Laramie (1851) Another memorable treaty is the First Treaty of Fort Laramie (1851). The breaking of this treaty by colonial-­settlers and administrators led to twenty-­two years of war between the U.S. military and the nations of the ­Great Plains. The U.S. government signed a treaty to buy the land on which to build Ft. Laramie in Wyoming for white settlers to use as a vital stop as they flocked down the Oregon Trail and the Mormon Trail to Utah. The treaty was signed with representatives of seven Indian nations, including the Sioux, Arapaho, Crow, and Gros Ventre, most of which did not ­really get along since the Sioux ­were moving southward and putting pressure on them, as w ­ ere the settler-­colonists. The treaty in theory divided the land in question into territories for each Indian nation, thereby establishing peace among them and making the trek safer for the settler colonists. The  U.S. government promised to compensate them for any damages done by the settlers and distribute annual payments for the purchased land, and “The government promised that the Indian lands would be theirs forever, that they would be protected against white depredations, and that the government would distribute 50,000 dollars in supplies and provisions during each of the next 50  years” (Nies 1996, 259). As Nies (1996, 260) concludes, “The  U.S. failed to comply with almost e­ very treaty provision it negotiated,” which precipitated the many years of war, and eventually the ­Battle of ­Little Bighorn, where Custer was killed in 1876. The Treaty of Bosque Redondo (1868) Another coercive treaty-­m aking strategy is based on starvation. “On more than one occasion the United States forced tribal nations to engage in treaty making by threatening to withhold annuities or other trade goods” (DeJong 2015, 33). This was the context for the Navajo Treaty: sign or



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starve. The Navajo signed the Treaty of Bosque Redondo in 1868 ­a fter they ­were force-­m arched to Bosque Redondo on the Navajo Long Walk and subsequently imprisoned. Nies (1996, 269) describes it as follows, Kit Carson drove the Navajo from their lands by destroying their means of survival. His army killed thousands of sheep, poisoned wells, burned orchards and crops, destroyed hogans and livestock shelters, and anything ­else that was of value to the Navajo. . . . ​T housands . . . ​went into hiding in the deep recesses of the Canyon de Chelly, previously unexplored by white men and noted for its quicksand floors. By winter Carson’s men set up a blockade at the entrance to the canyon, shot anyone trying to leave and in March rounded up thousands of starving Navajo and sent them on the “Long Walk” to Bosque Redondo. As reported in chapter 2, the Navajo Long Walk, much like the Cherokee Trail of Tears, was accompanied by rape, murder, and death by freezing. At the camp, the rapes continued, as did disease, death, and starvation. By 1868, the cost of the camp to the colonial government had become “astronomical,” and General William Tecumseh Sherman was sent to negotiate a peace treaty with the Navajo. The Navajo skillfully argued that they should be returned to their homeland rather than to a distant reservation, although the resulting land was only one-­tenth of the size of their previous territory. Settler colonists had already taken over the best land during the Navajos’ captivity, leaving only desolate and remote areas (Nies 1996). “In exchange for the Navajos’ agreement to never make war against the U.S. again, the government agreed to give the Navajos 13,000 sheep (two per ­f amily), corn, flour, and food staples to get them through the first winters u ­ ntil they could reestablish a self-­sufficient agricultural base” (Nies 1996, 278). Nies (1996, 278) concludes, “Not one treaty provision was fully met. Somewhere between Washington and the Indian agents in the field, most of the supplies and promised livestock dis­appeared.” On the other hand, the Navajo w ­ ere much more honorable; they observed the terms of the treaty, which included not having guns and not conducting raids (Nies 1996). At other times, the Indian signatories of broken treaties ­were pushed beyond all endurance, as when goods guaranteed by the treaties ­were stolen by incompetent and corrupt Indian agents (Nies 1996, 267–268). When agents stole food and goods from the Sioux, the Sioux rebelled and raided settlers, leading eventually to the deaths of about 1,000 settlers in Minnesota (Nies 1996, 267–268). Alaska Native Claims Settlement (1971) The American federal government ended treating making in 1871 through an act of Congress primarily ­because of the expense of the pro­cess

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(DeJong 2015, 44). Treaty making ­u nder other names was not eliminated entirely, however. ­A fter this date, the U.S. government used ­legal contracts termed “agreements” to negotiate with Indian nations. T ­ hese are ratified by votes of the House of Representatives and the Senate, and a federal court eventually ruled that they “have the ­legal weight of “ treaties (DeJong 2015, 5). An example is the incorporation of Alaskan Native villages that occurred through the controversial Alaska Native Claims Settlement Act (1971). When oil was discovered in Alaska, the state government gave private corporations leases on Native lands that had not been legally ceded to the United States government. Alaska Natives w ­ ere “given” 44 million acres, 462.5 million over eleven years, and $500 million in mineral royalties, which ­were divided among 220 Native village “corporations” and twelve regional “corporations.” The act has caused controversy b­ ecause some see it as destroying traditional lands and culture (Nies 1996, 372). Treaty Abrogations The U.S. government has also abrogated or terminated several treaties, such as the Treaty of Greenville, by replacing treaties with laws to acquire the Indian land inviolably guaranteed in a previous treaty. Abrogation refers to the ending of a treaty by the mutual consent of both parties so that the Indian nation is, in theory, consulted about the end of the treaty. The unilateral abrogation of a treaty has to be expressly stated as the intention of new legislation by Congress. Internationally, such unilateral abrogation can lead to war (Wilkins and Lomawaima 2001, 251) and it can be argued has led to war with Indian nations as occurred with the abrogation of the First Treaty of Ft. Laramie. ­There have been very few unilateral treaty abrogations, but legislation to the same effect has been passed instead, ­because it does not require Indian consultation. This includes such devastating laws as the General Allotment Act of 1887, which divided up Indian land on an individual basis and opened up “the surplus” to settler colonists. This law was resisted by the majority of its Indian victims, who ended up losing most of their land (Wilkins and Lomawaima 2001, 170–171). In summary, Indian nations generally saw treaty making both as self-­ preservation and as a sacred pledge by the colonists that Indigenous nations had exclusive rights to their own lands to use and inhabit. As westward expansion gained momentum, the colonial government used treaties to try to stop Indians’ hostile re­sis­tance to the surge of settler colonists (DeJong 2015). The colonial government and colonists had no compunction about breaking the treaties when ­there was profit to be made, ­whether monetary or po­liti­cal. As a result, all Indigenous ­peoples suffered, and more vio­lence



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occurred as some Indian nations went to war (see chapter 4 for more on the Indian wars). The Role of the U.S. Supreme Court Treaties and federal legislation are not the only ­legal pro­cesses that historically affected, and continue to affect, Indian-­U.S. relations. The U.S. Supreme Court occasionally has inserted itself into this relationship, rather unconstitutionally, by making court decisions that define the rights of Indian nations when such decisions can only be made by Congress. As Wilkins and Lomawaima (2001) explain, “The Supreme Court lacks constitutional authority to abrogate specific treaty rights or to divest Indian tribes of their rights by implication; such power is constitutionally vested in, and on a few occasions has been expressly wielded by, the U.S. Congress.” They argue that a number of Supreme Court decisions are based on the Supreme Court members assuming they know the mind of Congress members and making rulings based on t­hese assumptions. The Court, for example, has ended the rights of some nations to hunt and fish. As Wilkins and Lomawaima (2001, 145) explain, “When the Supreme Court hands down opinions that by implication sever specific Indian treaty rights, and does so without a specific legislative mandate directing the termination of the treaty right, the Court has vastly overstepped its juridical power. In such cases, the Court violates the Constitution and acts contrary to the acknowledged trust relationship to tribes, which holds that the United States has both a ­legal and a moral duty to assist tribes by protecting their lands, resources, sovereignty, and cultural heritage.” The Supreme Court itself has ruled that only Congress may modify, amend, or terminate treaties with Indian nations “only through bilateral treaty stipulations, by purchase or by voluntary abandonment by the tribal organ­ization” (Wilkins and Lomawaima 2001, 172). A classic example of the Supreme Court overstepping its role was the ruling by Chief Justice John Marshall in Johnson v. M’Intosh (1823) that Indians did not have the right to sell their own land, since they w ­ ere merely occupants of it. All treaties negotiated between the Indian nations and G ­ reat Britain, France, Spain, and the United States governments up ­until this time stated that Indians “held a title equal to the fee-­simple title of whites” (Wilkins and Lomawaima 2001, 34); in other words, Indians owned their own land and could sell it to whomever they chose. Marshall reconstructed history, using a version of the Doctrine of Discovery (see chapter 2) that was “distorted, historically inaccurate and legally fictitious,” to proclaim that the federal government owned all Indian land. As Wilkins and Lomawaima (2001, 55) conclude, “Marshall was rewriting history to suit the federal government’s needs” by redefining the Indian nations as “domestic dependent nations” over which the government had power, and not in­de­pen­dent sovereigns.

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According to the reserved rights doctrine as defined by the U.S. Supreme Court in 1905, any rights not specifically given up by Indian nations in treaties remain theirs, “subject to Congressional oversight” (DeJong 2015, 6–7). An impor­tant princi­ple of treaties, the reserved rights princi­ple is one that is often forgotten ­today. As Stan Webster, an Oneida Nation member and then-­ d irector of the Wisconsin Indian Resource Council explained in 1988, Indian nations made treaties with the United States just as they had with each other long prior to white contact, as they did with other Eu­ro­pean powers. The Indian nations viewed treaties as covenants, as moral statements which could not be broken ­u nless by mutual consent. Tribes ­were recognized as in­ de­ pen­ dent, sovereign, separate nations, and treaties made with them w ­ ere negotiated between equals as with any foreign nation. The purpose of t­hese intergovernmental contracts was not to give rights to the Indians—­r ights which as sovereign nations they already possessed—­but to remove from them certain rights which they already had. In treaty making, tribes ­were the grantors and the United States the recipient, and rights w ­ ere granted to the United States by or from Indian nations. Treaties l­imited only the external sovereign powers of Indian tribes—­tribes agreed, for example, not to make treaties or go to war against foreign nations. Treaties did not affect internal or self-­governing powers of Indian nations. Furthermore, rights to land, ­water, hunting, government, ­etc., which w ­ ere not expressly granted away by the tribes in a treaty, or taken away by a l­ater federal statute, w ­ ere reserved by that tribe, and did not diminish with the passage of time or changes in technology. (Whaley and Bresette 1994, 54–55) This remarkably pro-­Indian judgment by the Supreme Court is counterbalanced by other decisions such as the plenary power doctrine that limits Indian nations in that it states that Congress has power over American Indians ­because they are dependent on the federal governments as “wards of the state.” This paternalistic and racist judgment came from Chief Justice John Marshall in Cherokee Nation v. Georgia (1823) and Worcester v. Georgia (1832), and basically gives Congress the right to make any legislation it wants about Indians. Congress completely controls the existence of American Indians as Indians, thanks to the Supreme Court. But, on a more positive note, the Supreme Court also ruled that the federal government has the responsibility to act in good faith t­oward Indians (DeJong 2015), a responsibility that the U.S. government has neglected and abused for centuries as seen in this and other chapters. Together, t­hese rulings on federal-­ Indian relationships mean that “Indian treaties remain in full force and hold a status equal to agreements



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made by the United States with other foreign nations. As a result, treaties place tribal nations in a unique po­liti­cal position, as rights and responsibilities reserved by and recognized in treaties and agreement may take pre­ce­ dent over federal law and custom ­u nless ­limited by subsequent treaty or act of Congress” (DeJong 2015, 8). This fact is often forgotten by both the federal and state governments when, for example, they try to assign or assert state laws over Indian nations. As a brief aside: Congress voted in 1837 that direct payments to Indians for ceding their lands through treaties should no longer occur, but instead that the money be held “in trust” in the U.S. Trea­sury for the benefit of Indians. This money dis­ appeared, however, and many irregularities occurred. In 1996, the Bureau of Indian Affairs could not account for $2.4 billion supposedly held in trust for Indian nations (Nies 1996, 251–252). Lawsuits such as the Cobell case have led to some money being returned to Indian nations (see chapter  8), but since this trust relationship still exists (and is still being abused), t­here remain the questions: What happened to the rest of the money and its interest that accrued over the last 175-­odd years? Certainly it was stolen, but by whom and how? T ­ hese questions remain unanswered, though it is encouraging to see that at least some survivors of colonial crimes have received victim compensation, but certainly not as much as they are owed. Treatie s, or th e Lac k Th e re of, in Canada and Aust ral i a Treaty making with Indigenous nations was common throughout the colonial world, and in many countries continues ­u nder dif­fer­ent names. Canada Historically in Canada, Indigenous First Nations ­were also coerced into signing treaties and forced onto reserves as a means of getting food rations from the federal government. With the extermination of the buffalo by hunters in the United States, the Canadian Indigenous inhabitants ­were unable to survive. Daschuk (2013) calls this the “politics of famine,” as a number of the western Canadian treaties w ­ ere signed u ­ nder this duress. Treaty making in Canada was made illegal in 1927 but restarted in 1973 ­u nder court order. It is now “a basic constitutional requirement that Crown access to Aboriginal land and resources must be exercised through agreement” ­u nder Section 35 of the Constitution Act of 1982 (Curry et al. 2014, 294), and all treaties must be ratified by the First Nation, the affected province, and the Canadian government. From 1975 to about 2015, twenty-­five “Comprehensive Land Claims” w ­ ere successfully negotiated, according to Alcantara and Davidson (2015), although the Department of Indian Affairs

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and Northern Development Canada (2010b) only mentions fifteen. As of 2010, twenty-­four treaties ­were still ­u nder negotiation according to Indigenous and Northern Affairs Canada (2010a), and the government of Canada website lists 28 u ­nder negotiation, although the website has not been updated since 2012 for some provinces (Government of Canada 2018). Some proposed treaties have been rejected e­ ither by the governments involved or by the First Nation (Curry et al. 2014). Australia Treaty making in Australia, though not by that name, has only recently begun. Australia remains the only Commonwealth country never to have signed a treaty agreement with its Indigenous ­people, and this has been a negative f­actor in the relationship between the Indigenous Australians and the Australian government (Marshallsea 2017). Terra nullius was used as a rationalization u ­ ntil the 1992 decision by Australia’s High Court in Mabo v. Queensland. The Court rejected the argument that Australia had been terra nullius upon Eu­ro­pean settlement, but still disappointed many Indigenous Australians b­ ecause it did not retroactively restore Indigenous land rights. It did, however, lead to the Native Title Act (1993), which opened the door for Australian Indigenous p­ eoples to make land claims and be compensated for lands taken. As Anaya (1996, 140) writes, this act goes beyond Mabo “by recognizing the importance of indigenous ­peoples’ continuous use and possession of lands, and in limiting the conditions u ­ nder which native land rights may be extinguished.” Indigenous leaders have met through the years to discuss creating a treaty. For example, Prime Minister Bob Hawke received “the Barunga Statement,” named for an Aboriginal community “which he hung on a wall in Canberra’s Parliament ­house and vowed t­ here would be a treaty by 1990” (Marshallsea 2017). In 2008, “Prime Minister Kevin Rudd delivered a long-­awaited apology to Australia’s indigenous p­ eoples for policies that had inflicted suffering on them. Despite ­these words, acts and gestures, ­there is still no treaty” (Marshallsea 2017). Marshallsea (2017) cites Australia’s historical attitude ­toward the country’s first inhabitants and continued racism as a large part of the reason why a treaty has not yet been negotiated. Australian historians say that the attitude ­toward Indigenous Australians began back in the 1700s when the first white men landed on the east coast. “Captain James Cook and (botanist) Joseph Banks reported the Aborigines ­were few in number and ­were just wandering around the place. The perception was they had no recognizable agricultural system, and they ­were basically savages” (McKenna, quoted in Marshallsea 2017). Tasmanian Aboriginal writer and activist Michael Mansell (quoted in Marshallsea 2017) told the BBC “the En­g lish ­were deceived



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by their perceptions of Australian indigenous culture, including that they lived in small groups, by contrast to the large and seemingly more or­g a­ nized tribes of North Amer­i­ca. . . . ​To them, the Australian Aborigines ­d idn’t display any of the trappings of a so-­called noble culture. . . . They ­weren’t riding h ­ orses like native North Americans, did not have permanent dwellings, it was difficult to discern who their leaders ­were, so they w ­ ere regarded as a vulgar and backward p­ eople who could be treated as the invaders liked.” McKenna (quoted by Marshallsea 2017) stated that, “In 1840 colonial officials in New Zealand ­were sitting down with the Māoris to sign the Treaty of Waitangi. At the same time in Australia, Aborigines ­were being hunted down, shot and slaughtered.” McKenna believes that a treaty would help “break the 200-­year-­old cycle of governments not negotiating with the Aboriginal ­people . . . ​a nd it would say ‘­we’re no longer just ­going to do ­things to them,’ but that t­hey’re included and empowered” (Marshallsea 2017). ­There is a debate around the issue of Indigenous recognition in the constitution, and several states have begun working on treaties with their Indigenous communities, “but whoever signs the first agreement, it w ­ ill be the first such treaty in Australia” (Grant 2016). It seems that Indigenous ­peoples in Australia continue to see treaties as documents to be kept in good faith, despite all the evidence to the contrary. C onclusion Historically, treaty making was used as an alternative to war and genocide. War with Indigenous p­ eoples had proven very costly, and outright genocide was not acceptable to some influential colonial leaders. It was less expensive and less morally reprehensible to acquire Indigenous lands and resources in exchange for seeds, c­ attle, ­horses, blankets, food, opportunities for education, medical assistance, and a guarantee that the remaining Indian land would be theirs forever. In short, according to Stephanson (2009, 33) in colonial times law and exchange ­were “the po­liti­cally correct way of dispossessing ­peoples.” Treaties w ­ ere signed in good faith and confusion by Indigenous leaders, who thought that that colonists would abide by their own laws, that they had the same integrity and understanding of the inviolability of law (­whether written down or not) that Indigenous ­ peoples did. They ­ were quickly abused of that notion, but had no choice as starvation and vio­lence took their toll. Good faith with Indigenous ­peoples was not a consideration for colonial governments. What one administration proclaimed, the next destroyed. The treaty negotiators ­were just as faithless, with a few exceptions such as the early Quakers (see chapter 7 on hate crimes). The negotiators used lies,

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vio­lence, and extortion. The Treaty of Waitangi and the Jerome Agreement are just two examples of this. Fraud occurred not only during the treaty-­m aking pro­cess but afterward, when the colonial governments in New Zealand and the United States did l­ittle to nothing to prevent Indigenous nations being overrun by colonists and their land stolen. In fact, they used treaties, laws, and unconstitutional Supreme Court decisions to aid and abet t­hese crimes. The dishonesty of colonial governments was condemned by some colonial leaders of the time but welcomed by land-­g reedy settlers who considered Indigenous ­people as obstacles to be removed as quickly and permanently as pos­si­ ble. Po­l iti­cal exigencies ensured that government leaders turned a blind eye, if they did not actually act to aid in the victimization of the rightful inhabitants of the land. This early use of laws to legitimize illegal government activities has laid the ideological, po­liti­cal, and ­legal foundations for the continuing modern-­ day victimization of Indigenous p­ eople by corporations, governments, and individuals. For example, Byrnes and Ritter (2008, 60) in discussing the impotent Waitangi Tribunal, conclude, “The Tribunal must address the past and make provision for the f­uture while the pre­sent evaporates. Moreover, the Crown (as both defendant and arbiter) retains the ultimate power to implement structural change to accommodate or reject Māori claims of historical injustice, however well they may be substantiated by the Tribunal’s findings.” The mythologies of colonial countries proclaim that the “brave settlers” discovered the country, recognizing the legitimate inhabitants only as unworthy, primitive savages. ­These myths do not mention that international laws w ­ ere broken, and that colonial governments committed fraud and theft, and aided and abetted the settler-­colonists to commit fraud and theft—­not to mention murder, as ­w ill be described in the next chapter. ­T hese crimes ­were justified in the minds of the settler colonists and their leaders by their supposed superiority as white, Eu­ ro­ pean Christians. Through the treaties, Indigenous ­people w ­ ere transformed over time from power­ful allies to social junk that could be victimized with impunity. Despite their moral rhe­toric, the treaties ­were scams.

C hapte r   4

Massacres to Murder Vio­le nce  against Indige nou s P ­ eople s When colonizers made first contact with the Indigenous p­ eoples of Australia, New Zealand, Canada, and the United States in search of land, gold, furs, and anything e­lse of value, lives w ­ ere changed and regions transformed through social conflict and vio­lence that continues ­today. Physical vio­lence has been used to kill, terrorize, torture, enslave, and violate Indigenous p­ eoples through war, massacres, abuse in boarding schools, and imprisonment on reservations/reserves. T ­ hese crimes and social harms ­w ill be described in this chapter, along with current-­d ay violent victimization that perpetuates this colonial tradition. T ­ here are only estimates of Indigenous populations in the Amer­i­cas before first contact following Eu­ ro­ pean arrival, with considerable range in numbers from 500,000 for the United States to 16 million for North Amer­i­ca (Thornton 1987, 16–17). The Indigenous population of the contiguous United States was most likely more than 5 million when Columbus arrived in 1492 (Thornton 1987, 32). T ­ hese figures are estimates, but one fact that is not debatable is the horrific vio­lence visited on Indigenous p­ eoples when deemed necessary by settler populations in the United States, Canada, New Zealand, and Australia. Churchill (1997, 1) writes that Indigenous p­ eoples “died in the millions of being hacked apart with axes and swords, burned alive and trampled u ­ nder h ­ orses, hunted as game and fed to dogs, shot, beaten, stabbed, scalped for bounty, hanged on meat-­hooks and thrown over the sides of ships at sea, worked to death as slave laborers, intentionally starved and frozen to death during a multitude of forced marches and internments, and, in an unknown number of instances, deliberately infected with epidemic diseases.” It would be very easy to term all of t­ hese heinous acts of vio­lence as genocide, but first it is necessary to have an understanding of the concept of genocide.

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Ge nocide and Set t le r -­C oloni al i sm The concept of genocide was created by Raphael Lemkin, a ­lawyer of Polish-­Jewish descent who fled from the Nazis in 1939 to the United States. ­Here he advocated for t­ hose who suffered u ­ nder Nazi rule and initiated the Genocide Convention. Lemkin coined the word “genocide” from the Greek work for a “race” or “tribe” (genos) and the Latin word for “killing” (cide). Alvarez (2014, 26) writes, Genocide, then, literally means the killing of a race or tribe. Essentially, it involves the attempt to destroy a population group. As Lemkin envisioned it, genocide referred to a wide range of activities that both directly and indirectly w ­ ere intended to systematically eliminate a group that had been targeted for annihilation. Importantly, Lemkin saw genocide as a comprehensive pro­cess of destruction rather than a one-­time or piecemeal type of event. Individual acts of vio­lence that are not connected to a broader pattern of vio­lence, as horrific as they may be, are not necessarily genocide according to Lemkin’s formulation. Genocide, in other words, is a strategy, not an event. Of course, t­here ­were and continue to be many debates about what genocide means. In 1948, the General Assembly of the United Nations ­adopted genocide as a crime u ­ nder international law. The second article of the 1948 Convention on Prevention and Punishment of the Crime of Genocide (UNOHCHR 2016–18) describes the crime as: In the pre­sent Convention, genocide means any of the following acts committed with intent to destroy, in w ­ hole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or m ­ ental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in ­whole or in part; (d) Imposing mea­sures intended to prevent births within the group; (e) Forcibly transferring c­ hildren of the group to another group. Killing is only one of the five criteria that describe genocide, so that genocide includes acts that are not straightforward vio­lence. Genocide can be committed in the short term, as with killings, or it can be longer-­term, such as with the sterilization of Native American w ­ omen without their consent and residential schooling in Canada, Australia, and the United States where ­children ­were deliberately taken from their parents and forced and assimilated into “another group.” To be considered genocide, the target



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group must be perceived to fall into a specified national, ethnic, racial, or religious group, w ­ hether or not that is actually the case. The acts of the perpetrator must be intentional and not be accidental or unwilling but show deliberate intent to destroy a group (Alvarez 2014). One of the shortcomings of the UN convention is not including cultural genocide in its definition. Cultural genocide, or cultural cleansing, attempts to destroy ties to a community and denies certain groups the ability to pass along their language, religion, and culture to the next generation. In 1981, the United Nations Educational, Scientific, and Cultural Organ­i zation (UNESCO) declared: “Ethnocide means that an ethnic group is denied the right to enjoy, develop and transmit its own culture and its own language, w ­ hether individually or collectively. . . . ​We declare that ethnocide, that is, cultural genocide, is a violation of international law equivalent to genocide, which was condemned by the United Nations Convention on the Prevention and Punishment of the Crime of Genocide” (Alvarez 2014, 29). The deliberate destruction of cultures is just as deadly to individuals as other methods of warfare. Separating p­ eople from their culture makes it easier to separate them from their lands. Land and genocide are never far apart: “Territoriality is settler colo­ nialism’s specific, irreducible ele­ment” (Wolfe 2006, 388). In the settler-­ colonialists’ quest for land, they eliminated or displaced Indigenous populations in the United States, Canada, New Zealand, and Australia. The strategies used to gain access to land included killing and the elimination of Indigenous culture through kidnapping c­ hildren into boarding schools, conversion to Chris­tian­ity, changes in methods of subsistence and governance, and basically resocializing Natives to become like Eu­ro­pe­ans. All of t­ hese methods are characteristic of settler-­colonialism, and some methods are more controver­ sial in genocidal studies than o ­ thers, but as Wolfe (2006, 388) stated, “Settler colonialism destroys to replace.” Therefore “settler colonialism is predicated on the notion of destroying indigenous populations to make room for the incoming waves of settlers who want to create a replica of their home society. Removing the Natives ensures that the settlers are able to build, cultivate, and rework an area into the mirror image, or at least a close approximation, of the land from whence they came” (Alvarez 2014, 56). Settler-­colonizers came to stay, and dispossessing Indigenous p­ eoples from their lands was not a one-­time event. Eu­ro­pe­a ns came to Indigenous lands with their own linear mindset formed for generations by a brutal society that fostered ignorance, intolerance, and bigotry. Alvarez (2014, 65) makes a very good point when he states, “Regardless of the time period, the location, or the specific form of vio­lence, ­humans need to engage in a variety of psychological pro­cesses that allow for the victimization of ­others, and the history of Native Amer­i­ca certainly seems to bear this out.” T ­ hese

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pro­cesses affected Indigenous ­peoples not only in the United States, Canada, Australia, and New Zealand but in many other countries worldwide that experienced settler-­colonialism. S lave ry Slavery is part of the history of the United States, Canada, Australia, and New Zealand, but each country experienced it differently. Eu­ro­pe­a ns did not introduce slavery to the North American continent. Many but not all Indigenous groups that lived in what is now the United States and Canada ­were already practicing slavery when the first Eu­ro­pe­a ns arrived. Indigenous ­people offered to Eu­ro­pe­ans ­people they had captured as guides, intermediaries, and local providers (Resendez 2016, 172). The Māori also had slaves, called mokai, captives from e­ nemy tribes taken during ­battle as spoils of war. They ­were subject to heavy physical work, fought ­under supervision in ­battles, ­were used to negotiate with enemies, and ­were used as food when supplies w ­ ere short. Female slaves w ­ ere oftentimes used as prostitutes, and some became secondary wives. ­Children born into a master/slave marriage w ­ ere considered f­ree, and b­ ecause of this, no here­ ditary class of slaves developed (Mitchell and Mitchell 2007, 276–289). In 1840, the Treaty of Waitangi outlawed the taking of slaves and made all Māori ­British citizens. Some Christian slaves w ­ ere freed (Mitchell and Mitchell 2007, 276–289), but chiefs who ­were highly esteemed and wealthy owned slaves well into the 1850s (Mitchell and Mitchell 2004, 452–453). Indigenous types of enslavement ­were more about kinship, reproductive ­labor, and diplomacy rather than solely the need for agricultural or domestic ­labor as with Eu­ro­pe­a ns (Onion 2016). The slavery of Australian Indigenous p­ eoples by Eu­ro­pean settler-­colonists is an example of this difference. For over a c­ entury, between the 1840s and 1970s, tens of thousands of Indigenous Australians ­were taken from their homes and forced to work for pastoral stations, missions, and government reserves ( Jokic, 2014). Kidd (2012, 171) describes such a life: If I w ­ ere a young Aboriginal ­woman in Queensland between the 1920s and late 1960s, t­here would be a one in two chance that my life was totally controlled by the Government. I would have no rights about where I lived, where and when I worked, my own f­ uture or the f­ utures of my c­ hildren. I would prob­ably be removed to a government settlement where I would be separated from my m ­ other and siblings from the age of five and confined in a dormitory, taught only basic En­g lish and arithmetic, and trained as a domestic servant. At thirteen or fourteen, I would be given some clothes and sent to a town or a remote c­ attle station to start my life of work. Many young boys ­were also sent to work



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on the stations, along with men and ­women trapped in a 51-­week ­l abour cycle. The Queensland government established a system of forced ­labor in 1897 ­u nder the Aboriginals Protection and Restriction of the Sale of Opium Act in which it granted itself powers to control the lives of anyone of Aboriginal descent, supposedly to protect them from “physical, sexual and employment abuses” (Kidd 2012, 171). Along with Queensland, each state government and the Commonwealth government in the Northern Territory from 1911 to 1928 “carefully crafted laws controlling Aboriginal lives and l­abour, and surveillance systems to force individuals to abide by them. If you w ­ ere a person of Aboriginal descent, ­these governments could dictate where and when you worked, the type of conditions of that work, what you may be paid and if you could spend it” (Kidd 2012, 172). ­There was no limit to how many hours w ­ ere worked, and minimum living conditions for workers ­were common. “A group of families in one station had to live in the open with no protection from rain or wind; in 1959 one group of workers lived in an open shed without any bedding, light or t­able, and was paid only tobacco and matches each week . . . ​­there w ­ ere reports of sexual assaults, wet living quarters, beatings with chains, lack of ­water and cooking facilities . . . ​a nd ill health, especially among c­ hildren” (Kidd 2012, 172–173). If wages ­were paid, workers might receive a few coins in pocket money each week, though ­these might be skimmed off by employers. The rest of the wages ­were intercepted by the government and placed in trust accounts that Aboriginal workers ­were rarely allowed to access. Even though Aboriginal workers w ­ ere superior and more reliable than their white counter­parts, the government set their wages at about 3 ­percent of the white rate (Kidd 2012, 173). The contracted ­labor system existed for seventy years, and during that entire time the government allowed employers the right to pay workers between 30 and 80 ­percent of their wages (Kidd 2012, 174). Workers ­were entirely at the mercy of their employers as to how much money they would be allowed to have to live on at the end of the week. “Rec­ords show that in the 60 years to 1968, successive governments knew the Aboriginal workers it controlled ­were being cheated of potentially 50 ­percent of their wage. They knew ­these systematically impoverished workers w ­ ere effectively subsidizing the State’s pastoral interests” (Kidd 2012, 174). Not surprisingly, financial exploitation, wage theft, and fraudulent practices ­were the norm, as occurred with a trust fund that was set up in 1904 to hold monies owed to or saved by missing or deceased workers to be distributed to their families, and a second unemployment compensation trust fund that was set up in 1919 that taxed all Aboriginal savings. “Internal investigations

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show both trust funds w ­ ere consistently raided for governments costs . . . ​ and the money has never been repaid” (Kidd 2012, 175). The result is that millions of dollars ­were taken out of savings funds and private accounts set up to protect workers and the missing money was never returned to the workers (Kidd 2012). In fact, the “Chief Protector admitted t­here w ­ ere no real controls over official dealings on private accounts, and refused to allow workers to check dealings on their accounts” (Kidd 2012, 175). When workers asked about their money, they ­were told that rec­ords ­were inconclusive or deliberately destroyed, or that it would be impossible to confirm claims of missing funds. Some of the victims of this theft sued, and in 2002, ­t here ­were approximately “4,000 potential litigants waiting to sue the Government for stolen wages, savings, child endowment funds, pensions and inheritances list during 70 years of government mismanagement” (Kidd 2012, 177). In response to litigation or perhaps to ease his conscience, “Premier of Queensland Peter Beattie, offered litigants $55.6 million, [in] ‘which he was generous’ despite the fact that about $500 million was in question. His offer was a maximum of $4,000 per person, thousands of deceased account holders w ­ ere simply disqualified, and claimants had to sign away their ­legal rights” (Kidd 2012, 17). The fight for stolen wages is about more than money. Workers would have had more money and freedom to prosper if colonial governments had not ignored, underpaid, or denied pay altogether and misused the earnings and entitlements of the Aboriginal ­people forced into slave ­labor. Indigenous p­ eople from other countries ­were also forced into ­labor in Australia. Emelda Davis (2017) describes the enslavement of the ancestors of Australian South Sea Islanders, writing: “We are descendants of some 62,500 ­people who ­were blackbirded from the 80 islands of Vanuatu and Solomons to NWS in 1847, with an influx to Queensland ­u nder the ‘indentured l­abour’ trade.” Blackbirding is the nineteenth-­and early twentieth-­ century practice of enslaving, often by force and deception, South Pacific Islanders for the cotton and sugar plantations of Queensland, Australia, as well as ­those of the Fiji and Samoan islands (Encyclopædia Britannica). Davis (2017) writes, “The real truth of the physical and cultural theft of ­human beings . . . ​the treatment of the Islanders was atrocious, exploitative and akin to slavery. When plantation ­owners went bankrupt, the workers ­were transferred as an asset with the sold property.” Over the years, about 15,000 of the slaves working in the sugar industry lost their lives due to the harsh conditions they endured. This accounts for almost 30 ­percent of the trade, and despite government authorities knowing about this, the trade continued (Davis 2017). In North Amer­i­ca during colonial times, Indigenous ­peoples w ­ ere also enslaved along with African Americans. As French (2003, 3–4) writes,



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Some Indians ­were enslaved in all thirteen colonies and the Ca­r ib­bean Islands and ­were credited with building Charlestown, South Carolina. Moreover, Indian slavery included all the horrors associated with the worst image of this practice: beatings, killings, separation of families . . . ​The 1708 census of the Carolina settlement illustrates the magnitude of this practice, with a population profile of 5,300 whites, 2,900 black slaves, and 1,400 Indian slaves. Indian slaves w ­ ere often used to quell black slave uprisings and vice versa. . . . ​O f the three most influential colonial powers in North Amer­i­ca, French colonists ­were the least likely to enslave American Indians, while the Mexicans continued this Spanish practice u ­ ntil the late nineteenth ­century. Newell (2015, 14) writes, “Enslaved New ­England Indians labored in plantations in Jamaica, Bermuda, Providence Island, the Azores, and pos­si­ble even Madagascar. They served on naval galleys in the Mediterranean and built fortifications in Morocco.” Resendez (2016, 172) states, “In the period between 1670 and 1720, Carolinans exported more Indians out of Charleston, South Carolina, than they imported Africans into it.” As slave traffic continued to develop, colonists obtained many of their Indigenous captives from the Westo Indians, who “conducted raids all over the region” and ­were major suppliers of slaves to Eu­ro­pe­a ns and other Indians (Resendez 2016, 172). Not only did Eu­ro­pe­a ns enslave Indigenous ­peoples, they encouraged their participation in the slave trade as well. Onion (2016) cites a few examples. In 1637, a group of Pequot men and boys unsuccessfully attacked En­g lish colonists in Connecticut and ­were sold to plantations in the West Indies in exchange for African slaves. This allowed colonists to rid themselves of some who resisted colonist encroachment on Indian lands. In 1741, “a coffle of Sioux Indians acquired by a group of Cree, Assiniboine, and Monsoni warriors arrived in Montreal, ready for sale to French colonists hungry for domestic and agricultural ­labor.” Indian slavery is not written about to the same extent as African American slavery, and in many instances in colonial times, slavery of Indigenous ­peoples was illegal or ad hoc, no paper trails w ­ ere kept and the numbers of slaves can only be estimated. Newell (2015, 14) suggests that the number of Indians enslaved in the New E ­ ngland colonial period likely numbered in the thousands and “was both cause and effect of the increased integration of Native American and Eu­ro­pean society.” Servitude to Eu­ro­pe­a ns meant loss of kin ties, changes to traditional Indian gender work roles, and other cultural challenges, with the worst outcome occurring when “colonial authorities and individual ­owners sold them into international slave markets” (Newell 2015, 14).

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Indigenous p­ eople w ­ ere also enslaved by settler-­colonists in Canada. Approximately two-­t hirds of the slaves in the colony of New France, which held the most slaves for the longest duration in Canada, ­were Indigenous (Lawrence 2016). Resendez (2016, 172–173) writes that the French in eastern Canada “procured thousands of Indian slaves during the seventeenth and eigh­teenth centuries, but as they moved away from Quebec and Montreal into the ­Great Lakes region and upper Mississippi basin, they encountered a world they could scarcely comprehend, let alone control. Indians preyed on one another to get captives whom they offered to the French in exchange for guns and ammunition and to force alliances. Throughout North Amer­i­ca, Natives adapted to the sprawling slave trade and sought ways to profit from it.” The fact that Indigenous ­people of the United States and Canada ­were slaves, also assisted to capture slaves, and owned slaves from other tribes, makes this piece of history a complicated one. Eu­ro­pe­a ns did have assistance from Indigenous p­ eople in obtaining slaves, but they also put Natives u ­ nder pressures that may have given them no choice but to sell their fellow ­people. The story of Indigenous p­ eople as slaves and slave traders is not as clear-­cut as the history of African Americans as slaves, but it is tragic just the same, as well as criminal in many of its aspects. War fare and M assac re s Bloody wars and massacres occurred to dif­fer­ent extents in all four countries. Australia Australia had been settled between 40,000 and 50,000 years before contact, and all of the country’s land was in fact inhabited (Elder 1998, 246). Before colonizers came to the shores of Australia, Indigenous p­ eoples w ­ ere not tribal in the sense that we refer to Native Americans and First Nations ­peoples but lived in “small, extended ­family social units that ­were deeply connected to streams, lakes, and stretches of coastline, the foothills and the escarpment” (Elder 1998, 19). Their lives ­were changed completely when the first Eu­ro­pe­a ns arrived in 1788 espousing the notion of terra nullius or the idea that Australia was uninhabited (see chapter  2). Captain Arthur Phillip brought with him beliefs of British superiority and the drive for acquisition of land. At first, Indigenous Australians ­were viewed as dif­fer­ ent, but noble savages nonetheless. Two de­cades ­later, they w ­ ere demonized and not seen as ­human, which led to physical conflicts between the British and Indigenous p­ eoples as well as many, many massacres (Elder 1998). The Indigenous Australian culture collided with Eu­ro­pean culture. Eu­ro­pean farmers grew corn and vegetables and grazed ­cattle and sheep,



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which the Indigenous Australians saw as food for every­one, as their culture dictated. In response, Eu­ ro­ pean settlers responded with indiscriminate shooting and rape. “They demonized the local ‘blacks’ as ‘pests’ ” (Elder 1998, 23). The Indigenous Australians retaliated as best they could, and sometimes a settler-­colonist would be killed, but British muskets and or­g a­ nized troops far outweighed spears and boomerangs. Elder (1998, 23–24) writes about an event that happened when a group of Indigenous Australians ­were helping themselves to corn in a farmer’s field, “Three privates from the Veterans Corps arrived. They fired at the Aboriginal p­ eople to try and disperse them. Instead of firing over their heads they fired directly at the group. A young Aboriginal boy was killed. The Aboriginal ­people, determined to revenge the killing, turned on the troopers and one of them . . . ​was speared and killed. That was enough to ensure the beginning of a cycle of bloody revenge.” Events such as this w ­ ere so common that Governor Lachlan Macquarie issued a general order in which he blamed the settlers and asked them to exercise “Patience and Forebearance, and therein to shew the Superiority the possess over ­ t hese unenlightened Natives” (Elder 1998, 25). This did not stop settlers from continuing to kill, and three detachments of the 46th Regiment w ­ ere sent to the district with specific instructions to take Aboriginal ­people ­either as prisoners of war or to shoot them, which basically legalized massacres. Ugly, indiscriminate killings continued ­u ntil the “Aboriginal ­people on the South Coast fi­n ally gave up all hope of defending the land which they had lived on for thousands of years” (Elder 1998, 25). The massacre of the Wiradjuri in what is now New South Wales occurred over a ten-­year period from 1813 ­u ntil 1824 as settlers poured into the region. “The Wiradjuri had lived on ­these slopes and plains for tens of thousands of years. Their culture, their lifestyle, the very reason for their existence, was rooted in the area” (Elder 1998, 49), but “by 1824 the white population of the area had increased tenfold to 1,267 p­ eople. The 2,250 acres of land which had been cleared and fenced in 1821 had increased to 92,263 acres. The sheep and c­ attle population leapt from 33,733 in 1821 to 113,973 in 1825” (Elder 1998, 53). The Wiradjuri knew that their traditional hunting grounds w ­ ere being destroyed and lands overrun, and that they w ­ ere being dispossessed without any sort of discussion or input. Skirmishes began. Elder (1998, 54) gives this account: Between October 1823 and January 1824 the pressures along the new frontier exploded. The Wiradjuri, frustrated by the destruction of kangaroos and possums which formed the basis of their meat diet, began to attack the settlers’ livestock. They rushed herds, speared ­cattle and

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occasionally killed shepherds who w ­ ere foolhardy enough to try to protect their animals against attack. Although the more liberal and humane of the settlers conceded that “the white persons in the first instances have been the aggressors,” the bulk of the new landowners demanded that military forces be brought in to control increasing vio­lence. And so it began. The settlers w ­ ere committed to totally eliminating all of the Indigenous Australians from the area, w ­ hether they ­were friendly or not, male or female, adult or child. Any Indigenous person became the ­enemy, and any method of extermination was justified. The Wiradjuri put up a good fight, but they did not stand a chance against the superior military methods and firepower of the British, and the p­ eople began to slowly decline. With their lives and culture destroyed, the Wiradjuri became susceptible to Eu­ro­pean diseases, alcoholism, and a lifestyle without hope. “The vengeance of the white s­ ettles was fast and deadly . . . ​a nd by 1850 the Wiradjuri around Bathurst had all but been destroyed” (Elder 1998, 63). The 1834 ­Battle of Pinjarra at the Swan River was a massacre designed to “teach blacks a lesson” for spearing the c­ attle belonging to a small band of settlers. By this time, settlers had developed a keen hatred for Indigenous Australians and w ­ ere happy to attack and kill whenever the opportunity presented itself. One account of the massacre explained the rational for the attack simply: “the moment was considered propitiously favourable for punishing the perpetrators of such and other diabolical acts” (Elder 1998, 222). A group of settlers, led by Captain James Stirling, set upon about seventy Aboriginal p­ eople who quickly fled into the bush. The attackers circled them, caught them at a river crossing, and opened fire. No one knows how many ­were killed, but the survivors ­were rounded up and taken prisoner. ­A fter this “­battle,” the Indigenous population around Swan River w ­ ere demoralized; “­children ­were taken from their parents, a special prison for Aboriginal ­people was established on Rottnest Island, alcoholism became a major prob­lem, and disease sent the death toll rising” (Elder 1998, 223). Possibly the worst device created to punish any Indigenous person attempting to steal flour, food, and so on was known as a mantrap. Mantraps ­were built by blacksmiths and ­were designed to resemble a huge rabbit trap. The trap was so large that it took the weight of a grown man to hold the jaws open and the spring was so strong that when the jaws snapped shut, it would take more than one person to pry them apart. Elder (1998, 225) writes, “The graziers became so confident of the efficiency of the mantrap that the sound of the jaws snapping shut upon an Aboriginal leg rarely caused the grazier to get out of bed. In the morning he would rise, go outside, and club the thief to death. Station hands would be expected to dispose of the body. . . . ​Other methods of dealing with Indigenous Australians



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included thrashing, poisoning . . . ​a nd cutting off heads and placing them in storerooms to keep potential thieves away.” New Zealand The British government reluctantly de­cided to add New Zealand to its vast dominions mainly ­because the island was already being settled by British subjects from Australia (Sinclair 1961, 1). With p­ eople moving to New Zealand in droves and the New Zealand Com­pany developing large-­scale settlements, the British government took steps to safeguard the Māori from oppression; however, the colonists already living ­there did not share their government’s concern. Colonists wanted more land and the Māori w ­ ere in the way. Settlers’ negative opinions ­were reflected in newspapers that stated that the land was “the greatest curse natives have” and to take it from them would be “the greatest boon you could confer on them” (Sinclair 1961, 5). As disdain t­oward the Māori grew, they w ­ ere referred to as savages, among other distasteful names, so that settlers developed a grossly distorted picture of them (Sinclair 1961, 5). C.  W. Richmond, the first Native minister in New Zealand, was hostile ­toward the Māori. In Richmond’s mind, civilizing the Māori was another justification for war, and “war was one of the necessities of colonization” (Sinclair 1961, 11). The New Zealand wars occurred from 1845 through 1872 on the North Island. T ­ hese ­were b­ itter and bloody strug­g les, “as impor­t ant to New Zealand as w ­ ere the Civil Wars to E ­ ngland and the United States” (Belich 1986, 15). Before the wars began, the Māori had lived in New Zealand for about 600 years. They ­were a tribal ­people with a highly developed belief system, a rich and artistic culture, who w ­ ere resilient and adaptable when it came to facing the challenge of confronting Eu­ro­pe­a ns (Belich 1986, 17). Belich (1986, 19) writes that in dealing with Eu­ro­pe­a ns, the Māori took advantage of what was offered in terms of knowledge and goods, particularly the musket; however, the Māori had a few disadvantages. One was that Māori society had no professional warrior class, and it produced l­ittle economic surplus (Belich 1986 22). As such, their military was actually part of their ­labor force and could not be spared more than a few weeks at a time. As a result, traditional Māori warfare consisted of sporadic raids (Belich 1986, 22). The Māori faced the same prob­lem as any tribal p­ eople in conflict with a sophisticated, regular army: an inability to sustain a war for any length of time. The second disadvantage was that, due to the decreasing Māori population, British troops far outnumbered the Māori in ­every campaign (Belich 1986, 22). Even though the Māori ­adopted the musket, their system of war was woefully inadequate when facing the British in b­ attle. “­Under good leaders, the Māoris could still secure isolated successes, but even in the short term they appeared to be outmatched” (Belich 1986, 25).

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As Pakeha (white) settlers worked to establish the New Zealand Com­ pany, they competed with Māori for land. “The Māori owned it and the Pakeha wanted it” (Walker 1990, 101). The first series of wars began in 1843 with the Wairu incident at the New Zealand Com­pany settlement of Nelson, when Captain Arthur Wakefield de­cided to assert owner­ship of Wairu lands. Walker (1990, 101–102) recounts how Wakefield gathered a posse of forty-­six untrained, undisciplined settlers armed with defective muskets. Wakefield lacked the capacity to lead them appropriately. One ­thing led to another and a musket misfired while the posse was crossing the Tua Marina stream. The troops panicked and started firing, killing the leader’s wife and thereby causing the Māori to defend themselves. The Māori warriors ­were more skilled than Wakefield’s men and easily defeated the posse. Nineteen Pakeha died and t­ hose who surrendered w ­ ere killed as an act of blood vengeance for the death of the leader’s wife. In 1845, troops ­ u nder the command of Lieutenant Col­ o­ nel Henry Despard tried to eliminate Heke, a highly influential chief of the Ngapuhi tribe and war leader. At the ­Battle of Ohaeawai, Heke defeated Despard, who lost 107 men, approximately a quarter of his force (Walker 1990, 103). New settlers continued to demand more land, and Governor George Grey, “the hit-­m an of colonization,” who was unsympathetic to Māori, did not adhere to his duty of protecting them from land-­hungry settlers (Walker 1990, 106). The wars served as justification for taking Māori lands. The most sustained and widespread campaign occurred between the British Empire and the Māori king in Taranaki from 1864 to 1872. ­These wars ­were fought by colonial troops assisted by Māori allies who w ­ ere in disagreement with followers of the other Māori’s prophetic leaders (Keenan 2017). About one million hectares in Taranaki, Waikato, South Auckland, the Bay of Plenty, and Poverty Bay w ­ ere confiscated by the Crown, but the Māori who w ­ ere allies with the Crown lost substantial areas of land as well. “Which clan lost land and which did not was often arbitrary and unfair” (Keenan 2017). The Māori ­were creative military strategists who came close to defeating the British on more than one occasion but in the end did not have enough fighters or resources to endure. Canada Clearing land for settlers in Canada did not consist of many bloody wars and violent ­battles; instead, laws ­were used to force removal of Indigenous communities from their traditional territories to make way for settlers, railways, and economic expansion. In 1870, the western region of British North Amer­i­ca that lay between the head of the ­Great Lakes and the Rocky Mountains was taken by the Dominion of Canada from the Hudson’s Bay



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Com­pany (HBC) (Taylor 1985, 2). The largest portion of this land became the North-­West Territories, and not long afterward the government of Canada began making treaties with the Indians living in the region. To ensure the interactions between the Indians and settlers would be peaceful, seven treaties w ­ ere made between Canada and Indians from 1871 through 1877 (Taylor 1985, 2). Most of the treaties w ­ ere negotiated by the government on their own terms, based on its short-­term needs rather than the long-­term effects on the Indians (Daschuk 2018, 93). For the most part, the Canadian government made treaties to avoid pos­si­ble Indian wars (Taylor 1985, 3). Treaties ­were a “natu­ral expedient since they had become a major component of the traditional Indian policy stemming from the Royal Proclamation of 1763. This policy had served the Government well in the older parts of Canada where the Indian wars, so familiar in the United States, had been avoided” (Taylor 1985, 3). First Nations ­people believed treaties recognized their title to lands, but for the Crown, the purpose of land cession treaties was to extinguish Indian title and open up lands for settlement. In return, Indians ­were offered “some protection from the consequences of settlement and some assistance in adapting to new ways of living as the old way became less feasible” (Taylor 1985, 3). One of the most insidious was Treaty No. 6. Negotiators for this treaty included mainly the Cree but also some Assiniboine, Saulteaux, and Chipewyan bands. The Cree ­were the government’s main concern since they had questioned its true intentions t­oward them ever since the dominion had taken over (Taylor 1985, 5). The Cree ­were not just worried about losing land but ­were also concerned about smallpox and starvation ­because of the decreasing buffalo herds that w ­ ere their sole support. Treaty No. 6 negotiations began in 1876, but not all Indians w ­ ere on board. When asked for their views, Peter Erasmus, interpreter for the Indians (quoted in Taylor 1985, 14) recounts: “Poundmaker who was not a chief at that time, just a brave, spoke up and said, ‘The Government mentions how much land is to be given us. He says 640 acres one mile square for each band. He w ­ ill give us, he says. . . . ​This is our land, it ­isn’t a piece of pemmican to be cut off and given in ­little pieces back to us. It is ours and we ­w ill take what we want.’ ” Poundmaker’s point did not receive much support from the majority of chiefs and councilors since their main concern was the food prob­lem. T ­ here ­were both opponents to and supporters of the treaty, but all agreed that better terms ­were needed regarding food. Requests for changes chiefs and their headmen wished to make in the offer w ­ ere not granted, but a “famine and pestilence clause” was added to the treaty stating, “That in the event hereafter of the Indians comprised within this treaty being overtaken by any

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pestilence, or by a general famine, the Queen, on being satisfied and certified thereof by her Indian Agent or Agents, w ­ ill grant to the Indians assistance of such character and to such extent as her Chief Superintendent of Indian Affairs ­shall deem necessary and sufficient to relieve the Indians from the calamity that s­ hall have befallen them.” (quoted in Taylor 1985, 18). Prob­ably not unnoticed by the commissioners was the fact that some Indians, such as Sweet Grass, had begun farming and w ­ ere ready for a treaty, but t­ hose who hunted buffalo ­were not, and they w ­ ere con­ve­n iently absent from deliberations (Taylor 1985, 23). Big Bear declined to sign the treaty ­because his ­people ­were not pre­sent, and he held out in the hopes of making a better treaty. He wanted more control over the land and resources than the land cession view of the treaty (Taylor 1985, 24). He continued to refuse to sign the land-­ceding treaty for years but was not able to convince his fellow chiefs to go along with him. When he fi­n ally did sign, Big Bear did so without agreeing to a reserve. Had he agreed to ­those terms, the Cree would have had access to government food aid (Butler 2016). One of the key aspects of Treaty No. 6 included guarantees of food aid in times of famine; however, despite ­these guarantees, “Canadian officials used food, or rather denied food, as a means to ethnically cleanse a vast region from Regina to the Alberta border as the Canadian Pacific Railway took shape” (Daschuk 2018). Government officials withheld food from Indians ­u ntil they ­were so starved that they had no choice but to move to their respective reserves. They w ­ ere forced to trade their freedom for substandard rations (Daschuk 2013). “Once on reserves, food placed in ration ­houses was withheld for so long that much of it rotted while the ­people it was intended to feed fell ill into a decades-­long cycle of malnutrition, suppressed immunity and sickness from tuberculosis and other diseases. Thousands died” (Daschuk 2018). Once on reserves, the promised relief and aid during famine came in bits and pieces, keeping the ­people in constant hunger and “also illustrated the moral and ­legal failures of the Crown’s treaty commitment to provide assistance in the case of widespread famine on the plains” (Daschuk 2013, 101). With very few provisions during the winter of 1873–1874, the Cree “­were forced to eat their h ­ orses, dogs, buffalo robes and in some cases their snow shoes and moccasins” before they fi­nally died (Daschuk 2013, 101). Add to this the introduction of millions of ­cattle and ­horses driven north from Texas ­a fter the American Civil War that carried diseases such as anthrax, Texas tick fever, brucellosis, and, significantly, bovine tuberculosis that threatened not only the bison but the ­human population as well (Daschuk 2013, 102). Due to the Indians’ constant sickness and death, settler-­colonists believed they were racially susceptible to disease, making their marginalization from ­ mainstream Canada much easier (Dashuck 2018).



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Loss of lands, starvation, and death killed many Indigenous ­peoples. In response, Cree chief Big Bear and leading chief of the Blackfoot, Crowfoot, created an Aboriginal confederacy to address injustices endured by their ­people (Beal and M ­ acLeod 2006). At the same time, the Métis p­ eople had grievances—­their old life as fur traders and carriers for the Hudson’s Bay Com­pany was ending and the bison herds upon which they depended for food w ­ ere disappearing as well. A series of b­ attles and outbreaks of vio­lence occurred in 1885, leaving hundreds of p­ eople dead on both sides (Beal and ­M acLeod 2006). In the midst of all this strife and discontent, famed Métis po­l iti­cal leader Louis Riel led two rebellions against the government of Canada and sought to preserve Métis rights and culture (Biography​.­com 2014). In March 1885, the Métis passed a ten-­point “Revolutionary Bill of Rights” demanding rights of possession to their farms and other demands. An armed force of Métis formed a provisional government, seized the parish church at Batoche, and demanded surrender of the Hudson’s Bay post at Fort Carlton. Riel was named president of the rebel government, and famed Métis hunter and tactician Gabriel Dumont was installed as military commander (Beal and ­M acLeod 2006). The government’s reaction was swift and decisive, and several ­battles ensued. Militia mobilization began on March 25, 1885, before the ­Battle of Duck Lake, and by April 10, just over 5,000 Canadian troops arrived ­u nder the command of Major General Frederick Middleton (Beal and McLeod 2006). A ­ fter the B ­ attle of Duck Lake, Assiniboine killed two white men and joined forces with the confederacy. ­Because Big Bear was still resisting moving his p­ eople to a reserve, and still angling for a better treaty deal, his band included some of the more militant Plains Cree. Beal and M ­ acLeod (2006) wrote, “The government took a hard line with Big Bear’s band, cutting off rations to force them to s­ettle. By the spring of 1885, it was almost inevitable that Big Bear’s band at Frog Lake would clash violently with the government.” The B ­ attle of Fish Creek and the ­Battle of Batoche came next and ­were repeats of Duck Lake. The last shots of the rebellion w ­ ere fired on June 3 at Loon Lake when the Frog Lake Cree retreated with all but four warriors killed. Chief Poundmaker and other tribes surrendered. Big Bear surrendered to the Mounted Police on July 2 (Beal and ­M acleod 2006). Not all tribes participated in the rebellion, and some remained neutral, but nearly all settlers supported the government despite their antigovernment stance before the rebellion. Riel was taken into custody and found guilty at trial. He was hanged in Regina on November 15, 1885, and on November 27, six Cree and two Assiniboine warriors, including Frog Lake war chief Wandering Spirit, w ­ ere hanged at Battleford (Beal and M ­ acLeod 2006).

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By the end of the ­battles and outbreaks of vio­lence, hundreds of p­ eople ­were dead, and the First Nations p­ eople became a “subjugated and administered p­ eople. It took the Aboriginal p­ eoples and communities of Western Canada many de­cades to recover po­l iti­cally and emotionally from the defeat of 1885” (Beal and M ­ acLeod 2006). Unite d State s: Indi an- I­ ndi an War s Indigenous p­ eoples in North Amer­i­ca suffered extraordinary physical vio­lence at the hands of colonizers, but it is impor­tant not to romanticize Native Americans as a group or as victims. From the Eu­ro­pean linear way of thinking, Natives ­were seen as “innocent ­children who needed the guiding and educational hand of the paternal Eu­ro­pean. In the Eu­ro­pean mind, primitive equated to childlike” (Alvarez 2014, 21). Before Eu­ro­pean contact, however, Indigenous ­peoples ­were subject to the same weaknesses, prob­lems, shortcomings, aspirations, and achievements. Sometimes Native ­peoples fully exploited and even overexploited their resources and environment, and at other times they fought against each other in very violent and destructive ways (Alvarez 2014, 22). Intertribal warfare was common throughout the history of American Indian nations. In some instances they fought one another for reasons of territoriality involving hunting grounds and land claims (Fixico 2013a, 1). Other times, blood feuds, agreements by tribal allies to go against other Indian nations, or a history of past hatred led to war and sometimes to generations of hostilities between certain tribes (Fixico 2013a, 4). For example, during the 1600s, ­there ­were infamous ­battles such as the Lakota and Northern Cheyenne versus the Crow on the Northern Plains, and in the ­Great Lakes region the Dakota fought the Ojibwa for nearly a hundred years u ­ ntil the Ojibwas established control in the 1760s (Fixico 2013a, 4). Many ­battles between many tribes occurred with approximately “20 to 30 ­percent of all Native males, and 3 to 5 ­percent of females” being killed during tribal warfare (Alvarez 2014, 23). Tribal life was hard and complex, and very far from the notions of Indigenous ­peoples portrayed in Hollywood films. ­ fte r 177 6 U.S. and Indi an War s a A new United States meant a new set of prob­lems, and Indian affairs meant primarily fighting with Indian nations and negotiating peace with them, resulting in a total of 371 ratified U.S.-­Indian treaties from 1778 ­u ntil 1871 (Fixico 2013a, 12). At first, American Indians ­were allies, friends, and mercenaries for dif­fer­ent colonies. L ­ ater, due to colonial squabbles and land grabs, the United States found itself at war with most Indian nations it met. Overall, the United States waged an estimated 1,642 official military campaigns against the Native American nations from 1790 to 1898, far too



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many to list (Fixico 1998b). Several very impor­tant ­battles began with the Indian Removal Act passed in 1830 by the Andrew Jackson administration. During the 1800s, settlers began pouring into the South and ­toward what would ­later become Alabama and Mississippi, and since Indian tribes living ­t here w ­ ere obstacles to expansion, white settlers petitioned the federal government to remove them (U.S. Department of State, n.d.). The Indian Removal Act outraged tribes like the Sauk and Fox, Creeks, and Seminoles. In 1832, Ma-­k a-­a i-­me-­she-­k ia-­k iak (Black Sparrow Hawk) of the Thunder Clan led Sauk warriors in three b­ attles to regain their original homeland at what is now Rock Island in western Illinois (Fixico 2013a, 19). As the ­battle began, a force of 1,000 troops confronted the famed leader, and his small numbers of warriors ­were no match. “A massacre of clubbing, stabbing, and shooting Indians for eight hours followed. About 200 Sauk and Foxes managed to cross the Mississippi only to be scalped or taken prisoners by hostile Sioux who waited for them on the other side” (Fixico 2013a, 19). ­A fter the Mexican-­A merican War in 1848, the Treaty of Guadalupe Hidalgo allowed Mormon colonies of southwestern Utah and settler of New Mexico and Arizona to move in and around Navajo lands. This caused conflict between Navajo ­people, the settlers, and the U.S. Army. The military launched a number of campaigns to stop Navajo raids on the settlers. As a result, two-­t hirds of the Navajo population had to endure the Long Walk, traveling 300 miles on foot in the dead of winter in 1864 to Bosque Redondo where they w ­ ere incarcerated at Fort Sumner, New Mexico (Robyn 2011). “Once ­there, they ­were interned for four years, during which time they ­were compelled to live in—­literally—­covered holes in the ground, subsisting on utterly inadequate rations, often a thin gruel made of boiled flour, and with nothing resembling genuine medical care” (Churchill 1997, 145). Approximately 200 died during the walk, and how many died during internment at Bosque Redondo is not known, but estimates are that half the population died (Churchill 1997, 145). By December  1866, “about 2,000 more Navajos surrendered, making a total of 8,000, the largest tribal surrender of all the Indian wars” (Fixico 2013a, 25). See also chapter 2 about the Trail of Tears. Another ­battle in 1864 involved a treacherous attack by Governor John Chivington of Colorado. Chivington was fully aware that the Cheyenne ­u nder the leadership of Black ­Kettle, as well as a small number of Arapahoe, had settled for the winter along the banks of Sand Creek. The Indians believed that they would be treated as friendlies and that they ­were ­u nder the protection of the military (Alvarez 2014, 93–94). Not all of Chivington’s men agreed to the attack, arguing that attacking Black K ­ ettle’s band ­v iolated the pledge of safety given to them, and an attack would be tantamount to

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murder. “Chivington reportedly flew into a rage and shouted, ‘Damn any man who sympathizes with Indians! I have come to kill Indians, and believe it is right and honorable to use any means u ­ nder God’s heaven to kill Indians’ ” (quoted in Alvarez 2014, 94). Mostly Cheyenne and Arapahoe ­women and ­children ­were killed, as the men ­were away hunting buffalo. They never stood a chance. “Subsequent testimony described how some soldiers reportedly made a sport of shooting primarily the ­children as they ran away” (Alvarez 2014, 95). Some Indians survived but w ­ ere defeated again in 1868 at the B ­ attle of Washita in western Oklahoma by Lieutenant Col­o­nel George Armstrong Custer and the Seventh Cavalry (Fixico 2013a, 25). With the discovery of gold in the Black Hills of South Dakota in 1874, settlers arrived in droves, pouring into the area in violation of the treaty that had set aside a reservation for the Sioux ­there. Many Sioux fled and joined Sitting Bull and Crazy Horse in Montana. The federal government sent troops to escort ­these American Indians back to their respective reservations, but they fought back and thus began the Sioux War of 1875–1876, which consisted of many dif­fer­ent skirmishes (Fixico 1998b). One of the best-­k nown occurred in 1876 when the Lakota, Cheyenne, and Arapahoe defeated Custer and his troops at the ­Battle of ­Little Bighorn in southeast Montana. Custer and ­every one of the soldiers in the Seventh Cavalry ­were killed (Fixico 1998b). A ­ fter the b­ attle, General Alfred Terry issued a declaration of war resulting in six ­battles and the defeat of the tribes (Fixico 1998b). The last major confrontation between American Indians and the U.S. military occurred at Wounded Knee, South Dakota, on December 29, 1890. Big Foot, a Minneconjou Sioux and supporter of the Ghost Dance, had been invited to Pine Ridge to participate in a council of leaders who wanted to find a way to defuse trou­bles between tribes and the U.S. military (Alvarez 2014, 103). Big Foot and his band set out t­ oward the Pine Ridge Agency but fearing the worst, the army de­cided to pursue the group and caught up with them ­a fter 200 miles (Alvarez 2014, 103). Big Foot and his band surrendered to the Seventh Cavalry. During a search of the camp for weapons, a shot was fired and the U.S. army, not knowing where the shot came from, opened fire, killing between 150 and 370 Sioux men, ­women, and ­children (Fixico 1998b). ­Those who tried to escape ­were pursued and killed by soldiers, leaving only a few survivors. The massacre, which neither side wanted, escalated “with appalling speed and brutality and would forever become emblematic of the worst excesses of the treatment of Native Americans” (Alvarez 2014, 104). Indian fighting became part of American history, and some wars continued a­ fter the turn of the twentieth c­ entury, but in most instances t­hese ­were small fights and confrontations of shots being fired. The wars involved



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massacres (mostly on the part of the U.S. army) and the slaughtering of American Indians who believed that they ­were defending their lands and their ­people (Fixico 1998b). Removal and Re locati on to Re se rvations Indian wars ­were life-­changing for American Indians, but other forces more power­ful than army bullets w ­ ere bringing to an end the world the Plains Indians had created. The buffalo herds w ­ ere all but destroyed by 1883, settlers continued to stream into the United States, and railroads began to carry ­people throughout the country (Galloway 1996, 12). The Indian wars, foreign diseases, and loss of subsistence proved devastating, reducing the population of American Indians to 237,196 by 1898 (Fixico 2013b, 31). “Native Americans became known as the ‘Vanis­hing Americans’ with serious repercussions of destroyed cultures, lost languages, demographic catastrophes, permanent negative images about the Indian race . . . ​a nd federal policies that forced them to change to a foreign culture of agriculture, individualism, Chris­tian­ity, and the white man’s civilization” (Fixico 2013a, 32–33). Many treaties had been signed over the years with specific tribes guaranteeing their territory and sovereign in­de­pen­dence, but white settlers and individual states continued encroaching upon Indian lands. The state of Georgia, for example, became very aggressive in their attempt to gain more Cherokee land. In 1832, Chief Justice Marshall noted that both federal treaties and the rules of the Trade and Intercourse acts recognized the Cherokee (and other eastern tribes) as a distinct po­liti­cal entity with exclusive authority in their own territorial bound­a ries to do as they pleased. President Jackson, however, ignored the ruling and proceeded to remove the Cherokee Nation. (See chapter 2 for more discussion of this.) The scenario of removal to make way for settlers and westward expansion played out dozens of times during the nineteenth ­century with other tribes eventually removed to Indian territory. T ­ hose who ­were not removed suffered from federal and state policies of physical and cultural genocide (French 2003, 11). The lands to which tribal p­ eople w ­ ere removed w ­ ere thought to be inhospitable to whites but believed ideal for the purpose of American Indian resettlement. Settler-­colonizers thought that with government assistance it might be pos­si­ble to teach Native Americans to become more “civilized.” The notion of Christian charity t­oward the Natives allowed colonizers to view their actions as a humane solution to the “Indian Prob­lem,” and proponents of removal and relocation justified their actions by pretending they ­were assisting t­hose being removed. The a­ ctual practice of removing tribes from ancestral homes was brutal, violent, and always traumatic for ­those who lived through the experience.

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The late 1800s brought the downfall of power­f ul Indian leaders such as Sitting Bull, Red Cloud, Geronimo, Chief Joseph, and Crazy Horse. With the guidance and influence of their leaders gone, tribes succumbed easily to reservation hardships (Fixico 2013b, 30). Indian agents assigned to reservations reported deplorable conditions, with many p­ eople gradually ­dying of starvation. Their dwellings ­were substandard, and every­one suffered from lack of food. An agent on the Blackfeet reservation reported that “So ­g reat was their destitution that the Indians stripped the bark from the saplings that grew along the creeks and ate the inner portions to appease their gnawing hunger” (quoted in Fixico 2013b, 31). The American Indian population became totally dependent on the federal government for daily subsistence. Past Indian policies, treaty promises, fraud, military errors, bureaucratic ineptitude, inexperienced superintendents, and failures of Indian policy caused American Indian populations to fall into extreme poverty and despair (Smith 2000, 35). Fixico (2013b, 32) writes from an American Indian perspective that, “Life a­ fter their forced migrations to the reservations as prisoners of war represented a final stage of the U.S. decolonizing of Indians’ traditional cultures. In their eyes, Indians wondered if they w ­ ere being punished by super­n atural forces. Had they failed to heed some prophecy warning of the approaching evil of the white man? Had they v­ iolated a law of nature? With their spirits abased, they hoped that conditions would turn for the better; remembering better times, they prayed earnestly.” C urre nt- ­D ay Vi ole nt Vi c ti m i zati on The violent victimization of Indigenous p­ eoples continues ­today. Violent crime against Indigenous ­women is the topic of chapter 6. The history and ongoing nature of hate crimes against Indigenous p­ eople are discussed in chapter 7, and in chapter 9, environmental crimes are the focus. In this section, ongoing vio­lence affecting Indigenous p­ eople is outlined. United States Promises ­were made by the federal government to assist Native Americans through removal and relocation to reservations. Federal officials thought they knew what was best for Native Americans, but lacked the ability to perceive the social and psychological consequences that Native Americans would experience. In the current world, many Native Americans suffer from significant social prob­lems. The trauma experienced by the first generations of Native Americans sequestered on reservations in the mid1800s has been passed down through the generations to the pre­sent day. Vio­lence has become an integral part of many victims’ personality to the point that they cannot differentiate it from their real personality (Duran and Duran



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1995, 30). This integration of the oppressor into the victims’ personality does not happen overnight; “it has been systematically interwoven into the fabric of the Native American f­amily for generations” (Duran and Duran 1995, 30). Intergenerational trauma (also called historic trauma) is a new area of research, and some p­ eople do not acknowledge the concept, which disadvantages both Indigenous and non-­Indigenous p­ eoples. As Duran and Duran (1995, 30) write, “Lack of acknowledgement remains one of the stumbling blocks to the healing pro­cess of Native American p­ eople. The inherent denial keeps the colonial perpetrators trapped in an aura of secrecy and continuing alienation, since their acts continue to haunt them with guilt and existential emptiness.” Throughout this chapter it has become apparent that the past 500 years have devastated Native Americans who are still feeling the effects of systematic genocide. The suicide rate in the general population among young ­people between the ages of eigh­teen and twenty-­four is 12.8 deaths per 100,000, the second leading cause of death for fifteen-­year-­olds and twenty-­ four-­year-­olds. Within the American Indian and Alaska Native population of that age, the rate nearly doubles to 22.5 deaths per 100,000, according to Centers for Disease Control and Prevention (CDC) data (Santhanam and Crigger 2015). As well, the numbers are prob­ ably higher in American Indian communities b­ ecause death by suicide goes underreported. Arialdi Minino, a statistician with the CDC, believes that the federal government’s policies make conditions of poverty, lack of jobs, and lack of access to adequate ­mental health care worse in American Indian communities and contribute to the high rate of suicides (Santhanam and Crigger 2015). ­Today, the rates of violent crime on Indian reservations are more than two and a half times higher than the national average, according to data compiled by the Justice Department. American Indian w ­ omen are ten times more likely to be murdered than other Americans, for example (Williams 2012). The Bureau of Justice Statistics reports that the violent crime rate in ­every age group below age thirty-­five is significantly higher for American Indians than for all other persons, and rates of violent victimization for both males and females ­were higher for American Indians than all other races (Perry 2004, 5). See chapter  6 for more statistics on the victimization of Indigenous ­women. Prisons are inherently violent places. See chapter  1 for comparative incarceration rates of Indigenous ­ people. Incarceration rates for Native Americans reveal that in county and city jails in 2016, males (at 377 per 100,000 male U.S. residents) ­were incarcerated at a rate six times higher than females (62 per 100,000 female U.S. residents). Non-­H ispanic blacks (599 per 100,000 black U.S. residents) had the highest jail incarceration rate

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at year-­end 2016, followed by American Indian or Alaska Natives (359 per 100,000 AI/AN residents) (Zeng 2018). Native Americans are 3.1 times more likely to be killed by police than whites, higher than law enforcement killings of African Americans, which is 2.8 times the rate of whites (Equal Justice Initiative 2016). In Canada, Aboriginal p­ eople make up about 3 ­percent of the Canadian population, but as of 2016, 26 ­percent of the federal male inmate admissions and 38 ­percent of the female admissions w ­ ere Aboriginal (First Nation, Métis, or Inuit) (Reitano 2017). The incarceration rate for Aboriginal adults in Canada is estimated to be ten times higher than the incarceration rate of non-­ Aboriginal adults (Office of the Correctional Investigator 2012). The Correctional Investigator reports that the high rate of incarceration for Aboriginal ­peoples has been linked to systemic discrimination and attitudes based on racial or cultural prejudice, as well as economic and social disadvantage, substance abuse and intergenerational loss, vio­lence, and trauma (2012) In Australia, statistics for Indigenous Australian incarceration are foreboding. Aboriginal and Torres Strait Islander p­eople make up about 3  ­percent of the Australian population, yet as Wahlquist (2017) writes, “Aboriginal and Torres Strait Islander p­ eople are 14 times more likely to be in custody than non-­Indigenous ­people. A teenage boy who identified as Aboriginal and Torres Strait Islander is more likely to go to jail than go to university, and ­because of the high incarceration rate, is more likely to die in custody than any non-­indigenous person they pass on the street.” The prob­lem of Indigenous incarceration in Australia is most severe among ­children, with the age of criminal responsibility at ten years old. In Western Australia, ­children are imprisoned at a rate of 78 per 10,000, a rate higher than black c­ hildren in the United States, who are imprisoned at a rate of 52 for e­ very 10,000. The recidivism rate is high for both males and females. “The number of Indigenous men with known prior imprisonment in 2015 was 1.5 times higher than for non-­Indigenous men; 78.1% to 51.3%. For ­women the disparity was even higher: 68.9% of Indigenous ­women imprisoned in 2015 had a known period of prior imprisonment, 1.8 times higher than non-­ Indigenous w ­ omen at 30.3%” (Wahlquist 2017). Harry Blagg, a noted scholar, believes the issue is about intergenerational trauma and the ­family vio­lence that results (Wahlquist 2017). In New Zealand, the impact of imprisonment on the Māori is also very high. Gilbert (2016) reports the crime rate in New Zealand is 34 ­percent higher than Australia, 39  ­percent higher than the U.K., and 73  ­percent higher than Canada. Fifty p­ ercent of the prison population is Māori, and given that they make up only 15 ­percent of the total population, it is clear that Māori incarceration is disproportionate.



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Conclusion Ultimately, the statistics in all four countries point to a ­g reat deal of intergenerational pain and trauma. How do we repair the harms done to millions upon millions of Indigenous ­peoples through many generations? Many perpetrators of injustices against Indigenous ­peoples relied on law for their legitimacy (Cunneen 2005, 60). ­These injustices ­were serious social harms and ­human rights violations, but many of ­these historical actions such as murder, sexual assault, and theft w ­ ere also against the law. The sheer magnitude of the injustices done to Indigenous p­ eoples makes reparation difficult but not impossible. See chapter  10 for an overview of settler-­ colonist responsibilities and ameliorative actions already taken by Indigenous ­peoples. Indigenous nations w ­ ill rebuild. Indigenous ­people are resilient and have learned to move forward as they pray to overcome bleak times. To all Indigenous p­ eoples, the past does ­m atter, and as Paul Bartrop (quoted in Alvarez 2014, 167) wrote, “In the long term, of course, none of this mattered to ­t hose who ­were the victims; but it makes a ­g reat deal of difference to ­those who remain, to ­those who seek some acknowledgements of past wrongs, to t­hose with a commitment to seeing that the story is told accurately” so that ­f uture generations of Indigenous ­people ­w ill live lives ­f ree of the crimes and injustices their ancestors endured.

C hapte r   5

Institutionalized Torture and Pedophilia Boarding School s  f or I ndige nou s ­C h i l dre n Boarding/residential/mission schools in Australia, ­ anada, and the United States1 committed crimes against Indigenous C ­peoples—­children, their families, and ­whole ­peoples. Some of t­ hese crimes ­were ­legal at the time but would be criminal ­u nder modern-­d ay national law and international h ­ uman rights conventions, and as defined by social harms theory. Some w ­ ere outright illegal at the time, such as sexual abuse. The colonial history and policies that set the stage for the schools ­w ill be described, including some of the changes that occurred over time, as well as the “­legal” crimes such as kidnapping, cultural genocide, emotional abuse, and corporal punishment that ­were an everyday part of life in the schools. Next, the illegal crimes are described, including physical torture and sexual abuse, followed by the consequences of the crimes for the victims, the official responses, and a discussion of the criminal nature of the schools. In Australia, the boarding schools ­were only part of the assimilative educational pro­cesses, so the discussion ­here includes adoptions, dormitories, and other related strategies leading to the “stolen generations.” Where pos­si­ble the a­ ctual words of the survivors are used to re­spect their voices. As well, the perpetrators are quoted where pos­si­ble so they can be damned by their own words.

Colonial H i story and Pol i c i e s The invading colonizers had two basic choices in dealing with the Indigenous populations, since the racist colonial ideology of the time did not acknowledge that Indigenous p­ eople could be integrated into settler society as equals. The options ­were to exterminate them or control them (see chapter 4). Killing them was not a financially or po­liti­cally attractive alternative. First, it was expensive, as the Americans found out during the Indian wars (Smith 2007, 2009). Second, colonial governments ­were u ­ nder 88



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pressure from influential humanitarian or “benevolent” organ­izations such as the American Friends of the Indian to practice cultural rather than physical genocide (Trafzer 2000; Smith 2009). Third, not all influential settlers could stomach such a solution to the “Indian Prob­lem,” as it was called in the United States. Such “persons of conscience” held sway, despite calls by citizens such as Henry Pancoast, who stated in 1882, “We must ­either butcher them or civilize them, and what we do we must do quickly” (Smith 2009, 5; NARF 2013). Assimilation Not all American Indians, Canadian Aboriginal p­ eople, and Australian Indigenous p­ eoples con­ve­n iently died of disease, massacres, and wars in the early years post-­contact with Eu­ro­pean invaders. They w ­ ere supposed to be ­dying races according to the social Darwinist colonial ideology of the time and while they had died in the millions, they ­were still surviving and over time recovering their numbers, despite the horrific conditions of the reservations in the United States, the reserves in Canada, and since they had no land rights in Australia, on the reserves, government settlements, stations, and missions where Indigenous ­people could find shelter from settler vio­ lence (Armitage 1995, 225). In order to pursue their goal of the acquisition of Indigenous land and resources (and more or less ensure the Indigenous ­peoples’ protection), the settler governments had to find means of convincing Indigenous ­peoples not to fight back or other­w ise resist the takeover of their lands and resources (Armitage 1995). As Marxist phi­los­o­pher Antonio Gramsci suggests, p­ eople can be co-­ opted into participating in their own domination though internalizing the ideology of the dominant class as common sense and as the natu­r al order of ­things (Burke 2005). Stephenson (2006, 311) refers to this as a “self-­help policy” where Indigenous p­ eople w ­ ere expected to assimilate themselves into colonial oppression, something hoped for by all colonial governments since Indigenous ­peoples globally showed the same stubborn resilience. The main way this was to be accomplished was through education of Indigenous ­children, ­because they “offered the best means of ensuring that aboriginal ­peoples would be prepared for the responsibilities of Chris­tian­ity, civilization, and British citizenship” (Armitage 1995, 204). The colonial governments in t­hese three countries had similar social policies ­ toward their Indigenous p­eoples that followed similar phases, although the policies also had impor­t ant differences. For example, all three countries enacted legislation mandating boarding schools but in Australia focused on assimilating c­ hildren of mixed descent so they could “become an elite class with indigenous communities that could manage their own communities” (Smith 2009, 3), whereas the United States and Canada

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focused on assimilating all Indigenous c­ hildren (Armitage 1995). The concern was not so much with protecting Indigenous c­hildren but as the National Inquiry (1997, 251) states, policy about Aboriginal c­ hildren and their families was “baldly based on social control.” This approach was also part of the ideology of the times, which was more concerned with lower-­ class disaffection than with the welfare of c­ hildren (of all races). The supporters of residential and boarding institutions for Indigenous c­ hildren w ­ ere “motivated by fear of the dangers which idle and disaffected lower classes posed for society, as much, if not more, than compassion for the young ­people concerned” ( Jaggs, quoted in National Inquiry 1997, 251). Assimilation had to be into lower-­class settler society since Indigenous p­ eople w ­ ere seen as inferior due to their pagan religions and “savage” cultures, and ­later as inferior races unfit to survive (Armitage 1995). Assimilation, as it was i magined by the colonial governments and the Christian missionaries, ­ meant that Indigenous p­ eople would be inserted into colonial socie­ties as manual and domestic l­abor. It would be accomplished by what we see now as institutional racism and cultural genocide (Engel et  al. 2012; NARF 2013). Beginning in the early 1800s, the schools offered industrial vocational and agricultural education, a trend that continued well into the twentieth ­century (NARF 2013; Trafzer 2000; Stephenson 2006; Smith 2009). As Stephenson (2006, 310) writes: “Educational initiatives developed by the colonizers sought variously to teach all ­ children together, to segregate indigenous c­hildren from their families, or to separate them from settler ­children. Their principal objectives, however, ­were similar. Traditional values, customs and knowledges ­were to be subjugated and, through controlled access to Eu­ro­pean knowledge, and training in habits of industry and conformity, indigenous c­hildren ­were to be socialized to accept, as natu­ral, positions in the lowest strata of the economic, social and po­liti­cal systems which w ­ ere being imposed with colonization.” As a result, colonial governments legally mandated education for Indigenous ­children in what w ­ ere called variously boarding schools (United States), residential schools or training institutes (Australia), and residential schools (Canada). As Richard Pratt, founder of the Carlisle Indian School in the United States, stated, “Transfer the savage-­born infant to the surroundings of civilization, and he w ­ ill grow to possess a civilized language and habit” (Smith 2009, 5). In all three countries, the schools w ­ ere to provide the rudiments of education, morality, and Chris­tian­ity, as well as basic European-­based work skills such as planting, hoeing and weeding, harvesting, sewing, ­ house­ cleaning, cooking, and assorted other manual skills regardless of the appropriate gender roles in their own cultures (Heather and Nielsen 2015). As Smith (2009, 4) writes, “Indigenous c­ hildren w ­ ere



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often not given the educational skills necessary to assimilate into the higher echelons of the larger society.” In all three countries, the ­children could be removed from their parents “without the scrutiny of a court and without cause, such as abuse, neglect, or truancy. Once removed, c­ hildren ­were held captive, and any encouragement from their parents or relatives to return home was treated as a criminal act” (Armitage 1995, 205). In addition to this l­egal kidnapping, c­ hildren ­were taken to the schools as orphans or as a means of punishment for some minor crime. A few w ­ ere voluntarily enrolled by their parents from an understanding that the c­ hildren would need to have new skills to survive in the new society (see Trafzer 2000; Johnston 1988; National Inquiry 1997; Haig-­Brown 1988) or to save them from starvation on the reserves (Fournier and Crey 1997, 56; Haig-­Brown 1988; Miller 1996) or from being kidnapped for slave ­labor or sexual exploitation by settlers (National Inquiry 1997). It is unlikely that parents, ­u nless they themselves had been forced into the schools, had any idea of how radically the schools’ philosophy of education differed from that of Indigenous p­ eoples (Miller 1996, 425; Fixico 2013, 46, 50) where knowledge and experience w ­ ere passed from elders to young ­people through observation and storytelling (see for example in Australia Mudrooroo 1995, 116). The schools ­were only one destination for the c­ hildren depending on the time period and country. In Australia ­u ntil the 1930s, very young ­children, even infants, ­were forcibly removed from their parents by the police or welfare workers, particularly if they had any white blood, so they could be placed in foster homes, dormitories, or trained in institutions where they w ­ ere u ­ nder the control of non-­Aboriginal p­ eople, an act for which government institutions and missions ­were paid a finder’s fee by the federal government (National Inquiry 1997, 33, 177). The whiter the skin, the better, since any white heritage was presumed to be superior to Aboriginal biology, and any parent was better than an Indigenous parent (National Inquiry 1997). In theory, they would eventually genet­ically “merge” with the white society ­a fter they had learned Eu­ro­pean values and work skills and been Christianized, but some w ­ ere also a­ dopted out to non-­Indigenous families or leased out to settlers as unpaid ­labor instead of receiving schooling (Smith 2009; National Inquiry 1997). T ­ hese ­children ­were known as the “stolen generations” and their removal continued into the 1970s (Bull and Alia 2004; National Inquiry 1997). In ­later years, a similar social welfare rationale was used for removing ­children in the United States and Canada, both before and after the residential schools closed in the latter country. The “sixties scoop” occurred in the 1960s and 1970s, when social welfare authorities took supposedly neglected

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c­ hildren away from their families, some of whom w ­ ere ­adopted outside of the country (Miller 1996, 427; Armitage 1995, 213; Fournier and Crey 1997). Engel et al. (2012, 288, 290) report that from 1977 to 1981 between 58 ­percent and 73  ­percent of Aboriginal ­children in Canada ­were ­adopted by non-­ Indigenous families, and in the United States from 1971 to 1972 “nearly 25 ­percent of Native American infants ­under the age of one ­were placed for adoption with whites.” Transracial adoption was not as common in Australia, where Aboriginal ­children or ­children of mixed Aboriginal ancestry more commonly ­were removed to foster care or institutions (National Inquiry 1997). The coercive nature of this “recruitment” would ­today be called kidnapping. In Canada, more than 150,000 First Nations, Métis, and Aboriginal ­children went through the residential schooling system in about 100 years (Truth and Reconciliation Commission [TRC] 2015). Fournier and Crey estimate that by 1930 about 75  ­percent of all Indian ­children in Canada aged 7 to 15 had attended a residential school. In the United States, by 1900 ­there ­were 148 Indian boarding schools and 225 day schools with about 20,000 Indian students per year (Trafzer 2000, 291). In Australia, the numbers of ­children removed to boarding schools or dormitories or put into foster care is extremely difficult to estimate ­because of poor rec­ord keeping and the passing of early generations. The National Inquiry (1997, 37) estimates that “between one in three and one in ten Indigenous ­children ­were forcibly removed from their families and communities in the period from approximately 1910 u ­ ntil 1970. In certain regions and in certain periods the figure was undoubtedly much greater than one in ten.” Policy On first contact, religious groups began teaching Indigenous ­peoples about Chris­t ian­ity and civilization, but colonial governments ­were not formally involved u ­ ntil the early 1800s. ­Under the oversight of the 1837 British House of Commons Select Committee on Aborigines, and ­u nder the advisement of vari­ous missionary bodies who had a “massive influence” on the development of colonial policy, the British Commonwealth countries of Australia and Canada established policies about their Indigenous populations (Armitage 1995, 199). Armitage suggests that policies ­were necessary ­because, as t­here ­were still unexplored land and untapped resources, the governments ­were concerned with how to contact, “civilize,” control, and protect the affected populations. As the Canadian TRC noted, “Canada’s residential school system for Aboriginal c­ hildren was an education system in name only for much of its existence. ­These residential schools ­were created for the purpose of separating Aboriginal ­children from their families, in order to minimize and weaken f­amily ties and cultural linkages, and to



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indoctrinate c­ hildren into a new culture—­the culture of the legally dominant Euro-­Christian Canadian society” (2015, v). In the United States, a­fter in­de­pen­dence was won from Britain, the colonial government wanted to rid itself of its trust and treaty responsibilities to American Indians and to assimilate them into the “mainstream of American life” (historian Robert Utley, quoted by Reyhner and Eder 2004, 4). Before this policy, some religious organ­izations offered education in and near the homes of the Indigenous p­ eople, such as Quaker teacher Thomas Battey, who traveled with the Kiowa in the United States, but over time this attitude changed (Heather and Nielsen 2015). Some Indian nations tried to establish their own schools and avoid assimilation on white terms. The Cherokee, Choctaw, and other Indigenous nations ­were well aware of the importance of education for their ­children in the changing world and established their own schools beginning in the early 1800s (Fixico 2013, 50). Cherokee Nation schools such as the Cherokee Female Seminary, for example, taught mathe­m atics, sciences, and languages, including Latin, and the Cherokee welcomed missionaries who set up additional schools (Mihesuah 1993; Reyhner and Eder 2004). The U.S. government was not happy with the academic nature of the Cherokee schools, however, preferring that the c­ hildren receive a manual l­abor education (Reyhner and Eder 2004). The Cherokee had reasoned that if the Cherokee ­people shared the values, skills, and institutions of the invading whites, they would not be removed from their territory (Bowden 1981). They ­were wrong. Between the early to mid-1800s, most schools for Indigenous ­children ­were church run and on or near American Indian and Aboriginal Canadian land, with the c­ hildren returning home at night or on weekends (NARF 2013). In early years, both day schools near reservations and a few boarding schools ­were requested by Indigenous leaders in Canada and the United States who knew their p­ eople needed new skills like literacy and En­g lish to survive in a changing world and to cope with the incoming invaders (Miller 1996; Fixico 2013). It became obvious, however, that the schools ­were not just a strategy for assimilating the ­children but for keeping their fearful parents and communities u ­ nder control in the hopes of seeing their c­hildren again. Trigger (1985, 229) notes that, for example, in the 1630s Huron boys in the first established Jesuit school in what would become Canada ­were “hostages to guarantee the safety of the French living in the Huron country.” In the United States, Indian agent John Miles wrote, “­There are so many points gained in placing Indian c­ hildren in school. . . . ​T he child being in school the parents are much easier managed; are loyal to the Government, to the Agent, and take an interest in the affairs of the Agency, and never dare, or

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desire, to commit a serious wrong” ( Jacobs 2006, 213). Jacobs describes how the government controlled the Apache Nation in much the same way, “The Apache c­ hildren ­were essentially kidnapped; in order to ever hope to see their ­children again, their families had to pay ransom through their compliance with government wishes.” If they disobeyed, they ­were threatened with jail or with starvation through the loss of rations (NARF 2013). For example, in colonial Pennsylvania, one boarding school superintendent withheld rations ­u ntil parents gave up their ­children (Berthrong 1976, 31). ­Children ­were also taken away u ­ nder threat to parents and the community in Australia (National Inquiry 1997). Differences and similarities among the school systems are overviewed in the next section. School Comparisons united states. ​In the United States, its “Americanization” program was in operation from 1867 to the early 1930s (Trafzer 2000, 550). The objectives of the government-­supported schools ­were, as Trennert (1988, x) summarizes about the Phoenix Indian School, “preparing Native American ­children for assimilation. During its first forty years, the main goal was to remove Indian youngsters from their traditional environment, obliterate their cultural heritage, and replace that background with the values of white middle-­class Amer ­i­ca.” Over time, the official definition of “assimilation” was revised and the schools changed accordingly (Trennert 1988, x). During the 1840s, “manual ­labor schools,” both day and boarding schools, w ­ ere established on and near Indian reservations by government agents and/or ­were contracted to religious organ­izations such as the Catholics, Moravians, and Quakers to provide an education in work skills and Chris­t ian­ity (Smith 2009). Government Indian agents w ­ ere often corrupt and helped themselves to Indian resources and established sham schools, using the federal funding to line their own pockets (NARF 2013, 4). ­Under President Grant’s Peace Policy, the government agents ­were replaced with supposedly morally superior religious men nominated by the churches (NARF 2013). The schools taught reading, writing, history, and agricultural skills to the boys and home economics to the girls. The non-­Native teachers, however, found that the students w ­ ere too easily distracted by community activities, remained submersed in their own spirituality, and could not be easily controlled, so schools far from Indian communities ­were built (Trafzer 2000). In 1878, Richard Henry Pratt proposed a military-­style residential boarding school where students ­were kept far from their home communities and families, the better to unlearn their Indigenous ways, or as he infamously stated, “Kill the Indian in order to save the man” (Engel et al. 2012, 281).



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­ hildren would often remain at the schools the ­whole year, not seeing their C families u ­ ntil they left. ­Because of Pratt’s fervent promotion of his school in Carlisle, Pennsylvania, such schools became the model favored by the governments in both the United States and Canada. By the 1930s, industrial schools began to fall out of f­avor and transformed into “Indian high schools” that recognized the value of cultural diversity but still kept the ­children away from their families and communities (Trennert 1988, 4–5, x–xi). The 1934 Indian Reor­g a­n i­z a­t ion Act ended mass abductions, but Native American ­children are still being removed in disproportionate numbers by social welfare and medical personnel for the “good of the child” (Smith 2007). canada.  ​In what was to become Canada, the first residential schools

­ ere set up in the early 1600s, though the colonial government did not w fully commit to residential schools u ­ ntil 1846 when it entered into a partnership with several religious organ­i zations, each of which would take control of education in dif­fer­ ent parts of the country. The organ­ i zations followed the Pratt model of building distant military-­style institutions that kept the ­children far away from their own cultures and families. Boys ­were taught manual skills while girls received domestic training (Smith 2009). Christian education was core, and Aboriginal cultural language and expression in any form was forbidden. The Canadian residential school system expanded rapidly from 1912 to 1932, though by the 1920s, the Department of Indian Affairs knew that the schools w ­ ere unsuccessful (Chapman 2012; Smith 2009; Fournier and Crey 1997). U ­ nder the Indian Act during this time period, attendance in the schools was mandatory for at least ten months of the year, and missing ­children ­were apprehended by truant officers and the police (Fournier and Crey 1997). According to the Truth and Reconciliation Commission of Canada, the residential schools ­were only one strategy within the government’s plan to control its Aboriginal population: “For over a ­century, the central goals of Canada’s Aboriginal policy ­ were to eliminate Aboriginal governments; ignore Aboriginal rights; terminate the Treaties; and, through a pro­cess of assimilation, cause Aboriginal p­ eoples to cease to exist as distinct l­egal, social, cultural, religious, and racial entities in Canada. The establishment and operation of residential schools ­were a central ele­ment of this policy, which can best be described as ‘cultural genocide’ ” (TRC 2015, 1). At its peak, t­ here ­were over eighty residential schools in Canada (Smith 2009, 10). The last federally run school remained open ­u ntil 1996  in Saskatchewan (Cook 2017).

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australia. ​In Australia, the policy pattern was somewhat dif­fer­ent. The

colonial government was concerned less with assimilation and more with cheap ­labor. The brutality with which settlers treated Aboriginal ­people led to the establishment of reserved lands and chief protectors or protection boards to protect and control Aboriginal communities (Smith 2009). The first school for Aboriginal ­ children was established in 1814 (National Inquiry 1997). ­T hese schools ­were part of the colonial government’s and missionaries’ efforts to protect and “smooth the ­dying pillow” of a group seen as doomed and not fit to survive (National Inquiry 1997, 28). To supposedly protect them, “Indigenous p­ eople w ­ ere subject to near-­total control. Their entry to and exit from reserves was regulated as was their everyday life on the reserves, their right to marry and their employment. With a view to encouraging the conversion of c­ hildren to Chris­t ian­ity and distancing them from their Indigenous lifestyle, ­children w ­ ere ­housed in dormitories and contact with their families strictly ­ l imited” (National Inquiry 1997, 29). The focus was mainly on ­children of mixed blood who ­were to learn the skills needed to be “cheap ­labour in the wider community” (National Inquiry 1997, 171). They ­were then sent out to be manual laborers or domestic workers at about the age of fourteen. They ­were supposed to be paid for their work but ­were often defrauded of their wages (National Inquiry 1997, 172). This biological experiment ended in the late 1930s, when the focus shifted from training mixed descent laborers to their social and cultural assimilation (National Inquiry 1997). The government used supposed child neglect as the official justification: “During the 1950s and 1960s even greater numbers of Indigenous c­hildren w ­ ere removed from their families to advance the cause of assimilation. Not only w ­ ere they removed for alleged neglect, they w ­ ere removed to attend school in distant places, to receive medical treatment, and to be a­ dopted out at birth” (National Inquiry 1997, 34). The National Inquiry (1997, 153) estimates that in Australia 25 ­percent of ­children ­were put into only one institution, 27  ­percent w ­ ere put into multiple institutions or into an institution followed by work placement, 14 ­percent ­were put into a single foster or adoptive placement, and 27 ­percent ­were put into an institution, placed in foster care or a­ dopted, and then w ­ ere institutionalized again. In summary, each country developed policies that legally kidnapped Indigenous c­ hildren and tried to assimilate them through boarding or residential schools, where the ­children ­were subject to inhumane treatment designed to strip them of their ­human rights and Indigenous identity, and give them the vocational skills needed to be exploitable lower-­class members of white society.



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­ e gal A bu se Life in th e Sc hool s: L ­Because t­hese schools had a l­egal mandate, the a­ ctual assimilative pro­ cess was not illegal, and some of the treatment the ­children received was also normal at boarding schools for non-­Indigenous c­ hildren; however, the addition of racist and assimilative ideology made ­these schools a dif­fer­ent and extremely negative experience for Indigenous c­ hildren. For them, the schools caused ­g reat social harm by enabling physical, psychological, emotional, and sexual abuse that led to the loss of culture and identity, psychological issues, loss of parenting skills, and Indigenous community disor­ga­n i­za­t ion. The Indigenous survivors of the schools in all three countries had a wide variety of experiences—­from getting good food and some education in conditions better than t­hose at home, to being slave l­abor for the school (see for example Miller 1996). When Johnston (1988) interviewed residential school survivors, survivors of one school told him, “It was prob­ably the best ­thing that could have happened to me,” while ­others at a dif­fer­ent school called it “the worst pos­si­ble experience,” which was the most common reaction among survivors. In general, based on the lit­er­a­ture relating the stories of survivors, the schools w ­ ere “hell-­holes of exploitation” (Miller 1996, 433). The remainder of the chapter focuses on the negative experiences of the majority of boarding schools victims and the criminal nature of many of the events. Education ­Because the objective of the schools was to “kill the Indian” in the ­children, as was said in the United States, the schools in all three countries had strict policies against Indigenous language usage, clothing, spirituality, ceremonies, gender roles, and any other manifestation of culture (National Inquiry 1997; Miller 1996). ­Children ­were required to attend Christian worship ser­v ices or be punished (Trafzer 2000, 552). They received religious instruction based in what­ever faith was r­ unning the school. In Australia, the quality of the education the c­ hildren received was poor, with a focus on manual ­labor and domestic skills; “Academic training did not exceed that provided for ten year olds in non-­indigenous schools” (Smith 2009, 15; National Inquiry 1997). In Canada, the government knew by the 1920s that the schools ­were unsuccessful, with most students getting less than a grade 3 education and by 1938, only 3 ­percent passed grade 6 (Chapman 2012; Smith 2009; Fournier and Crey 1997; Engel et  al. 2012). In the United States, the schools w ­ ere also academic failures and the c­ hildren unprepared for working in white society (Engel et al. 2012, 281). In all three countries, the knowledge of the abuses of the boarding schools led to negative reactions to any kind of education among many Indigenous p­ eople (Smith 2009).

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Work Colonial governments did not have a g­ reat deal of money, which forced them to partner with religious organ­ i zations already trying to convert Indigenous p­ eoples. ­Because the schools in all three countries ­were poorly funded by both groups, they used student l­abor to make the schools self-­ sufficient (National Inquiry 1997, 31; Smith 2009; Armitage 1995). “The institutions w ­ ere expected to use the l­abour of the c­ hildren to reduce their operating expenses to the lowest pos­si­ble level” with the work to be given pre­ce­dence over their education (Armitage 1995, 205). They did grueling farm ­labor, did all the work of maintaining the buildings, and had their products sold to support the school and the teachers’ salaries (Smith 2009). The Sherman Indian School “placed boys at work temporarily on ranches at low incomes and did ­little except provide cheap l­abor for white employers” (Trafzer 2000, 291). Sometimes they w ­ ere leased involuntarily (with payment g­ oing to the schools) to white homes as summer l­abor rather than being allowed to go home (Smith 2009). If students did not work hard enough, they ­were punished by whipping, confinement, more forced work, being shamed, or having food withheld (Trafzer 2000, 288). They sometimes died from machinery accidents (Trafzer 2000, 288; Smith 2009, 6–7). Physical Conditions In general, Indigenous ­children ­were exposed to disease, suffered from malnutrition, lived in badly constructed and unsafe buildings, and w ­ ere physically abused. Disease was a constant killer, especially tuberculosis, although influenza, pneumonia, and other diseases also took their toll (Fournier and Crey 1997, 58; Milloy 1999). The student dormitories ­were often overcrowded, since more students meant more funding. Health regulations ­were ignored and ­there was l­ittle medical care available (Milloy 1999). Students w ­ ere poorly fed, getting as ­little as a sandwich a day, or food for the entire day being porridge, tea, broth, and a slice of bread (Smith 2009; National Inquiry 1997). Malnutrition compounded by medical neglect contributed to rampant disease so that ­children died from common diseases (Reyhner and Eder 2004, 208; Fournier and Crey 1997, 56; Smith 2009, 6). Sanitary conditions ­were terrible (Fournier and Crey 1997). Australian survivors described being locked in their dormitories overnight without adequate sanitation facilities, in order to prevent escapes ( Jacobs 2006). A survivor in Arizona described dormitories with no toilet facilities at all; students simply used the floor u ­ ntil buckets ­were provided ( Jacobs 2006). Death by fire was a constant threat with few schools having fire escapes and students locked in to prevent escapes (Milloy 1999). Such conditions ­today would be serious ­human rights violations.



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Psychological and Emotional Conditions The c­ hildren suffered serious psychological abuse. They w ­ ere isolated not only from their families but from siblings and friends at the school in order to make brainwashing more effective (Fournier and Crey 1997; NARF 2013). Despite the overcrowded conditions of many schools, the students’ loneliness was terrible. They ­were verbally abused, barraged by negative remarks about their Indigenous identity, values, and culture, and made to feel like failures (Engel et al. 2012; Miller 1996; Milloy 1999; National Inquiry 1997). The school officials threw out letters from parents or letters to parents that ­children wrote, and sometimes told the ­children their parents ­were dead or did not want them (National Inquiry 1997). As per the military model, discipline was strict and rules abounded (Fixico 2013). In many schools, b­ ecause of lack of supervision by the teachers and the teachers’ fears of the older students, “rings of older students . . . ​preyed on the rest” (Miller 1996, 422). In some schools, boys formed gangs for protection against other students and to assuage loneliness (Lomawaima 1994). The impacts are not l­imited to only t­hose ­children directly abused: “Even ­t hose ­children who found ways to cope, or in some cases benefit from the school experience, ­were damaged by witnessing the abuse of ­others. Few ­children escaped with their cultural identity intact. And the impact on the community left ­behind was severe” (Fournier and Crey 1997, 62). Re­sis­tance The students resisted their oppression through humor, acts of defiance, ­r unning away, setting fires, and passive-­a ggressive acts (Engel et al. 2012). Lomawaima categorizes this re­sis­tance into a continuum with three main points: overt re­sis­t ance such as r­ unning away, breaking curfew, stealing, and drinking; covert re­ sis­ t ance occurring mainly through occasional rule breaking to show loyalty to other students and to preserve friendships; and accommodation where students w ­ ere “willing, even happy to follow the rules” and formed bonds with school matrons (Lomawaima 1994, 124). ­ e gal Cri m e Physical A bu se : L Corporal punishment was the norm in the schools, as it was in mainstream society at the time (DeMause 1974), though some of the punishments ­were incredibly cruel, as in this American example, “A few teachers in the school ­d idn’t like the way he continuously spoke his own native language in school, so they punished him. Two strong men dragged him outside on a ­bitter wind-­chilled Minnesota day and tied him to an iron post. They left him then without food, without w ­ ater, through the night.” (Henry, quoted in Trafzer 2000, 289). Jacobs (2006, 220) relates a story told

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by a survivor of another American school, in which the teacher “took the hand of Francis’s friend Joe and beat it with a board. ‘Gray-­beard dealt blow ­a fter blow on the visibly swelling hand. The man seemed to lose all self-­ control, gritting his teeth and breathing heavi­ly, while the child writhed with pain, turned blue, and lost his breath.’ ” Ellis (2006, 76) gives more examples of such punishments: “On balance, boys ­were treated more harshly than girls, but both sexes ­were subjected to humiliating and painful punishments that included being shackled to a ball and chain, forced to stand on tiptoe with arms outstretched, whipped across the palms of the hand, and made to kneel on two-­by-­four boards for extended periods.” Aboriginal ­children in Australia faced equally severe punishments. For ­r unning away, the teachers took “Norman down to the shed, stripped him and tarred and feathered him. The trackers brought him up to the compound and paraded him around to show every­body” ( Jacobs 2006, 220). In Canada, punishments w ­ ere equally humiliating and dangerous. McKegney (2007, 20) writes about ­children who spoke their own language having ­needles impaled in their tongues, and quotes the Assembly of First Nations (1994) that reports on a litany of other horrors used as common punishments: “being made to lick milk from a saucer on all fours, like a cat, in front of room full of c­ hildren; being made to wear soiled pan­ties over heads ­because they did not wipe themselves properly; having their head shaved ­ because they ran away; being made to eat the food they had vomited. . . .” The harshest punishments ­were reserved for ­those students who practiced their own spirituality or culture: “ ‘Talking Indian’ or ‘making Indian dances’ w ­ ere punished by ‘public whippings’, ‘lashes’ and forcible confinement for days . . . ​m any c­hildren risked severe beatings to maintain their traditional ways” (Fournier and Crey 1997, 59). “Whipping lines” of older students ­were common punishments. Some survivors reported that they never spoke their Indigenous language again ­after leaving the boarding schools (Smith 2009). ­Today ­these would all be violations of the ­human rights of the ­children, as well as comprising dif­fer­ent levels of assault. S exual Abuse : A i di ng and A b et ti ng C ri m e Where t­hese schools committed ­actual crimes was in aiding and abetting child molesters and child abusers by continuing to employ them despite awareness of their crimes. In some boarding schools in Canada, 100 ­percent of the c­hildren ­were sexually abused (Engel et  al. 2012). For example, “During an investigation, the Anglican principal admitted he fed the ­children rancid butter and crept into the dormitories at night to kiss ­little girls, but he was reprimanded, not removed” (Fournier and Crey 1997, 57). Fournier and Crey (1997, 48) give numerous examples, including this one:



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“By the time Emily Rice left Kuiper Island in 1959, at the age of eleven, she had been repeatedly assaulted and sexually abused by F ­ ather Jackson and three other priests, one of whom plied her with alcohol before raping her. A nun, S­ ister Mary Margaret, known for peeping at the girls in the shower and grabbing their breasts, was infuriated when Emily resisted her advances. ‘She took a big stick with bark on it, and rammed it right inside my vagina’, recalls Rice.” Haig-­Brown (1988, 21) discusses the long-­term effects of such abuse including alcoholism, “the inability to touch p­ eople, and an ‘I d­ on’t care’ attitude.” Sometimes ­children committed suicide as a result (Smith 2009, 7). According to Jacobs, in the United States “unsanctioned forms of abuse, namely sexual abuse” ­were common in boarding schools, where both male and female students ­were sexually abused (2006, 220). Jacobs quotes one Hopi student who recalled about one male teacher, “When the class came up to ‘read’ [he] always called one of the girls to stand by him at the desk and look on the book with him. . . . ​He would put his arms around and fondle this girl, sometimes taking her on his lap.” Giago (2006, 235) reports, “According to some of the girls, one Catholic priest at the school loved to make them sit on his lap while he felt around in inappropriate places on their bodies . . . ​ and nothing was done about the dormitory prefect who tried to sexually molest me. This pedophile finished his training as a prefect, went back East to finish his studies and became a Jesuit priest.” Smith (2009, 7) reports a number of cases including one where, “In 1987, the FBI found one teacher at the Bureau of Indian Affairs (BIA) who administered a Hopi day school in Arizona had sexually abused over 142 boys, but the schools superintendent never investigated any allegations of abuse.” According to the Australian National Inquiry, “one in ten boys and just over one in ten girls allege they w ­ ere sexually abused in a c­ hildren’s institution” (National Inquiry 1997, 163). The majority of sexual assaults occurred in institutions, as one Indigenous Australian survivor related, “I was being molested in the home by one of the staff t­here . . . ​I ­d idn’t know what she was ­doing with me. I ­d idn’t know anything about sex or anything like that, we ­weren’t told . . . ​she was inserting this cane into my vagina. I guess I was about 9 or 10. I know she did this to me many times over the years u ­ ntil she left the Home when I was about 14 years old” (National Inquiry 1997, 163). ­Children put into work placement ­were also victimized: “Girls of 12, 14 and 15 years of age have been hired out to stations and have become pregnant” (NSW Government submission quoted in the National Inquiry 1997, 164). The National Inquiry (1997, 162) reported that of the witnesses who reported sexual abuse to the inquiry, 92 ­percent of the males and 83 ­percent of the females did not report their abuse, ­whether it was in an institution, foster home, ­adopted ­f amily, or at a work placement. The case of one female

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victim who did accuse her employer of rape was described: she was accused of being a “sexual maniac” and was committed to a m ­ ental institution for twenty-­one years (National Inquiry 1997, 165). A 2016 report from the Australian Royal Commission into Institutional Responses to Child Sexual Abuse reported that sexual assaults on Indigenous c­ hildren are a continuing issue, with two to four times more sexual assaults against Aboriginal and Torres Strait Islander (ATSI) c­ hildren aged zero to nine than other racial groups, and two to three times more sexual assaults on ATSI ­children aged ten to fourteen. The range in numbers is due to the varying jurisdictions (Breckinridge and Flax 2016, 32). Death: Murde r and Manslaug hte r In all countries, ­children tried to run away, but some died from exposure (Fournier and Crey 1997; National Inquiry 1997; Fixico 2013). In Canada in 1907, residential death rates ­were reported to be from 24 to 42 ­percent (the higher number including ­children who had been sent home to die) (Fournier and Crey 1997, 49). In the early 1920s, up to 50 ­percent of ­children died in some schools from disease, neglect, and physical abuse (Fournier and Crey 1997, 61). Also reporting on the Canadian system, the TRC (2015, v–vi) reported that “­children ­were abused, physically and sexually, and they died in the schools in numbers that would not have been tolerated in any school system anywhere in the country, or in the world.” Allegations have also been made in Canada of the deliberate killing of ­children by “beating, poisoning, hanging, starvation, strangulation, electrical shocks, medical experiments, being thrown from win­dows, and being kicked or thrown downstairs” as well as many kinds of brutal torture and rape (Truth Commission into Genocide in Canada 2001). As Fournier and Crey (1997, 58) observe about Canadian residential schools, “At all periods of the schools’ operation, it is certain that students died concealed deaths due to misadventure, abuse and neglect, which might be categorized—­h ad the schools ever been held culpable—as criminal negligence, manslaughter and even murder.” In the United States, thousands of ­children died of physical abuse, starvation, and medical neglect. In the Haskell Indian School, for example, more than 600 ­children died during its existence (Smith 2009, 8). American Indian parents might or might not be notified by the schools if their c­ hildren died. Some parents found out years l­ater. According to one angry parent whose child had died of illness, “The officials said they had already buried the ­children who had passed away. That, too, upset us. We should have been asked about it, to see if we wanted to do it according to our own ways, but it was too late. . . . ​That made both of us very sad, and also angry at the



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schools and the way they treated the parents of the c­hildren who w ­ ere enrolled t­here.” (Mitchell, quoted in Jacobs 2006, 221). Engel et al. (2012, 286) speculate that the school administrators might have been afraid of reprisals and “uprisings” from Indian parents. The practice of some schools was that “the dead bodies ­were simply dumped on the floors of their ­family’s home. In one boarding school the skeletal remains of babies ­were discovered in the walls ­a fter the school was torn down” (Smith 2009, 8). Some school cemeteries had graves of infants born to girls who had been raped (Engels et al. 2012). For Australia, the primary research has been on the survivors of the boarding school and related forms of forced removal. No statistics are available as far as we could find on the number of ­children who died while in the schools or at work placements. In summary, the boarding school experience put Indigenous child survivors through a gauntlet of vio­lence, abuse, and neglect, some ­legal and some criminal, that continues to haunt Indigenous ­people and communities ­today. Conseque nc e s to the Vi c ti m s ­There ­were three sets of victims: the ­children themselves, their parents who could not prevent the kidnapping and harm, and the community which fell into social disor­g a­n i­za­tion as the majority of their members suffered from trauma or as a ­whole generation went missing. As the National Inquiry (1997, 177) summarizes about Australia, “The effects damage the c­ hildren who w ­ ere forcibly removed, their parents and siblings and their communities. Subsequent generations continue to suffer the effects of parents and grandparents having been forcibly removed, institutionalised, denied contact with the Aboriginality and in some cases traumatised and abused.” ­Children For the ­children, the consequences of the boarding schools ­were dire, including economic, psychological, emotional, and social prob­lems. Educationally, the schools ­were failures in all three countries. For example, in Australia, a national survey in 1994 found that “removal did not increase the likelihood that Aboriginal c­hildren would have higher incomes, be employed, or attain higher levels of education” (Smith 2009, 16). This impact continues ­today in (1) the lack of education of Indigenous ­peoples and (2) the distrust of education by Indigenous p­ eoples (Fixico 2000). In all three countries, Indigenous youth ­today have higher dropout rates than non-­Indigenous (Walker 1990). Students not only received inadequate education and work skills, they suffered psychological trauma. The Royal Commission on Aboriginal P ­ eople

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of Canada (1995, 27) lists the following consequences: damage to “feelings of self-­worth, ­family connectedness, the intergenerational transfer of skills and traditions, and the essential core of trust in and re­spect of ­others from which all ­people must draw in order to building loving relationships and healthy communities.” Indeed they had been taught their home cultures ­were inferior and embarrassing (TRC 2015, vi). The National Inquiry of Australia (1997, 193) identified the boarding schools and forcible removals as being among the ­f actors that increase “the vulnerability of the Aboriginal community to m ­ ental ill-­health.” The Canadian TRC reported: “The most harmful impacts of residential schools have been the loss of pride and self-­ respect of Aboriginal p­ eople, and the lack of re­spect that non-­Aboriginal ­people have been raised to have for their Aboriginal neighbours” (TRC 2015, vi). According to early versions of the Indian Act, gradu­ates of the schools lost their Indian status and could not return to the reserve without the permission of the Indian agent or would face being charged with trespassing (Hewitt 2016). If the ­children did return to their home communities, they could no longer contribute as community members—­they no longer fit in. Most had lost enough of their culture that they could not pass on to their ­children the language, history, and life ways of their own ­people. They might be able to speak their language, but they no longer had the gender-­ specific skills needed to survive in the community. They lacked knowledge about normal child development and parenting skills since they had been raised in an institution (Smith 2009). The National Inquiry reports that survivors also faced the psychological impacts of sexual abuse, including guilt, sexual identity confusion and “confusion about sexual norms,” fear, anxiety, depression, shame, lowered self-­esteem, and be­h av­ior such as alcohol and drug abuse, self-­mutilation, isolation, and criminal activity (National Inquiry 1997, 195; Giago 2006). As Armitage (1995, 237) summarizes about the c­ hildren in Canada and Australia, “Upon leaving the institutions, a few aboriginals ­were assimilated; some lived as fringe-­dwellers on the margins of settler society, dependent on mainstream welfare institutions; and most returned eventually to the aboriginal communities from which they came.” Based on interviews with residential survivors, Ross et al. (2015) found that residential school attendance was linked with alcohol abuse, and sexual abuse at the schools was linked positively with drug abuse. At their worst, boarding schools began the path for many Indigenous ­people for life in other institutions such as prisons (Smith 2009). In all three countries, “the pattern of institutionalized be­h av­ior established in childhood tended to reoccur in adulthood in the form of higher incarceration rates in criminal institutions and in depressive patterns



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of be­h av­ior characterized by high rates of suicide and substance abuse” (Armitage 1995, 238). Parents The experiences of the parents varied somewhat among the three countries. In Australia, the norm was to take ­children as young as infants in arms, meaning that the ­children often did not return to their families and ­were lost. They had l­ittle or no memory of their parents, life, or cultures; they had been denied any knowledge of their Indigenous identity or had been told they ­were not Aboriginal (Smith 2009). One survivor of the stolen generations described what happened to her parents ­ a fter she was removed at eleven months of age along with her two siblings: “My parents ­were continuously trying to get us back. Eventually they gave up and started drinking. They separated. My f­ather ended up in jail. He died before my ­mother. On her deathbed she called his name and all us kids. She died with a broken heart” (National Inquiry 1997, 213). For parents in Canada and the United States, the results w ­ ere just as traumatic. As Commissioner Wilson of the Canadian TRC stated, “Consider what it means, what w ­ e’re talking about t­oday; the enormity of it. Parents who had their c­ hildren ripped out of their arms, taken to a distant and unknown place, never to be seen again, buried in an unmarked grave long ago forgotten and overgrown. Think of that. Bear that. Imagine that” (Smith 2015). ­Because ­these ­children ­were taken when they ­were about school age, if they survived the schools, they retained some memories of their parents and cultures and often returned home (Armitage 1995, 215). Communities ­W hether the ­children died in the residential schools or dis­appeared through adoptions, t­hese lost generations of c­ hildren ­were equally, if not more, harmful to Indigenous communities than the results of the residential schools on ­those who returned (Chapman 2012, 139; Fournier and Crey 1997). Whole communities lost their youth. Community members lost their identities as teachers, nurturers, and socializers. They lost part of their spiritual world and kinship network (National Inquiry 1997, 215). According to Fournier and Crey (1997, 62), “the impact on the community left ­behind was severe. Displaced from their land, their villages sometimes literally depopulated of ­children, parents ­were vulnerable to the accelerated social and economic dissolution that affected virtually all reserves in Canada. Elders who had no one to receive their wisdom lost their reason for existence. C ­ hildren returned home strangers who could trust no one; far from being ‘improved,’ they w ­ ere demoralized, victimized and often unable

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to bond with their families or elders, so that their sad stories stayed locked within them.” The ­children’s experiences impacted the lives of their own ­children and their communities for generations (McKegney 2007). Many ­children passed down to the next generations inappropriate child-­rearing skills such as physical, emotional, and verbal punishment (Armitage 1995). Some of ­t hose who had been abused became physical and sexual abusers themselves, so that the community had to deal with them as criminal offenders (Smith 2007; Engel et al. 2012). At the schools the ­children developed an “institutional mentality” that made it difficult for them to develop personal autonomy, initiative, and self-­ confidence, and to take on the responsibilities of daily life once they returned home (Miller 1996, 429). The schools “instilled passivity rather than initiative” so that the survivors had ­little energy to participate in cultural revitalization efforts, for example, or other­w ise contribute to their communities (Smith 2009, 30). As Smith (2009, 31) concludes, “When multi-­generations of indigenous p­ eoples are impacted by sexual, physical and emotional abuse they suffered in schools, they are not in a position to build vibrant communities ­u nless healing can take place.” For individuals and the community as a ­whole, intergenerational post-­ traumatic stress or historical trauma became a constant presence and obstacle to healing; it became a “soul wound” (Duran and Duran 1995). Ross et al. (2015) report that one Canadian study of school survivors found that 64  ­percent of the participants had diagnoses of PTSD. Duran and Duran (1995, 29) explain that, “Once a group of ­people have been assaulted in a genocidal fashion, t­here are psychological ramifications. With the victim’s complete loss of power comes despair, and the psyche reacts by internalizing what appears to genuine power—­the power of the oppressor . . . ​at this point, the self-­worth of the individual and/or group has sunk to the level of despair tantamount to self-­h atred. This self-­h atred can be e­ ither internalized or externalized.” Internalized vio­lence includes lack of self-­care, self-­mutilation, and suicide. Externalized vio­lence includes assault, domestic vio­lence, and rape (Duran and Duran 1995). See Ross et al. (2015) for an overview of research documenting the relationship between alcohol and substance abuse and residential schools. Dion et al. (2015) add pathological gambling as a probable result. As Duran and Duran (1995, 29) describe, “When self-­h atred is externalized, we encounter a level of vio­lence within the community that is unparalleled in any other group in the country. Native Americans have the highest rate of violent crime of any group.” Drug and alcohol use are a  means of self-­medication and escape, but also lead to exacerbating the v io­ ­ lence. The National Inquiry of Australia (1997, 178) supports this



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assessment: “Their ability to operate successfully in the world is impaired causing low educational achievement, unemployment and consequent poverty. T ­ hese in turn cause their own emotional distress leading some to perpetrate vio­lence, self-­h arm, substance abuse or anti-­social be­h av­ior.” They also conclude that the impacts are intergenerational; “it is inherited by their own c­hildren in complex and sometimes heightened ways” (National Inquiry 1997, 222). Indige nou s and O ffi c i al R e sp on se s Parents and communities ­were not passive victims of the law. To protect their c­ hildren from kidnapping, some parents moved away from their home communities and denied their identity as Indigenous (National Inquiry 1997, 123). Many Indigenous families in the United States and Canada hid their c­ hildren when the police or military came to take them. Some ­were successful, such as some Navajo and Hopi who hid their ­children in the canyon lands, but most w ­ ere not. Some Hopi f­athers w ­ ere arrested and sent to Alcatraz when they refused to turn over their c­ hildren (Trafzer 2000, 289). In ­later years in Canada when schools near reservations and public schools became more common, some parents simply refused to let their ­children return to residential schools (Haig-­Brown 1988). Once the horrors of the boarding schools became better known, as Fournier and Crey (1997, 57) write, “Aboriginal parents ­were not complacent once their c­ hildren w ­ ere installed in the schools, even though their letters ­were censored and their visits, even by the few who could afford to make them, w ­ ere discouraged.” They complained to the Indian Commissioner, for example, in 1889, about the corporal punishment and sexual abuse, though they ­were rarely successful in getting positive results. They ­were seen as troublemakers and their complaints dismissed (Miller 1996, 426). Communities tried to alert church and government authorities of issues in schools such as neglect and abuse, but “their protests and requests ­were ignored, belittled or mocked by both Euro-­Canadian agencies” (Miller 1996, 431–432). The abuses that occurred in the schools could have been prevented by government authorities, but the schools ­were not about the needs of Indigenous ­children. Government and church authorities w ­ ere well aware of the high death rates, and physical and sexual abuses ­were well-­documented in all three countries (see National Inquiry 1997; Milloy 1999; Trafzer et al. 2006). They received adequate warning of the conditions in the schools, beyond t­hose made by Indigenous parents and communities. The abuse of Aboriginal girls in ser­ v ice, for example, was known by the protection boards and condemned by Australian politicians, but nothing was done about it (National Inquiry 1997, 164). In the United States, sexual abuse in

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the boarding schools continued ­u ntil the late 1980s when several Bureau of  Indian Affairs teachers w ­ ere convicted of sexually abusing ­children (Smith 2007). The schools ­were about the needs of settler society, and the ­children became ­ human sacrifices to that need. Colonial governments had the responsibility by law to supervise the schools and ensure the welfare of the ­children, however, as Miller (1996, 422) points out, “The inadequate staffing and laughable inspection by government officers unfortunately made it all too easy for the misfits, the sadists, and the perverts to mistreat and exploit the c­ hildren.” The churches ­were in loco parentis (in place of the parents) and therefore had a moral obligation to “protect and cherish” the ­children (Miller 1996, 423). Instead of removing physically and sexually abusive teachers, church organ­izations moved them from school to school when “their actions made their proclivities notorious,” nor did they prevent sexual vio­lence and exploitation by older male students (Miller 1996, 423, 424). The presence of t­hese sadists and sexual deviants in the schools was made pos­si­ble by the lack of power of Indigenous communities and the indifference and prejudice of colonial and church authorities (Miller 1996), as well as the willingness of t­hese authorities to ignore criminal be­h av­ior, thereby aiding and abetting the criminals. Canada The Canadian Department of Indian Affairs received countless reports over the years “that documented not only the cruelties to which aboriginal ­children ­were subjected but also the shoddy education they received and the shockingly high rates of illness and death, often the direct result of federal shortfalls in funding and supervision” (Fournier and Crey 1997, 49). Miller (1996, 424) states in Canada, “­There is no rec­ord of missionaries ever turning one of the p­ eople posted to a school by their own head office over to authorities.” Fournier and Crey (1997, 49) quote a Canadian Department of Indian Affairs ­lawyer who advised the department that it would be legally liable if it enacted reforms to prevent further deaths ­because it would “bring itself within unpleasant nearness to the charge of manslaughter” by d­ oing so. Instead, improvements w ­ ere promised but not carried out and the crimes continued. In Canada, by 1992 many of the churches involved in the residential school issued apologies to their victims (Smith 2009). Some churches w ­ ere threatened by bankruptcy as a result of losing civil suits and put pressure on the government to also take responsibility (Engel et  al. 2012). One infamous case is that of residential school supervisor Arthur Plint, who in 1995 pleaded guilty to 16 counts of indecent assault of Aboriginal boys between 1948 and 1968. Supreme Court Justice Douglas Hogarth called him a



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“sexual terrorist” and what the victims endured “institutionalized pedophilia” (Fournier and Crey 1997, 72). In 1995, the Canadian government began to ­settle out of court with some survivors of government-­r un schools, which many Indigenous ­people saw as “sweeping the issue u ­ nder the t­ able” (Fournier and Crey 1997, 77). Criminal charges ­were laid against abuse perpetrators as a result of Royal Canadian Mounted Police investigations beginning in the late 1990s of 3,400 complaints against 370 suspects—of whom only five ­were charged. As Smith (2009, 10) concludes, “Still very few perpetrators actually received criminal convictions,” and many of them received relatively light sentences (Fournier and Crey 1997, 76). In 1996, a­ fter five years of research on more than 60,000 school files, the Royal Commission on Aboriginal P ­ eoples recommended country-­w ide public hearings. Fi­n ally, in 1997, the government allocated $350 million “to support community-­based healing initiatives to be administered through the in­de­pen­dent Aboriginal Healing Foundation” and “By 2001, 16,000 aboriginal ­ people (17  ­ percent of living residential school alumni) had brought ­legal claims against the churches or government” (Smith 2009, 10, 11). In 2005, the Inuvialuit p­ eople of northern Canada filed suit against the Canadian attorney general and received more than $2 billion to “to be used for healing and preserving survivors’ stories” as well as providing funding to individual Inuvialuit who suffered serious psychological consequences (Araujo-­Hawkins 2014). Funding for programs was enacted in 2006 through the Indian Residential Schools Settlement Act and has been used to set up counseling programs for residential school survivors and to give survivors lump sum payments (Smith 2009, 33). The government of Canada apologized in 2008 for its part in residential school abuses and established the National Truth and Reconciliation Commission, which has published a number of damning reports (Smith 2009, 33). Australia In Australia, some staff at the schools ­were admonished and occasionally dismissed as was, for example, the superintendent who was “chaining girls to t­able legs” (Chief Protector Neville quoted in National Inquiry 1997, 161); however, complaints and petitions w ­ ere usually dismissed or ignored (National Inquiry 1997). By the 1960s, it became clear that assimilation was not successful; Indigenous Australians faced too much discrimination from white Australians, and they refused to give up their cultures and life styles. In the early 1970s, Aboriginal p­ eople began to legally challenge the removal of their c­ hildren, leading to a drop in numbers taken to boarding schools or placed in white homes (National Inquiry 1997). In 2008, Prime Minister Kevin Rudd apologized for laws and policies that “inflicted profound grief, suffering and loss” and mentioned boarding

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schools and forced removal of c­ hildren particularly (Smith 2009, 35; Engel et  al. 2012). However, the government is continuing its boarding school program in remote communities on the grounds that Aboriginal ­people want them, although the schools are no longer mandatory and are more open to Aboriginal culture. ­There was no compensation offered to survivors although it was recommend in the “Bringing Them Report” (Smith 2009; National Inquiry 1998). Reconciliation Australia, a nonprofit organ­ization, provides assistance to businesses trying to increase the number of Aboriginal employees and retain them (www​.­reconciliation​.­org​.­au). Ser ­v ices for Indigenous child sex abuse survivors are being established but are beset by many challenges (Breckinridge and Flax 2016). United States Smith (2009, 7) reports that the complaints from parents of abused ­children ­were ignored by the Bureau of Indian Affairs and ­were not investigated. She cites the case of an instructor who admitted on his application that he had been arrested for child sexual abuse but was hired anyway (Smith 2009, 7). The 1928 Meriam Report advised the federal government, “The question may very properly be raised as to w ­ hether much of the work of Indian ­children in boarding school would not be prohibited in many states by child ­labor laws” (Reyhner and Eder 2004, 208). In the late 1980s, several Bureau of Indian Affairs (BIA) schoolteachers ­were convicted of sexual abuse. “Acting BIA chief William Ragsdale admitted that the agency had not been sufficiently responsive to allegations of sexual abuse, and he apologized to the Hopi tribe and ­others whose ­children BIA employees had abused” (Smith 2007). The only class action suit filed by survivors against the government was dismissed by the court in 2005. In 2007, the Catholic Church agreed to pay sixteen survivors of sexual abuse (Smith 2009, 34–35). In 2009, President Obama signed a congressional resolution making an apology to Native Americans for “the many instances of vio­lence, maltreatment, and neglect inflicted on Native ­Peoples by citizens of the United States” and “recognizes that ­t here have been years of official depredations, ill-­conceived policies, and the breaking of covenants by the Federal Government regarding Indian tribes” (U.S. Congress 2009). Boarding schools w ­ ere not directly named, and the section clearly states that this apology does not support or authorize claims against the government. A lack of re­spect and seriousness could be seen in the pro­cess surrounding this apology—it was sunk into the 2010 Defense Appropriations Act as Section 8113—in between Section 8112 that provided funds for National Guard Counterdrug Programs and Section 8114 that required agencies receiving federal funding to post reports on



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their website. While it was covered in a few mainstream and some Native American media, very l­ittle ­else was done to publicize it. The churches who supervised the boarding schools have “been largely ­silent” on their role (Smith 2007). As NARF (2013, 9) concludes, “­T here is no meaningful access to justice in the courts for the individuals and communities that suffer from the impacts of the implementation of the boarding school policy. L ­ egal barriers to bringing suit against the United States for compensation for injuries exist in the form of the statute of limitations.” Smith (2007) adds the further obstacles of lack of documentation and the “conservative makeup of the current U.S. Supreme Court.” Boarding schools in the United States are still in operation, and most are in poor condition, though they are no longer mandatory. Some are church-­r un, but some are u ­ nder tribal jurisdiction and offer instruction in Native languages and/or about Native cultures. Their graduation rates are lower than for the general population (Smith 2009, 33). Sexual abuse is still a concern, as is the use of holding cells in the schools (Smith 2009, 33–34). Child sexual abuse rates in general continue to increase for Native Americans (Smith 2009). In summary, it is evident that federal governments in all three countries eventually acknowledged that boarding schools w ­ ere “harmful” to Indigenous ­people, but only two out of three agreed that the government had any responsibility to the victims of crime, and so far only one has offered any monetary assistance for the healing pro­cess. How they w ­ ill fulfill their responsibilities is still being played out. C rime and the Boardi ng Sc hool s The sexual abuse that occurred at the schools was clearly a crime, as can be seen with the cases of the occasional perpetrator tried and convicted. Although few charges ­were laid against the many perpetrators, the law in all three countries clearly supported the contention that sexual abuse is and was a crime. Forcible removal, physical abuse, medical neglect, starvation, and extreme child ­labor ­were not crimes during most of the time period in which the schools existed, although concerns ­were expressed in some quarters that some of t­ hese could be interpreted that way. Certainly, in terms of the g­ reat social harm they caused for Indigenous c­hildren, parents, and communities then and now, they w ­ ere serious wrongdoings and criminal from a social harm perspective. This becomes even clearer when modern-­ day l­egal standards are applied. Fi­n ally, the ­human rights of the ­children ­were v­ iolated. Engel et  al. (2012, 296–297) list six international conventions that would have been ­v iolated by the residential/boarding schools: Convention of Prevention and

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Punishment of the Crime of Genocide (1948), International Convention on the Elimination of All Forms of Racial Discrimination (1965), International Covenant on Economic, Social and Cultural Rights (1966), Covenant on Civil and Po­liti­cal Rights (1966), Convention on the Rights of the Child (1989), and the Universal Declaration on the Rights of Indigenous ­Peoples (2007).2 In summary, the activities of the schools resulted in serious social harms and v­ iolated ­human rights and would be considered criminal t­oday u ­ nder international conventions against genocide and torture and declarations that protect the rights of ­children and Indigenous ­peoples. Of the six conventions listed above (and to which the countries ­were all signatories), five ­were in effect during the l­ater part of the boarding school era. When crimes did occur, they w ­ ere seldom reported, rarely investigated, and almost never resulted in punishment to the perpetrators. The schools basically aided and abetted criminal acts for much of their history. C onclusion That the boarding schools failed as schools and as instruments of assimilation, ­there is ­little doubt (Miller 1996, 418). They ­were failures for many reasons: the assumption of British racial superiority, colonial ideology that rejected any consultation with Indigenous ­peoples, and the inability of the schools to “mould” Indigenous ­ children (Armitage 1995, 238). Miller (1996) points out that two out of the three partners—­government, churches, and Indigenous p­ eoples—­d id not have education as their main objective. The government was concerned with assimilation and cost—­the failure to properly fund schools meant that the c­hildren had to spend long hours working, leaving ­little time to learn. The churches mainly also ­were concerned with cost and with proselytizing their faith, both of which meant ­little time for education in useful skills. As Milloy (1999, 101) points out, ­t here is a certain irony in the fact that the horrific conditions and death rates of the boarding schools actually worked against the assimilation strategy of the colonial governments. But, as is evident in the indifferent responses of government agencies, perhaps one can won­der if extermination was still an under­lying strategy in the minds of some settler politicians. In spite of the obvious victimization that Indigenous ­children experienced, and the serious and ongoing intergenerational repercussions to them and their communities, non-­Indigenous society—­i ncluding members of the criminal justice system—­persists in “blaming the victim” (Chapman 2012, 144). Chapman describes this as a means of discursively obscuring domination. If the participants ­w ill not internalize their own domination despite generations of it to the extent needed by the state as per Gramsci’s



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formulation, then they are blamed for their re­sis­tance, no m ­ atter how self-­ destructive it is. In modern-­d ay society, this re­sis­t ance sometimes takes the form of internalized and externalized vio­lence. T ­ oday, individual Indigenous perpetrators of crime are blamed, not the w ­ hole system that created them (Chapman 2012). Modern-­d ay disparagers of Indigenous ­peoples perpetuate colonial ideology in the form of racism, by stereotyping Indigenous ­peoples as violent drunks, violent gang members, and sexually promiscuous “squaws. ” If they are aware of the historical trauma that has led to the social prob­lems of ­today, the thinking seems to be “ just get over it.” But that is not pos­si­ble, as numerous psychological studies have shown. As we w ­ ill discuss in chapter 10, treatment for current-­d ay internalized and externalized vio­lence must acknowledge the role of historical crimes and the resulting intergenerational stress in order to have a hope of successful treatment. All three participants in the boarding school system—­ Indigenous communities, governments, and churches—­must be involved in the amelioration proj­ect. Apologies are well and good, as are truth-­fi nding commissions, but ­there is a need for programs of healing, which must be designed by Indigenous ­peoples for Indigenous ­peoples. The institutions that provided the institutionalized framework for the destruction of Indigenous cultures and ­peoples must bear the cost; any court would find perpetrators responsible for making restitution to victims, and so it is h ­ ere. As Justice Murray Sinclair, chair of the commission (quoted by Smith 2015), stated at the release of the Canadian Truth and Reconciliation Board’s “heart-­w renching and damning” report in 2015, “The one ­t hing I am confident of is the cost of d­oing nothing is worse than the cost of d­oing something.” A Final Thought Institutionalized racism still exists ­today. It can be found in schools—­ public schools, boarding schools, colleges, and universities. Indigenous young ­people report experiencing ethnoviolence and racism not only from fellow students and teachers but in the very curriculum of their schools where Indigenous cultures are denigrated, misrepresented, or absent (see for examples Perry 2008; Walker 1990). Smith (2009) points out that in the United States some Indigenous communities see a potential for boarding schools and other schools to become or return to being places of cultural and language revitalization and an exercise in their right to self-­ determination, and perhaps this kind of self-­determination is the answer to continuing institutionalized racism. The other places of institutionalization include juvenile custody facilities and health facilities. The Indigenous young ­people found in juvenile

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custody facilities and in centers for disabled ­ children are greatly over-­ represented in Canada, for example (Chapman 2012). This raises an in­ter­ est­ i ng question: are t­hese institutions, which are now as l­egal as the residential and boarding schools once w ­ ere, the new places of institutionalized assimilation and pedophilia for Indigenous ­children? The historical patterns certainly suggest that this is a question that needs to be answered immediately.

C hapte r   6

Conquest by Rape and Vio­lence C rim e s against Indig e nou s W ­ ome n Crimes against Indigenous ­women have occurred since

first contact with colonial settlers. Indigenous ­women have been victims of massacres, wars, murder, and heinous sexual vio­lence, as described in chapter 4. Indigenous c­ hildren, particularly girls, in boarding schools w ­ ere susceptible to physical and sexual assault (see chapter  5). The colonial governments, well aware of the crimes against Indigenous ­women, largely ignored them, thereby aiding and abetting the perpetrators. Colonial governments broke their own laws and continue to violate the ­human rights of Indigenous w ­ omen ­today. Laws both then and now are applied unevenly to Indigenous and non-­Indigenous victims. ­These colonial power dynamics of racism and sexism are foundational to modern-­d ay constructions of Indigenous ­women’s victimization. The intersection of the colonial ideologies of Indigenous inferiority and patriarchy ­were used historically to devalue Indigenous w ­ omen and their societal roles, and to “ justify” rape and other forms of vio­lence against ­women as part of settler colonist invasions. ­T hese ideologies continue to contribute to ­ today’s high sexual victimization, domestic vio­ lence, and other victimization rates. In other words, Indigenous ­women have been and still are oppressed by more kinds of vio­lence than Indigenous men. The experiences that Indigenous w ­ omen have as victims of t­ hese crimes are also quantitatively and qualitatively dif­fer­ ent from ­ t hose of non-­ Indigenous ­women (Smith 2005). ­Today, Indigenous ­women are at greater risk than any other racial group of ­these crimes in the United States, New Zealand, Canada, and Australia, as w ­ ill be described shortly. This chapter looks first at historical crimes against Indigenous ­women and then at present-­d ay crimes in some detail. We focus first on sexual assault against ­women, second on domestic vio­lence, third on involuntary sterilization, fourth on sex trafficking, and fi­n ally on stalking. This chapter brings in historical and con­temporary data, but the analy­sis is l­imited by a lack of comparative information on all points. 115

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Historical Vi o­le nc e agai nst I ndige nou s W ­ om e n In pre-­contact times, Indigenous w ­ omen ­were equal members of the ­g reat majority of Indigenous socie­ties, and had distinctive, often complex roles (see Maltz and Archambault 1995). Indigenous w ­ omen w ­ ere revered ­because they gave life, and in general, b­ ecause of t­hese cultural beliefs, Indigenous w ­ omen lived with expectations of re­spect and safety (Agtuca 2008). Vio­lence was not used to control their be­h av­ior (Agtuca 2008). When it did occur, traditional mechanisms led to healing and reparations for the victim and/or punishment for the offender (Smith 2005). In some groups, mediation or arbitration occurred with the wrongdoer having to provide reparations; in other cultures, retaliation and vengeance ­were the norm. In worst-­case scenarios, the wrongdoer might be banished or put to death (Fox 2009). Eu­ro­pe­a ns found the role of ­women in Indigenous communities perplexing and saw the emphasis on protecting w ­ omen as scandalous. Vio­lence against ­women was not a normal, legally sanctioned part of Indigenous society as it was in settler-­colonial society (McGillivray and Comaskey 1999, 29; Agtuca 2008). Smith (2005) points out that about 40 ­percent of white w ­ omen who w ­ ere captured by Indian groups between 1675 and 1763 chose to stay with them ­because their status ­t here was higher than in white society. Indigenous men did not tolerate vio­lence against w ­ omen by settler-­ colonists, warning off and threatening them, although as colonialism continued it became more difficult for men to protect w ­ omen, adding to the trauma (Monchalin 2016). With the invasion of the settler colonists, customary law in Indigenous socie­ t ies that protected ­ women broke down and vio­ lence of all kinds increased (Agtuca 2008). Seventy ­percent of North American tribes did not practice war, and in ­those tribal socie­ties that did, intertribal vio­lence was ritualized and controlled, as in rivalries and conflict between nations or ­m atters of honor. For all ­these socie­ties, vio­lence soon became a part of everyday life (Smith 2005). Killing Indigenous ­peoples was not necessarily an illegal act in many colonies, although such acts w ­ ere deplored by many influential leaders of the time. The vio­lence against Indigenous w ­ omen was exacerbated by additional crimes, including rape and other forms of sexual assault. As Smith (2003) points out, it is necessary to kill the w ­ omen if the objective is to exterminate a p­ eople. Vio­lence against Indigenous ­women was perpetrated both by the settler-­ colonists and, eventually, Indigenous men. B ­ ecause of their patriarchal beliefs, the settler-­colonists held w ­ omen as chattel and b­ ecause of their racist beliefs



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saw Indigenous w ­ omen as less than h ­ uman. Eventually Indigenous men ­were contaminated by ­these colonial ideologies. The patriarchal value system was taught to Indigenous ­people, and the traditional systems that prevented vio­lence against ­women ­were destroyed. Instead hierarchical systems of control ­were reinforced in order to oppress Indigenous p­ eople, and ­because of patriarchal beliefs this meant ­women had to be subordinate to Indigenous men (Smith 2005; Balzar et  al. 1997). T ­ hese colonial systems continue to this day; as Sethi (2007, 61) states, “The destruction of social structures and f­amily support systems has rendered some communities dysfunctional, leading to increased rates of vio­lence, sexual abuse, substance abuse, and suicide.” Colonial vio­lence and the intergenerational post-­traumatic stress that followed led to a legacy of internalized and externalized vio­lence among Indigenous ­people that included vio­lence against intimate partners (Duran and Duran 1995). The residential schools/boarding schools and dormitories or work placements (in which Indigenous Australian ­children ­were placed) provided an environment where violent be­h av­ior was learned and normalized for both Indigenous perpetrators and Indigenous victims (Smith 2005; Amnesty International 2016). Sex trafficking was another form of vio­lence forced on Indigenous w ­ omen as they tried to provide for their families and for themselves. As Rose (1991, 180) writes about Australia, “Socially-­induced starvation allowed an economy based on sex to flourish.” Threats of vio­lence to the ­women or their families also forced them into prostitution. Sometimes the ­women died ­because of sexual abuse (Rose 1991). Colonial ideology continues ­today in the form of racist ste­reo­types by the non-­Indigenous ­people, including criminal justice personnel who may discriminate or react deficiently based on them (Fox 2009; Monchalin 2016). In all four countries, the pro­cess of devaluing and dehumanizing Indigenous w ­ omen looked similar. Internalized colonialism means that ­these ste­reo­t ypes affect Indigenous ­women’s self-­esteem, which, for example, can contribute to not reporting victimization (Fox 2009). Sexual vio­lence was a crime against all w ­ omen in the British colonies, even Indigenous w ­ omen, although the laws w ­ ere less likely to be enforced if the victim was Indigenous (Cozens 2015). Colonial authorities turned a blind eye to such crimes, thereby becoming complicit in them. In other words, they aided and abetted criminals. Domestic vio­lence was a dif­fer­ent ­m atter. Domestic vio­lence in all British colonies was not illegal during the early and mid-­colonial periods. Colonial laws reinforced (supposed) male superiority and allowed husbands to “command” and “chastise” their wives with corporal punishment

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(Tuerkheimer 2004). Such vio­lence only became the business of the court if the ­woman was severely injured or killed. In New Zealand, for example, in 1949 a judge chastised a husband for beating his wife with an iron bar; the judge opined that instead the husband should have beaten her “with a reasonable sized stick” (Belich 2001, 500), an attitude that remained common with many authorities and men for at least two and a half de­cades afterward (Belich 2001). Similarly, in Australia, domestic vio­lence was common and taken for granted; the courts only intervened when the vio­lence became too severe (Ailwood et al. 2012, 87). This patriarchal attitude ­toward domestic vio­lence also affected the colonial views on domestic vio­lence in Indigenous communities. Indigenous w ­ omen w ­ ere triply oppressed, first as Indigenous ­people, second as ­women by the colonists, and then as ­women by Indigenous men. The next section looks at historical vio­lence against ­women in each country in more detail. United States In the United States, the roles of ­women in Indigenous communities varied a g­ reat deal by tribe; the structures could be matrilineal or patrilineal, but most ­were egalitarian in valuing gender roles. Men and ­women had specific tasks, but all ­were recognized as valuable, and ­women usually had equal or higher economic, religious, and po­liti­cal power as men (Bubar and Thurman 2004, 75). Some groups had w ­ omen in positions of social and/or po­liti­cal authority, although this was not the complete authority that men had in settler cultures (Mihesuah 2003). As Mihesuah (2003, 45) notes, “How much prestige and power w ­ omen actually held ­w ill never be known. Most observations of Indian w ­ omen in traditional socie­t ies ­were written by Euro-­A merican men, who judged them by the same standards they judged ­women of their own socie­t ies.” Many settler groups such as the Scots-­Irish in the United States simply saw Indigenous p­ eoples as savages to be removed (Kraft 1974). According to Fox (2009, 47), the negative ste­reo­types of Native ­women as “prostitutes, squaws, or drunks” ­were devastating and justified them as targets for vio­ lence by non-­Native frontiersmen, settlers, cavalrymen, military men, or reservation personnel. One of the images most commonly found about Indigenous w ­ omen was their supposed “savage sexuality.” As Mihesuah (2003, 59) writes, “Eu­ro­pe­a ns ­were fascinated with Native w ­ omen’s lack of clothing, and this cultural difference caused misunderstandings about sexuality. Native ­women ­were viewed as de­cadent and sexual—­d ark-­skinned whores—­while the lighter-­skinned, clothed Eu­ro­pean ­women w ­ ere the more ‘pure,’ respectable females. Native w ­ omen w ­ ere seen as sexual beings ­free for the taking.” Such ste­reo­types w ­ ere used by the settler-­colonists to



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justify their abuse, oppression, and exploitation of Indigenous ­peoples, so that as Smith (2005, 73) states, colonizers saw Indigenous w ­ omen as impure and “­because Indian bodies are ‘dirty,’ they are considered sexually violable and ‘rape-­able.’ ” On reservations “sexual ­favors” would be negotiated by soldiers with Indian agents, and Indian w ­ omen, starving and desperate to feed their families, would comply (Deer 2015, 65). Enslavement of Indians was common as in California where Indians convicted of certain crimes could be “bonded out to the ‘the best bidder’ ” ­u ntil the fine was paid (Deer 2015, 63; see also Teran 2016). For ­women this often meant sexual slavery. Vio­lence in general against Indigenous ­women was a normal part of colonial oppression in the United States. Smith (2003, 74) gives a number of disturbing examples of physical vio­ lence committed against Indigenous ­women, for example, quoting Wrone and Nelson, “One ­woman, big with child, rushed into the church, clasping the altar and crying for mercy for herself and unborn babe. She was followed, and fell pierced with a dozen lances . . . ​the child was torn alive from the yet palpitating body of its ­mother, first plunged into the holy ­water to be baptized, and immediately its brains ­were dashed out against a wall.” During the roundup of the Cherokee for the Trail of Tears and other forced marches of relocation, ­women and young girls w ­ ere raped by soldiers, and pregnant w ­ omen ­were killed (Perdue and Green 2007, 127, 128; Deer 2005). White men would also marry Indian ­women in order to gain access to allotted Indian land or oil or other natu­ral resources. Once they ­were married, the w ­ omen would be discarded, abused, or even murdered (Deer 2015, 66–67; see also chapter  8 of this book). Sexualized vio­lence became normalized. As Deer relates, Native ­women’s bodies became increasingly commercialized. Removing Native ­women from their lands, homes, and families was an essential ­factor in depriving them of their personal liberty. The result was that the transport and sale of sex slaves throughout the Amer­i­cas became so widespread ­ because criminal laws—if they existed—­ were rarely enforced. Often, this exploitation was de jure ­legal (in that it was sanctioned by the government). Even in ­those instances where sex slavery was explic­itly illegal, it continued to flourish as a result of official indifference and in large part institutionalized racism and prejudice. (Deer 2015, 62) As in other parts of the colonial world, the laws sanctioning rape that existed at the time ­were only applied to white w ­ omen. Raping a w ­ oman of color was not exactly considered rape and “received l­ittle (if any) response from the ­legal system” (Deer 2015, 64). For example, a Franciscan priest in California decried the rape of Kumeyaay Indian ­women and young girls by

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“very many soldiers who deserved to be hung for the continuous abuses they commit, seizing and violating w ­ omen” (Bouvier, quoted in Teran 2016, 21), but the priest was more concerned that ­t hese acts would cause the Indians to flee the mission and Franciscan efforts to Christianize them (Teran 2016). Missions also imprisoned young ­women and ­w idows in monjerios ­u ntil they married or died, in theory to prevent them from sinning by having sex with “brutal Indians.” ­T hese prisons had the unfortunate consequences of making the ­women available to the sexual predations of their “protectors.” They ­were also tortured with devices that kept them from spreading their legs and ­r unning away if outside, but that allowed them to keep working for the missions (Teran 2016, 22). As colonization continued, ­f amily structures broke down, and ­women’s status was diminished or changed. In the United States, the Cherokee, for example, banned traditional matrilineal clan structure, disenfranchised ­women, and imposed a patriarchal system of inheritance and justice. Alcohol use by men and the frustration they felt at losing their lands led to externalized vio­lence, usually against their families. Indian ­people who had been educated by settler-­colonists internalized the ideology of inferiority and used it to oppress and subjugate their own p­ eople, including ­women (Mihesuah 2003). New Zealand ­ omen played impor­tant roles in pre-­contact society; they Māori w held decision-­m aking positions and ­were valued as educators and holders of knowledge, artists, military strategists, and warriors, in addition to their place in ceremonies, ­family life, and the economy. Vio­lence against ­women was rare b­ ecause it was seen as an attack against the entire f­amily and community (Balzar et al. 1997). Wrongdoing by Māori against Māori was handled by the tribe through reciprocity (utu), so that if offenders committed sexual vio­lence they would be required to make payment for the offense (Cozens 2015). This system continued well into the colonization period; however, w ­ omen’s status diminished as the influence of colonial ideology became more common and they came to be seen more in terms of their economic value than their previous status as vital members of the community. Settler-­colonist rec­ords gave short shrift to the importance of Indigenous ­women. Early settlers recorded incidents of domestic vio­lence, but ­t here is no way to determine if this was traditional or colonially influenced. It is certain that Indigenous w ­ omen’s value decreased u ­ nder the influence of Eu­ro­pean models of the f­amily, which opened the way for vio­lence against them by the settler-­colonists and Māori men (Balzar et al. 1997).



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Sexual vio­lence against Pakeha (non-­M āori) ­women was seen as a heinous crime by the Pakeha justice system; it was severely prosecuted and harshly punished. Sexual vio­lence against Māori ­women, on the other hand, was seldom remarked on or reported and was mainly ignored by the authorities, though t­here was “a ­g reat deal of evidence that Māori ­women ­were often the victims of Eu­ro­pean sexual assault” (Cozens 2015, 399). Māori chiefs occasionally brought charges, especially against missionaries, for sexual assault and attempted sexual assault of Māori ­women. As Cozens (2015, 400) reports, “While missionaries often wrote about the licentious sexual be­h av­ior that w ­ halers and early settlers encouraged among Māori ­women, they rarely referred specifically to sexual vio­lence. While they morally condemned all acts of sexual vio­lence against white w ­ omen, they ­were ­silent on the issue of rape perpetrated upon Māori.” Government reports point to colonization as contributing to Māori ­family vio­lence, specifically poverty, powerlessness, and cultural degradation. The loss of land and status, and the fragmentation of community and ­family, contributed directly to Indigenous men’s internal and externalized vio­lence. The loss of language, identity, and self-­esteem due to institutionalization and assimilation led to “­people who turn on each other” (Balzar et al. 1997, 14). This echoes the intergenerational post-­t raumatic stress that Duran and Duran (1995) discuss for the United States, with similar results of internalized and externalized vio­lence (Balzar et al. 1997). As well, corporal punishment was widespread in schools, although not to the criminal extent found in Indigenous boarding schools elsewhere. Government and church polices worked to destroy the traditional social control mechanisms that protected Māori society and ­women (Balzar et al. 1997). Canada In Canada, ­women in many Indigenous socie­t ies held positions of control and decision making ­because they controlled impor­t ant resources. They ­were essentially equal, with their work being considered as valuable as that of men (McGillivray and Comaskey 1999). Sex was considered sacred as a gift from the Creator (Sethi 2007). Prevention of crime was preferred over commission of crime so that w ­ omen who ­were subject to abuse such as rape had a say in what should happen to the perpetrator (Monchalin 2016, 55). Some ­women ­were partners with Eu­ro­pean coureurs de bois in the fur trade. By the early 1800s when the fur trade was almost over, ­t hese alliances decreased, although some white men remained married to Indian ­women (Mihesuah 2003). The Métis culture of Canada resulted from ­these long-­ term relations, but Métis ­women (of mixed Eu­ro­pean and First Nations descent) did not have Indian status, rights or protections.

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Images of Canadian Native ­ women ­ were manipulated by settler-­ colonists so that the ­women ­were seen as ­either slovenly and immoral or overworked drudges who needed to be “saved,” but ­either way, they w ­ ere inferior (McGillivray and Comaskey 1999). Aboriginal ­women w ­ ere seen as dirty, promiscuous, deviantly feminine, and sexually available and willing (Sethi 2007; Bourgeois 2015). They and their ­children ­were devalued and dehumanized so that they became targets for sexual exploitation, predation, and other forms of vio­lence. Some ­women turn to prostitution to get needed resources, which led to their further devaluation in both Native and non-­ Native eyes (McGillivray and Comaskey 1999). ­Women’s roles in economy and politics ­were reduced as the patriarchal laws written into Canadian law about Indigenous ­peoples ­were enforced and the boarding schools separated ­women from their ­children. In the case of Métis ­women, the Catholic Church was “an agent of both ­women’s oppression and protection” (McGillivray and Comaskey 1999, 49). The Indian Act made Indian ­women subject to their husbands, so that “they did not control or participate directly in trade, contract, government, or decisions about residence, nor did they have a prior claim (or indeed any claim) to their c­ hildren” (McGillivray and Comaskey 1999, 22). U ­ ntil the revision of the Indian Act in 1951, their disempowerment increased so that they ­were prohibited from leadership roles and could not vote (McGillivray and Comaskey 1999; Bourgeois 2015). The early judicial system in Canada saw Aboriginal ­women as “weak and lacking in moral fibre” (Sangster 1999, 46). Australia In Australia, Aboriginal w ­ omen had status traditionally b­ ecause of their roles as child-­bearers, gatherers of food (bringing in about 80 ­percent of the community’s foodstuffs), religious participants, and ­because of their ability to influence decisions, suggesting that their status was essentially equal (Lucashenko 1996). Rape, child abuse, and beatings ­were not accepted, and punishment was de­cided on a collective basis (Balzar et al. 1997). Perpetrators ­were subjected to harsh punishment such as “shaming, ostracism, banishment, sorcery, and physical attacks such as ritual spearing, with the severity of the punishment depending on the severity of the crime” (Lucashenko 1996, 382). Tribal elders and members of the community w ­ ere responsible for punishing domestic abuses. Researchers such as the Australian Law Reform Commission “found no evidence of a traditional right to vio­lence [against ­women] outside of ­those strictly regulated practices of traditional punishment” and no claims ­were made that it was justifiable within Aboriginal law (Blagg 2008, 177).



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Traditional systems w ­ ere damaged by settler-­colonists who imposed their own justice system that mostly ignored vio­lence committed against Indigenous Australian men and w ­ omen by the settler-­colonists. As Balzar et  al. (1997, 51) write, “Eradication of Aboriginal ­people was tried but failed.” Colonists had a racist ideology that saw all Indigenous Australians as inferior (Balzar et  al. 1997) and perceived Indigenous w ­ omen as already being brutally oppressed by their own men, so it was permissible to oppress them in similar ways (Evans et al. 1988). Even a­ fter legislation prohibited it, Indigenous adults and ­children ­were kidnapped and “ ‘ broken in’ as servants and sex commodities” (Kidd 2000, 35). The Aboriginal Protector in one community in Queensland complained in 1904 that, “local pastoralists w ­ ere in the habit of ‘rounding up small mobs of wild natives and despoiling their ­women’ ” (Kidd 2000, 35). Evans et  al. (1988, 104) write, “In the same way as land was simply expropriated from Aboriginal tribes for the Eu­ro­pe­a ns’ economic benefit, so too w ­ ere Aboriginal w ­ omen seized to serve his sexual needs.” Kidnappers of Indigenous w ­ omen and girls included Aboriginal police officers (Evans et  al. 1988). Dispossession and cultural breakdown led to alcohol abuse and an increase in vio­lence in Aboriginal communities and “many deaths especially of w ­ omen though vio­ lence” (Balzar et  al. 1997, 52). Socially disapproved-of marriages occurred, but Indigenous ­women ­were also prostituted out by their families and communities to obtain scarce food, tobacco, and alcohol (Evans et al. 1988). Frances (1996) points out how concerns in the early 1900s about “white slavery” deflected attention from “the trade in Aboriginal ­women’s bodies that was carried on throughout the northern pastoral and maritime industries as well as on the fringes of cities and towns.” Early inquiries and legislation focused only on the trade in international sex workers. Frances (1996) states that Indigenous ­women sex workers “appear to have been the subject to considerable degrees of coercion and abuse at the hands of both Aboriginal and non-­Aboriginal men.” Modern domestic vio­lence legislation was not introduced ­u ntil late in the twentieth ­century. In Australia it was enacted at dif­fer­ent times in each state and territory, with the Northern Territory introducing it in 1989, for example (Lucashenko 1996). In all four countries, then, as McGillivary and Comaskey (1999, 23) state, “Colonialism introduced or exacerbated variables associated with high rates of physical and sexual assault and abuse. T ­ hese include substance abuse, abuse as a coping mechanism, acute poverty, and welfarism within a rich society, racism, erosion of parenting skills, learned patterns of intimate vio­lence, and infantilization of adults as wards of the state.”

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Pre se nt-­D ay Vi o­le nc e agai nst I ndige nou s W ­ om e n Just as ethnoviolence has become a normal part of Indigenous life in the four countries (Perry 2008), Bennett (2018a) argues that vio­lence against Indigenous w ­ omen can be described as a kind of “normal” hate crime against Indigenous p­eople. McGillivray and Comaskey (1999, 52) echo Duran and Duran (1995) when they point out that, “When a culture is undermined, its systems for controlling be­h av­ior are weakened or lost. Aggression is directed at o ­ thers within the same culture rather than at the members of the culture responsible for devaluation.” The status of Indigenous ­ people as colonized means that vio­ lence against w ­ omen takes on another dimension, in addition to male power and control (Balzar et  al. 1997). For example, as Farley et  al. (2005, 258) write about Canada, the “cultural destruction of positive roles for First Nations men and their subsequent identification with supremacist attitudes that have disastrous consequences for First Nations ­women, with astronomical rates of incest, rape, and husband vio­lence.” Peggy Bird, the director of the Native American ­Family Vio­lence Prevention Proj­ect on the Navajo reservation, said, “I would say the vio­lence in the native community is a reflection of what’s been learned over the centuries of dif­fer­ent oppression they experienced. . . . ​ We are now oppressing ourselves” (Mihesuah 2003, 169). It is impor­tant to note that rates of victimization among Indigenous ­people are very likely higher for all crimes b­ ecause of underreporting of offenses (see, for example, Bubar 2010 about sexual assault rates in the United States). We ­w ill first look specifically at sexual assault in each country, before turning to other violent crimes. Sexual Assault Rape in Indian country in the United States is at epidemic proportions. Amnesty International (2016) states that sexual vio­lence against Indigenous ­women “continues a history of widespread ­human rights abuses against Indigenous ­people in the USA.” According to the U.S. Department of Justice, American Indian ­women are 2.5 times more likely to experience sexual assault compared to ­women in all other races. To put this in perspective, one in three American Indian ­women report having been raped during her lifetime compared to 18 ­percent of all races (Tjaden and Thoennes 2000, 22). Bachman et al. (2010) report that American Indian and Alaska Native (AI/AN) ­women have higher rates of rape and sexual assault than non-­AI/AN ­women. A 2004 Department of Justice report estimated ­these assault rates to be as much as 50 ­percent higher than the next most victimized demographic (Perry 2004), although ­there are some communities where rates are very low (Hamby 2004).



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About 90 ­percent of perpetrators are likely to be members of a dif­fer­ent race, mainly white (57 ­percent), with AI/AN offenders committing 33 ­percent of the assaults. This is a substantially higher rate of interracial sexual vio­lence than experienced by white or black victims (Greenfield and Smith 1999). The majority of the perpetrators w ­ ere intimate partners (38 ­percent), followed by other known individuals (33 ­percent) and strangers (29 ­percent). For other racial groups, the most common perpetrators w ­ ere other known individuals and strangers (though see the study by Long et al. 2008). In smaller studies, Native American w ­ omen w ­ ere found to suffer rape at rates from 4 to 49 ­percent depending on the community. “They are more likely than other ­women to suffer additional vio­lence at the hands of their attackers” (Amnesty Inter­ national 2016). According to Bubar (2010), 54 ­percent of rapes occur before the victim is twelve years old. Native American ­women living in border towns located close to reservations are also at high risk of sexual and other vio­lence (Bennett 2018a). The majority of victims report their attacker had been using drugs and/ or alcohol and was armed. More Native American than white cases resulted in physical injury. More Native cases w ­ ere reported to police than with other racial groups, yet Bubar and Thurman (2004) state that about 70 ­percent of sexual assaults against Native ­women are not reported. Fewer cases resulted in arrest or charges, which could be related to the jurisdictional issues resulting in delayed or absent justice for AI/AN ­women (Bachman et al. 2010). To give t­ hese statistics a h ­ uman voice, Lisa Brunner (2015) from her Ojibwa reservation in Minnesota spoke about how non-­Native men would come to the reservation to hunt. With no consequences to worry about, non-­Indian men “would go onto a Native American reservation and go hunting—­rape, abuse, and even murder a native ­woman, and ­there’s absolutely nothing anyone could do to them . . . ​they got off scot-­ free.” A ­ fter the Vio­lence Against ­Women Act (2013), tribal nations gained jurisdiction to prosecute non-­Indian offenders, but few of them do, for reasons that ­w ill be discussed shortly. As Hamby (2004, 13) states: “American Indian ­women have proven their resilience and strength through centuries of oppression and vio­lence. Although many outsiders may think that the mistreatment of American Indians is entirely historical, the real­ity is that ­t here are still many institutions and systems that perpetrate the prob­lems of most American Indian communities and tribal members. American Indian ­women who are sexually victimized must contend with systematic and cultural barriers in addition to the barriers that face all victims of vio­lence.” In New Zealand, Indigenous ­women are also disproportionately subjected to sexual vio­lence. In a study by Hirini et al. (2005), a random sample of Māori ­women reported 10 ­percent of them had suffered sex abuse as an adult and 17.3 ­percent as a child.

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In Canada, a study by Farley et al. (2005) found that more First Nations ­women than non-­First Nations suffered from childhood sexual and physical abuse. They also reported, “A Dene w ­ oman described communities in which the entire female population had been sexually assaulted by men.” Bourgeois (2015) reports that 75 ­percent of Indigenous w ­ omen suffer sexual abuse before the age of eigh­teen, with 50 ­percent experiencing it before the age of fourteen and 25 ­percent experiencing it before the age of seven. In Australia, a study in an Adelaide SA Aboriginal Community estimated that 90 ­percent of the ­women and 84 ­percent of the girls reported experiencing rape in their lifetime, and that in one Queensland town, no Indigenous girl over the age of ten had escaped being raped (Greer 1994). Rape and sexual assault are an issue both within and outside domestic vio­ lence (Blagg 2008, 138). Blagg mentions that nearly half of all incarcerated Indigenous w ­ omen ­were victims of sexual assault as an adult (2008, 147). Care must be taken in generalizing, however, since not all Aboriginal communities have the same issues. ­Family (Domestic) Vio­lence A useful definition for domestic vio­lence from Australia covers the additional dimensions of vio­lence as experienced by Indigenous w ­ omen compared to most non-­Indigenous ­women: “Unwanted acts on individuals involving physical, verbal, or psychological forces. It occurs between men and men, men and w ­ omen, ­women and w ­ omen, adults and c­ hildren, and ­children and adults. Suicides and self-­injury as well as inter-­g roup fighting, cyclic vio­lence, and dysfunctional community ­were included. It violates a person’s trust and spiritual/cultural beliefs” (Aboriginal and Torres Strait Islander W ­ omen’s Task Force on Vio­lence, quoted in Cheers et  al. 2006, 54–55). The term ­family vio­lence acknowledges the extended nature of Indigenous families, also a characteristic of Indigenous families in the other three countries, so it w ­ ill be the term of preference h ­ ere, although the terms domestic vio­lence and intimate partner vio­lence (IPV) are used where appropriate. ­Family vio­lence includes a wide range of acts: “physical, emotional, sexual, social, spiritual, cultural, psychological, and economic abuses that occur within families, intimate relationships, extended families, kinship networks, and communities” (Day et al. 2012, 105). It includes the neglect and abuse of elders by not acknowledging their authority. Dif­fer­ent explanations for the ­causes of ­t hese high rates of vio­lence have been given by researchers. For example, the Australian Task Force report on Victorian Indigenous ­Family Vio­lence listed “inherited grief and trauma; dispossession of land and loss of traditional language and cultural practices; loss of Aboriginal roles and status (males and females); economic exclusion and



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entrenched poverty, including the impact of poor housing standards and overcrowding; and difficulties confronting the issues, for both victims and perpetrators” (Day et  al. 2012, 106–107). Day et  al. focus on “contextual triggers,” which include disrupted, ambivalent f­ amily life or growing up in an institution; growing up witnessing and experiencing anger and vio­lence; drug and alcohol abuse; discrimination and feelings of powerlessness, usually due to the impact of government policies. Offenders see their violent actions as justified and without alternative (Day et al. 2012). A more complex framework is provided by Memmott, who divides causal ­f actors into three categories: “catalysing or precipitating” ­f actors that set off an individual perpetrator; “situational” ­factors that are part of the social environment, such as isolation, poverty, drug and alcohol abuse, gambling, peer influences, social differences, and lack of ser­v ices; and “under­ lying ­f actors” rooted in colonialism that make Indigenous p­ eople vulnerable to ­family vio­lence (Memmott 2010). Colonialism is responsible directly or indirectly for ­these ­factors. It has led to an erosion of re­spect for the extended ­family and kinship roles that could prevent abusive be­hav­ior. The influence of Eu­ro­pean culture, values, and laws breaks down customary Indigenous law and devalues Indigenous justice practices and leadership (Memmott 2010). Colonialism has damaged the ability of the perpetrators to make a living and support their ­family, led to a loss of cultural knowledge, and disempowered them, leading to the loss of a sense of pride and agency. It may lead to grief “for what is lost, including pride, culture, self-­respect and the re­spect of o ­ thers, while shame is about having “let down my self, my ­family, my community and my God” (Cheers et al. 2006, 55). This grief can turn to “anger at their own situation; anger at ­f amily and o ­ thers; anger at historical treatment; and anger at perceived injustice” (Day et al. 2012, 109). It may lead to the misuse of traditional practices and status by offenders to justify their be­hav­ior (Memmott 2010). Intergenerational vio­lence may result as c­ hildren living in ­these environments experience the intergenerational loss, grief, and anger, and learn to see vio­lence as normal (Day et al. 2012; Cheers et al. 2006; Memmott 2010). In the United States, Native American ­women are more likely to be victims of domestic assault than non-­Native American ­women, regardless of their age, with more of ­these assaults involving emotional and psychological abuse than physical abuse (Fox 2009). A study of Alaska Native ­women found they had three times the rate of domestic vio­lence victimization than non-­Indigenous ­women, with about 64  ­percent of the ­women reporting they had been victims of at least one intimate partner act of vio­ lence since reaching adulthood, compared to 21 ­percent for non-­Indigenous ­women (Wood and Magen 2009). Malcoe et al. (2004) concluded that low income contributes to high rates of IPV based on a study in which they

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found that of their participants, “nearly 60% of the study w ­ omen reported experiencing physical and/or sexual IPV, 39% have been severely assaulted by their partner, one in five had been beaten up, 40% had resulting injuries, and 12% had been forced into sexual activity by a partner.” Their rates ­were twice t­ hose found by a national survey of all American ­women. ­Today, Māori in New Zealand are significantly overrepresented as victims and offenders of domestic/whānau vio­lence. Māori w ­ omen are more than twice as likely to be victims of intimate partner vio­lence (49.3 ­percent versus 22.2 ­percent) with socioeconomic disadvantage, ­family dysfunction, and individual adjustment prob­lems accounting for much but not all of the statistical difference between Māori and non-­M āori (Marie and Fergusson 2008). In an e­ arlier study in 1992 of a random sample of Māori ­women, 23.5 ­percent reported being victims of domestic assault during their lifetime (Hirini et al. 2005). Most perpetrators are male and t­here is a serious overlap between vio­ lence against female partners and child neglect and abuse. This latter point is of par­tic­u ­lar concern ­because ­these c­ hildren are more likely to “develop severe cognitive and behavioral prob­lems; become violent as an adolescent; and continue the cycle of vio­ lence” (New Zealand Ministry of Social Development 2002, 9). Māori ­women are the most likely to have been victimized by child sexual abuse, experiencing it at double the rate of non-­ Māori w ­ omen. This is relevant b­ ecause child sexual abuse victims are more likely to become victims of physical or sexual abuse by a domestic partner and 3.5 times more likely to become a victim of physical or sexual vio­lence by a stranger (Fanslow et al. 2007). The modern-­d ay isolation of partners in intimate relationships from their extended families contributes to increases in vio­lence, as does the unwillingness of communities to expose f­amily members to the justice of the state. In many ways vio­lence against Māori ­women has become normalized so that both the state and Māori f­ amily members can be indifferent to the victims (Balzar et al. 1997). As in other countries, the reasons for f­amily vio­lence are described as complex and interacting, but the impact of colonization is clearly identified as one of the systematic and environmental variables along with in­equality, patriarchy, discrimination, power imbalances and differences, and personal attributes (New Zealand Ministry of Social Development 2002). In Canada, 80 ­percent of Aboriginal ­women have been victims of some form of ­family vio­lence (Bourgeois 2015). From 2005 to 2009, 15 ­percent of Indigenous w ­ omen reported being victims of spousal vio­lence compared to 6 ­percent of non-­Indigenous ­women (Monchalin 2016). A study by Pedersen et  al. (2013) found that Aboriginal w ­ omen w ­ ere more likely to be victims of IPV than non-­Aboriginal ­women. Thirty-­t wo and a half ­percent of divorced Indigenous ­ women reported both pre-­ separation IPV and



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post-­separation IPV, and 25.6 ­percent reporting post-­separation IPV only. Non-­Aboriginal w ­ omen suffered mainly pre-­separation IPV (66.7 ­percent). Aboriginal ­women w ­ ere more likely at 22.4  ­percent to suffer from post-­ separation IPV within five years of the end of the relationship, compared to 6.6  ­percent of non-­Aboriginal ­women. They had higher rates of being slapped, kicked, bit, or hit with a fist, and similar rates of being forced into sexual activity, threatened with a gun or knife, and being beaten. Aboriginal ­women ­were more likely to be younger and to have ­children with the perpetrator; other demographic variables such as unemployment income and education w ­ ere not significantly dif­fer­ent (Pedersen et al. 2013). RCMP (2015, 15) statistics make an “unmistakable connection” between ­family vio­lence and hom­i­cides of Aboriginal ­women since most Aboriginal ­women are killed by spouses or ­family members. Intimate partner vio­lence in adulthood is interconnected with victimization in childhood, according to McGillivray and Comaskey (1999, 57, 135). Their study found that adult victims often experienced or witnessed intimate partner vio­lence in childhood, where they also experienced intergenerational patterns of vio­lence, learned about vio­lence, and internalized vio­lence as normal. Their respondents reported being abused by parents, siblings, aunts, or ­u ncles; they reported vio­lence that was physical, neglectful, emotional, and sexual. The impact of the residential schools is one of the f­ actors that have been linked to vio­lence against First Nations w ­ omen, so that as Boyden (2015) states, “Domestic vio­lence in the vast majority of First Nations communities is a con­ temporary, not historical phenomenon, one unquestionably linked to residential schools. Our nation attempted to completely destroy the very fabric of Indigenous life by literally tearing apart its most valuable and sacred cornerstone: the f­ amily. Untold scores of c­ hildren ­were regularly physically and emotionally assaulted, so much so that this became the norm across the country, generation ­a fter generation.” In Australia, the amount of ­family vio­lence found in Indigenous Australian communities has been called “alarming” and an “epidemic,” and its frequency continues to rise (Cheers et  al. 2006, 51). F ­ amily vio­lence has been normalized ­here, as in other Indigenous communities (Lucashenko 1996). Blagg states that 75 ­percent of all Indigenous female hom­i­cides w ­ ere committed by a male intimate partner, compared to 44  ­percent of non-­ Indigenous. The weapon of choice was usually a knife, and alcohol was most likely involved (Blagg 2008). A study of the Queensland trust areas estimated that 90  ­percent of Indigenous Australian families ­there experienced f­amily vio­lence (Greer 1994). In addition to the many ­factors correlated with domestic vio­lence discussed above, el­derly Indigenous ­women mention the disrespect to law,

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culture, and themselves. Young p­ eople show disrespect by “humbugging” them for food or money to buy alcohol, including young ­ people who ­because of kinship relations should not be approaching them (Blagg 2008, 141). Much Indigenous ­family vio­lence occurs outside in public with the ­women frequently fighting back and using alcohol, making her far from the “ideal victim” in the eyes of the non-­Indigenous justice system. Another aspect is “ jealousing,” seen by many Indigenous Australians to be one of the main contributors to domestic vio­lence. Blagg (2008, 145) describes it as “the pro­cesses involved in making someone jealous (as a test of commitment) and a form of disagreement based on insecurity.” He states, “Insecurity about relationships is a fundamental feature of ­f amily vio­lence in a time when Aboriginal p­ eople are having to negotiate forms of cultural change where old rules no longer apply, particularly ­t hose governing marriage and sexual relations, traditionally controlled through skin relationships and promised marriages” (Blagg 2008, 146). Involuntary Sterilization Involuntary sterilization was practiced worldwide as part of the eugenics movement, and most often targeted disadvantaged and vulnerable ­women, including t­hose with ­mental disabilities, the impoverished, HIV-­positive ­women, Romani ­women, and ­women of disadvantaged minority groups such as African American, Hispanic, and Indigenous w ­ omen, as in Peru in the 1990s (Sifris 2016; Schoen 2001). ­Those seen as economic and social burdens on the state ­were the main targets (O’­Sullivan 2016). As Sifris (2016, 66) states, “­Those who are subjected to involuntary sterilisation procedures are traditionally society’s most powerless and marginalized p­ eople. They are the ­people who occupy the margins, not the centre, and it is therefore less likely that h ­ uman rights abuses committed against them ­will be appropriately dealt with by ­those in power.” The eugenics movement began in the late nineteenth and early twentieth centuries, when scientists, medical professionals, and ­ legal decision makers ­adopted this social Darwinism–­based theory of reproduction of the fittest (O’­Sullivan 2016). According to Sifris, involuntary sterilization is “a sterilisation procedure which is performed on a ­woman with ­legal capacity to consent, without that w ­ oman providing full informed consent.” In terms of international ­ human rights, this is violating “autonomous decision-­ making” (Sifris 2016, 58). Stote (2012, 117) calls such policies “racist, sexist, and imperialist.” If the w ­ oman does not give informed consent, it is legally a form of battery in Australia and a crime u ­ nder most domestic l­egal systems (Sifris 2016). In the United States, “during the 1970s between 25 and 50 ­percent of Indigenous w ­ omen between the ages of fifteen and forty-­four ­were sterilized” (Mihesuah 2003, 56). Non-­ Indigenous Indian Health Ser­ v ice



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physicians involuntarily sterilized girls as young as eleven (Cackler et  al. 2016; Lawrence 2000). Robyn (2018) states that U.S. policy allowed the sterilization of unwilling victims as early as 1907, and that sterilization happened through “voluntary physician complicity” on a national scale. Based on her research, Uri argued that over 25 ­percent “of all Native American ­women in this country have already been sterilized” (O’­Sullivan 2016, 970). The rationale that t­ hese doctors gave was the Native w ­ omen w ­ ere polluting the population with their numbers, taking too many welfare and healthcare resources, and it benefited (non-­Native) society (Smith 2003; O’­Sullivan 2016). An investigation by the Government Accounting Ser­v ice (GAO) found that more than 3,400 Native w ­ omen, the ­g reat majority of whom ­were of childbearing age, ­were subjected to sterilizations between 1973 and 1976. The GAO found no evidence of forced sterilizations but found many broken regulations concerning use of consent forms, meaning that the patients likely had l­ ittle understanding of the procedure and its consequences. In some cases the w ­ omen ­were u ­ nder sedation when asked to sign or spoke l­ittle En­g lish, and o ­ thers ­were told they would lose federal funding support or their ­children if they did not sign (O’­Sullivan 2016; Bubar and Thurman 2004). Involuntary sterilization leaves a terrible impact on its victims, including depression, guilt, and shame, and often leads to substance abuse and marital difficulties (Mihesuah 2003). It also has a larger damaging impact on the Native community in that it decreased the Indigenous population by rates as high as 80 ­percent on some reservations (Smith 2003). In New Zealand, the eugenics movement had a foothold ­u ntil the early 1930s, but while sterilization was debated, the focus was more on segregating the morally and socially “unfit” (Wanhalla 2007). “­Little mention was made of New Zealand’s indigenous population who ­were then popularly believed to be a ‘­dying race.’ Instead, the focus of eugenic policies in New Zealand was on improving the racial quality of the white population” (Wanhalla 2014). Eugenics was seen as unnecessary since the Pakeha did not feel overly threatened by the supposedly diminishing Māori population. In Canada, Aboriginal w ­ omen w ­ ere disproportionately targeted for sterilization both through legislation in some provinces (Alberta and British Columbia) and through informal policies in other provinces and territories (Stote 2012), although, as Dyck and Lux (2016) remind us, some Aboriginal ­women fought for the right to get contraception as well. In Alberta and BC, many Aboriginal ­women ­were classified by medical personnel as “mentally defective,” and more than 77  ­percent ­were sterilized without their consent, mainly between 1928 and 1972 (when Alberta’s law was repealed). About 44 ­percent of t­hese ­were men and boys and the remainder w ­ ere Indigenous ­women (Billinger 2013). In Alberta alone, “74% of all Aboriginal p­ eople presented to the [Eugenics] Board ­were eventually sterilized (compared to 60% of

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all patients presented)” (Billinger 2013). T ­ here w ­ ere no medical reasons for the procedures committed on Aboriginal w ­ omen (and men), and consent was seldom requested (Stote 2012). The practice of classifying Aboriginal p­ eople as ­mental defectives, thereby legally justifying their sterilization, is also highly questionable and constitutes a ­human rights violation. It should be noted that “mentally incompetent” Aboriginal ­people lost their land rights to the Department of Indian Affairs, which could sell, lease, or other­w ise dispose of it (Stote 2012). The federal government did hold an inquiry into illegal sterilizations in the north in 1976. A remarkably low number was reported and l­ater proven to be grossly incorrect. Based on the inquiry’s results, the government denied ­there was a sterilization policy (Stote 2012). Sterilization was seen by “many medical, philanthropic and ­women’s associations,” as a solution to the financial burden that impoverished ­women and their c­ hildren w ­ ere placing on the state and charitable organ­izations at the time (Stote 2012, 119). In provinces and territories without legislation, sterilizations of Aboriginal ­women and men also occurred to “alleviate poverty” (Stote 2012, 124). ­Because of the economic and health impacts of colonization, this put Aboriginal ­women in the crosshairs. ­These organ­ izations saw Aboriginal p­ eople as inherently weak and inferior, and therefore not worthy of reproducing. ­These sterilizations ­were illegal ­because they w ­ ere not allowed ­u nder federal law, u ­ nless having more c­ hildren would endanger the life of the m ­ other or negatively affect her health (Stote 2012). In Australia, the eugenics movement focused more on keeping the white race “pure,” miscegenation, and breeding Indigenous p­ eople out of existence (since it was assumed they ­were already heading in that direction), rather than on sterilization. Involuntary sterilization was considered unacceptable by most Australians, although proposals w ­ ere made to implement it (Reynolds 2005). As Leung (2014) reports, the Eugenics movement in Australia “was greatly concerned with the promotion of ‘fit’ and preventing the ‘inferior’ of multiplying during the late 19th and early 20th ­century.” Voluntary relationships between lonely white settlers and Indigenous ­women, sexual exchange relations, and abduction and rape ­were cause for concern, but the mixed race ­children that resulted ­were of even greater concern (Reynolds 2005). The movement influenced policies that led to the removal of mixed-­race Indigenous ­children from their families b­ ecause they “interfered with official aspiration for a ‘pure’ white British race” (Solonec, quoted in Leung 2014). For the consequences of such removal, see chapter 5 on the boarding schools. Prostitution and Sex Trafficking Sexual trafficking laws are a relatively recent phenomenon, but sexual exploitation through prostitution of Indigenous w ­ omen is not. Even though prostitution was illegal in colonial times, sex workers w ­ ere seen as



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criminal offenders, not victims. The recent introduction of trafficking legislation can be seen in the United States with the Trafficking Victim Protection Act of 2000, (U.S. Department of State 2015b). In New Zealand, the first anti-­trafficking law was the Crime Act (1961) update by the Omnibus Crime Bill (2000). In Canada, an anti-­trafficking section was added to the Criminal Code in 2005 as “Trafficking in Persons” (section 279.01) (Government of Canada 2016, 2015; Bourgeois 2015). In Australia, anti-­ trafficking laws are now found in the Commonwealth Criminal Code u ­ nder Divisions 270 and 271 (U.S. Department of State 2015a). Most public concern and legislation about sex trafficking focuses on the international sex trade as ­human slavery. As a result, the domestic trafficking of Indigenous w ­ omen and girls receives ­little attention (Bourgeois 2015). Despite the lack of public attention, some young Indigenous ­women are particularly vulnerable to sex traffickers in that they are “young, female, poor, socially or culturally excluded, and under-­educated, as well as coming from ‘dysfunctional’ families and having experiences with state institutions such as the child welfare system” (Bailey and Shayan 2016, 330). The continuing vulnerability of Indigenous ­women to trafficking is based in f­ actors rooted in colonialism, including “gender and racial discrimination, youth, extreme poverty, undereducation, unemployment and underemployment, inadequate and unstable housing, homelessness, high rates of ­mental health issues, drug and alcohol use and addictions, poor physical health, involvement in dysfunctional or violent families and institutions (such as . . . ​ child welfare agencies and residential schools), and high rates of physical and sexual abuse (as ­children and as adults)” (Bourgeois 2015, 1440). Such f­ actors ­were identified as the root cause of the vio­lence against the missing and murdered w ­ omen in Canada (to be discussed shortly), but could easily be a summary of the issues faced by all young Indigenous ­women who become victims of sex trafficking. Farley et al. (2016, 66) distinguish between prostitution and sex trafficking, explaining that prostitution is “the exchange of sex acts for money, food, shelter and other needs” and includes activities such as escort-­t ype ser­v ices, phone sex, Internet prostitution, massage parlors, and brothels, pornography, strip clubs, sauna and nail-­parlor-­ based prostitution, live sex shows, peep shows, mail-­ order brides, and prostitution tourism. According to the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially ­Women and ­Children, Supplementing the UN Convention Against Transnational Or­g a­n ized Crime, trafficking is described as follows: Trafficking in Persons ­ shall mean the recruitment, transportation, transfer, harboring, or receipt of persons, by means of threat or use of force or other forms of coercion, of abduction or fraud, of deception, of

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the abuse of power of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over other persons, for the purpose of exploitation. Exploitation ­shall include, at a minimum, the exploitation of the prostitution of o ­ thers or other forms of sexual exploitation, forced l­abor or ser­v ices, slavery or practices similar to slavery, servitude or the removal of organs. (quoted in Sethi 2007, 58–59) In the United States, modern-­ d ay trafficking of American Indian ­women was recorded in the 1940s and occurred as a result of relocation during the termination era (Deer 2015). A 2007 study in Minnesota found that 24 ­percent of the arrests for prostitution w ­ ere American Indian/Alaska Native ­women, which was more than 12 times their population proportion. Young Indigenous girls are specially targeted by traffickers for prostitution, pornography, and strip shows (Pierce 2012) b­ecause “their appearance allows them to be advertised as many dif­fer­ent races” (Campagna 2016, 50). A similar study in Anchorage found that Indigenous girls w ­ ere also being targeted for prostitution. About 33 ­percent of the ­women arrested for prostitution in Alaska w ­ ere Indigenous compared to being 16  ­percent of the population (Pierce 2012). Deer (2015, 75) reports that most American Indian prostitutes began as juveniles and suffered “child sexual abuse and extreme poverty.” Farley et al. (2016, 66) write, “The vast majority of prostituted ­women ­were sexually assaulted as ­children, usually by multiple perpetrators, and ­were revictimized as adults in prostitution as they experienced being hunted, dominated, harassed, pimped, assaulted, battered, and sometimes murdered by sex buyers, pimps, and traffickers.” They linked prostitution and trafficking to homelessness. In New Zealand, the sex trade was a part of colonial trade. Belich (1996, 153) describes it as varying from willing commercial exchanges among Māori ­women and sailors, to “the grimmer form of the sex industry, which could involve greater male control, multiple partners rather than temporary marriage, a single price (which went to Māori men), ‘very l­ittle girls’, and increasingly, slavery.” ­Today, 19 ­percent of sex workers in Christchurch are Māori as compared to 7 ­percent of the population, with Māori sex workers more likely to have been homeless at some point and to have begun prostitution as c­ hildren (Farley et al. 2005). Māori young p­ eople are overrepresented in prostitution (Farley et al. 2016). In Canada, ­there is no national-­level data collection on ­human trafficking (Sethi 2007). One study in Vancouver found that 70 ­percent of sex workers ­were First Nations, and another one found 52 ­percent—­very high numbers considering that only 7 ­percent of the city’s population is First Nations (Farley



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et al. 2005). One study found that 90 ­percent of the ­children in the sex trade in twenty-­two communities ­were Aboriginal (Pierce 2012). In Vancouver, gang-­ based prostitution usually “employs” child prostitutes, of whom 70 ­percent are Aboriginal (Deer 2015). A study of sex workers in Vancouver found that the majority of the Indigenous ­women had a history of child abuse (96  ­percent), physical abuse (81  ­percent), and current or past homelessness (83  ­percent). This compares with 82  ­percent, 58  ­percent, and 87  ­percent respectively for European-­Canadian sex workers (Farley et al. 2005). While working as prostitutes, 88 ­percent of the First Nations ­women reported being verbally abused, and 88 ­percent reported physical abuse from johns or pimps. This compares to 92 ­percent and 89 ­percent for European-­ Canadian sex workers, a small difference. ­T here was no difference in the frequency of health prob­lems between the two groups (63 ­percent). In both groups, 72 ­percent reported having PTSD, a higher rate than many combat veterans (Farley et al. 2005). As Farley et al. (2005, 256) found in their research, “The overrepre­sen­ ta­t ion of First Nations ­women in prostitution, and prostitution’s prevalence in an area of Vancouver with a high proportion of First Nations residents reflects not only their poverty, but also their marginalized and devalued status as Canadians.” Other f­actors associated with Indigenous sex trafficking include isolation and a need to belong; racism by settler-­colonist media, justice personnel, ser­ v ice providers, and citizens; substance abuse; gang associations; and gaps in ser­v ices (Sethi 2007). The trafficking of Aboriginal girls has been conceptualized instead as prostitution (Sethi 2007). Yet, according to Farley et al. (2005, 257), “Prostitution of Aboriginal ­women occurs globally in epidemic numbers with Indigenous w ­ omen at the bottom of a racialized sexual hierarchy in prostitution itself.” Indigenous sex trafficking can be family-­based or gang-­based, as Sethi found in Canada. Family-­based sex trafficking is often practiced through the generations and the result of marginalization resulting from colonialism (Sethi 2007). Deer (2005) argues that luring Aboriginal ­women across borders from Indigenous lands to become prostitutes should be defined as “international trafficking,” so that law enforcement acts with more severity and efficiency. In Australia, prostitution has been a survival tool for some Indigenous Australian w ­ omen during colonial times. T ­ here is very l­ittle information about modern-­d ay sex trafficking of Indigenous Australian w ­ omen; however, Indigenous ­women are disproportionately represented in street-­based samples of prostitutes in New South Wales, where prostitution is l­egal (Donovan et al. 2012). Blagg (2008, 138) mentions “providing petrol to sniffers in return for sexual favours” and that many suffer from sexually transmitted diseases.

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Murder More than 1,750 Aboriginal ­women in Canada have been killed or gone missing since 1980 (Royal Canadian Mounted Police [RCMP] 2015); the Native W ­ omen’s Association estimates that the number may be as high as 4,000 (Kennedy 2016). U ­ ntil the recent change in government, ­little was done to investigate t­hese crimes b­ ecause the majority of the w ­ omen w ­ ere sex workers or homeless (Deer 2015). ­Until the election of 2016, ­t hese killed and missing First Nations ­women “­weren’t ­really high on the radar” of then–­Prime Minister Stephen Harper, according to his own words (Boyden 2015). According to Boyden, if you are an Indigenous ­woman in Canada, “you are four times more likely to die violently than your non-­Native peers.” A government spokesperson told a meeting of western chiefs that an unreleased RCMP investigation revealed that of the solved cases, 70 ­percent of the w ­ omen ­were killed by Native men of their acquaintance, thereby making it a “First Nations prob­lem” not a Canadian prob­lem (Boyden 2015). The outcry that followed led to a number of strategies, but Aboriginal ­women still die or go missing. Stalking Stalking is “repeated harassment which is threatening and purposefully directed at a specific person (the victim), and would cause a reasonable person to fear bodily injury or death for themselves or members of the f­amily” (Smartt 2001, 209). Anti-­stalking laws are fairly recent—­for example, Canada added laws regarding stalking to the criminal code in 1993, and Australia enacted such legislation beginning in 1994 in South Australia (Smartt 2001). Very ­little research has been conducted on the stalking of Indigenous w ­ omen. More crime statistics are available in the United States, where Native American w ­ omen are two times as likely to report being stalked than w ­ omen from any other racial group. A small sample of Native American ­women reported that 17 ­percent of them had been stalked compared to 8.2 ­percent of white ­women and 6.5 ­percent of African American w ­ omen (Fox 2009). It is a sufficiently serious issue that many tribes are beginning to develop stalking legislation in their tribal codes (Luna-­Gordinier 2018) since dominant-­ society authorities give ­little priority to such crimes on Indian reservations. In Canada, stalking sometimes occurs as part of the coercive control partners try to exercise post-­separation as part of intimate partner vio­lence. Pedersen et al. (2013) found that Aboriginal w ­ omen in their study more often reported being the victim of stalking than non-­ Aboriginal ­ women (40.8  ­ percent Aboriginal compared to 22.1  ­percent of non-­Aboriginal participants). The most common stalker, however, was someone other than their ex-­spouse (29.6 ­percent Aboriginal compared to 17.7 ­percent non-­Aboriginal). Ex-­spouses



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as stalkers ­were more common for Aboriginal ­women than non-­Aboriginal (11.2 ­percent compared to 4.4 ­percent). No information was available on the stalking of Indigenous w ­ omen in New Zealand and Australia, so this is an area that needs research, since the experiences of Indigenous w ­ omen in the United States and Canada suggest that Indigenous ­women in ­these countries are also likely to be victims of stalking. As well, the relationship between stalking and the consequences of colonialism needs further investigation. Impact s of the Vi ole nt Vi c ti m i zati on ­ om e n of  I ndige nous W Vio­lence against Indigenous ­women has far-­r anging repercussions. For the w ­ omen themselves, the experience of violent victimization is likely to lead to depression, anxiety, and PTSD, at five times the rate than for w ­ omen who have not suffered from IPV (Duran et al. 2009). Violent victimization also frequently leads to alcohol abuse and poor self-­care, and can contribute to vio­lence against other f­amily members by the victim. The majority of Indigenous w ­ omen in prison in the United States, Canada, and Australia report early physical and sexual abuse (see Banks 2000; Ross 1998; McGillivray and Comaskey 1999) so t­ here may be a correlation with l­ ater criminal be­h av­ior. Kerley and Cunneen (1995) found that incarcerated Indigenous ­women might have been protecting themselves against domestic vio­lence, using drugs and alcohol to escape from vio­lence, and abusing or neglecting ­others ­because of their own abuse. McGillivray and Comaskey use the term “spirit murder” in conjunction with the violent victimization of ­women to describe how “spiritual abuse erodes or destroys an individual’s cultural or religious belief through ridicule and punishment” (Canadian Panel on Vio­lence Against ­Women, quoted in McGillivray and Comaskey 1999, 51). Further, “Spirit murder may occur in connection with broader cultural devaluation as a tactic of humiliation by an abusive partner or parent, or through the abuse of trust and position of authority by one holding a position of spiritual power. Members of the clergy, elders, band council members, tribal police, and medicine men may exploit their positions to legitimize intimate vio­lence, enhance access to victims, silence complaints, and prolong victim contact” (McGillivray and Comaskey 1999, 51). Vio­lence from Indigenous men in Australia may have impacts similar to ­those of spirit murder as found in Canada. In Australia, it has been called “spiritual vio­lence” and is described as “deeper than an individual’s experience of betrayal: it involves the shame experienced when every­one in the community is aware of the vio­lence, and when they too are implicated as victims of ­v io­lence. . . . ​It includes the abuse suffered from a history of genocide or

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persecution” (­Family Vio­lence Professional Education Task Force, quoted in McGillivray and Comaksey 1999, 51). Participants in an Australian study by Cheers et al. talked about the “­ripples,” including “destruction of the spirit,” that spread out from vio­lence against individual ­women and impact the individual’s f­amily and community, including c­hildren. “­Children who witness vio­lence suffer from school absences, especially during violent times, under-­ achievement and be­hav­ior prob­lems, and schoolyard fights” (Cheers et al. 2006, 56). F ­ uture research should investigate if this concept of spirit murder can be applied to ­women in other Indigenous socie­ties. Vio­ lence weakens, sometimes separates and displaces, families and thereby weakens the community through “diminished trust, cohesion and caring, mutual re­spect, f­amily customs and stories, adult control of c­ hildren and the authority of older p­eople as symbols and con­vey­ors of culture” (Cheers et al. 2006, 56). The community is also weakened by the social and familial divisions that vio­lence c­ auses, the negative ste­reo­t ypes of Indigenous Australians that are reinforced, the shame that members feel, and the socioeconomic disadvantages that continue as high unemployment, low educational achievement, and lack of opportunities result (Cheers et al. 2006). State Crime I m p l i cati ons Our argument, based on the evidence presented, is that states (that is, settler-­colonial governments) have (1) directly committed crimes against Indigenous w ­ omen, and (2) ­v iolated the h ­ uman rights of Indigenous ­women. State Crimes against Indigenous ­Women Crimes committed against Indigenous p­ eople by the state occur in four ways: the colonial relocation of Indigenous ­peoples, forced sterilization, state indifference to crimes of vio­lence against Indigenous w ­ omen, and criminal justice personnel committing crimes against Indigenous ­women. Bourgeois argues that the relocation of Indigenous p­ eoples was mass ­human trafficking since Indigenous ­people w ­ ere coerced, exploited, and abused for the profit of the state, as well as relocated. She argues that settler-­colonial nations have “been built on and sustained through trafficking of indigenous ­people, including ­children. In turn, the acts of trafficking of the . . . ​state have carried consequences for generations of indigenous p­ eoples that correlate with con­temporary predictors of vulnerability for being targeted for ­human trafficking” (2015, 1463). States encouraged, facilitated, or enabled forced sterilization (in some countries) as a cost-­effective way of lessening obligations to Indigenous ­people by the state by decreasing their population. If they would not die off by themselves, then it was a relatively cheap way to practice the crime of genocide. As Stote (2012, 139–140) writes, “­ T here is a finality to the



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practice of sterilization. The break that comes from robbing Aboriginal ­women of the ability to reproduce cannot be undone, and effectively terminates the ­legal line of descendants able to claim Aboriginal status, thereby reducing the numbers of ­those to whom the federal government has longstanding obligations, ­whether ­these are founded in treaties, or are obligations stemming from the occupation of Aboriginal p­ eople’s lands.” In this light, sterilization is where genocide intersects with racism and colonialism. It is an attempt by colonial governments not only to reduce Indigenous populations but to reduce their sovereignty (O’­Sullivan 2016). Indigenous communities cannot protect their own members from being labeled defective and being abused. State officials have shown indifference to violent crimes against Indigenous ­women. The lack of attention paid to murdered and missing Aboriginal ­women in Canada was a gross abuse of authority from the prime minister downward, although a series of investigations are now underway. The relative invisibility of Indigenous w ­ omen lost to trafficking may be partly due to the national focus on international trafficking, but it could also be a continuation of colonial indifference and complicity t­oward the trafficking of Indigenous w ­ omen and girls. State officials in colonial times w ­ ere well aware of the sexual exploitation and abuse of Indigenous ­women, and ­either ignored it or refused to act in sufficient mea­sure to prevent it. This made the state complicit in the crimes. The complicity continues to this day. Individual members of the criminal justice system commit sex crimes against Indigenous w ­ omen and ­ children. Monchalin describes sexual assaults, rapes, and stalking incidents committed by judges and police officers in northern British Columbia. Indigenous ­women have reported being abused in police cells (Monchalin 2016). Such exploitation by the state could understandably be a contributing ­f actor to the distrust by Indigenous ­people of the non-­Indigenous ser­v ice providers in the criminal justice system and public agencies that are supposed to protect and serve them. They know the role ­these state organ­izations have played historically in depriving them of their land, resources, and lives. They have been victims of abuse by justice and other personnel, including rape, physical vio­lence, and sterilization; they have been victims of indifference and callousness when victimized by crime; and they have been treated with extreme disrespect. It is understandable that they do not have high expectations of assistance when in need or call only when desperate. State Violations of Indigenous ­Women’s ­Human Rights By the standards of social harm theory and h ­ uman rights conventions, all of the abuses described previously caused g­ reat social harm and ­v iolated ­women’s ­human rights, in addition to some of them being illegal at the

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time. T ­ oday, they are all crimes, but crimes against Indigenous w ­ omen have been normalized with the groundwork laid by the historical crimes, which still inform the response of the state to the needs of Indigenous victims. As Bubar (2010, 57) writes, “­Human rights are concerned with positive rights and entitlements. ­Human rights are inextricably tied to social and economic justice and cultural competence. When rape and sexual assault are ignored and multiple levels of the response system are systematically underfunded and do not function properly to protect citizens, then the underfunded programs in the areas of law enforcement, criminal justice, and health and safety are synchronized in their collective violation of h ­ uman rights. This is the situation in tribal communities.” The violations of Indigenous w ­ omen’s ­human rights occur through the contravention of international treaties that infringe on sovereignty and the retention of customary law, and insufficient access to ser­v ices. contravention of international conventions.  ​Numerous international conventions declare the crimes discussed above as violations of ­human rights, as well as crimes. To discuss the way that state actions contravene each is a subject for another proj­ect. We ­w ill first briefly outline some of the conventions that should protect Indigenous ­women. Larsen and Petersen (2001) point out that several of the sections of the UN Declaration on the Elimination of Vio­lence Against W ­ omen (1993) are particularly pertinent to Indigenous w ­ omen: Article 2 on ­f amily vio­lence and Article 4 requiring the state to punish violent acts against ­women done by individuals and the state. They add that Article 4 states that, “Custom, tradition or religion cannot be used as a justification to avoid eliminating vio­lence against ­women.” As well, the abuse of w ­ omen is contrary to one of the oldest UN conventions, the Declaration of H ­ uman Rights (1948), which states that h ­ uman rights are the birthright of e­ very person and the government is obligated to protect and promote them (Larsen and Petersen 2001). Bubar (2010) suggests that both the Universal Declaration of H ­ uman Rights and the Convention on the Elimination of All Forms of Discrimination Against ­Women (CEDAW) apply to Indigenous victims of rape and sexual assault (though noting that the United States remains the only industrialized country not to ratify CEDAW). Article 4 of CEDAW recommends that some populations of w ­ omen are more vulnerable to sexual exploitation and need to be recognized as such (Sethi 2007). Sex trafficking is ruled by the 2003 UN Protocol to Prevent, Suppress and Punish Trafficking in Persons (the Palermo Protocol). The violation of the Indigenous rights of w ­ omen can take at least two forms: attacking sovereignty and damaging customary law. First, states



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violate Indigenous p­ eoples’ ­human rights by enacting laws that deny them the sovereign right to serve and protect their own ­people from exploitation and abuse. Non-­Indigenous authorities declared their jurisdiction over Indigenous justice systems, often due to “repugnancy” at traditional methods of justice, usually for being too lenient to non-­I ndigenous values (the United States) or too harsh (Australia). The involvement of the non-­ Indigenous justice system is an infringement on Indigenous ­peoples’ rights to have their own social institutions, as outlined in the UN Declaration on the Rights of Indigenous ­Peoples (UNDRIP) (UN 2007; see also chapter 1). One of the reasons that Indigenous w ­ omen give for not reporting their victimization to non-­I ndigenous authorities is the impact that justice entities have on their p­ eople’s sovereignty. In addition, Indigenous w ­ omen broadly do not want to blame Indigenous men and expose them to institutional abuse and discrimination from the colonial justice system, further the ste­reo­types that the dominant society has of Indigenous ­people, or lose an offender that the criminal justice system removes from an already small and endangered community (Larsen and Petersen 2001; Hamby 2004). Racist laws are an entrenched part of the violation of Indigenous sovereignty. As one example, the jurisdictional maze that exists in the United States is a result of more than 200 years of colonial government interference in traditional law. It tampers with the tribal nations’ authority to provide justice and ser­v ices to their own citizens so that crimes against American Indian ­women often go unprosecuted and unpunished, leaving American Indian ­women to live in a state of fear. As Amnesty International (2008, 9) states, “The federal government has steadily eroded the authority and capacity of tribal governments to respond to crimes committed on tribal land and has created a complex jurisdictional maze that often results in perpetrators ­going f­ ree. It is often very confusing to figure out just who has the authority to address crimes committed against Indigenous w ­ omen. This can lead to delays in investigation or no response at all.” Reservations with their own police and tribal courts have no jurisdiction over most non-­Native ­people committing crimes such as sexual assault, stalking, or sex trafficking on reservations ­because of the Major Crimes Act (1885). According to Oliphant v. Suquamish Indian Tribe (435 U.S. 191, 1978), tribal courts cannot pursue non-­Natives for crimes committed on reservations. As Campagna (2016, 51) states, “The jurisdictional confusion in reporting creates l­egal loopholes and consequently, for motivated sexual predators such as pimps or traffickers, creates potential opportunities.” As well, this means that prevention programs aimed at Native men ­w ill have ­little impact since the majority of offenders are not Indigenous (Owens

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2012). The ability of tribal police to arrest perpetrators is determined by the race of the perpetrator, the location of the crime, and the seriousness of the offense. U ­ nless the Federal Bureau of Investigation, which has jurisdiction over felony offenses, chooses to prosecute the case, which is not likely according to Smith (2005, 32), the non-­Native perpetrator w ­ ill go f­ ree and ­w ill be ­free to reoffend (Owens 2012). If the perpetrator is Native, according to the 2010 Tribal Law and Order Act (TLOA), the tribal courts, once they meet certain criteria such as providing l­egal counsel for the offender (Cardick 2012), are able to sentence a rapist to jail for a maximum of three to nine years and fine him up to $15,000. This is not comparable to sentences that can be given by state and federal courts off reservation, and does not include non-­Native offenders. The Vio­lence Against ­Women Act (VAWA) of 2013 allowed some tribal nations to prosecute non-­Native men, if the tribe jumped through all the administrative hoops required by the act. Most tribes have not ­because of the costs, additional unfunded training, impacts on other parts of their criminal justice system, and the decrease in sovereignty that the legislation represents. It should be emphasized that neither the TLOA nor VAWA help the majority of Indigenous w ­ omen who live off American Indian/Alaskan Native lands and are subject to all non-­t ribal laws. Second, the destruction of customary or traditional law was an avowed goal of colonialism, as can be seen in the historical and modern-­d ay laws that forbid the practices of such law (see Austin 2020). Fortunately, customary law in most countries was only damaged, but the versions that exist must also deal with the ills that colonialism introduced. ­Because of the influx of social issues into Indigenous communities, such as alcohol abuse, historical trauma/ intergenerational post-­traumatic stress, and loss of culture, traditional pro­ cesses may no longer be sufficient, and need to be modified or supplemented by other healing options. ­T here have been negative repercussions of damaged customary laws for Indigenous w ­ omen. McGillivray and Comaskey (1999) point out that colonialism’s impact on culture is not a justification for intimate partner vio­lence, although it has been used that way by abusers. This is what Mihesuah (2003, 163–169) calls the “colonialism excuse” that argues that w ­ omen should put aside their own oppression to further the cause of Indigenous sovereignty and that once Indigenous p­eople regain their status, then Indigenous w ­ omen can pursue their own freedom from vio­lence. In Australia, one aspect of this is “bullshit culture” when abusing Indigenous men argue that “he has the right to beat his partner for illegitimate reasons which he justifies using the context of traditional vio­lence” (Balzar et al. 1997, 49; Toohey 2001). Blagg (2008, 149) points out that re­sis­t ance to this



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kind of vio­lence may involve ­women with the criminal justice system as offenders. Insufficient and In­effec­tive Ser­vices States also violate the h ­ uman rights of Indigenous w ­ omen by making access to ser­v ices difficult and unpleasant. Not only are most ser­v ices scarce on Indigenous lands, but it is difficult to find welcoming, caring, and culturally sensitive ser­v ice providers in urban areas where the majority of Indigenous p­ eople live. This lack includes all kinds of ser­v ices for Indigenous ­people—­m ale and female, adult and ­children—­from crisis hotlines to drug treatment, refuges/shelters for domestic vio­lence victims, and anti-­ trafficking programs. As Larsen and Petersen (2001, 126) state, non-­Indigenous ser­v ices have “the inability to deal with ­family vio­lence without damaging the ­people involved further.” Yet according to Hamby (2004, 2009), Indigenous w ­ omen may face victim blaming and discrimination, language barriers, value conflicts with ser­v ice providers, distrust of law enforcement and confusion about jurisdiction, economic and geographic barriers to getting ser­v ices, and concerns about confidentiality and stigma in small communities. To the list can be added lethal indifference and/or verbal and physical abuse from ser­ v ice providers (Razack 2015; Hamby 2009). In New Zealand, it is acknowledged that rural ­women and ­women in gangs face additional barriers in accessing essential ser­v ices (along with other groups such as refugee women and ­ ­ people with disabilities) (New Zealand Ministry of Social Development 2002). Native American w ­ omen have the lowest access to sexual vio­lence ser­ vices of any w ­ omen in the United States (Bubar 2010). Bubar points out that Indigenous victims are particularly disadvantaged ­because the United States provides 50 ­percent more funds for the healthcare of prisoners than it does for American Indians for whom it has trust obligations. Tribal law enforcement and court ser­v ices are also underfunded, leading to insufficient domestic vio­lence shelters, rape crisis centers, and prevention programs (Bubar 2010; Amnesty international 2008; Hamby 2009). As Deer (2015, 79) states, “Native ­women and girls deserve tailored interventions that recognize the historical legacy they live ­u nder.” In Australia, researchers have discovered that programs developed for non-­Indigenous populations are not effective for Indigenous Australians, pointing out that “analyzing the social issues experienced by Indigenous Australians from the perspective of colonization, oppression and dispossession has long been known to be fundamental to sound social policy” (Cheers et  al. 2006, 51). Blagg (2008) points out that non-­Indigenous researchers

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interpret issues through a non-­Indigenous lens and more attention should be paid to the work of Indigenous researchers for accurate pictures of vio­ lence issues in Indigenous communities and their resolutions. It should be noted, in addition to all the issues above, ­there is a lack of knowledge by victims and ser­v ice providers about Indigenous resources unique to their lands, such as healers, spiritual and cultural resources such as sweat lodges, talking circles and ceremonies, restorative community justice forums, financial assistance to victims, f­ ree or low-cost Western-­style health care through urban Indigenous-­r un health centers, and outreach by victim advocates and other organ­izations (Hamby 2004). In response to continuing state crimes and violations, and the unwillingness of states to tackle the root c­ auses of vio­lence against Indigenous ­women, an impressive array of solutions are coming from Indigenous communities. ­These are explored further in chapter 10. Conclusion The cumulative effect of colonization has been to place Indigenous ­women in t­ riple jeopardy of victimization: (1) as Indigenous ­peoples, (2) as ­women at risk of victimization from non-­Indigenous society, and (3) as ­women at risk of victimization from their own men. The vio­lence they suffered was wrongdoing u ­ nder Indigenous laws, although in l­ ater times “bullshit laws” ­were used as a defense by some Indigenous men for their sexual predations. If not for the racism of the times, the laws that prohibited some of the vio­lence against white w ­ omen would have applied to t­hese crimes against Indigenous w ­ omen as well. The victimization of Indigenous w ­ omen by non-­Indigenous society was and continues to be sustained by colonial governments breaking, ignoring, or being complicit in the breaking of their own laws by non-­Indigenous perpetrators. Some colonial governments ignore or downplay the international conventions they have signed that would protect Indigenous ­women ­because they would require major changes in the relationships between the government and Indigenous p­ eople. The governments would actually have to live up to the spirit of treaty obligations and ­human rights guarantees. This would mean investing large sums of money into a population that many non-­Indigenous p­ eople still see as not deserving full ­human rights. It would mean relinquishing control to Indigenous nations and communities to pursue their own solutions to the many prob­ lems that colonialism imposed on Indigenous ­women and men. It would mean honoring and respecting Indigenous w ­ omen and working with them to restore their positions of leadership and equality within Indigenous and non-­Indigenous socie­ties. As Larsen and Petersen (2001, 131) write: “Infrastructures are required to assist Aboriginal ­people to live in ways that are meaningful to



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themselves, that promote dignity and self-­e steem in a society where the ­future seems to hold l­ittle promise and p­ eople’s spirituality and life-­style have been radically affected. Appealing to universal ­ human rights and enforcing international ­human rights provisions, where appropriate through the criminal justice system, are essential in finding a lasting solution.”

C hapte r   7

The Conestoga Indians, Hate Crimes, and Domestic Terrorism

On December 14, 1763, a group of fifty Scots-­I rish settler-­ colonists from Paxton, Pennsylvania, attacked and murdered six Conestoga Indians—­men, ­women, and c­ hildren. ­Those murdered ­were living legally on land set aside for them by William Penn.1 This small, 400-­acre lot was all that was left of their traditional lands—­lands which once covered tens of thousands of acres. On December  27, 1763, the same group of settler-­ colonists, joined by more of their kind, committed a second mass murder by killing the remaining fourteen members of the same Conestoga community. The magistrates and local leaders did nothing to prevent the murders, and the “Paxton Boys” ­were never arrested or tried, even though the other settlers ­were aware of their identities (Brubaker 2010). This infamous crime is among the best documented of early violent hate-­ motivated crimes against Indigenous ­peoples in the United States. It is one of many colonial crimes to set the tone for ethnoviolence against American Indians t­oday perpetuated across the nation. In this chapter, we w ­ ill explain why we categorize the mass murder of Indigenous p­ eople as a kind of hate crime, and why defining it as such is impor­tant for understanding ethnoviolence and crimes against Indigenous ­peoples ­today. Reference ­w ill be briefly made to hate crimes against Indigenous ­peoples in other settler socie­t ies but ­w ill primarily focus on the experience of t­ hose in the United States. First, we ­w ill look in more detail at the characteristics of the Conestogas’ murder.

The M urde r s A small community of about twenty Conestoga Indians had lived u ­ nder the protection of the colonial government in Lancaster County, Pennsylvania, for almost seventy years. They had lost their lands to the British Crown, from whom William Penn bought the colony of Pennsylvania. Penn reserved for them 3,000 acres of good farming land (which his sons quickly reduced to 400 acres), surrounded by Mennonite and Quaker farmers 146



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sympathetic to the Indian community. The Conestogas had converted to Chris­tian­ity and ­adopted most of the customs of their neighbors. They remained loyal to the colony during the French and Indian War, and remained so despite Pontiac’s Rebellion occurring nearby. The Conestogas believed they w ­ ere safe among their neighbors and protected by the government—­a nd publicly said so. When they ­were urged to move and leave their land as unrest among the settlers grew, they refused to go (Brubaker 2010). The Paxton Boys w ­ ere members of the Paxton Rangers, a militia unit that had been authorized to protect the district a­ fter French-­a ligned Indians raided Paxton at the beginning of the French and Indian War in 1754. When En­g lish settlers moved into former French territory that was controlled by Pontiac, an Odawa leader who opposed the British taking lands from the Indian residents, Pontiac and his ­people fought back and threatened to destabilize the region. The militia therefore remained active, continuing ­under the directorship of pastor John Elder of the Paxton Presbyterian Church (Brubaker 2010). The Paxton militia believed that all Indians ­were their enemies, even the peaceful ones, suspecting that they might be passing on information to Pontiac’s ­people. In response, they de­cided to hunt Indians (Brubaker 2010). Their first unsuccessful attempt was in August of 1763, when they ambushed by a group of Indians they had been hunting and four militia members ­were killed. They ­were more successful the next time, when they found and killed three Indians who had been on a peaceful trading mission and ­were returning home. In September, the Rangers found a grisly scene where Indians had killed ten members of a settlement. Brubaker (2010) suggests the Paxton militia’s lack of success in locating and killing large numbers of Indians, in addition to the discovery of dead settlers, made them determined to kill more Indians—­a ny Indians. The Paxton militia was not pleased that the Conestogas had claim to so much fertile land, and that the Pennsylvania government refused to break their agreement with them. Based on his reading of a wide variety of historical documents, Brubaker (2010, 21) describes the December 14th killing of the Conestogas this way, “The Rangers went about their business in a rush. They dismounted and fired their flintlocks at the Indian huts. They rushed inside and tomahawked the survivors. They scalped every­one. Then they looted the huts, lashed the booty to their s­ addles and set the buildings on fire.” On their way home they met a Quaker neighbor of the Conestogas who was unaware of the massacre. The riders told him that “no government should protect Indians” and continued riding. When the authorities in the town of Lancaster heard about the massacre, they rounded up the remaining seven adults and seven c­ hildren and moved

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them into the Lancaster work­house for their own protection, and thereby took responsibility for their welfare. On December 27 at 2 p.m., when all the responsible authorities ­were at a late Christmas church ser­v ice, between 50 and 100 Paxton Boys and associates left north Lancaster County, rode south to Lancaster Borough, and rode directly to the work­house where the Conestogas ­were sequestered. [They] broke open the work­house doors and pursued the fleeing Indians into the snow-­fi lled yard. They hacked to death ­Will Sock and his wife and murdered two of the l­ittle girls over their dead bodies. They discharged a musket blast in another victim’s mouth, splashing his brains on the yard wall. With tomahawks, they cut the hands and feet from several Indians. With knives, they scalped them all. . . . ​The bloodied killers emerged from the work­house and walked back up King Street hill to the Swan. They mounted their ­horses and brazenly rode around the court­house, shouting and discharging their weapons. Then they spurred their ­horses north on Queen Street ­toward home. (Brubaker 2010, 39) The Conestogas’ guardians had received several warnings of the second attack, but most of them de­cided to attend church and did nothing to stop the attack—­two even stood aside to let the militia enter the work­house. They did not arrest the perpetrators for the crime, even though the offenders had been clearly seen. The local magistrates collected affidavits from a number of citizens, none of whom listed the perpetrators and some of whom blamed the Indians (Brubaker 2010). The colonial governor issued proclamations demanding the killers be identified and offered a reward for their arrest. While the governor was not happy about the death of the Conestogas, the greatest concern of the colonial government was the threat the Paxton Boys made to attack Philadelphia and another group of Indians converted by Moravian missionaries who had been moved to Philadelphia for their protection. The threat included killing anyone who stood in their way. To prepare for this attack, the Paxton Boys increased their numbers, with up to 1,500 being reported. Accounts of their “imminent intentions” greatly alarmed the colonial government (Brubaker 2010, 45). “When Philadelphians learned of this threat, they worried about what the Paxtonians might do to the Indians. But they also ­were concerned about what they might do to Indians’ Quaker friends and the entire government structure the Rangers held responsible for not ­doing enough to protect pioneer families” (Brubaker 2010, 42). Since the city’s origins, Philadelphia had been controlled by the Society of Friends, members of the pacifist religion sometimes referred to as Quakers. Though Quakers ­were no longer in direct power, Philadelphia still had



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no standing militia. One was quickly cobbled together to prepare for the impending attack, but the Paxton Boys did not attack, in f­avor of meeting with Benjamin Franklin and city officials on February 7 to negotiate terms. The Paxton Boys presented their grievances and demands as “A Declaration and Remonstrance of the Distressed and Bleeding Frontier Inhabitants of the Province of Pennsylvania,” which claimed that the Conestogas w ­ ere in league with hostile Indians, and ­were supported by the government while the settlers w ­ ere left to starve. They demanded that the Moravian Indians be removed from Philadelphia, that the government provide assistance to settlers wounded in the Indian wars, that they suspend trade with Indians who had white captives, that Quakers quit helping Indians in treaty sessions, and that the government provide rewards for all Indian scalps (Brubaker 2010, 49). They also wanted more po­liti­cal repre­sen­t a­t ion in the Pennsylvania Assembly, the governing body, where the eastern counties had more representatives than the western frontier counties. The demands made in the documents con­ve­n iently left out that the ­people living in the frontier counties ­were illegal squatters on the land (Heather and Nielsen 2015). The government ignored all their demands except one, which was the reinstatement of rewards for the scalps of hostile Indians and even larger rewards for live prisoners (Brubaker 2010). In the next section, the characteristics of ethnoviolence, including hate crimes, ­w ill be described. Then the actions of the Paxton Boys are analyzed showing how their actions fit the definitions of hate crime and domestic terrorism. E thnoviole nc e and H ate Cri m e s The term “ethnoviolence” refers to all violent acts that are based on the race of the victims, including hate crimes. Perry (2009, 402) explains that ethnoviolence “runs the continuum from verbal harassment, to extreme acts such as assault, arson, and murder. Not all incidents that fall within this definition w ­ ill be ‘crimes’ from a l­egal perspective. Yet they do constitute serious social harms regardless of their ­legal standing.” Vio­lence against Indigenous p­ eople also falls along a continuum of collective to individualized vio­lence—­that is, from vio­lence committed against the ­whole community to vio­lence committed against an individual Indigenous person (Perry 2002). ­There is no one global definition of hate crimes due to the influence of po­liti­cal interests, cultural differences, and social norms (Boeckmann and Turpin-­Petrosino 2002).2 The usage of the terms ranges from the ­legal to accepted common speech. Hate crimes did not receive an official, institutional designation as such u ­ ntil the Hate Crimes Statistics Act of 1990, which required that, in conjunction with reporting for the Uniform Crime

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Reporting program, police forces collect and submit data to the FBI regarding hate crimes (Nolan et al. 2002). The Matthew Shepard and James W. Byrd Jr. Hate Crimes Prevention Act of 2009 is the legislation that provides the most recent understanding of the term. ­Under the act, hate crimes ­were added to federal criminal civil rights law so that federal government could prosecute violent crimes motivated by hatred. U ­ ntil then, each state had its own varying criteria for hate crimes. The definition used by the FBI (n.d.) is, “A hate crime is a traditional offense like murder, arson, or vandalism with an added ele­ment of bias.” Barbara Perry (2009, 403) provides a broader definition, arguing that hate crimes involve, “acts of vio­lence and intimidation, usually directed ­toward already stigmatized and marginalized groups. As such, it is a mechanism of power and oppression, intended to reaffirm the precarious hierarchies that characterize a given social order. It is a means of marking both the Self and Other in such a way as to reestablish their ‘proper’ relative positions, as given and reproduced by broader ideologies and patterns of social and po­liti­cal in­equality.” Hate crimes are usually characterized by extreme vio­lence and motivated by prejudice ­because of the victims’ perceived membership in a certain group. They are characterized by multiple offenders against fewer victims, excessive brutality, and generic interchangeable victims who are strangers to the offenders and members of the hated Other group (Perry 2003). The motivation of the offenders is often complex. McDevitt et  al. (2003) list four types of offenders in order of prevalence (all of whom share bigotry as a common trait): (1) thrill seekers who want to display power and get bragging rights, (2) defensive offenders where the perpetrators see themselves as defending their community from invading outsiders, (3) retaliatory offenders for purposes of vengeance even if the perpetrating event was false, and (4) mission offenders in which the perpetrators want to “rid the world of evil” (McDevitt et al. 2003). The offenders are “overwhelmingly young white males” (Perry 2003, 6) who are exercising informal social control to let the O ­ thers know they are not wanted (Wickes et  al. 2016). The hate crime is both symbolic of the perpetrators’ feelings ­toward the despised ­Others and instrumental in that the perpetrators want the victims and ­others of their group to curtail their movements and be­h av­ior (Craig 2003). According to Perry (2009, 402), bias-­motivated crimes are a “normal” part of colonial cultures; they are “a natu­r al extension of the racism, sexism, and homophobia that normally allocates privilege along racial and gender lines.” They are embedded into the “broader patterns of subjugation and oppression” of the times (Perry 2008, 12) and contribute to the marginalizations that the ­Others face such as low employment rates, poor health, and intergenerational post-­traumatic stress found among American Indians. As



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Cunneen et al. (1997, 3) write, “Hate crimes do not occur in a po­liti­cal or ideological vacuum.” Hate Crimes and Politics Hate crime is systematic in character, resulting from a social context where some groups are seen as the Other. ­T hese ­Others become the victims of social injustice and acts of vio­lence, including fatal vio­lence, all spurred on by hate. They are part of a culture where oppressive activities are seen by some in-­g roup members as justifiable, if not actually desirable (Perry 2003). They facilitate “the relative construction of identities, within a framework of specific relations of power” (Perry 2003, 5). In other words, they communicate to ­Others that they are at the low end of the power structure; they “need to get back in their place” as second-­class citizens or leave and let the “rightful ­owners” have the land, status, resource, or place. As was demonstrated in chapter 2, the rightful ­owners in their own worldview are the settler colonists. Hate crimes are most likely to occur in areas where t­here is conflict over scarce po­liti­cal and economic resources or where groups of O ­ thers are seen as a threat to the dominant culture (Wickes et al. 2016). The hate crime targets individual victims, but the members of their group or community experience the crime as an attack on the w ­ hole group (Cunneen et al. 1997). Hate crime “reaches into the community to create fear, hostility, and suspicion. Consequently, the intent of ethnoviolence is not only to subordinate the victim, but also to subdue his or her community” (Perry 2009, 403). Other members of the victims’ community are vicarious victims, feeling shock, anger, and fear. Community members experience themselves as unsafe, unwelcome, and inferior in society. They believe that hate crimes against their group have become normal, that they can no longer trust members of the perpetrators’ community, that they do not have the same rights as o ­ thers, and that they have a high likelihood of becoming a direct victim themselves (Perry and Alvi 2011). The purpose of hate crimes is intimidation: to coerce the group to accept their status and position in society as “lesser-­than.” According to Perry and Alvi’s (2011) research, hate crimes successfully accomplish ­t hese aims. The crimes can also have an impact on the larger non-­Other community as a ­whole, as they become aware of the crimes (Wickes et al. 2016) so that the crimes may end up dividing ­people who ­were living in harmony up to that point. Hate crimes attack the fundamental values of the society, such as democracy and celebrating diversity (Ontario 2005; Perry and Alvi 2011). Perry and Alvi’s (2011, 69) research also suggests, however, that “naming the prob­lem and confronting it honestly” is vital to attaining such ideals and ending hate crime.

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The work of Mark Hamm (1993) unfortunately does not look directly at the experiences of Native Americans, but his research on American neo-­ Nazi skinheads emphasizes the po­liti­cal aspects of hate crime, suggesting that it aims at sending po­liti­cal messages not only to the targeted minority groups but to the government. Hate crimes against vari­ous Other groups, he points out, have been around since recorded ­human history and take many forms, from gang vio­lence in American cities to gang rape in Bosnia (Hamm 1994b, v). Perry and Hamm both focus on the motives for hate crimes, uncovering just how difficult it can be to pinpoint such motives (1994b, vii). Hamm shows how in hate crimes around the globe “the first party vicariously controlled the second party through a sustained campaign of vio­lence against the third party” (Hamm 1994a, 187); in other words, by attacking victims from Other groups, the hate crime perpetrators are also forcing the government and other involved entities to act. Hamm (1994a, 178) argues that hate crimes are domestic terrorism ­because they are “ideological and rational.” They are indirect attacks against the po­liti­cal system and its ideals. They are used to instill fear in subjects other than the immediate targets and/or publicize the cause of the perpetrators (Hamm 1994a, 179). Most American domestic terrorists are right-­w ing and base their ideology on their own perceived racial or religious superiority (Mullins 1993). Domestic terrorism attempts “to alter and/or overthrow a po­liti­cal system” (Mullins 1993, 121). Some perpetrators want a specific law changed, such as antiabortionists; some want the complete overthrow of the government, such as vari­ous American far-­right groups who envision the replacement of the current regime with their own religious-­based government that no longer officially embraces democracy, diversity, pluralism, and tolerance (O’Nions 2010). They want society to change to fit their ideals, and see terrorism as the only option available to force the change. Domestic terrorism can range from high-­media-­profile actions such as bombings and mass murder, to more low-­profile acts such as ethnoviolence that includes making threats, damaging property, or committing acts in which perceived members of the target group are assaulted non-­fatally. All of t­hese events are designed to catch public attention and publicize the desires of the terrorist group (Mullins 1993, 121). As Mullins (1993, 125) states, “Focusing on the individual personalizes terrorism more than conventional forms of terrorism, and in some cases may produce more fear than other forms of terrorism.” As Cunneen (1997, 157) points out about colonialism in Australia, ­there existed a “culture of terror” that nourished conquest and remains an impor­t ant part of the racism that exists in colonial socie­ties t­oday. He points to police contributions to this through the use of massive force in raids and po­liti­cal confrontations.



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This kind of domestic terrorism is an attack on the right of Indigenous ­people to exist as a ­people, according to Cunneen (1997, 161), so that racist vio­lence “represents the denial of the right to exist except as adjunct to the colonizer.” The same argument can be made for the vio­lence committed against Native Americans both historically as with the Conestogas and ­today, as w ­ ill be shown shortly. The Conestoga Massacres as Hate Crimes Perry traces ethnoviolence in the original American colonies back to 1643 in the colony of New York. T ­ here, Dutch soldiers murdered and mutilated many members of both sexes and all ages, of a Wecquaesgeek settlement (Perry 2008, 2003). Petrosino points out that this act would not have been considered a hate crime at the time ­because it was not illegal at the time (Petrosino 1999), and ­t here ­were many acts of genocidal intent occurring during settlement (Perry 2003). No doubt, considering the anti-­Indian tenor of the times, t­here ­were hate acts before 1643 and up to the time the Paxton Boys committed mass murder. As Petrosino (1999, 23) writes “Substantial evidence exists to suggest that hate crime as a be­h av­ior has existed in Amer­i­ca for more than 300  years; however, only recently—­relatively speaking—­h as it become recognized as a violation of law.” Unfortunately ­these early historical hate crimes w ­ ere not well documented nor are their po­liti­cal motivations as clear as they ­were with the Paxton Boys. 3 Colonial Pennsylvania began as a “holy experiment” in more or less demo­cratic theocracy led by William Penn, who envisioned it as providing a home for the much-­persecuted Society of Friends. Penn incorporated his faith’s princi­ples of just, truthful, and equal treatment into his government, and applied them to American Indians and Pennsylvania settlers alike. All inhabitants ­were subject to Pennsylvania government and laws, which w ­ ere based on ­t hose of Britain (Dunn and Dunn 1982). The Indians ­were also to become Christian. Quaker settlers bought land from Penn and made the long journey from ­England, looking for religious freedom for themselves and bringing their princi­ples of peace, integrity, and simplicity (Hamm 2003). T ­ here w ­ ere not enough of them, however, and to get out of debt Penn sold some of the land to other Eu­ro­pe­a ns, such as the Scots-­Irish, who did not share the Quakers’ religious beliefs or their cooperative, pacifistic relationship with the local Indian communities. The Indian occupants of Pennsylvania—­including the Lenni Lenape, Susquehanna, and o ­ thers—­d id not at first understand the concept of owning the land that the Creator provide for them to live on. ­A fter several eye-­ opening incidents where non-­Quakers forced the Indigenous inhabitants off land they had used for sustenance from time immemorial, they learned

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what land owner­ship meant to the invaders. But despite Penn’s desire that they become equal partners in the new province, the Indians ­were ­u nder pressure by the non-­Quaker settlers to leave and let the settlers take their land. In other words, they ­were being coerced into being victims of land theft, just as occurred throughout North Amer­i­ca (see chapter  3). In this case the non-­Quaker settlers committed double theft since they not only stole the land from the Indians, they did not pay Penn or his descendants for it ­either. They lived on it as squatters. The pacifist Quaker-­led government refused to use vio­lence to stop them, as was consistent with their religious views (Heather and Nielsen 2016). The Indians w ­ ere mistreated, assaulted, cheated, and fed alcohol to ensure they made poor decisions. They w ­ ere the victims of a culture of terror. This was justified by the attitude common among the settlers (including some of the Quakers) that the Indians ­were treacherous, barbaric, and inferior and should keep their place as second-­class ­human beings or even nonhumans. Kraft (1974, 2) described the non-­Quaker settlers as “farmers, tradesmen, and adventurers . . . [who] had ­little sympathy or concern for the ‘savages’ whose lands they coveted and who, like the trees of the forest, had to be cut down and removed to make room for farms, cities, and ‘civilization.’ ” Manifest Destiny informed the settlers they ­were the inheritors of the land (Petrosino 1999). This attitude made peaceful relations between non-­Quaker settlers and Indians close to impossible, and it was only a ­m atter of time before vio­lence occurred (Pencak and Richter 2004). The settlers and Indians came into more formal conflict during and ­after the French and Indian War (also called the Seven Years’ War) and during Pontiac’s Rebellion that followed. Merrell (1999, 254) describes the non-­Quaker colonial attitude at the time as “amid all the killing, symptoms of a deeper malaise—­blind hatred—­became more pervasive, making peace work that much harder.” Indians w ­ ere ste­reo­t yped and dehumanized by the settlers to the point where extreme vio­lence became acceptable to the settlers as means of making a po­liti­cal statement to the colonial government. The Paxton Boys ­were angry that the Pennsylvania legislature, heavi­ly influenced by Quaker ideals of equality and peace, continued diplomatic relations with Indian ­peoples despite the continuing conflicts between settlers and Indians. The Pennsylvania legislature continued to honor their treaties with Indians, despite intense public pressure not to, and would not allow the settlers to drive the Indians from the coveted land (Brubaker 2010). They also gave l­ ittle control of the Pennsylvania Assembly to settlers/ squatters from the western counties (Heather and Nielsen 2016). This suggests that the Paxton Boys ­were also strongly motivated by po­liti­cal powerlessness in addition to revenge, frustration, and the fear of Pontiac attacking their homes.



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The massacre of the Conestogas fits the characteristics of po­liti­cally motivated hate crime against Indigenous ­people in the United States and elsewhere—­that is, “acts or threats of vio­lence or unlawful harm that are intended or likely to achieve a po­ l iti­ cal objective . . . ​ including acts or threats carried out for the purpose of influencing the policy or acts of a government” (Australia Commonwealth Attorney General, quoted in James 2005, 117n2). The Paxton Boys, like other domestic terrorists, had a message they wanted to deliver to all Indians who refused to vacate the land they coveted and to the colonial government that protected them. They wanted to instill fear in all Indians, and they wanted the colonial government to allow the Indians to be exterminated to make way for settlers, since they believed that Indians ­were pagans and inferior beings. They believed that the frontier settlers needed more power in the Pennsylvania legislature ­because “government officials, especially Quakers, treated them [the Indians] as if they ­were the equal of poor white settlers . . .” As well, “they envied the Conestogas’ four hundred acres of fertile Manor Township land—­far more and better land, per individual, than most Scots-­Irish settlers had” (Brubaker 2010, 128). The Paxton Boys w ­ ere rational in their actions, which w ­ ere premeditated and well or­g a­n ized. They believed they w ­ ere supported by many of the Scots-­Irish settlers and would not be prosecuted for what was actually a crime in colonial Pennsylvania unlike some other colonies (Brubaker 2010). Con­temporary accounts suggest that the motivations of the Paxton Boys ­were mixed; they believed they ­were defending the county against Indians involved in Pontiac’s Rebellion, they w ­ ere retaliating against vio­lence committed by other Indians, they w ­ ere trying to force “outsiders” out (the irony in that is noted), and they w ­ ere on a mission to remove evil pagans from the area. Their crimes fit the characteristics of hate crimes in being extremely brutal with many offenders against two small groups of Conestogas and with all Indians pre­sent being killed, including the infants. As Brubaker (2010, 130) points out, they ensured ­there would be no one left to inherit the 400 acres. A fter the massacres, the Paxton Boys threatened to overthrow the ­ po­liti­cal system. The po­liti­cal statements they made ­later in the “Remonstrance” clearly stated their po­l iti­cal objectives (although the document may have been an afterthought to justify their actions to the government, according to Brubaker 2010). Their march on Philadelphia also made the point. They may have satisfied their frustration and fear by killing the Conestogas and certainly made sure the land they wanted was uninhabited, but they also had a message to the colonial government about its continuing relations with Indians and their counties’ lack of po­liti­cal power. Using modern-­d ay definitions of hate crimes and domestic terrorism, it is not

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unreasonable to characterize them as domestic terrorists who used hate crimes, in this case mass murder, to try to achieve their goals. There is no telling how direct the influence of the Paxton Boys’ ­ demands to change government-­Indian relations was, but the following year, in 1764, the settler-­m ajority Pennsylvania Assembly proclaimed war against the Delaware and Shawnee Indians, marking the end of the seventy-­ year peace between the Quakers and Indians ( Jacobs 1969). In the short term, however, the government ignored all of the demands the Paxton Boys made in the Remonstrance except one. The counties did not get more po­liti­cal power, but the Paxton Boys did accomplish other goals: to empty the coveted land, which Paxton settlers quickly began to fill despite protests by the colonial government, and to frighten many other Indian communities into moving away. Also, ­there was an agreement made between the Paxton Boys and the colonial government that no one would try to find the killers of the Conestoga Indians so that despite their heinous crimes, the Paxton Boys escaped punishment (Brubaker 2010). As domestic terrorists, the Paxton Boys seem to have been relatively successful. I ndige nou s P ­ e op le and E thnovi ole nc e T ­ oday The story of the Conestogas as victims of hate crimes is anachronistic since the concept of hate crimes is a very recent one, yet a long and unfortunate history of this kind of vio­lence against Indigenous p­ eople exists, mainly as a means of acquiring their resources through fear and intimidation. As Perry (2003, xv) writes, “Hate and bias crime remain particularly brutal barometers of the larger patterns of intergroup conflict.” Hate crimes are a po­liti­cal message to Indigenous populations and to the state. T ­ hese historical interactions set the tone for Indian/settler relations t­oday by providing justifications in the minds of ­t hose who commit such crimes. In general, hate victimizations in the total American population are more violent than non-­h ate victimizations, with 92  ­percent of all hate crime victimizations from 2007 to 2011 in the United States being defined as violent, as opposed to 8 ­percent defined as property-­related. Of the violent crimes, 29 ­percent w ­ ere seriously violent, such as rape/sexual assault, robbery, and aggravated assault, and 62  ­percent ­were s­imple assault. The number of hate crimes reported by police decreased between 2003 and 2011 (Sandholtz, Langton and Planty 2013). Between 2003 and 2006, hate crimes against American Indians/Alaska Natives (AI/AN) w ­ ere about 1 ­percent of all hate crimes, though this number (and all statistics regarding hate crimes) should be interpreted with caution, since only a small number are likely reported (Sandholtz et  al. 2013). By 2013, hate crime statistics from the Federal Bureau of Investigation reported that 6.3  ­percent of hate crimes



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resulted from bias against AI/AN. Considering that only 1.7 ­percent of the U.S. population identifies as AI/AN alone or in part, that is a large overrepre­sen­ta­tion (U.S. Census 2012; FBI 2018). They are also the fastest growing population in the United States, increasing at nearly twice the rate of the total population, meaning the potential for growth in the hate crimes rate is high (U.S. Census 2012, 3), especially if younger generations become po­l iti­c ally active, as discussed below. Even so, hate crimes against AI/AN ­today are severely underreported, as is ethnoviolence in general (Perry 2003). When Indigenous p­ eoples refuse to quietly let states and corporations encroach on their treaty rights and resources, hate crimes become particularly likely and virulent. Perry and Robyn (2005), for example, found that when the Western Chippewa exercised their treaty rights, sports organ­ izations cooperated with anti-­Indian groups that denied the legitimacy of American Indian land and resource rights guaranteed in treaties. When the Chippewa exercised their rights each year to spearfish, ­t hese groups ­v iolated the Chippewas’ ­human rights through harassment, racial slurs, hanging effigies, slashing tires, forcing tribal vehicles off the road, and setting pipe bombs. Anti-­Indian organ­i zations exist throughout the United States and Canada, often supported financially by business interests planning to exploit Indian-­ controlled resources (Grossman 2003). By committing vio­ lence against Indian p­ eoples exercising their treaty rights to land, w ­ ater, hunting, and fishing, they hope to frighten the communities into keeping their place as “quiet Indians” and not fight attempts to steal their remaining resources. As Perry and Robyn (2005, 618) state concerning the Chippewa, “Instead of accepting their subordination, they resist it. In such contexts, incidents of racial vio­lence may escalate into retaliation. To paraphrase, the only good Indian is a quiet Indian. Should they step outside the permissible bound­a ries that define ‘a good Indian,’ they become vulnerable to reactionary vio­ lence.” The po­ l iti­ cal message of anti-­ Indian vio­ lence ­ today is that the remaining treaty and natu­r al rights of American Indians must be eliminated (Perry and Robyn 2005, 612). Po­liti­cal activism and re­sis­tance by Indigenous ­people lead to hate crimes ­because they challenge the privilege of the non-­Indigenous majority. Barbara Perry, in her book ­Silent Victims (2008), suggests that Native Americans face so much ethnoviolence on a daily basis that it has become normalized for them. It is an ongoing pro­cess of victimization with constant threats of vio­lence as well as a­ ctual acts (Perry 2014). Individual hate crimes continue ­today mainly, though not exclusively, in border towns close to reservations. Cheryl Red­horse Bennett (2012) in her review of the book The Death of Raymond Yellow Thunder, and Other True Stories from the Nebraska-­P ine Ridge Border Towns by Stew Magnuson (2011)

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describes two examples of such vio­lence: the beating of an American Indian ­f amily in Nevada in 2011 by a group of young white men, and the branding of a mentally disabled young Navajo man with swastikas in New Mexico. Disturbingly, in the first instance, the sheriff ’s son was one of the men who pursued the ­f amily down the road and beat them all severely. She puts ­t hese acts into the context of the brutal hate-­motivated murder of Raymond Yellow Thunder in 1972. Mr. Yellow Thunder, a Lakota man, was beaten to death by a group of white men in Gordon, Nebraska. Bennett (2018a) also documents crimes against Native American w ­ omen in border towns, pointing out that in general Native American w ­ omen have the highest rate of violent crime victimization in the country. She argues that some of ­these crimes can be defined as hate crimes. Impacts on Indigenous ­People Ethnoviolence wears p­ eople down, makes them feel disempowered, and, if they are reservation-­dwellers, makes them reluctant to leave. As Perry (2009, 408) states, “For too many American Indians, the perception, if not the real­ity of ‘what’s out t­here’ has its intended effect of keeping ­people in their place. It reinforces the bound­a ries—­social and geographical—­ across which Native Americans are not meant to cross.” Their psychological and emotional distress is g­ reat, leading to higher levels of depression, anxiety, anger, feelings of vulnerability, and difficulties in interpersonal relations (Craig 2003; McDevitt et  al. 2003). ­These feelings contribute to the internalized and externalized vio­lence that Duran and Duran (1995) describe as developing from (and contributing to) intergenerational post-­traumatic stress. They also contribute to poor ­human relations, including suspicion, lack of trust, and retaliatory be­hav­iors between the victim group and other members of society (Craig 2003). For all of its pain and harm, ethnoviolence has also led to strength in Indigenous communities. Sometimes the re­sis­t ance is active through retaliation, and other times it consists of peaceful mobilization as Indigenous communities come together to assert their rights against continuing colonial ideologies and demand the enforcement of laws. Such activism also serves to educate and form national and international action networks (Perry 2014; Perry and Robyn 2005). Eth noviole nc e agai nst I ndi g e nou s ­ People s E lsewh e re The United States and Canada are not the only con­temporary examples of the ongoing ethnoviolence committed against their Indigenous inhabitants. In Australia, t­here is no hate crime monitoring system, and therefore few statistics available on “racial vilification”—­but ­t here still remain “strong



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ele­ ments of hostility ­ towards Aboriginal Australians” from right-­ w ing extremist groups as well as p­ eople with no par­tic­u ­lar right-­w ing ideology ( James 2005, 104). A 1991 report, the National Inquiry into Racist Vio­ lence in Australia, emphasized “the per­sis­tent and consistent violent discrimination against Indigenous communities” ( James 2005, 108). The police, according to the National Inquiry ( James 2005) are underpolicing hate crimes and, at least in the past, systematically participating in them against Indigenous Australian communities in some states. Research by Cunneen (1997, 143) reports that racist crime is underreported and suggests that if the police are perpetrators of this vio­lence, then fewer than 10 ­percent of incidents are reported. The National Inquiry into Racist Vio­ lence received many complaints from Indigenous Australians about racist vio­lence by police officers, with some areas reporting worse police vio­lence than ­others (Cunneen 1997). ­There is also an issue with racist groups adopting the trappings of the United States–­based Ku Klux Klan to intimidate Indigenous Australians. This included both correctional officers and racist gangs inside prisons (Cunneen 1997; Cunneen et al. 1997). The Australian ­Human Rights and Equal Opportunity Commission (HREOC) found that racist vio­ lence against Aboriginal Torres Strait Islanders was widespread, that it “pervaded public and private institutions.” The commission addressed the frequency of serious hate crimes such as abduction, rape, assaults, and murder (Cunneen 1997, 137, 144). The desecration of the gravesite of the g­ reat Indigenous Australian rights activist Eddie Mabo with the slur “Abo” (a term as reprehensible as “nigger”) and swastikas carries all the characteristics of a hate crime (Cunneen 1997, 159). James (2005, 104) describes this as “everyday . . . ​intimidation and harassment,” echoing Perry’s concept of normalized ethnoviolence. Ethnoviolence in Australia has mainstream po­liti­cal overtones, with much of it being anti-­Semitic, Islamaphobic, and anti-­immigration; however, Indigenous Australians have also been targets ­because of their efforts to reclaim land rights ( James 2005; Greason 1997), confirming that ethnoviolence becomes more frequent as Indigenous p­ eople stand up for their ­human and ­legal rights. The po­liti­cal aspects of hate crimes are evident as Cunneen (1997, 142) suggests that “the po­liti­cal demands of Indigenous ­people ensure the constant remembering of repressed events . . . ​demanding a remembering of colonial history from an Indigenous perspective.” In Canada, Aboriginal p­ eople are not the largest group that reports hate crimes to the police, but they are still overrepresented in the hate crimes statistics. Five ­percent of all hate crimes in Canada ­were motivated by the Aboriginal status of the victims, who make up only 4.3 ­percent of the population (Department of Indian Affairs and Northern Development [DIAND] 2013). The rate of hate crimes reported by the police was 2.3 incidents per

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100,000 Aboriginal p­ eople with 51  ­percent of ­these offenses being violent (Allen 2015). Two-­thirds of the Aboriginal victims ­were male and “typically younger than other victims of race/ethnicity hate crime” with 30 ­percent of them being ­under the age of 18 (Allen 2015, 15). About half the victims reported an injury, usually minor, and not knowing the attackers (59 ­percent). The attackers w ­ ere predominantly young males (Allen 2015). One example reported in the news occurred on National Aboriginal Day in June  2005 when white supremacists spray-­painted swastikas on the walls of a Quebec First Nations community cultural center, and destroyed picnic ­tables and tents. A community leader was quoted as saying, “­There is no cele­bration, our community is in tears, and I must say this heinous crime also raises the issue of our safety and security of our p­ eople, our community” (Windspeaker 2007, 8). Echoing the relationship between Native American po­liti­cal activism and hate crimes, po­liti­cal activism in Oka, Kanesatake, and Ipperwash over commercial developments on burial grounds, and in Caledonia, Ontario, over land ­under claim by the Six Nations, led to a wide variety of ethnoviolence such as tire slashing, car egging, racial slurs, and assaults during the confrontations and ­after they ­were resolved (de Costa and Knight 2011). Considering the overrepre­sen­ta­tion of Aboriginal Canadians as victims of other crimes, the low number of hate crimes in the statistics raises the question of ­whether hate crimes against Aboriginal ­people and other Indigenous ­people have become normalized, as they have against American Indians and Indigenous Australians. Are the statistics the results of the criminal justice system not recognizing and reporting such vio­lence as hate crime, or are Indigenous p­ eople not reporting such crimes b­ ecause they are so “normal”? ­There is evidence that ethnoviolence is even more extreme in other parts of the globe. In Brazil, for example, corporations and ranchers hunt Indigenous p­ eople to force them off the land. This vio­lence follows the pattern of early vio­lence against Indigenous ­peoples in the United States and Australia, so that, “While the country’s indigenous population is thought to have numbered from 3 million to 5 million in pre-­Columbian days, five centuries of disease, vio­lence and poverty have whittled that to u ­ nder 1 million” (Associated Press 2015, A6). Is this the same kind of normalized vio­lence that caused such l­ittle stir among the colonists in Pennsylvania when the Conestoga Indians ­were murdered? Clearly ethnoviolence, some of it extreme, continues t­oday against Indigenous p­ eoples worldwide with very similar purposes—­ t he acquisition through vio­ lence of Indigenous resources and their ac­cep­t ance of a second-­class status as h ­ uman beings. Discu ssion of H ate C ri m e s and R ac i sm Hate crimes and ethnoviolence against Indigenous p­ eoples are often po­liti­cally motivated acts, some of which ­were used in the past to force



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Indigenous p­ eoples off land and away from resources that resource-­g reedy settlers wanted. Members of settler groups have been communicating their dis­plea­sure with Indigenous existence since before the days of the Paxton Boys. Colonial governments have more or less followed their own domestic laws regarding Indigenous treaties, fiduciary relations, and protections, so that even in colonial times crimes such as the murder of the Conestogas ­were illegal—at least in Pennsylvania—­yet acts of extreme vio­lence w ­ ere common against Indigenous ­peoples. Settlers as a ­whole and their leaders in par­tic­u ­lar ­were not concerned enough by this vio­lence and oppression to attempt to stop it. The colonial ideology of the time—­a nd arguably con­ temporary White supremacist views—­encouraged such a lethal perspective. The massacres w ­ ere part of the ongoing oppression of colonization. As Cunneen (1997, 150) points out, ­t here is an “acceptable” level of racism within colonial socie­ties that enables hate crimes. This acceptable racism is rooted in colonial ideologies of inferiority of Indigenous p­ eople and is exacerbated when Indigenous ­people become po­liti­cally active and dare to claim their rights, reveal injustices, and remind non-­Indigenous ­people of colonial crimes. In the case of the Conestogas, they reminded the settlers  that they had the right to exist and to possess their own resources despite the settlers’ demands. The result was domestic terrorism on the part of the settlers. Petrosino (1999, 35) compared historical and modern-­d ay hate crimes on a range of characteristics, including the following: the mainstream nature of perpetrators’ ideals, perpetrators’ belief that the target group is inferior, lack of tolerance for diversity, scapegoating, vio­ lence of hate crimes, low accountability (i.e., perpetrators ­were rarely punished), the demographic makeup of perpetrators (primarily white males), targets (­people of color), ­whether targeted groups had ­legal protections, and if the hate group was affiliated with legitimate po­liti­cal parties. In her comparison, she found the only difference between historical and modern-­d ay hate crimes ­were that perpetrators ­were more likely to be punished in the modern day, hate crimes t­oday are more likely to be property related, and historically the targeted group had no l­egal protections. The massacres of the Conestogas support this comparison broadly, although the Conestogas did have ­legal protections in Pennsylvania; the settlers just chose not to re­spect them. Colonization destroyed the ­human rights of Indigenous p­ eople. James (2005, 115) argues that while “all crime is an assault upon rights and freedoms, crimes of vio­lence and intimidation motivated by ideology or systematic hatred represent particularly insidious attacks upon rights ­because they are based upon explicit assumptions that some ­people’s rights are less, or less impor­tant, than other ­people’s. That is, the predations are functions

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of a characterization of the victims as a class of ­people who are less worthy, or indeed more blameworthy, than o ­ thers.” Conclusion To call the Paxton Boys massacres hate crimes is anachronistic. The concepts of hate crime and ethnoviolence are twentieth-­century inventions; however, it is useful to think of t­ hese colonial crimes in modern terms, as it gives us a fresh awareness of how vicious ethnoviolence against Indigenous ­people has been and continues to be. It was domestic terrorism back then, though t­here was not the terminology to categorize it as such, and many historical incidents, such as the or­g a­n ized attacks on Chippewa spearfishers, could be classified that way in modern understanding. Colonial governments have a long history of committing or ignoring acts of ethnoviolence against their Indigenous ­peoples, and many of the settler descendants in colonized countries have a­ dopted their pre­de­ces­sors’ racist attitudes t­oward Indigenous p­ eoples. We argue that colonial crimes have laid the foundation for continuing ethnoviolence against Indigenous ­people ­today. Criminal victimization of Indigenous p­ eoples by hate crimes is seen and experienced as normal in our society. It was that way at the beginning of colonial invasion, and many other­w ise enlightened members of the dominant society do not see it as a prob­lem ­today. It is just something that happens frequently to Indigenous ­peoples; we wring our hands a bit but do nothing to understand it, to probe our collective histories of shame and vio­lence, to prevent it from happening again. The hate-­motivated vio­lence is not shocking for anyone—­Indigenous person or settler descendent. But it should be.

C hapte r   8

Stolen Land to Stolen Oil The The f t of Indige nou s Po­l iti­c al E conom ie s Colonization is a complex topic. Historically, it identifies a po­liti­cal subunit of p­ eople who move away from their home territory to another territory far away but remain u ­ nder the po­liti­cal jurisdiction of their home territory. This notion implicitly presumes that the colonizers move to unoccupied territory (Tinker 1993, 119). Colonization, however, is more than just a con­ve­n ient economic domination of one ­people by another. The many facets of colonization include undermining the po­liti­cal, military, and social structures, psycho-­culture, and value system of the colonized, and imposing the values and culture of the colonizer (Tinker 1993, 119). For the sake of economic control—­the main impetus ­behind any colonization—­the colonizer must alter the social structure of Indigenous ­peoples in order to oppress them. Once the social structure is altered, the door is open for all manner of crimes, including economic crimes such as theft and attempted theft. ­These occurred in the past and continue to occur. The Indigenous p­ eoples of the United States, Canada, New Zealand, and Australia have been subjected to colonization since the invasion of Eu­ro­pean settlers at first contact ­u ntil ­today. ­Today colonialism continues but with additional players, such as banks, large corporations, speculators, development agencies, and foreign power groups. The reason for this is that Indigenous p­ eoples are on the front line of con­temporary colonial strug­g les. They are sitting on resources the rest of the world wants—­a nd wants at the lowest pos­si­ble cost. Indigenous territories worldwide have been considered frontier lands, unowned, underutilized, and therefore open to exploitation. In many cases, Indigenous p­ eoples living on tribal lands and reserves consist of small populations, many of which are po­l iti­cally weak and physically isolated. ­Until recently, re­sis­t ance has been relatively in­effec­t ive though per­sis­ tent. Po­ l iti­ cal economic domination by the colonizer has oppressed Indigenous ­ peoples globally and has created economic dependence and impoverished living conditions for many.

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From an American Indian point of view, Fixico (2013b, 7) defines po­liti­cal economy “as a Western term that economists and many scholars use in describing the pro­g ress of a community or nation. An Indianized version of po­liti­cal economy is tribal po­liti­cal economy: how Native communities have ­adopted parts of white capitalism like wealth accumulation and wage l­abor to rebuild tribal communities.” This Indian definition of po­ l iti­ cal economy can also be applied to other Indigenous populations where the economy revolves around power and control strug­g les with non-­ Indigenous corporations and other entities. The acquisition of Indigenous land for the expansion of the United States has been one of the primary issues of Indian po­liti­cal economy, as Robyn (2006, 186) writes, “Since the founding of the United States, the question of land and land owner­ship has played a central role in economic and po­liti­cal pro­cesses.” In North Amer­i­ca, the p­ eople we know t­oday as Native Americans or American Indians and First Nations ­Peoples or Aboriginal ­people in Canada lived what they saw as wealthy lives not defined by money and capitalism, at least ­u ntil Eu­ro­pe­a ns arrived. American Indian tribes ­were very advanced in their methods of growing numerous types of food, plus hunting and fishing. Leadership roles w ­ ere held by both men and w ­ omen, with w ­ omen, as the givers of life, as the more power­f ul. Eu­ro­pe­a ns arrived with a colonial ideology that non-­Christians ­were inferior. Eu­ro­pe­a ns also had linear ways of thinking, meaning that “thought is rationalizing how something originates at point A, is affected by some force or influence and transforms into point B, to point C, and so forth” (Fixico 2003, 15). Eu­ro­pe­a ns found Indigenous logic and thinking to be vastly dif­fer­ent from the Western way of thinking, which also caused them to make assumptions of inferiority. Indigenous p­ eople think in a circular fashion. Indigenous ­peoples at that time, and traditional Indigenous p­ eoples ­today, use a more abstract paradigm in their philosophies and methods of living. ­T hese form a circle, rather than a single line of thought. Fixico (2003, 16–17) explains: “The circular method is a circular philosophy focusing on a single point and using familiar examples to illustrate or explain the point of discussion. The circular approach assures that every­one understands, and that all is considered, thereby increasing the chance for harmony and balance in the community and with every­t hing e­ lse. As each person or being relates to the focal point, and if lines ­were drawn to indicate this relatedness, then the results would be the spokes of a wheel, and all the participants are encircled by the unity of this experience.” An example that Linda Robyn, one of the authors of this book, uses to explain circular thinking comes from the Ojibwe p­ eople (among o ­ thers), regarding hunting. When a deer was taken (and still is by many), the hunters would give an offering of tobacco to thank the deer for giving its life so



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they and their families could survive during harsh midwestern winters. The deer came from the Creator, and thanks ­were given to the Creator for putting the deer in their path. Looking at dif­fer­ent ways of thinking is impor­tant to the discussion of po­liti­cal economy ­because from the beginning of Eu­ro­pean settlement, Americans and other colonizers have had differing opinions as to who legitimately belongs in the country ( Jackson 2017, 3). Then and now, ­people are judged by the socially constructed meanings applied to skin pigmentation, with whiteness prioritized over ­people of other colors. This was compounded by the dark-­skinned Indigenous p­ eople’s dif­fer­ent ways of thinking, dif­fer­ent religions, and use of dif­fer­ent methods to solve prob­lems. Life for the Indigenous p­ eople changed forever as the colonial governments used ­these differences to justify eroding their rights from total sovereignty to wardship status (Fixico 1986, xiv). Ame rican L and Grab s By the end of the Revolutionary War, with paternalistic intrusion from the government in order to resolve the “Indian Prob­lem” and with their economic structures all but destroyed, the lives of Indigenous ­people and their relationship to the land ­were changed. Severe poverty resulted, as government policies shifted from control to assimilation. Smith (2000, 35) writes that ­there was significant discord between policy and practice “with unintended consequences that came from a complete misunderstanding of the cultures of Native Americans.” Parallels occurred in the experiences of Indigenous p­ eoples in Canada, Australia, and New Zealand (see chapter 1). ­A fter the Revolutionary War ended, Indians w ­ ere not able to govern themselves or live as they had before the Eu­ro­pe­a ns arrived. Once the new American colonial government no longer had to focus on the British, they could begin enormous land grabs by forcing Indians off their original land base. If Indians chose to resist removal, even though illegal, they could be shot dead with no consequences to the perpetrator (Zinn 1999, 86). With the push westward, despite treaties previously drawn up, recognition of American Indian land rights or governments did not exist (see chapter 3 for an in-­depth discussion of treaty violations in Canada and New Zealand). Being dark-­skinned, Indians ­were not seen as equal in any way by most settlers. Officially, the idea was that if Indians moved west, they could live as they pleased without interference from white settlers, and all would be well. But with so many settlers pouring into the country, Indians could not be pushed westward fast enough and settlers began to encroach upon Indian territories. As a result, thousands of Indians w ­ ere forced westward with or without their consent (see the discussion of the Trails of Tears in chapter 2). The concept ­behind this “Indian Prob­lem” land grab was to isolate American

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Indians as completely as pos­si­ble from whites (Spicer 1962, 344–345). Once the American colonial government began removing Indians from their homelands and pushing them westward, the “stage was set for depersonalizing Indians and making them objects of abuse and vio­lence . . . ​providing the foundation for physical genocide” (French 2003, 10). ­Because of the international law status of the treaties previously made (see chapter 3), the U.S. government had no choice but to recognize tribes as in­de­ pen­dent nations; one of the reasons that, in 1871, Congress prohibited further treaty making (Spicer 1962, 347; DeJong 2015). Soon, realizing that t­here ­were prob­lems involved in “the po­liti­cal, economic, and social incorporation of the Indians into the American nation . . . ​and cognizance of the fact that envelopment of the Indians, and of the necessity for some sort of program for their integration into the nation,” Congress passed the Indian General Allotment Act of 1887, also known as the Dawes Act (cited in Spicer 1962, 347). Disguised as a humanitarian effort, the stated belief ­behind the Dawes Act was that American Indians would be able to live peacefully on their lands, practice their own religion, and so forth, and treaties would be honored preserving their rights. However, the Dawes Act proved to be another attempt at a very large land grab. The Dawes Act meant that the president of the United States had the authority to give separate land possession to individual American Indians. This meant that “tribal lands could be broken up, with tribal members receiving small land parcels ­u nder their owner­ship rather than living on tribally owned land” (Thornton 1987, 123). On the face of it, the Dawes Act did not seem so bad: Indians could now own lands to do with as they pleased. Yet, ­because of this misguided scheme by Congress, the Dawes Act resulted in the destruction of traditional land bases for tribes. The allotment of lands to Indians caused the “deterioration of economics, socie­ties, and cultures” (Thornton 1987, 123). This ­g rand act of land theft by the government ensured that the growing number of settlers could now move west of the Mississippi. Yet another tragic result of the passage of the act was that the economic structures of many American Indian communities w ­ ere severely damaged, to the point that most Indian ­people lost their means of survival. As whites moving west settled in and began farming, the hunting, fishing, and gathering of staples such as nuts, berries, and medicinal plants needed for Indigenous ­ people to survive became almost impossible. The result was not surprising: Indian populations declined as many succumbed to illnesses, starvation, and death “due to American occupation of their lands” (Thornton 1987, 125). Since the eigh­teenth and nineteenth centuries, continuing into the twenty-­fi rst ­century, American Indians have been looked upon by many as members of a lower social class; however, as Michalowski (2018, 139)



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writes, “Social class is not as much a position in society as it is a relationship with ­t hose in dif­fer­ent locations.” Looking at other chapters in this book, we can see that the po­liti­cal economies of Indigenous populations in all four countries ­were destroyed and damaged almost beyond repair. B ­ ecause of the economic and po­liti­cal effort to gain as much Indigenous land and as many resources as pos­si­ble, all manner of economic crimes have been committed against Indigenous ­peoples, including all manner of theft of their lands; environmental devastation; deaths due to cancer and birth defects correlated with uranium and other mining, natu­ral gas and coal pro­cessing; misappropriation of funds and resources; and theft of w ­ ater rights. All of ­these are the result of who owns the land and what is on it or under­neath it. S ocial Com pati b i l ity and I ndige nous E x p loitati on From the beginning of settler-­colonist contact with Indigenous ­peoples in the United States, Canada, New Zealand, and Australia, it seems as though the patterns of history continue to repeat, up to and including current events. With Eu­ro­pean contact, Indigenous ­people and regions ­were ­shaped and changed through settler economic greed and the resulting social conflict. When two dif­fer­ent races of ­people come together, sometimes it is for the better, but oftentimes it is for the worse. How contact with colonizers worked against Indigenous socie­t ies can be explained by social compatibility theory. Dean Smith (2000, 45–51) explains how vari­ous subsystems in the social structures of Indigenous ­peoples in all four countries ­were severely altered by government policies and describes how their po­liti­cal economy was adversely changed. According to Smith (2000, 3, 13–19), the premises of the theory are: (1) “The social structure (of a tribe or indigenous group comprises vari­ous subsystems.” Looking back at the circular thinking described e­arlier, each s­ubsystem would comprise a spoke of a wheel. (2) “The subsystems (or spokes of the wheel) interact and react to each other in a search for compatibility.” (3) Disequilibrium occurs when something from outside the social structure disrupts the subsystems. (4) “Change in one subsystem ­causes changes in the other subsystems,” so that the social structure collapses like falling dominoes and the effects reverberate back through the ­whole society. For Indigenous socie­ties, when outside forces such as the invasion of Eu­ro­pe­a ns and capitalism occurred they led to changes in Indigenous subsystems and a downward spiral of the social structure so that the w ­ hole system moved out of equilibrium. When this happens, grave social harms can occur, but, as w ­ ill be seen l­ater in the chapter, the social change that

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occurs also can lead to improvements as Indigenous p­ eoples adapt and turn changes to their ­favor. For the purposes of this book, it is impor­tant to emphasize that the changes to ­these subsystems led to many serious social harms—­a nd not only w ­ ere some of t­ hese actions by the colonizers harmful, they w ­ ere illegal as well. As discussed in chapter 1, social harms theory is an area of critical criminology concerned with harms and violations that have impacted p­ eople on a global scale, and it is well suited to describe the interactions between colonizers and Indigenous ­peoples. Rather than look only within the restrictive confines of criminal justice, since some social harms are not illegal, social harms theory allows for a broader perspective that includes harms to ­human life and the environment. Crime, from this perspective, is not merely actions of one person against another but also includes injuries caused by power­ful elites in corporations, governments, and social institutions (including criminal justice systems). The economic crimes and social harms inflicted upon Indigenous p­ eoples since first contact are too numerous to recount, but looking back ­t here are several examples that are impor­t ant to review. ­These involve not only theft of natu­r al resources but monetary theft as well. E xample s of Econom i c Cri m e s Regarding theft of American Indian wages and annuities, Wishart (2011) writes that Indian agents in Canada and the United States w ­ ere the government’s representatives on both reservations and reserves and ­were responsible for implementing Indian policy. In pursuit of their jobs, they also committed many crimes against their supposed wards. In the United States, agents worked to maintain peace—­a nd acquire Indian lands in the process—­but their authority also enabled them to take over the po­liti­cal authority of tribes, crush their religious practices, and basically transform social roles. During the second half of the 1800s, agents also began to promote the government’s assimilation policy. In Canada, using a strategy similar to the United States, the Department of Indian Affairs was established in 1880, following the Indian Act of 1876. Agents ­were placed on reserves thereafter. Some agents ­were honorable in their dealings with the Indigenous ­peoples, but many ­were corrupt. In t­hose days, it was easy to take advantage of their positions, and not a second thought was given to skimming from annuities due Indigenous ­people or colluding with settlers to steal Indian lands (Wishart 2011). Canadian agents ­were encouraged to use their powers as justices of the peace to control Indians’ be­h av­iors. This included restricting them to the reserves and enforcing anti-­vagrancy laws. The same occurred south of the Canadian border where agents threatened to withhold Indians’ annuities if



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they failed to send their c­ hildren to boarding schools or to work in the fields (see chapter 5 on the boarding schools). Both Canadian and United States’ agents increasingly took over po­liti­cal decision making that had been the purview of tribal councils. Wishart (2011) writes that in the United States the post of Indian agent “was abolished in 1908 by Commissioner of Indian Affairs Francis Leupp. Thereafter, doctors and teachers took over the agents’ duties. Leupp believed that they would be more successful in promotion assimilation.” However, in Canada, “agents remained the federal government’s representatives, with comprehensive powers to regulate the Indians’ lives, ­u ntil the 1960s.” ­Today, the position of Indian agent no longer exists, but wage theft continues in vari­ous forms. A study conducted by the McKinley Worker Justice Co­a li­tion in April 2017 explored how wage theft and employment violations impacted workers in McKinley County, New Mexico (around Gallup). The author of the study, Jordon Johnson, reported that wage theft occurs when workers are paid less than minimum wage, are not paid for overtime, work off the clock, and are denied their last paycheck when leaving employment, possibly for a dif­fer­ent job. The study found wage theft in McKinley County was pervasive for both Latino immigrant and Native American workers. In t­hese two groups, “70 ­percent of the workers (35 of 50) reported experiencing wage theft. ­Either they did not receive the minimum wage or last past check, they ­were required to work off the clock, or they ­were not paid time and a half for overtime hours.” ­T hese violations are illegal, but oftentimes workers do not file a report or try to recuperate their stolen wages for fear of retaliation, and even if they do try, they may not be successful ( Johnson 2017). Another tragic story of economic crime involves deception, theft, and unsolved murders of American Indians. It dates back to the 1920s when an entire community conspired to kill American Indians for their oil money. In David Grann’s 2017 book, Killers of the Flower Moon, he tells a story that begins with the Osage tribe being forced to move as white settlers pushed them off their land in the 1800s. The Osage settled in northeast Oklahoma where, unbeknownst to them at the time, the land was rich in oil. Of course, this meant incredible wealth, and the Osage made so much money that the government appointed white guardians to help them spend it. An Indigenous person with that much money and white servants was an anomaly that racism would not allow, and white men conspired to kill Osage members to steal their oil wealth. The only way wealth could be passed to whites was by marrying into Osage families and inheriting it. As white men married into Osage families, murders began to take place. All sorts of methods ­were used to commit ­these hom­i­cides, from poisoning and explosions to shootings.

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Many of the p­ eople who investigated the murders ended up dead themselves. Investigators from the FBI w ­ ere able to identify some of the conspirators, but many crimes have gone unsolved to this day. On the other hand, ­ t here have been economic victories won by Native  Americans through the court system. Perhaps the most notable is “Cobell v. Babbitt, Cobell v. Norton, Cobell v. Kempthorne, and its current name, Cobell v. Salazar (all defendants being Secretaries of the Interior ­u nder which the Bureau of Indian Affairs is or­g a­n ized)” that began in 1996 (Gilio-­ Whitaker 2017). The lawsuit filed by “Eloise Cobell, a Blackfoot Indian from Montana, on behalf hundreds of thousands of individual Indians came about a­ fter she found many discrepancies in the managements of funds for lands held in trust by the United States in her job as trea­surer for the Blackfoot tribe” (Gilio-­W hitaker 2017). The dispute stems from the Dawes Act of 1887 mentioned ­earlier, when tribal lands ­were divided into parcels with about 40 to 160 acres given to individual Indians and the rest of the land sold off to pave the way for settlers moving west. As of 2009, the Department of the Interior managed about 56 million acres of Indian trust land scattered throughout the country, with the largest share being in the western states (Savage 2009). The government then leases the land to mainly non-­Indigenous corporations and individuals for vari­ous uses such as mining, livestock grazing, timber harvesting, drilling for oil and gas, and so on, then distributes the revenue from the leases to the Indians. “In the 2009 fiscal year; it collected about $298 million for more than 384,000 individual Indian accounts” (Savage 2009, A1). The Cobell lawsuit charges the federal government with mismanaging millions of dollars, and asserting that Indians have not received the funds due them. Gilio-­W hitaker (2017) writes, “The United States has a fiduciary responsibility to manage the lands to the best benefit of the tribes and individual Indians, but as the lawsuit revealed, for over 100 years the government failed in its duties to accurately account for the income generated by the leases, let alone pay the revenues to the Indians.” The number of Indians due money increased as the original allotees passed away and allotments w ­ ere inherited by the next generation, down through time. The result is that “an allotment originally owned by one person is now owned by hundreds or sometimes even thousands of p­ eople” (Gilio-­W hitaker 2017). With all of the thousands of ­people being assigned individual payments and thousands of accounts in existence, keeping track of all of t­hese financial transactions was difficult and very costly. It is no won­der that federal mismanagement occurred ­u nder t­ hese circumstances. The Cobell case was extraordinarily successful in holding the government accountable for mismanagement of funds that had occurred for more than c­ entury. A ­ fter more than a de­cade of litigation, the hard-­fought victory was a positive development for Indian country and ended with the



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federal government announcing that it would pay $3.4 billion to s­ettle claims of mismanaged revenue in Indian trust funds (Savage 2009). Both defendants and plaintiffs agreed that it would not be pos­si­ble to accurately account for every­one, and the settlement, the Claims Settlement Act of 2010, “was divided into three sections. When funds are disbursed, $1.5 billion w ­ ill be used for an Accounting/Trust Administration fund (to be distributed to individual Indian money account holders), $60 million ­w ill be used for Indian access to higher education, and the remaining $1.9 billion sets up the Trust Land Consolidation Fund, which provides for tribal governments to purchase individual fractionated interests, consolidating the allotments into once again communally held land” (Gilio-­W hitaker 2017). The Cobell case was indeed a g­ reat victory for Native Americans as they continue to thrive and create stronger economies and communities. Indige nou s R e sourc e Ri g ht s When Eu­ro­pe­ans arrived on the shores of what is now Canada, the United States, Australia, and New Zealand, not only did they encounter ­people who ­were extremely dif­fer­ent in ­every way, they encountered Indigenous socie­t ies and ­people who “­were not primitive subsistence hunting and gathering socie­ties living in ­simple, naïve harmony with the environment. Quite the contrary. ­These socie­t ies managed vast resources within an environmental framework of sustainable development” (Smith 2000, 31). The resources that ­were managed by Indigenous socie­ties ­were on and beneath vast areas of land that Eu­ro­pe­a ns wanted as they began to s­ ettle. As a result, Indigenous p­ eoples in all four countries lost many of their methods of subsistence such as hunting and fishing rights, as well as their sovereignty. Indigenous p­ eople in all four countries had access to hunting, fishing, and gathering to sustain their p­ eople. Hunting, fishing, and gathering legislation is based on an examination of relevant state, territory, and Commonwealth acts and regulations. In Australia, between 1867 and 1900, legislation was enacted recognizing Aboriginal rights to hunt, fish, and gather in Western Australia, Queensland, Victoria, and South Australia (Australian Law Reform Commission 2010). The governor of any state could declare any body of ­water a reserve within which only Indigenous Australians would be allowed to fish. Many amendments have since followed “with the rights of Aboriginal ­people to gather food very often being reduced considerably (if not abrogated altogether) in the pro­cess” (Australian Law Reform Commission 2010). In Australia, federal, state, and territory legislation and regulations vary considerably, and in many cases difficulties arise between legislation and administrative policy (Australian Law Reform Commission 2010). As an example, in December 2009, amendments w ­ ere made to the Fisheries Management Act 1994  in New South Wales acknowledging

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Aboriginal cultural fishing. ­T hese amendments provide long-­awaited definitions of cultural fishing. The new definition states: “Aboriginal cultural fishing activities and practices carried out by Aboriginal persons for the purpose of satisfying their personal, domestic or communal needs, educational or ceremonial . . . ​or other traditional purposes, and which do not have a commercial purpose” (NSWLC 2009). As with other countries, the Māori of New Zealand experienced an exploitative relationship with Eu­ro­pe­a ns and the introduction of the po­liti­ cal economy capitalism in their society. Through the Treaty of Waitangi, Māori fishing rights w ­ ere guaranteed, but b­ ecause the Māori did not have access to capital, they w ­ ere denied access to fisheries. T ­ hese de facto restrictions became law with the creation of fishing quotas in the 1990s. This ­legal change, however, opened the door for Māori to use their historic treaty claims to speak to the debate around property and ­legal access to fishing rights (De Alessi 2012, 390). In the 1980s, the ­L abor government came into power, and in an effort to revise and correct constitutional and fiscal crises, ­adopted a policy that included the Quota Management System (QMS), which was put in place to address the environmental and economic crisis in commercial fishing by creating harvest (property) rights to fish (De Alessi 2012, 390). The new government gave Māori the anchor they needed to “make a successful claim that their historic rights to fish u ­ nder the 1840 Treaty of Waitangi had been abrogated” (De Alessi 2012, 391). As a result, Māori land and fishing rights ­were contested through the courts through the 1980s (Bargh 2016). The culmination of ­legal actions resulted in the Fisheries Settlement Act of 1992, “which allotted Māori owner­ship of almost 30  ­percent of New Zealand’s largest commercial fishing com­pany (Hooper, quoted in De Alessi 2012, 391), and “the Act also created the Treaty of Waitangi Fisheries Commission that was set up to hold quota for Māori trust, eventually sending some money back to subdivisions of Māori society . . . ​but also to reinvest any proceeds into its fisheries business” (De Alessi 2012, 391). ­There is disagreement among some Māori activists, academics, politicians, and o ­ thers regarding the intrusion of capitalism into Māori culture through the settlement. Even though Māori fishing rights have been restored, it may be a two-­edged sword given that the capitalistic Quota Management System seems to have undermined traditional Māori social relations and identity. Cumberland (quoted in De Alessi 2012, 408) writes that “even before signing the Treaty, Māori culture had already been ‘destroyed’ by technology, capitalism and an exploitative relationship with Eu­ro­pe­a ns.” In the synopsis of his book, Bargh (2016) argues that “the restoration of Maori fishing rights is not an isolated event but is part of the



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larger picture of New Zealand society accepting that Maori had been unjustly treated since the 1840s and choosing to redress ­t hose injustices.” In the United States, Indigenous ­peoples have treaty-­g ranted fishing rights, but ­t hese rights have been ­v iolated often by both the state and federal government. As tribal governments exercised jurisdiction over reservation policies in the 1960s and 1970s, competition began between tribal members and o ­ thers for the resources and lands inside reservations (Whaley and Bresette 1994, 32). The issues of fishing rights exploded when traditional fishing tribes in Washington exercised their treaty right to fish—­rights that sportfishermen did not want them to have. Treaties made in the 1850s, however, guaranteed Indians the right to fish in the rivers and lakes of Washington and Oregon in return for vast tracts of land. The late Russell Means (American Indian Movement cofounder and activist) writes, “As the white man built hydroelectric dams and raped our Grand­mother the earth with toxic pollution and overfishing, the salmon, which once had seemed an inexhaustible resource, became scarce. Instead of changing their greedy ways and cleaning up their filth, Washington and Oregon officials, ­u nder pressure from white commercial and sport fishermen, began to arrest Indians who fished without licenses or who ­v iolated state laws in conflict with treaty rights. Indians who continued to assert fishing rights ­were assaulted by cops and game wardens” (1995, 224). The main issue surrounding Indian fishing rights was the practice of spearfishing, and “the resulting Boldt decision in 1974, which favored the tribes, set a significant pre­ce­dent for Indian fishing rights that depended on ­earlier treaties. This impor­t ant decision affected Indian rights in Minnesota, Michigan, and Wisconsin” (Fixico 1998a, 183−184). Other decisions followed through the 1980s, but the l­egal controversy about fishing rights centered around the state’s control over Indians where concerns over conservation ­m atters conflict with Indian interests so that, “when the federal government began to transfer responsibility for Indian affairs to the states, the states started to usurp tribal sovereign rights. Public Law 280 gave Wisconsin, Minnesota (except Red Lake reservation), Nebraska, California, Oregon (except Warm Springs reservation), and Alaska jurisdiction over criminal and civil violations of laws.” PL 280 was one route by which t­here is increased federal support for state interests in conservation programs that interfere with Indian interests and rights (Fixico 1998a, 183–184). First Nations p­ eople in Canada also have a relationship with hunting and fishing based on subsistence needs and cultural values extending back thousands of years. The Natu­ral Resources Transfer Agreement (NRTA), part of the Constitution Act, provides that “Indian p­ eople have the right, which the Province hereby assures to them, of hunting, trapping and fishing

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game and fish for food at all seasons of the year on all unoccupied Crown lands and on any other lands to which they have right of access” (Province of Manitoba 2006). ­T here are certain restrictions, however, in that non-­ Aboriginal p­ eople may accompany Aboriginal p­ eople while hunting and fishing, but cannot help them exercise their hunting and fishing rights—­ meaning, non-­Aboriginal ­people can assist in retrieving or transporting fish or game, but cannot take any meat, fish, or animal parts. An example of a new kind of colonialism is found with theft of Indigenous intellectual property and technology, including the use of plants for medicinal purposes and the theft of artifacts. Looking back centuries, sustainability in Indigenous socie­ties did not occur as a ­m atter of luck. For thousands of years, Indigenous ­people maintained a sustainable way of life based on the concept of reciprocity or reciprocal relations (Robyn 2002, 32). Indigenous knowledge and technology are stored in ­peoples’ memories and activities, passed down through the ages, and “expressed in stories, songs, folklore, proverbs, dances, myths, cultural values, beliefs, rituals, community laws, local language, cultural practices, equipment, [art], and plant species (Grenier, quoted in Robyn 2002, 34). Deception and unethical practices have continued through centuries in the theft for profit of knowledge and technology used by Indigenous ­peoples. In true state-­corporate crime fashion, corporations and governments have stolen “rights to knowledge that is not rightfully theirs. They refuse to recognize that the true owner­ship of such precious information belongs to Native P ­ eoples. Indigenous knowledge is stolen without the slightest consideration to the power­ful implications that it comes equipped with. The moral repercussions ­behind such an unethical system leads to loss of Native culture and sustainability and a shift from using Native knowledge and resources for social needs to profit generation” (Khan 2014). The theft of Indigenous knowledge gives a greater understanding that “The wars fought between Indians and whites ­were more than just over land—­ they w ­ ere wars of the mind” (Fixico 2003, 15). As an example, biotech corporations spend hundreds of millions of dollars to convince the public that they work with nature. Biotech businesses search out organic chemicals and materials that can be made into commercial products, and many of t­ hese compounds come from plants found within the environments of Indigenous p­ eoples (Khan 2014). The prob­lem is that Indigenous p­ eoples are not consulted first and are being disregarded entirely as companies exploit resources that have been sustainably used for centuries. Khan (2014) writes that corporations extract what is needed from the plants and then place exclusionary rights on them, but “the most odious ­t hing they do is take the cultural knowledge of the plant and all that comes with it, knowledge that Indigenes have collected from centuries of observation and



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interaction with the environment, and call it their own.” Corporations can monopolize a resource from an Indigenous area where they have never set foot by obtaining exclusionary rights to the resource from the government (Khan 2014). All the while, Indigenous ­people of the area have been using the resource to survive, and once the resource dis­appears, the community’s ability to sustain itself is compromised. Intellectual property rights are “only recognized when knowledge and innovation generate profits, not when they meet social needs. The knowledge must be capable of industrial application” (Khan 2014). This biopiracy is widespread. “Corporations argue that they own the rights to knowledge and resources indigenous ­peoples have spent centuries obtaining. Indigenous ­ peoples argue that their ­ human rights are being ­v iolated as corporations are wrongfully stripping them of their livelihood” (Khan 2014). Part of the prob­ lem is that some Indigenous ­ peoples are unaware of their rights and are not familiar with European-­based corporate law. Educating Indigenous groups about intellectual property rights is key. Once Indigenous groups better understand the concept of intellectual property rights as well as the laws and dynamics of world economy, they can begin to change the situation and stem the tide of biopiracy. In t­ hese “wars of the mind,” intellectual property rights underscore the idea that profits are the ultimate goal regardless of social good. Corporations are in the business of making money, but one has to won­der if ­t here is ever a point when a corporation and/or government considers the well-­ being of the Indigenous population. If profits are the only end, and corporations and governments accept this premise, then the intellectual property of Indigenous populations may never be protected. Even when Indigenous groups w ­ ere counter-­accused of intellectual piracy by corporations, “corporations hardly felt that they did anything wrong a­ fter obtaining Indigenous knowledge and natu­ral resources in profit-­generating schemes. On top of all that, ­these corporations refused to compensate Indigenous ­peoples for knowledge that they claimed to be their own” (Khan 2014). In addition to the theft of Indigenous intellectual property is the theft of Indigenous artifacts. Concerning American Indian nations, sacred masks from the Hopi tribe w ­ ere auctioned in Paris despite strong protests. The Hopi who live in the high desert of northwest Arizona consider ­these artifacts sacred b­ ecause they represent messengers to the spirits of their ancestors and to animals, plants, and the sun. The masks are painted in vari­ous colors and are made of animal skins, fabric, feathers, and hair. The Hopi are opposed to trading or selling them; in fact, the Hopi believe that ­these objects should stay with them on their reservation. The tribe brought ­legal challenges to stop the auction, but the sale of several masks and statues dating from the early twentieth c­entury went on the auction block at the

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Drouot-­R ichelieu auction ­house. Hopi leader Sam Tenakhongve traveled to Paris to try to stop the auction. He said the items w ­ ere being auctioned ­because U.S. collectors had taken them from museums. “They took too many and t­here is no place for them to liquidate them . . . ​so they started seeking private buyers. To me it’s something that c­ an’t be bought or sold. ­T here is no price value on it” (­Reuters 2015). Reports are that one Hopi mask sold for $12,390 and a rare statue sold for $87,916. Khadijah Rentas reports that in 2009 the FBI indicted twenty-­four ­people on charges of selling, buying, or exchanging archaeological artifacts stolen from Native American lands—­part of what Secretary of the Interior Ken Salazar called “a crackdown on smugglers of such relics” (Rentas 2009). Stolen w ­ ere burial and ceremonial masks, decorated pottery, and buffalo-­ hide headdresses. “Let this case serve notice to anyone who is considering breaking ­these laws and trampling our nation’s cultural heritage that the BLM (Bureau of Land Management), the Department of Justice, and the federal government ­w ill track you down and bring you to justice” (Salazar, quoted in Rentas 2009). Officials said the artifacts—­ some stolen from graves—­were taken from the Four Corners area where Utah, Colorado, Arizona, and New Mexico meet. The area is rich in Native American history and culture. Authorities recovered 256 artifacts worth $355,685 (Rentas 2009). Indige nou s E conom i c A dap tati ons On the positive side of social compatibility theory is the idea that Indigenous economies can grow and adapt to blended histories, in this case through gaming and casinos. Although only of some benefit for Māori ­people, gaming on Indigenous lands in Canada and the United States has helped bands and tribes achieve impor­tant gains in modern po­liti­cal economy. The Aboriginal ­peoples of Australia have not been able to venture into the world of gambling and casinos as a way to bolster their po­l iti­cal economy ­because they do not have treaties as yet, as discussed briefly in chapter 3. Gambling has been an impor­t ant part of life in New Zealand since the arrival of Eu­ro­pe­a ns and is controlled by the Department of Internal Affairs. The Māori do not own or run casinos, but all public gambling is expected to return a portion of profits to the community to the benefit of all (Grant 2013). Citizens and visitors to New Zealand wagered the equivalent of about $15 billion in U.S. dollars in 2011 with a proportion of the profits funding a multitude of community proj­ects. “Trusts that run non-­casino gaming machines in pubs and clubs distribute at least 37.12% of net profit to community groups, and casinos distribute at least 2.5 . . . ​a nd in 2011 paid out $124 million to community groups” (Grant 2013). Even though the



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Māori themselves do not run casinos, their communities do receive benefits from gaming and casino profits. Not all tribes and bands in the United States and Canada own and operate casinos, but for ­t hose that do, Indian gaming and casinos have been instrumental in creating a modern Indigenous po­liti­cal economy in both countries. In Canada, before Aboriginal gaming and casinos w ­ ere operating, ­there ­were few effective programs to assist with economic development. As with the United States, programs to help create a v­ iable economy ­were based on Western notions of success with a one-­size-­fits-­a ll approach that did not take into consideration differences in linear and circular thinking. As an example, in Canada, about 80 ­percent of Aboriginal ­people lived below the poverty line in 2017, and programs designed to improve Indigenous standards of living are “band aids” at best (Press 2017; Frideres and Gadacz 2008, 109). Both in Canada and the United States, many reserves and reservations are in remote areas where it is not easy to find work or to get to and from work when the only opportunity for employment may be sixty miles away. Employment, education, and poverty are three areas of concern found in common for most Indigenous ­peoples. The economies of many tribes in the United States and Canada tend to be severely depressed. Tribes that live in remote areas face up to a 90 ­percent unemployment rate (Smith 2000, 136). Bands and tribes that have casinos fare better. The good news is that self-­ determination policies in Canada and the United States, along with improved local economies and education systems, have resulted in more youth graduating from high school and many entering colleges and universities (Smith 2000, 137). An example is the Saskatchewan Indian Gaming Authority (SIGA) in Canada that contributes to improvements in local economies and education systems, among other community necessities. In 1995, the First Nation Gaming Act was enacted and a management body was created. Since 1996, SIGA has been incorporated u ­ nder the Non-­Profit Organ­i zation Act of Saskatchewan as a charitable operation with 100  ­ percent of profits being returned to their beneficiaries. The creation of SIGA is the culmination of a vision held by elders and leaders to create long-­term, sustainable economic development opportunities for First Nations ­people. “SIGA’s mandate is to: create First Nations employment and focus on employee development; First Nation economic development through the development of the gaming industry and to maximize earnings to First Nations ­people” (SIGA 2018). The mission of SIGA is to “strengthen the lives of First Nations ­people through employment, economic growth, positive community relations and financial self reliance. This ­w ill be done through the operation of distinctive First

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Nations gaming destination resorts that reflect the traditional aspects of our First Nations culture and hospitality.” The first casino opened in March 1996 and since then SIGA’s economic enterprise has grown to six casinos with the opening of the latest in December  2008. T ­ oday, SIGA employs 1,736 ­people with 64 ­percent belonging to First Nations tribes. Approximately $1 billion has been generated for its beneficiaries, and “that’s ­because 100% of the amount of SIGA’s profits go back into the province and its communities” (SIGA 2018). The first American Indian casino was built in Florida by a Seminole tribe that opened a high-­stakes bingo parlor in 1979, setting a pre­ce­dent for a new era of American Indian capitalism and tribal economics. Other tribes followed, with some being very successful, but the real­ity is that only about 20 ­percent of Indian gaming tribes are successful at breaking even or turning a profit (Fixico 2013b, 178). Another misconception is that all Indian gaming tribes receive enormous sums of money from gambling. Some gaming tribes and members do receive money, but not all tribes with casinos distribute funds to individual members. The creation of casinos in Canada and the United States as a method of building Indigenous po­liti­cal economy is reminiscent of times past when, for many Indigenous communities, the group was (and still is, in many cases) more impor­t ant than individuals, and “the moral economies of tribes centered on sharing wealth and distributing goods to make sure every­one had enough to eat, w ­ ere comfortable, and ­were secure . . . ​­today tribes have readapted their communities to practice a po­liti­cal economy as Native leaders learned to negotiate with traders and government officials” (Fixico 2013b, 171). In Canada and the United States, t­ here are many questions about gambling. Some ­people question the morality of it and ­whether Indians should benefit from someone with a gambling addiction. ­Others raise questions about crime control, what the legalities are, what the government’s role is, and so on (see Bennett 2018b). ­There is a lot involved with the issue, and ­there are many opinions in both countries. The most impor­tant opinions, though, are what Indigenous ­people think about gambling. The development of Indigenous capitalism is a topic of much discussion and criticism from outsiders. Fixico (2013b, 172) writes concerning the United States, “One common Native view is the law has ­limited sovereignty over tribes in their necessary po­l iti­cal negotiations at the state and local levels. Whereas in the historic past Indian l­egal relations existed only on a level with the federal government, the ­whole situation has changed so that state governments are involved in compact negotiations with tribes. Indians have had to accept this limitation of tribal sovereignty due to the plenary power of Congress and more federal laws passed that pertain to Indian Country.”



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American Indian gaming has proliferated since the 1980s and b­ ecause of that, the federal government felt it had to do something to control un­regu­la­ted gaming. Morris Udall was a congressman from Arizona with extensive knowledge about tribes and Indian affairs who believed that some control was needed. In 1987, Senator Daniel Inouye, a Native Hawaiian, introduced a bill to the Senate for regulated gaming and stated, “The issue has never ­really been one of crime control, morality, or economic fairness . . . ​at issue is economics. At pre­sent Indian tribes may have a competitive economic advantage. . . . ​Ironically, the strongest opponents of tribal authority over gaming on Indian lands are from states whose liberal gaming politics would allow them to compete on an equal basis with the tribes. . . . ​ We must not impose greater moral restraints on Indians than we do on the rest of our citizenry” (quoted in Fixico 2013b, 182). The bill was seen as a two-­edged sword by some; it undermined tribal sovereignty but also established a procedure that protected gaming tribes against interference from state governments. With the passage of the Indian Gaming Act in 1988, state governments entered into the legislative mix. “With state compacts or agreements specified by the act, the daily operations stood between the states and tribes, not the federal government and tribes. By law, the tribes and states had to reach an agreement for the tribe to build a casino, and the state government received a small portion (about 2 ­percent) of the slot machine yearly revenue” (Fixico 2013b, 183). With the exception of Hawaii and Utah, casino gambling is l­egal in ­every state, which has helped create a modern Indian po­l iti­cal economy that invests in its p­ eople and communities. It is an example of tribal adaptation, so that by the end of the twentieth c­ entury Indian gaming had become part of a new era in state-­t ribal relationships. Profits made from successful tribal casinos have lessened de­pen­dency on federal government programs and have expanded tribal sovereignty and self-­determination for some tribes. To be sure, poverty still exists on many reservations and reserves, but pro­g ress continues to be made to improve life for ­those living ­there. In all four countries, ­there are still prob­lems with high unemployment, substandard health care, alcoholism, drug abuse, insufficient school systems and discrimination from the mainstream. But Indigenous ­peoples have always learned to adapt to adverse circumstances and survive through resilience and strength. Despite crimes and social harms experienced by Indigenous ­peoples, tribal social systems have continued to develop over time from status quo to hope and realization, as culturally based and tribally owned economic development opportunities cycle back to help sustain and invigorate Indigenous cultures. The social harms visited on Indigenous populations ­ were and are unconscionable. From a social harms perspective, the theft of land, resources,

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and intellectual knowledge can be deemed criminal ­because ­these destructive actions target and hurt a specific group of p­ eople who did not have a large enough population or enough po­ l iti­ cal power to withstand their respective governments. ­There is much more to understanding the importance of economic development than can be described in the space of this chapter, but as Smith (2000, 7) writes, “The First Nations are poised to enter the global economy and are ­bearers of philosophies necessary for f­uture development of the global environment.” Circular thinking demonstrates that “environmental, ­family values, and other issues” (Smith 2000, 7) are far more impor­tant to Indigenous p­ eoples than just blatant consumerism. Development of tribal resources, capital funding opportunities, technical training, education, management, entrepreneurial development, enterprise boards, institutional reform with or without outside ties to investment firms, and policy reform are supremely impor­tant in creating self-­determination and self-­sufficiency for and ending economic exploitation and crime against Indigenous ­people in the twenty-­first ­century (Smith 2000, 123–133). With new areas of economic development occurring that can help them become more self-­sufficient, Indigenous nations and communities can be maintained for generations to come.

C hapte r   9

Would You Drink This ­Water? C rim e s of Pol lution and Tox ic Dumping on Indige nous Land s Environmental quality and in­ equality are dependent upon one’s place in the world. Environmental degradation in the United States, New Zealand, Australia, and Canada, as in other countries where Indigenous populations exist, is “always linked to questions of social justice, equity, rights and ­people’s quality of life in its widest sense” (Agyeman, Bullard, and Evans 2003, 1). Torras and Boyce (quoted in Agyeman et al. 2003, 1) write that countries with greater wealth distribution, civil liberties and po­l iti­cal rights, and greater education have higher environmental equality, whereas t­hose with less-­equal income, fewer rights and civil liberties, and lower education tend to be more environmentally degraded with less access to environmental stability. In fact, ­those at the bottom of the socioeconomic scale, such as Indigenous p­ eoples, disproportionately bear the brunt of environmental devastation and crime. State-­corporate crime and the results of colonialism can be found in countries worldwide. The Navajo Nation in Arizona, Utah, and New Mexico ­w ill be the focus of this chapter, with mention made also of issues in Australia, New Zealand, and Canada. When p­ eople are socioeco­nom­ically and po­liti­cally disadvantaged, and live with fewer civil liberties and rights, they become easy targets for environmental exploitation. This is especially true if p­ eople live in impoverished areas where it is easier for multinational corporations to illegally dump hazardous waste or begin other environmental ventures that lead to social harms. It is especially true for ­people who live on Indigenous reserves or reservations that sit on top of minerals that corporations want at the lowest cost pos­si­ble. When t­ hese two variables collide, state-­corporate crimes may be the result. Even though some of the incidents committed by corporations are not ­actual crimes, they still cause social harms in forms such as environmental and physical destruction to the exploited victims. So, what is state-­ corporate crime?

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State- ­C orporate Cri m e According to Kramer, Michalowski, and Kauzlarich (2002, 271) state-­ corporate crime refers to “illegal or socially injurious actions that result from mutually reinforcing interaction between (1) policies and/or practices in pursuit of the goals of one or more institutions of po­liti­cal governance and (2) policies and/or practices in pursuit of the goals of one or more institutions of economic production and distribution.” They continue, “This theoretical framework is based on the proposition that criminal or deviant be­h av­ior at the orga­n izational level results from a coincidence of pressure for goal attainment, availability and perceived attractiveness of illegitimate means, and an absence of effective social control” (Kramer et al. 2002, 273). ­These can be ­either state-­initiated or state-­f acilitated. The relationship between law and objectively harmful activities experienced by marginalized Indigenous groups is complex. Removal of Indigenous ­ peoples from their homelands and isolating them on reserves, reservations, or other set-­a side lands takes an emotional and psychological toll. When Native ­peoples are excluded from decisions about what happens to them and their environment, the health of the p­ eople suffers. Social harms can be perpetrated by corporations with or without help from state bureaucracy. With social harms, the act committed by a corporate entity may be l­egal, but the harm caused to the ­people is clearly not right. The forces of colonialism and conquest have become imprinted in laws and actions ­toward Indigenous ­people through time and have come to be seen as normal. But at what point do we expect state-­corporate, po­liti­cal, and economic entities to take responsibility for and remedy their actions? The first example of state-­corporate crimes is from the Navajo Nation of the United States. The Navajo Nation Nowhere are corporate and state-­corporate crimes in the United States more vis­i­ble ­today than on the Navajo Nation in northeastern Arizona. State-­corporate crimes are dif­fer­ent from other white-­collar crimes in that corporate crimes are not usually committed for personal gain, even though certain individuals directly benefit from them. Corporate crimes are mostly committed to further the goals of the corporation (Robyn 2011, 3). Many of the crimes committed by the government are closely tied to corporations in the private sector. T ­ here are many links between corporate power elites and the government on all levels (Friedrichs 2007, 27). To preface, the majority of corporations do not operate by using illegal or harmful practices. Corporations contribute to society by employing



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p­ eople, philanthropy, and enriching our lives. B ­ ecause of the positive contributions of most corporations, it is difficult to think of corporations working in cooperation with government bureaucracies that can create harm. When working together, corporations and the government are not usually acting as evil entities plotting to see whom they can take advantage of and harm. However, the history and development of Indian policy and exploitative economic development on Indians lands suggest that in some instances this indeed can be the case. Robyn (2011) writes that beginning in the 1870s, Navajos w ­ ere victims of “land grabs” to secure lands along their northern borders. Mormons settling in the Tuba City and Moenkopi areas, non-­Mormon expansion into the Montezuma Creek and Aneth areas, and the huge c­ attle industry of San Juan County in Utah made competition for scarce resources inevitable (see McPherson 1988; Bailey and Bailey 1986; Ortiz and Sturtevant 2012). Congress opened public domains for both Native and non-­Native use, but the Navajos and Utes used the land in ways that the settlers did not believe to be prosperous. Between 1868 and 1991, the Navajo reservation land base was extended no less than fifteen times, mostly at the cost of what the Hopi consider their traditional lands but also incorporating the northern and western edges of Ute and Southern Paiute reservation land. Navajo families, however, ­were displaced as lines ­were drawn and redrawn, and some families refused to leave their homelands. ­Because of their re­sis­tance, the government fabricated a dispute between the Hopi and Navajo tribes that would eventually call for government action to avoid bloodshed between the two tribes. In 1966, BIA director Robert Bennett ordered any development on this area of the reservation be suspended. This government action, known as the “Bennett freeze,” was in place from 1966 u ­ ntil President Obama lifted it in 2006, allowing the Navajos to begin seeking federal funding to rehabilitate an area the size of Delaware. This was needed ­because no infrastructure repairs had been allowed during this 40-­year period. This controversial action opened lands for mineral exploitation by the U.S. government and corporations at the expense of the Navajo ­people. The beginning of the controversy around taking uranium, copper, and coal from the reservations actually started on the Hopi reservation. T ­ here are billions of tons of valuable minerals u ­ nder land in this area. High-­quality, easily recoverable coal was found ­u nder Black Mesa in 1909 (Benedek 1993, 133). Had that not been the case, the relocation of thousands of Navajo sheepherders would more than likely not have happened. When boundary lines w ­ ere redrawn and the promises made to the Hopi that they could recover their lands w ­ ere not fulfilled, it became clear that mineral development would be inevitable. The Hopis’ deep beliefs about

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being caretakers of the land and their close ties to and love for the land ­were considered obstacles to be pushed aside by mining companies. Once the politics began, environmental devastation soon followed. Hopi and Navajo reservation lands ­were strip-­m ined for uranium and coal. Despite protests of the Hopi and Navajo ­people against forced removal, they ­were helpless to prevent being forced off homelands they had occupied since time immemorial. Navajo and Hopi lands ­were partitioned, and ­people w ­ ere forcibly moved out with no po­liti­cal intervention. “For the Navajo, to be relocated (for which t­here is no word) is to dis­appear and never be seen again” (Goodman 1986). early mining.  ​Reservations are of strategic importance to corporations and the government ­because they constitute one of the largest and least explored mineral repositories on the continent. In the late-­ n ineteenth ­century, Anglo-­A merican miners came to the Colorado Plateau and Indian lands to extract uranium, radium, and vanadium from small amounts of pitchblende and carnotite ore (Quartaroli 2002). Miners came with picks and shovels to gather the ore, and burros or donkeys to truck it out, which had l­imited impact on the environment. Beginning with the twentieth ­century, methods of mining changed dramatically and so did the impact of uranium mining on the p­ eople and environment. From the 1940s through the 1960s, the development of a boomtown economy occurred on the Colorado Plateau. Development of this economy coincided with the federal government’s involvement in uranium mining. Financial incentives such as guaranteed ore prices and production bonuses, among o ­ thers, prompted intense mining, mostly on reservation lands. “The boom-­time changed every­thing: size of the leases, depths of the mines, number of mill recovery facilities, number of p­ eople involved in the industry, and the impact to the land and resources” (Quartaroli 2002). In the early times, working conditions in the mines ­were miserable. The dangers of uranium mining w ­ ere known even then. “By the time the Atomic Energy Act of 1946 was signed into law, the medical community and the government ­were very aware of the dangers of radiation. The medical community warned the government about the effects uranium mining would have on p­ eople, but government officials did not see any cause for alarm” (Eichstadt 1994, 97). The miners, however, w ­ ere never told of t­ hese dangers, and, even if they had known, would it have made a difference? When p­ eople are desperately poor, the meager benefits gained from unsafe mining can outweigh the dangers. Not only the miners but their families ­were exposed to radiation levels as much as 750 times the 1950 standards. B ­ ecause ­t here ­were no showers or places to change clothes, miners unknowingly brought contaminated clothing home to be put in the ­f amily wash. As well, very few of the under­g round



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mines had any ventilation. The smaller mining companies felt they could not afford ventilation ­because it would reduce their profits. “­Others, e­ ager to remove as much uranium as pos­si­ble per hour, regularly sent workers back into the mines within minutes ­a fter blasting” (Eichstadt 1994, 50). lethal health impacts on the navajo ­people and their land.  ​The legacy of lethal mining continues ­today with contaminated ­water and equally toxic ­houses built with radioactive debris during the 1960s, 1970s, and into the 1980s. When blasting occurred during mining, chunks of sandy mill tailings and ore w ­ ere blown into squares. Unaware of the danger, p­ eople picked up t­hese chunks of radioactive material and made bread ovens, ­cisterns, foundations for ­houses, fireplaces, floors, and walls. The homes ­were passed from one generation to the next. By this time, the dangers of uranium mining w ­ ere well known by the U.S. government, but no one told the p­ eople t­hese building materials ­were toxic and would lead to severe illnesses and eventually death (Pasternak 2006). ­People living on the Navajo Nation ­were once believed to have a special immunity to cancer, but in the 1950s and 1960s severe changes in the health of the ­people occurred. In 1982, Dr. Richard Auld came to the reservation ­a fter completing his residency in internal medicine at the University of California, San Diego. Dr.  Auld began working at Indian Health Ser­v ices in Shiprock, New Mexico, where within two years he treated six cases of stomach cancer. Two of the patients w ­ ere w ­ omen 18 and 20 years of age. B ­ ecause ­these ­women ­were so young, the doctor became concerned. He worked with another specialist, and they found the incidence of stomach cancer to be fifteen times the national average for p­ eople living in some areas near uranium deposits. T ­ hese cancers w ­ ere not l­ imited to former miners. In two western parts of the reservation filled with old pit mines, stomach cancer was 200 times the U.S. average for w ­ omen ages 29 to 40 (Pasternak 2010, 142–143). the strug­gle to reclaim their health and land. ​From 1944 to 1986, nearly four tons of uranium ore was extracted from the entire Navajo Nation, which constitutes an area the size of West ­Virginia and spans northeastern Arizona and parts of New Mexico and Utah. Demand for uranium dried up ­after the Cold War, and mining companies simply abandoned roughly 1,300 mines, leaving b­ ehind mounds of radioactive uranium tailings waste. Navajos, Hopi, and o ­ thers near t­hese areas inhaled radioactive dust and drank ­water contaminated with uranium, arsenic, and other heavy metals. The cancer rate doubled, according to Indian Health Ser­v ice data (MacMillan 2012). MacMillan (2012) writes that the radioactivity near the abandoned Cameron (Arizona) mine is said to mea­sure one million counts

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per minute, translating to a h ­ uman dose that scientists say can lead directly to malignant tumors and other serious health damage. “Two days of exposure at the Cameron site would expose a person to more external radiation than the Nuclear Regulatory Commission considers safe for an entire year.” With uranium prices currently on the rise, and the economic situation being what it is t­ oday, mining companies are once again setting their sights on exploring for uranium in the Southwest. Due to Arizona’s serious economic issues, the uranium mining industry continues to exert pressure on key senators to open areas near the G ­ rand Canyon for mining. Arizona’s former governor, Jan Brewer, expressed interest in uranium mining by Denison Mines near the G ­ rand Canyon (Arizona Geology Society 2010), even though about the same time, Denison Mines received notice from the Office of Enforcement, Compliance, and Environmental Justice citing their air and w ­ ater violations. When the price for uranium began to rise in 2006, thousands of new claims ­were filed within watersheds that drain directly into ­Grand Canyon National Park and the Colorado River. A Canadian-­ owned com­ pany reopened the White Mesa Mill in Blanding, Utah, and began pro­cessing uranium for powering nuclear reactors in South ­Korea and France. The U.S. Forest Ser­v ice began permitting exploratory drilling for uranium without requiring an environmental assessment. The Bureau of Land Management allowed the reopening of previously abandoned uranium mines without requiring any revisions to outdated environmental assessments (­Grand Canyon Trust 2012). As of 2012, the abandoned Cameron mine, about 60 miles east of the ­Grand Canyon, is one of hundreds of sites across the 27,000 square miles of the Navajo Nation that resulted from careless mining practices and federal neglect. Given the circumstances surrounding uranium mining and considering the need for safety, the p­ eople who live on and near the Colorado Plateau have good reason to be wary of new uranium mines. From the 1940s ­u ntil ­today, government scientists have understood the lethality of uranium mining. This was a serious ethical failure on the part of the federal government. Government officials should have regulated mining and protected the affected Native American p­ eople, but instead they studied them for another fifteen years and watched the devastating effects on them. harms to the navajo ­people, in their own words.  ​Thousands of Navajo

residents live in the “Bennett freeze” area on the Navajo Nation. During Linda Robyn’s visits to this area, she observed that as of 2016 ­there ­were ­people living in homes that w ­ ere barely mended together with baling wire, cardboard, tarps, and what­ever ­people could salvage. We are shown images on tele­ v i­ sion about ­ people living in such conditions in third-­ world



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countries. A visit to this area of the reservation leads one to won­der why residents cannot have the basic necessities that all ­human beings have a right to, such as clean w ­ ater and adequate shelter that includes indoor plumbing and electricity. During the summer of 2010, Robyn was invited to attend a Chapter House meeting in Box Springs, a small community in the Bennett Freeze area on the Navajo Nation, and listened as residents spoke about the land dispute and the ­mental, physical, emotional, and spiritual suffering they have endured as a result. Kathy Helms, a Gallup In­de­pen­dent reporter, also attended the meeting and interviewed 84-­ year-­ old Myrtle Yellow­ horse who said, “I c­an’t express enough how this land dispute has devastated ­people and how many lives it has taken of the Navajo ­people” (Helmes 2010). Richard Anderson,  Jr. of Whitecone on the Navajo Nation was a victim of the relocation effort by the U.S. government to open reservation land for (toxic) energy development. With boundary lines redrawn, Anderson and his f­amily found themselves squatters on their own land and deprived of a place to call home. As Anderson (Helmes 2010) said: “They [the government] took our land. All of my civil rights ­u nder the Constitution ­were ­v iolated—my religious rights, my pursuit to happiness. . . . ​Relocation is just a government word for genocide. That’s all ­they’re ­doing is killing us. T ­ hey’ve been d­ oing it for 500 years and ­they’re ­doing it to this day and it’s not right.” On April  10, 2016, Weekend Edition Sunday, a National Public Radio (NPR) program, explored uranium mining and its deadly effects on the Navajo p­ eople. Reporter Laurel Morales (2016) interviewed Maria Welch, a Navajo researcher studying the effects of uranium contamination, who explained that the effects of uranium mining are still being felt t­oday. She had asked a Navajo m ­ other about how she feeds her baby, considering that 40 ­percent of the tribe lacks r­ unning w ­ ater. The m ­ other had no choice but to prepare her baby’s formula with contaminated well ­water. In conducting her study, Welch found that 27  ­percent of participants had high levels of uranium in their urine, compared to 5 ­percent of the U.S. population as a ­whole. As stated by Welch, “When they did the mining, t­here would be ­t hese pools that would fill up, and all of the kids swam in them. And my dad did, too.” Many Navajo unwittingly allowed their livestock to drink from ­t hese contaminated pools, and their ­children played in mine debris piles. As mentioned previously, some even built their homes out of uranium. Why is t­ here not more outrage? George McGraw, a ­human rights activist on the Navajo Nation, said it best: “Prob­lems like this r­ eally disproportionately affect low-­ i ncome communities of color” (Morales 2016). McGraw’s organ­ization, DIGDEEP, is raising money to dig wells on the reservation.

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is ­there a safer way to mine uranium? ​O fficials from Vane Minerals believe breccia pipe mining operations w ­ ill not contaminate ­water or soil and ­w ill bring much-­needed jobs to the region (see Vane Minerals Com­ pany 2015). Even so, such promises have been made before, and the legacy of uranium mining left no one, other than the mining companies, in a better place. In the 1940s and 1950s when the mining companies came to the reservation, they exploited Navajo workers by paying them substandard wages while exposing them to “yellowcake” (radioactive dust). ­People w ­ ere poisoned, along with their livestock, and w ­ ere left with hopelessly contaminated drinking w ­ ater and soil. Even with better oversight t­oday regarding health and environmental impacts, even though safety standards have improved for miners with better ventilation and protection from radiation exposure, even though ­there are strict controls for pro­cessing mills that ­w ill have to cap and seal tailings piles immediately, that is not good enough. With the economic conditions being what they are, and given the fact that the government and corporations have exploited and turned the area where the Navajo live into a “national sacrifice area,” it may be naïve to believe or expect the federal government to oversee and regulate this industry effectively. the navajo nation ban on mining.  ​A s of 2005, ­people living on the Navajo Nation voted to not take chances with potentially hazardous mining. On April 19 of that year, the Navajo Nation Council voted 63–19 to pass the Diné Natu­ral Resources Protection Act (DNRPA). This statute bans uranium mining and pro­cessing anywhere on the vast Navajo Nation in Arizona and New Mexico (Third World Network Features 2005). Several members of the U.S. Congress said they supported then-­Navajo Nation president Joe Shirley  Jr. and the prohibition on uranium mining (Brugge et  al. 2006, 172). President Shirley was quoted as saying, “Many of my ­people have died . . . ​m any are ­dying ­today. Some are on their deathbed. Why continue to mine that which kills? So the Diné Nation said no more” (Navajo Nation 2005). To be sure, not all potable w ­ ater on the Navajo Nation is contaminated. To help ensure that all ­people living on the reservation have safe drinking ­water, then-­president Joe Shirley signed a Public Health State of Emergency on January 15, 2010, for Navajo residents living in areas (Black Falls, G ­ rand Falls, Box Springs) exposed to unsafe uranium contaminated drinking ­water in their homes (Robyn 2011). cleanup efforts.  ​­A fter de­cades of government indifference, the former Skyline Mine in Monument Valley, Utah, caught the attention of the Environmental Protection Agency. In 2007, Representative Henry Waxman (D-­Calif.), then chair of the House Oversight Committee, held a congressional



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hearing in which Doug Brugge, a scientific witness for the Navajo Nation, described how waste from uranium mining can cause cancer and urged more research “to understand the full extent of this injustice” (MacMillan 2012). Skyline needed to remove two piles of contaminated soil from the bottom of the mesa at a cost of $7.5 million. Jason Musante, overseer of the proj­ect for Skyline Mine, proposed that they bury the waste in a ­g iant plastic-­lined repository on top of the mesa; the p­ eople living in the Skyline Mine area wanted the com­pany to remove the waste totally from the Navajo Nation. Musante said ­there was not enough money to drive all the waste from Navajo lands and stated (with no intention of irony), “That’s a po­l iti­cal issue, b­ ecause the Navajos say ‘we want this stuff off our land.’ But it’s their land. This is their stuff ” (MacMillan 2012). Skyline Mine completed the cleanup in October 2011, and it was hailed as a milestone by the EPA. Many Navajos, however, are skeptical and unbelieving. A Navajo man­a g­er of a ­hotel near the Skyline site said he and a friend ­were taking ­water samples from the San Juan River in back of the ­hotel and sending the samples to a private lab in Phoenix for testing. He said the federal government shut down the mining operation ­because “the government ­doesn’t want p­ eople to know that Navajos are living in a hot area” (MacMillan 2012). ­Water is of extreme importance to ­those living on the Navajo Nation. ­Water f­ree of uranium and arsenic is as impor­tant to many living on the Navajo Nation as gold is to some in the general population. Only one out of three Navajos has access to drinking w ­ ater that is not contaminated with uranium, arsenic, and other heavy metals from mining. Thousands of Native ­people in the Southwest do not have the luxury of clean drinking ­water. As an example, the ­f ather of a ­f amily of six has to load two fifty-­five-­ gallon drums in his truck, drive for an hour to a community well, and use a government-­issued “­water card” to unlock a spigot. The ­water is used for drinking, livestock, cooking, laundry, and bathing—in that order. T ­ here is usually not enough w ­ ater left at the end of the week, so the f­amily has to bathe in the river. The Colorado River supplies drinking ­water to millions of ­people, from Arizona to California. According to Doug Brugge, another of the issues with contaminated ­water is that it could be moving into the ­Little Colorado River Basin. “Contamination can leach slowly for de­cades, depending on the movement of w ­ ater. . . . ​It seems likely that groundwater would flow t­ oward the river, since that is almost always the case when a site is in the immediate vicinity of a river” (quoted in MacMillan 2012). In an article for the Gallup In­de­pen­dent, Kathy Helms (2013) wrote that the Department of the Interior’s Bureau of Indian Affairs has been fined $136,000 for violations of the Safe Drinking ­ Water Act at the Keams

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Canyon public w ­ ater supply system, located on the Hopi reservation. The ­water supply system is owned and operated by the BIA and serves a population of approximately 2,000 ­people. The EPA found that the BIA exceeded drinking w ­ ater standards for arsenic and failed to monitor for arsenic and disinfection compounds (Helms 2013, 1). Hopi tribal chairman LeRoy N. Shingoitewa said the EPA fine “is ­really the result of BIA’s foot-­d ragging on a solution to bring clean ­water to the villages” (Helms 2013, 1). Students in Hopi schools have been exposed to excessive arsenic levels for many years; the Hopi High School system and the Second Mesa Day School system exceeded the maximum contaminant level for arsenic in 2007 and 2008 (Helms 2013, 1). accountability.  ​ T he deaths of miners on the Navajo Nation in the

1940s, and the poverty, lethal illnesses, birth defects, and environmental devastation that Navajo ­people have experienced and continue to experience, are a result of negligence on the part of the U.S. government and multinational corporations who have taken shortcuts in their quest to turn a profit. The United States government plays a part b­ ecause it allowed boundary lines of the Navajo and Hopi reservations to be drawn in such a way that corporations ­were able to tear up ­peoples’ homelands for monetary gain. The deaths that continue to occur from mining and contamination on this part of the Colorado Plateau are tantamount to reckless hom­i­cide or at least criminal negligence. ­T here should be accountability, especially since the U.S. government has known about the dangers of exposure to this mineral since 1946. Since 2011, the Navajo-­Hopi Land Commission reports that it has had nearly $4 million available to help Navajo families in the affected area, and the U.S. Justice Department has recently prosecuted some of the mining companies. The Environmental Protection Agency’s regional man­ a g­ er, Jared Blumfield, stated that, “Since 2008, the EPA has hauled away thousands of cubic yards of mine waste and has rebuilt nearly 50 contaminated homes, but ­there’s still much more to be done” (quoted in Morales 2016). However, a full one-­t hird of the mining companies that w ­ ere once mining on the Navajo Nation have shut down ­because they ran out of money. Even though the federal government knew about the dangers de­cades ago, it is only recently that any cleanup efforts have begun. As Morales (2016) stated, “The uranium issue on the Navajo Nation is part of a much bigger prob­lem. Across the western United States t­here are more than 160,000 abandoned hardrock mines—­t housands of which continue to pollute.” The good news is that as of 2016, the federal government reached another settlement with the Navajo Nation that w ­ ill clear the way for cleanup work to continue at abandoned uranium mines (Bryan 2016).



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Forty-­six sites w ­ ere targeted for cleanup with high priority due to radiation levels, their proximity to p­ eople, and the threat of contamination spreading. In addition, sixteen abandoned mines are slated for cleanup, with plans in place to include another thirty sites. In addition to the thirty sites in the planning phase, evaluations are planned for two more sites to see if w ­ ater supplies have been contaminated (Bryan 2016). The federal government has already spent $100 million to address abandoned mines on Navajo lands and a separate settlement reached with the Department of Justice (DOJ) was worth more than $13 million (Bryan 2016). Estimates for f­uture cleanup costs at priority sites w ­ ill stretch into hundreds of millions of dollars. Over the past forty years, approximately 4 million tons of uranium ore ­were mined on Navajo lands with the federal government being the only customer for the ore beginning in the 1940s through the 1960s (Bryan 2016; Robyn 2011, 3). Assistant Attorney General John  C. Cruden, for the DOJ’s Environment and Natu­ral Resources Division, said, “Addressing the legacy of uranium mining on Navajo lands reflects the commitment of the Justice Department and the Obama administration to fairly and honorably resolve the historic grievances of American Indian tribes and build a healthier ­f uture for their p­ eople” (quoted in Bryan 2016). To avoid environmental devastation and the millions of dollars it has and ­w ill continue to cost American taxpayers, ­t here are much cheaper alternatives to using uranium for energy purposes. Solar and wind energy are resources abundantly available in this area. Instead of inflicting short-­term, environmentally destructive proj­ects on the Colorado Plateau, government and corporations need to create long-­term, sustainable energy-­producing proj­ects that sustain jobs. ­Because in the end, we all live downstream. New Zealand As with other Indigenous ­peoples invaded by Eu­ro­pean colonizers, the Māori ­were the last to benefit and the first to suffer from Western technology and science (Kilvington et  al. 2003, 255). Still ­today, non-­M āori or Pakeha, and more specifically the scientific community, still fail to comprehend that by ignoring or disregarding “a ­people’s language and culture, you render them invisible” (Kilvington et al. 2003, 252). As a result, the Māori began addressing environmental issues on their own. Even so, the input of the Māori in managing conservation lands has been very ­limited, although the Conservation Act has a strong reverence for the Treaty of Waitangi, the 1840 compact between the British Crown and a large number of Māori chiefs (Rudzitis and Bird 2011). In 1986, the New Zealand Environment Act established the Ministry for the Environment, which is more of a policy ministry since authority to

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enforce environmental issues is the purview of regional governments and the environmental court with some functions being recentralized in the new Environmental Protection Authority (EPA). Nevertheless, Nicola Wheen (2002, 269) makes the argument that environmental law has been used to facilitate and accommodate resource development without appropriate checks against development and resource exploitation, with princi­ ples such as sustainability being defined so loosely that they have very l­ittle impact. Rudzitis and Bird (2011) write that, as a result of loosely interpreted development rules, “Consequently, even ­today in New Zealand t­here are generally no ­legal limits on the amount of pollutants that can be put on land or in the ­water, though the Resource Management Act of 1991 does require consents for discharge into the air, land, or ­water, which does set limits on discharge.” According to the 2008 New Zealand Parks Act, national parks and public lands make up more than 30 ­percent of New Zealand’s land area. As with the United States and other countries with Indigenous populations, many of ­t hese lands “­were taken, purchased, or stolen (depending upon differing historical perspectives) from the vari­ous Māori tribes who ­were living on the islands before they ­were colonized” (Rudzitis and Bird 2011). mining in new zealand. ​In August  2009, Minister of Energy Gerry

Brownlee announced policy changes for mining companies that included loosening access requirements on national parks, public lands, nature reserves, and scientific reserves in an effort to promote economic growth. In total, this expanded a land base consisted of 40 ­percent of conservation lands that is approximately 14 ­percent of the country’s total land area (Forest and Bird 2010). Some of the Māori iwi (tribes) have extensive land claims on the areas in question and came out strongly against this proposal. The Hauraki iwi said it wanted outstanding Treaty of Waitangi claims dealt with before the government opened up conservation land for expanded mining (Rudzitis and Bird 2011). As has been the case in the United States and elsewhere, the mining industry leaders supported t­hese changes, calling them “a re­n ais­sance for the industry.” ­Because New Zealand has an environmental rec­ord second to none, assertions ­were made that ­these days mining is a “green” operation and t­here ­were no worries b­ ecause of New Zealand’s high environmental standards. Reaction from the environmental community to ­t hese assertions made by the mining industry came across loud and clear against opening protected lands to mining. Thousands of New Zealanders and organ­i zations let the government know they did not want mining in national parks. On May  1, 2010, approximately 40,000 ­ people, Māori and non-­ M āori,



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descended on Auckland, to march in the biggest public demonstration in New Zealand history against exploration and mining in national parks and other scenic areas. Greenpeace accused the government of attempting to drag New Zealand back to the nineteenth ­century (Boxer 2010), and U.S. Sierra Club vice president Richard Cellarius criticized the mining proposal by stating that the government has “the responsibility to protect New Zealand’s heritage . . . ​for the protection and conservation of the Earth’s ever shrinking biodiversity” (Knight 2010). T ­ here w ­ ere also criticisms from the parliamentary commissioner and ­others. It took less than three months for the government to back down from this proposal, but even so, the debate continues (Rudzitis and Bird 2011). Australia Writing about the environmental strug­g les of Indigenous Australians is much the same as writing about the environmental strug­g les of the Māori in New Zealand and Native Americans in the United States. Western Australia is home to the p­ eople of the Wongatha Aboriginal clan, who see no wisdom in having uranium mining at all in Australia. Wongatha leader and pastor Geoffrey Stokes says, “We have sun, ­we’ve got wind, ­we’ve got ­people. Why should we pollute our country for money?” (quoted in Boylan 2010). The opening of a major mine site in Western Australia is facing opposition from Indigenous ­people who do not want the radioactive mineral mined ­because they do not want to leave f­uture generations with a toxic environment. However, what Indigenous ­people who have very ­little say in po­l iti­cal ­m atters want and what they can achieve with relative powerlessness are two dif­fer­ent ­t hings. The World Nuclear Association reports that Australia has the largest uranium reserves in the world, with 23 ­percent of the global total. T ­ here ­were only three uranium mines as of 2010, but they have been exporting as much as 10,000 tons of uranium oxide per year. As well, the money from Australia’s uranium exports alone reached more than 1 billion Australia dollars (892 million U.S. dollars) with major clients that include the United States, Japan, and South ­Korea. In 2011, the Anti-­Nuclear Alliance of Western Australia reported that more than 100 domestic and foreign companies are exploring for uranium all over Western Australia (Boylan 2010). With Aboriginal tribes inhabiting land that has massive amounts of uranium under­neath, they can plan on mining to proceed, but given the experience of Native Americans, ­those living in this region would do well to learn from the United States’ past ­m istakes. Australian mining com­ pany, BHP Billiton, is one of the uranium industry’s major players. BHP planned to develop the Yeelirrie uranium deposit in 2011  in a 17 billion Australian dollar (15.6 U.S. billion dollar)

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proj­ect with an annual yield of 3,500 tons of uranium ore. The Kalgoorlie-­ Boulder Mine is in the Goldfields region of Western Australia in a town of 30,000 residents. The ­people and the town depend totally on the mining industry, but many residents do not want uranium disturbed from the ground, leaving f­uture generations to face a toxic environment. When the ­L abor Party led Australia’s federal government in the 1980s, officials allowed only three open mines at one time to help alleviate some of the burden of contamination (Boylan 2010). Cameco proposed a uranium mine in Yeelirrie, where it planned to mine 7,500 tons of uranium per year and transport the ore by road for export through the port of Adelaide (Beattie 2016). Cameco is one of the world’s largest uranium producers accounting for 18 ­percent of global production from its mines in Canada, the United States, and Kazakhstan (Cameco​.­com n.d.). As of August  3, 2016, Western Australia’s environmental watchdog has knocked back Cameco’s proposed uranium mine at the site of Australia’s largest uranium deposit (Beattie 2016). The Environmental Protection Authority reported that Cameco’s Yeerlirrie uranium proj­ect met eight of nine environmental f­actors but could not meet one. What actually ­stopped the proj­ect was the EPA’s concern about harming the area’s subterranean fauna, a legitimate concern, but somehow anticlimactic compared to the threat of a catastrophic accident possibly contaminating thousands of ­people as uranium oxide is transported on state roads. Cameco believes it can overcome the EPA’s concern by further sampling and research to make sure the subterranean fauna can be appropriately managed. That the uranium proj­ect has been halted (for now) is good news for local Aboriginal groups who have been fighting against uranium mining at Yeerlirrie for nearly fifty years (Kakulas 2016). The chair of Western Australia’s Nuclear ­Free Alliance, Kado Muir, said, “The message that we have is by standing strong for country, ­we’re able to show that the mining industry d­ oesn’t always win and that Aboriginal p­ eople who stand up for their country can succeed, as well as working with the environmental movement on protecting impor­t ant species” (Kakulas 2016). Muir does not believe Cameco can manage the species in question, stating, “If you destroy a habitat, and that’s where this entire species has evolved and continued to live in isolated pockets beneath the earth, t­here’s no way in the world that you can manage and take them elsewhere and introduce them elsewhere” (Kakulas 2016). physical harms to indigenous australian p­ eople.  ​A s with most Indigenous communities, many Indigenous Australian ­people have experienced serious health prob­lems, vari­ous forms of cancer, and unexplained illnesses due, at least in part, to uranium mining and the contamination that follows.



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In 1997, an Australian parliament report described “the devastating impact of uranium mining.” The report pointed to the Rum Jungle mine in the Northern Territory where acid mine drainage into the Finnis River destroyed all plant and animal life for a ten-­kilometer stretch of river (Boylan 2010). T ­ hese are the same types of prob­lems that exist for the Navajo p­ eople and other tribes in the United States that have been forced off their lands. In Australia as well as in the United States, tribes face degradation of their sacred sites, religion, and cultural artifacts, and total disregard for their culture. The Australian parliament 1997 report noted that the “history of uranium mining in Australia and its impact on Aboriginal ­people is deplorable” (quoted in Boylan 2010). Past mining in places like Rum Jungle have left areas so degraded that traditional ­owners are unable to use them, while mines such as Ranger (also in the Northern Territory) have been forced on traditional o ­ wners against their w ­ ill. “Even at mines such as Olympic Dam, ­there is deep concern at the reckless degradation of sacred sites and insensitivity to Aboriginal culture” (Australian parliament, quoted in Boylan 2010). No uranium mine anywhere has ever been successfully rehabilitated. In Arizona, uranium tailings left ­behind by mining companies are left to blow in the wind. However, not all Indigenous groups in Australia have rejected uranium mining. For example, the Matu living in Western Australia have made it very clear that they are open to uranium mining, regardless of the devastation. The Matu have 130,000 square kilo­meters of land in Western Australia, and have signed uranium exploration agreements with at least two companies (Boylan 2010). Indigenous groups in Western Australia are paid royalties for mining operations to explore and possibly mine on their lands. Even though it is not eco­ nom­ ically feasible due to low prices for ­u ranium, the government approved a new uranium mine in Australia. “Premier Colin Barnett said Western Australia had very significant uranium reserves, and the Yeelirrie deposit was particularly large by world standards” (Burrell 2017). ­There is concern for the survival of crustacean species known as stygofauna and troglofauna living beneath the state’s desert and dating back to “a time before the main land masses of the earth broke apart and became t­oday’s continents” (Burrell 2017). The Environmental Protection Authority recommended that the proj­ect not go through ­because of this, but other surveys “may identify that the species currently only found within the proj­ect area are more widespread” (Burrell 2017). Environment minister Albert Jacob said the government also considered broader economic and social ­m atters as well as environmental ­factors before granting approval. Premier Colin Barnett stated, “Australia has been producing and exporting uranium for peaceful purposes for more than

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30 years and it is high time that Western Australia . . . ​became part of that industry” (quoted in Burrell 2017). Along with that, the proposals approved to begin mining in Western Australia (Vimy’s Mulga Rocks, Toro Energy, and Cameco) would create about “1,500 jobs and a potential $1 billion a year export industry for the state” (Burrell 2017). Promises of a ­g reat many jobs and millions of dollars in exchange for uranium mining w ­ ere also made to Native American tribes in the United States. Native Americans ­were paid a small fraction of what was promised and suffered illnesses and environmental devastation in the pro­cess. Promises of jobs and money to ­people who have very ­little, however, sometimes is incentive enough to proceed with mining while they may not fully understand the environmental devastation that follows. Canada As with many other Indigenous ­peoples, Aboriginal p­ eople in Canada are often left out of discussions dealing with their health and must try to find their own solutions. John Miswagon (2018), chief of the Pimicikamak Cree Nation in Cross Lake, Manitoba, stated, “Our ­people have de­cided that they w ­ ill no longer be beaten up in silence. We w ­ ill tell our story and assert our rights—in churches, universities, human-­rights forums, energy regulatory agencies and financial markets in Canada and elsewhere. That includes places where Manitoba Hydro sells electricity and bonds. If this ­causes U.S. electricity consumers to decline to buy power that is generated through the sacrifice of Cree lives and an entire environment, so be it. We know that the Americans have other energy options that are genuinely renewable, sustainable, equitable and consistent with morality.” Resource extraction and conflicts over natu­r al resources, what­ever they may be, are not new phenomena. Who is most negatively affected by resource colonization depends on what can be exploited and where it is located, regardless of the wishes of the local ­people (White 2013, 55). Indigenous ­people worldwide are vulnerable to corporate power. In Canada, Aboriginal ­peoples facing environmental harms have mounted fierce re­sis­ tance to hydroelectric proj­ects, tar sands proj­ects, and pipeline development, as described below. james bay proj­ ect and first nations cree.  ​ The James Bay Proj­ ect, designed by Hydro-­Québec, the Quebec provincial government–­r un electricity com­pany, was intended to construct three dams at James Bay. Electricity would be supplied to millions of p­ eople, but the proj­ect would also submerge entire Cree communities and disrupt their lives by bringing in roads to the rest of the province (Bernhardt 2010). The Cree’s livelihood depended on fishing and hunting in this area.



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The Cree learned about the second phase of the proj­ect when a young Cree student happened upon a newspaper article that stated Quebec’s hydroelectric proj­ect of the c­entury would go through Cree lands (Bernhardt 2010). The Cree learned that the assault on their land had been commissioned by the Quebec government, that the Cree ­were not taken into account in the planning pro­cess, and that the government intended to proceed without giving the Cree a second thought. ­A fter learning of the proj­ect, the Cree or­ga­n ized a l­egal campaign to prevent the construction of the dams. A six-­month court case ended in November 1973 when the Cree won an injunction against the proj­ect. Their victory was short lived; judges from the Quebec Court of Appeals overturned the ruling with a decision based on the fiction that the Cree gave up the rights to their land in 1670, when King Charles II transferred the land to the Hudson’s Bay Com­pany and to the king’s cousin, Prince Rupert of the Rhine (Bernhardt 2010). This ruling implied that the Cree had been squatters on their land for over three hundred years. ­Because of this ruling, Hydro-­Québec could proceed with the proj­ect. During the 1970s, environmental issues w ­ ere not a huge social concern, and the Cree’s attempt to let the public know about their dire circumstances through the media did not garner any support. The media portrayed the Cree as liars trying to smear the government. Through all this, the Cree continued their campaign against the dams as the destruction of their communities grew more likely ­every day. B ­ ecause of ­these circumstances, the Cree had no choice but to negotiate an agreement. They could not stop construction of the first dam, completed in 1981 (Bernhardt 2010). The Cree agreed to allow the first dam to be built in exchange for health care, education, and protection of fishing, hunting, and trapping sources. Unfortunately, the government failed to deliver on their promises, so the Cree had to spend another de­cade fighting to obtain what was promised to them (Bernhardt 2010). The agreement between the government and the Cree was the first of its kind, but failed to prevent the slow destruction of the Cree way of life. When it came time to deal with the second proposed dam, new leadership within the Cree communities moved away from focusing on ­legal means and focused on nonviolent, direct action tactics. Part of the strategy included educational campaigns to spread awareness about the Cree way of life. They commissioned a film about the forestry industry and the hydroelectric development proj­ects in Quebec, and distributed the film across the United States and Canada. T-­shirts and posters ­were created and distributed, helping raise the campaign’s profile among Canadian and American citizens (Bernhardt 2010). Through a creative campaign that resulted in a high level of publicity, the Cree ­Grand Council garnered the attention of New York City’s mayor

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and gained endorsement of a cancellation of New York’s contract with Hydro-­Québec. ­A fter New York pulled out, other states ­either canceled or greatly reduced their contracts. “Fi­n ally, it was Hydro-­Québec’s turn to be in trou­ble—­they had already been experiencing financial prob­lems related to the James Bay proj­ect, and now several of their key sources of revenue had pulled out” (Bernhardt 2010). Lack of funds and intense pressure from environmental groups that ­were able to sway public opinion led the Quebec government to in­def­ initely postpone the second phase of the James Bay proj­ect. “The Cree, through their innovative and determined campaign, had succeeded” (Bernhardt 2010). This truly is a success story. In 2001, the Cree and Quebec government came to an agreement allowing construction of the third phase of the proj­ect. This time the agreement included the Cree’s terms that the dam be built so as to protect their lands and create jobs for their ­people, all the while defending their self-­determination over their lands. tar sands campaign response led by first nations and métis. ​The cul-

tural heritage, land, ecosystems, and ­ human health of First Nation communities—­including the Mikisew Cree First Nation, Athabasca Chipewyan First Nation, Fort McMurray First Nation, Fort McKay Cree Nation, Beaver Lake Cree First Nation, Chipewyan Prairie First Nation, and the Métis—­a re being sacrificed for oil money in what has been termed a “slow industrial genocide” due to tar sands oil extraction (Indigenous Environmental Network n.d.). ­Until recently, ­people in Canada, the United States, and Eu­rope knew very ­little about the Canadian tar sands. ­Today, however, the tar sands have become a focal point due to stories of cancer epidemics, massive wildlife losses related to toxic contamination, and environmental degradation. The Athabasca River delta is completely changed from what it once was. The ecosystem is devastated from deforestation, open pit mines, and ­waters where fish regularly exhibit tumors and birds landing on contaminated tailings ponds die instantly (Indigenous Environmental Network, n.d.). T ­ oday, First Nations p­ eoples in Canada are taking the lead to stop the Tar Sands Gigaproject with effective protests that ­counter the myth that “every­t hing is fine” told to the ­people by the Canadian and Alberta governments. Even though 50 ­percent of Canadian citizens overall believe the risks of the tar sands proj­ects outweigh the benefits, tar sands expansion continues (Indigenous Environmental Network n.d.). The tar sands or bitumen (a mixture of sand, clay and heavy crude oil) underlie almost 36 million acres of Alberta’s boreal forest, an area roughly the size of the state of New York. T ­ hese deposits are the second largest source of oil in the world, the largest being Saudi Arabia. Currently, the tar



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sands produce about 1.5 million barrels of crude oil each day with the majority being exported to the United States. If the Canadian government and corporations get their way, production is expected to double and reach 5 million barrels each day by 2030 (Indigenous Environmental Network n.d.). Even though Greenpeace and First Nations p­ eoples fight environmental devastation prob­lems from tar sands extraction, polarizing arguments from the government and industry continue to cloud the issue. Opposition to the expansion of the tar sands continues. canadian indigenous group blocks pipeline development. ​I n 2009, the government of Canada began issuing permits for a pipeline corridor linking British Columbia’s fracking fields and Alberta’s tar sands with export facilities and tankers on the Pacific coast (Toledano 2015). The Unist’ot’en clan of the Wet’suwet’en Nation did not relinquish their territories to Canada through treaty, land sale, or surrender; nevertheless, the provincial and federal governments asserted jurisdiction over ­ t hese lands and authorized widespread development. ­Because Canadian law requires that First Nations must be consulted before development (even though they have no veto power), the Unist’ot’en clan is attempting to require that the government gain their consent before any development can occur (Toledano 2015), and nothing has changed as of 2019. In 2009, the Unist’ot’en established a permanent community directly in the path of three major government-­approved proj­ects: Enbridge’s $6.1 billion Northern Gateway, Chevron’s $1.15 billion Pacific Trail Pipeline, and TransCanada’s $3.7 billion Coastal Gas Link. ­T hese pipelines w ­ ere to run through land that the Unist’ot’en w ­ ere forced from in the early 1990s. A ­ fter reoccupying the territories, the clan banned all pipelines ­u nder a hereditary governance system that predates Canada. Neither Canada nor the Unist’ot’en are willing to negotiate about land and what should happen to the 435 square miles each entity claims as its own (Toledano 2015). The standoff continues with the Unist’ot’en honoring only their traditional law, not recognizing any permits by provincial or federal regulatory or governing bodies that lay claim to their traditional territories. The Unist’ot’en, along with their hereditary chiefs, have dozens of supporters. The clan and supporters have not been afraid to confront the Royal Canadian Mounted Police (RCMP) along with work crews from the aforementioned companies as they try to enter Unist’ot’en lands. As a result, the work crews try to go around the main encampment and continue building through the lands in question. In reaction to the work crews, “the Unist’ot’en have fortified their perimeter. With heavy chains, a pickup truck, a newly installed plywood and barbed wire gate, spotlights and an emergency siren,

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the clan transformed a bridge to their traditional territory into an international border, monitored by a fluctuating crew of volunteer guards” (Toledano 2015). ­There have been many encounters with pipeline companies and law enforcement occurring at checkpoints on logging roads that lead to the clan’s traditional territories. The clan uses protocol inspired by the UN Declaration on the Rights of Indigenous ­Peoples. Toledano (2015) writes, “To access ­these roads, visitors are required to answer five questions posed by a clan representative: ‘Who are you?’ ‘Where are you from?’ ‘Do you work for industry or government that’s destroying our land?’ ‘What skills to you bring?’ and ‘How w ­ ill your visit benefit the Unist’ot’en?’ ” Staff writers from the British Columbia Civil Liberties Association (2014) report that according to outside sources, since at least 2010 when the Unist’ot’en created direct action workshops to impede the pipelines, they have been monitored by the Royal Canadian Mounted Police (RCMP). The list of incidents in which the RCMP abused First Nations civil rights and liberties is long, including using drones to spy on First Nation environmental groups and spending millions of dollars on the use of field agents (spies) to find out how to best stop re­sis­t ance to pipeline proj­ects and a host of other environmental actions. In June  2016, a Canadian court overturned the approval of Enbridge Inc.’s Northern Gateway oil pipeline through Aboriginal communities. In a 2-­to-1 decision, the court ruled that the government failed in its duty to consult with Aboriginal groups regarding the proj­ect. “The court noted that Canada’s consultation with aboriginal communities was brief, hurried, and inadequate” (Gordon 2016, 1–2). As can be ­imagined, environmental groups and First Nations ­were delighted that the 730-­m ile pipeline ­w ill not be built. This is but one victory in the face of many ­battles where Indigenous ­peoples worldwide had their voices heard and ­were able to preserve their lands. ­There ­w ill be more. Conclusion Even though environmental issues and Indigenous ­peoples’ rights are on the forefront of many discussions on a global scale ­today, t­ here is still the connection between corporations, governments, and international institutions making state-­corporate crimes pos­si­ble on an international level. Governments in New Zealand, Australia, and Canada hope that mining w ­ ill boost their economy, but looking back at the situation of the Navajo in the United States, ­t here are lessons that can be learned. First, mining is not sustainable, and when mining companies take all the minerals that can be



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mined, they leave the area and move on to something e­lse. Second, the backlash of mining is high unemployment rates with t­hese types of boom-­ and-­ bust operations. Most mining operations are short-­ term and leave ­behind unemployed workers facing a competitive job market with no marketable skills. Third, mining communities have a w ­ hole host of prob­lems, including air pollution, waste disposal from uranium mines, high levels of arsenic, and uranium and lead in ­people’s ­water and homes. Fourth, many companies do not make an attempt at cleaning up and reclamation even though ­t here may be laws in place requiring them to do so. ­There are many Indigenous p­ eople who have suffered harms in the past, are presently suffering from serious illnesses, and ­future generations that ­w ill continue to suffer as environmental victims ­because their land and ­water are forever contaminated. ­These environmental victims are often left out of research on what is considered crime in the general sense. Unlike street crimes, the effects of state-­corporate crime may go undetected for a long time. Drinking w ­ ater contaminated with uranium and arsenic may take years to manifest in p­ eople as vari­ous cancers and other diseases as a consequence of “deliberate or reckless, individual or collective, h ­ uman act or act of omission” (Williams, quoted in White and Heckenberg 2014, 176). Indigenous p­ eople do not become victims through their own negligence. They are victims ­because they live in close proximity to places where corporations want what the ­people have and are willing to get what they are searching for regardless of the cost to the health and lives of the p­ eople. Oftentimes, Indigenous ­peoples are not given all the information about h azards and risks involved in a corporate proj­ ­ ect on Indigenous lands. ­Because many Indigenous p­ eoples worldwide are poor and dispossessed, the issue then becomes one of power, domination, and exploitation ­because they are vulnerable to victimization by ­t hose with wealth and power. The health, quality of life, and the environment of Indigenous ­peoples in Australia, New Zealand, Canada, and the United States are linked to the history of colonialism. Resource location and size on Canadian reserves, Māori lands, and reservations in the United States are impor­t ant economic ­factors to their respective governments and to corporations that engage in harmful mineral extraction. ­Because Indigenous ­people are socially constructed as the “Other” or “less than,” corporations and especially governments try to categorize Indigenous ­peoples fighting to stop environmental devastation as violent extremists so proj­ects can be legitimized and forced through reserves and reservations by any means necessary, even though the means may well be illegal. Although not usually violent extremists, Indigenous ­peoples are not willing to sit passively by and allow themselves to be trod upon by ­those with power and control, as we have witnessed recently

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with the Standing Rock Sioux and the Dakota Access Pipeline. Indigenous ­peoples worldwide have faced many b­ attles and w ­ ill continue to face many ­battles in the ­f uture. Neither the governments nor multinational corporations of t­ hese countries are criminal organ­izations that have set out to harm ­people. Corporations are in the business of providing jobs and making money. No one has an argument with that, but at what point should corporations be responsible for their impact on ­human life, especially when dealing with extremely harmful and even deadly products? When a power­ful corporation produces anything that c­ auses grave social harms, they need to be held responsible, as does the government that supports them, so that one day Indigenous p­ eoples w ­ ill be able to preserve their lands and their p­ eople from environmental harms.

C hapte r   10

Fighting Back C olonial Settle r R e spon sibi litie s and Indige nous Action In most socie­ties, ­there are ser­v ices and reparation for individual victims of crime, but first victims have to be recognized as such by an official body. Some colonized countries are beginning to acknowledge that colonialism led to the victimization of Indigenous ­peoples as ­peoples and individuals, even if they do not label this victimization as “criminal.” Reparations of any kind to Indigenous survivors of vio­lence, theft, and fraud are rare among colonial nations. The ­whole burden cannot and should not be placed on the survivors of the crimes. Many non-­Indigenous citizens believe that Indigenous p­ eople should just “get over it” and forget the past; yet, the descendants of the original settler-­colonists are still benefiting from the bounty their ancestors left them: stolen land, stolen resources, and survivors with ­little power (as yet) to demand reparations. Actions by colonial government such as vio­ lence, torture, assimilationist policies and pro­ cesses such as residential/ boarding schools, and laws prohibiting the practice of culture and language are now considered serious ­human rights violations. Colonial governments, therefore, need to lead the efforts to make reparations to the survivors of ­t hese crimes. The global scale of the injustices suffered by Indigenous p­ eoples makes amelioration of the impacts of colonization very complex and extremely difficult (Cunneen 2005). Settler-­colonist responsibilities as seen through a restorative justice lens ­w ill be addressed first with a focus mainly on the United States and Canada. In the second section, the efforts of Indigenous survivors to combat colonial impacts are overviewed. It is impor­t ant to note that Indigenous p­ eoples are not relying on the dubious good w ­ ill of colonial governments to counteract the crimes of colonialism. The resilience that has sustained Indigenous socie­ t ies throughout the worst of colonialism continues.

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Set t le r -­C oloni st R e sp onsi b i l iti e s Reparations for Indigenous victimization ­w ill not be easy, but for colonial governments to make reparations is right. Honor, integrity, and re­spect may be old-­fashioned concepts, but they are needed for Indigenous recovery from colonization. Such basic ideas are foundational to restorative justice (RJ), a pro­cess that has analogs in both Indigenous and present-­d ay colonial systems. Restorative justice relies on three values—­re­spect, responsibility, and relationship—­and three princi­ples: the offender taking responsibility for the offense and repairing harm, the involvement of t­hose impacted (victim, offender, and community), and repairing the harm done (Zehr 2015, 91). The United Nations (2000) adds that all parties must freely consent to the pro­cess, and power disparities among participants should be taken into consideration. The three most daunting obstacles to a true RJ pro­cess between colonial governments and Indigenous survivors are (1) the structural and collective injustices that still exist due to power differentials between the colonized and the colonizer, (2) the fact that most colonial governments refuse to take responsibility for the actions of past governments despite ongoing harms, and (3) the question of what a “restored” social order should be (Cook and Powell 2003). Piecemeal aspects of RJ already exist, with more pro­g ress in some countries than ­others, as ­w ill be described shortly. Van Boven (in Cunneen 2005, 65) lists five components of reparations: “acknowledgement and apology, guarantees against repetition, mea­sures of restitution, mea­sures of rehabilitation, and monetary compensation.” The next part of the chapter describes colonial government efforts in ­t hese areas, as well as ­others. Apology Apologies are a step ­toward healing for the victim; they empower them and legitimize their pain (see Zehr 2015). It was only in the early years of the twenty-­fi rst ­century that the leaders of colonial institutions such as churches and state governments offered apologies for the serious harm their institutions committed against Indigenous ­peoples. For example, in 1993, the United States apologized to Native Hawaiians for the role the U.S. government played in overthrowing the legitimate government of the kingdom, and in the United States and Australia governments have made apologies for their role in the boarding schools and stolen generations (Cunneen 2005). Doubts about the sincerity of such apologies have been expressed, however, as with the Australian prime minister who in 1999 commented about his “statement of regret” that present-­d ay Australians “cannot be held accountable, and we should not seek to hold them accountable, for the errors



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and misdeeds of e­ arlier generations” (quoted in Cunneen 2005, 77). Cook and Powell (2003, 283) suggest that colonial governments “declaring themselves deeply regretful about ­t hose past injustices implies that the injuries of colonization are over” despite still enforcing policies that cause serious harm to Indigenous ­people. Decolonizing Ideologies To ensure that colonial crimes do not happen again, it is necessary to challenge what Park (2015) calls “colonialism of the mind” so that “the discussion is no longer about ‘the Indigenous prob­lem’ but about ‘the settler prob­lem’ ” (Park 2015, 276–277). Re­spect for Indigenous values and pro­ cesses is in short supply in many non-­Indigenous communities. Colonial ideologies continue ­today as Newton et al. (2018) found in New Zealand. Their research discovered that the opposition of non-­M āori ­people to policies that empowered Māori to own more resources was based in beliefs that colonial history was irrelevant to current inequalities between Māori and non-­M āori, and that Indigenous cultures w ­ ere irrelevant to New Zealand’s national identity. Colonial governments and non-­Indigenous allies can help change colonial ideologies, now called “racism,” by implementing educational and ser­ vice programs that are not Eurocentric. They can increase the knowledge and understanding of Indigenous cultures and issues in a variety of ways, such as educating settler-­colonist descendants through non-­Eurocentric, culturally relevant, and respectful programs in educational institutions (Cunneen 2011); providing accurate information to the media; and removing all kinds of programming that perpetuates ste­reo­types. They can also support cultural resurgence and healing programs, and most importantly, model egalitarian and respectful be­h av­iors. One example of such re­spect is the acknowledgement of American Indian history represented by the replacement of President Andrew Jackson’s image on the $20 bill. This is seen as vindication by many American Indians who still remember the Trail of Tears, as described in chapter 2 (Hajela and Whack 2016). Stopping Depredations Colonialism is not over; it is not “post.” Colonial governments and corporations continue to lust ­a fter Indigenous land and resources such as oil, minerals, ­water, and foodstuffs (see chapter 8). Existing laws serve the interests of power­ful corporations and colonial governments, as happened with the completion of the Dakota Access Pipeline in the United States despite strong protests about the potential contamination of Lakota ­water and sacred lands (Smith and Medina 2016/17).

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­ hese depredations are a continuation of colonial exploitation and T crime, and need to be seen as such. Non-­Indigenous individuals and organ­ izations can join protests and work to lobby governments and corporations. Review and Repeal of Racist Laws and Policies Racist laws and policies are based in the colonial ideology of Indigenous ­peoples as racially inferior and legitimate targets for ­human rights abuses, as described in ­earlier chapters. For example, the federal Major Crimes Act (1885), still in effect in the United States despite recent laws, prohibits Indian nations from prosecuting and punishing felony offenses, including most rapes and sexual assaults of Indian w ­ omen (Zhang 2015). In South Australia, zero-­tolerance policing of public order offences particularly affects Aboriginal p­ eople (Ferris 2001). Discriminatory laws also exist at other po­liti­cal levels. In the United States, some state laws give financial incentives to state agencies for removing Indigenous c­hildren from their homes, as is the case in South Dakota (Lakota ­People’s Law Proj­ect 2015). International ­legal standards can be used to review discriminatory laws and enshrine international protections in domestic law. T ­ here have been some changes, such as in Canada, where proposed legislation ­w ill remove the sexist differentiations in the Indian Act that allow more descendants of Aboriginal men to have Indian status than ­those of Aboriginal ­women (Galloway 2017). Restitution Colonial governments have broken ­ every treaty with Indigenous ­peoples through overt fraud and theft (see chapters 3 and 8), and as a result Indigenous lands and communities are among the poorest in ­every colonized nation where treaties exist. Reviews of treaty obligations, in par­t ic­u­ lar the spirit of ­t hose obligations, are needed and restitution provided. This may take massive economic efforts on the parts of the colonial governments to overcome structural inequalities, despite the danger to po­liti­cal ­careers this might mean. Secondly, colonial governments need to be held accountable for their mismanagement of Indigenous financial interests, such as in the Guerin case in Canada, which held that “First Nations, as wards of the federal crown, in law their trustee, could hold their trustee responsible for damages occurred by negligence in the administration of their affairs” (Miller 2000, 356). In the United States, the Cobell case, mentioned in chapter 8, is another example. A third form of restitution is power sharing or increased sovereignty. It is the increased devolution of colonial power to increase Indigenous self-­ determination and sovereignty, allowing increased autonomy and empowerment (Behrendt 1995). A fourth form of reparations is more piecemeal



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and most common. In the United States, new legislation reserves 3 ­percent of the federal Crime Victims Fund for tribes (Gumprecht 2017; Hudetz 2018b). Reparations can also take other forms besides direct funding. Cunneen (2005, 73) mentions for Australia, “acknowledgements and memorials, cultural and language centres, employment and training, the provision of counseling ser­v ices, and so on.” Review and Repair of Programs Government ser­v ices provided to Indigenous p­ eoples are often substandard and discriminatory. The U.S. Commission on Civil Rights (2003, iii) found that federal funding was inadequate on a much broader scale. It has been insufficient “to address the basic and very urgent needs of indigenous ­peoples. Among the myriad unmet needs are: health care, education, public safety, housing, and rural development. The Commission finds that significant disparities in federal funding exist between Native Americans and other groups in our nation, as well as the general population.” The commission found that patients in Indian country are funded at $1,914 a year compared to federal prisoners, who are funded at $3,803 a year (cited in Sarche and Spicer 2008, 129). Some government-­funded Indigenous criminal justice ser­v ices seem to operate well. As an example, in Hawaii, the Ho’opono Mamo Civil Citation Initiative uses Native Hawaiian traditions to help heal young offenders, especially ­t hose with substance abuse prob­lems (Terrell 2015). In Australia, the Community Justice Groups provide advocacy for Aboriginal ­people, develop crime prevention programs and youth diversion programs, and participate in other initiatives (Grey and Gardiner 2007). On the other hand, many government-­ operated criminal justice ser­ v ices need review and repair. For one, the turf wars among vari­ous government agencies that have the same goal of assisting Indigenous ­peoples need to be resolved (Ross 2014, 225). Secondly, the overrepre­sen­t a­t ion of Indigenous ­peoples in prisons is getting worse ( Jeffries and Stenning 2014). This is despite sentencing reforms in three of the four countries that should be leading to fewer Indigenous ­people being incarcerated; instead, the reforms such as the Gladue sentencing princi­ples in Canada and the ability of community members to address cultural issues in court in New Zealand seem to be having the opposite effect ( Jeffries and Stenning 2014). As well, prison-­based cultural programs in ­these countries help Indigenous offenders heal, but ­there is insufficient funding for community ser­ v ices that provide follow-up on release (Archambeault 2009). Such programs do not adequately address the under­lying f­actors that lead to Indigenous overincarceration, such as intergenerational trauma, socio­ economic disadvantages, and substance abuse. Structural changes including

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economic development, capacity building, better health and educational opportunities, ( Jeffries and Stenning 2014) and increased sovereignty are needed as well. Cultural Competency Training In order to decrease the disrespect and/or indifference expressed by many non-­Indigenous ser­v ice providers in their interactions with Indigenous ­people, training programs are needed that “not only increase participants’ awareness, but also move participants ­towards changes in attitude and behaviour that are required for better ser­v ice provision” (Farrelly and Carlson 2011). Such trainings need to include knowledge and skills, be ongoing and long-­term, be facilitated by trained Indigenous p­ eople, and should contain both generic and community-­specific information. Campagna (2016) suggests that this kind of training is vital for police, social workers, child protection ser­v ices, and ­others dealing with, for example, Indigenous victims of sex trafficking and vio­lence. In summary, restorative justice princi­ples of taking responsibility by the offender (the colonial government and settler-­colonist descendants), the involvement of all parties (the colonial government, settler-­descendants, and Indigenous p­ eople), and reparations in their many forms (by colonial governments) are happening in piecemeal fashion in many colonized countries. Indige nou s R e sp onse s to Coloni al Cri m e s Indigenous p­ eople are not waiting for colonial governments and settler-­ descendants to restore the inequities caused by colonial crime. They are taking efforts into their own hands, sometimes with the assistance of non-­ Indigenous allies. In this section, impor­tant initiatives are reviewed, a few examples of successful initiatives are given, and some of the challenges the initiatives face are mentioned. Please note that a ­whole book could be written documenting the creative and impor­tant ameliorative work by Indigenous p­eoples, but this chapter gives examples of just nine: (1) healing traditions, (2) cultural resurgence, (3) activism, (4) Indigenous organ­ izations, (5) national and international organ­i zations, (6) law and courts, (7) international law and courts, (8) media, and (9) research. Many of ­these overlap, and at ­every level are exercises in both capacity building and de facto sovereignty, as ­w ill be explained shortly. Healing Traditions Individual healing from the trauma of intergenerational trauma, grief, and loss is occurring through traditional teachings and community-­owned healing programs that rely on them.



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traditional teachings.  ​A s the Truth and Reconciliation Commission of Canada (TRC 2015) and the National Inquiry into the Separation of Aboriginal and Torres Strait Island ­Children from Their Families (National Inquiry 1997) discovered, Indigenous ­people ­were s­ilent for many years about the abuses of colonialism ­because of shame, humiliation, and a desire to spare f­uture generations the stories of the horrors they experienced. But when they believed they would be respected and listened to, they told their stories (Borrows 2014). Simply to be heard can be healing (TRC 2015). Traditional teachings can overcome and heal intergenerational trauma and the resulting internalized and externalized vio­lence (see Duran and Duran 1995). Healing h ­ ere refers to recovering health in the widest sense (Ross 2014). Traditional teachings focus on achieving balance among the physical, emotional, spiritual, and mental/psychological parts of a person, so that no part is denied, disconnected, or suppressed as a survival mechanism. Resilience is fostered by working with the strengths of each individual instead of seeing the person as the product of their weaknesses (Ross 2014, 62). Ross (2014, 62) quotes HeavyRunner and Morris, who write about fostering resilience in individuals, “Resilience is not new to our p­ eople; it is a concept that has been taught for centuries. The word is new; the meaning is old.” Such resilience was not taught to ­children in residential schools but has been successfully taught to adult survivors and the ­children of survivors (Ross 2014). As Ross (2014, 180) writes, “The success of the majority of aboriginals who have come through t­hese astounding challenges, with so much of their faith, hope and humour intact, should tell the rest of us something about the power and validity of traditional Teachings.” The Hollow ­Water First Nation of Manitoba Canada has found that “much of what used to be described as ‘healing’ is now viewed as ‘decolonization therapy’ ” (Ross 2014, vii). In seriously troubled communities, especially in remote areas, individual and community healing may take more than a generation (Ross 2014, 181). community healing programs. ​Traditionally based m ­ ental health ser­ vices are being provided in some Indigenous communities. In Canada, ­t here are programs that have successfully helped residential school survivors overcome the emotional suppression and PTSD (see Ross 2014, 185–226). According to the TRC (2015, 163), “Best practices for Aboriginal wellness involve a range of ser­v ices from mainstream health care to traditional practices and medicines, all u ­ nder community leadership and control. Such an integrated approach has the power to improve the lives of all community members.” Ross (2014, 205–206) lays out seven spirit-­centered princi­ples for treatment found in effective community-­owned programs that incorporate traditional teachings: (1) ceremony, language, and traditions are used to

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focus strengths and reconnections; (2) integrated ser­v ices lead to individuals connecting and building healthy relationships with f­amily, community, land, and culture; (3) holistic support balances all f­actors that contribute to a healthy being over time; (4) community focus re­spects the diversity within and across communities; (5) both Indigenous and Western forms of evidence of effectiveness and approaches to care are balanced; (6) they are culturally competent; and (7) ser­ v ice providers practice self-­ reflection on “cultural, historical, and structural differences and power relationships within the care that is provided” (Ross 2014, 206). Challenges to Indigenous-­based healing programs exist, such as insufficient funding and finding staff with the appropriate cultural and psychological knowledge and training. Non-­Indigenous ser­v ice providers need experience with, and knowledge and understanding of, “Aboriginal thinking, feeling and the Aboriginal spirit,” and they need to re­spect Aboriginal clients and their values (Ross 2014, 229). As well, programs that are more Euro-­based than Indigenous-­based need to be considered with caution, not only ­because they may be imposed from above, but ­because they also could further invalidate traditional teachings and thereby become a tool of continuing colonization (Ross 2014, 182). Cultural Resurgence According to Frantz Fanon (1963), colonialism has serious impacts on the cultures of oppressed p­ eople, what he calls a “veritable emaciation.” As the fight for sovereignty builds, it “sets culture moving and opens the door to creation” (Fanon 1963, 237–238). Oral histories kept culture alive and provided a basis for re­sis­tance, as it did for many oppressed p­ eoples (see Aptheker 1943). Indigenous communities t­oday are fighting to preserve their Indigenous identities and counteract the cultural losses caused by the boarding/residential/mission schools, cultural genocide, and other colonial pro­cesses. They are establishing their own cultural and language programs, many of which are located in schools. In Canada, the Awasis schools teach First Nations c­ hildren the essentials of education but also teach Indigenous languages and culture (https://­w ww​.­epsb​.­ca​/­programs​/­f nmieducation​ /­awasiscree​/­). The Maōri “language nests” or Nga Kōhanga Reo in Aotearoa are a similar way of preserving the language. In Brazil, the Pataxo, Karaja, and thirty-­three other Indigenous ­peoples are working with UNESCO to transcribe Indigenous languages to develop dictionaries and other teaching tools (Associated Press 2015). Cultural programs, not surprisingly, face challenges mainly as a result of colonial government actions. For instance, in 2012, the Waitangi Tribunal “found that the Government had failed to promote the benefits of Te Kōhanga Reo as a way of preserving the language and failed to accurately



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mea­sure its achievement,” due to discrimination in funding by the Ministry of Education, and the imposition of inappropriate and unhelpful regulations (Waitangi Tribunal 2012). Activism ­There is a long history of Indigenous activism in all colonized countries (see, for example, Josephy et al. 1999 for the United States; Walker 1990 for New Zealand). Each country has had memorable and sometimes successful re­sis­tance actions in more modern times that redefined settler-­Indigenous relations. One such incident in the United States was the occupation of Alcatraz from 1969 to 1971 and more recently the “Totem-­pole” opposition to fossil fuel infrastructure proj­ects on Indigenous land ( Johnson et al. 1997; Flaccus 2016). In Canada, activism includes the standoff in Oka in 1990 to protest the desecration of a Mohawk burial ground by the expansion of a golf course, and the protests against the lack of government action about murdered and missing Aboriginal ­women (Miller 2000; CTV News 2014). In Australia, t­ here have been protests about the cele­bration of Australia Day as an insult to Aboriginal ­people (Wahlquist 2018), and in New Zealand, protests about land rights have led to the occupations of schools and other public buildings (Te Ahu n.d.). Indigenous Organ­izations and Programs Many Indigenous organ­izations and programs w ­ ere the results of grassroots organ­izing by Indigenous p­ eople who saw an unmet need in their community. T ­ hese organ­izations, most of which are nonprofits, have many dif­fer­ ent structures, ser­ v ices, and missions. They may have some non-­ Indigenous employees, but they are undeniably Indigenous ­because of “organizational de­pen­dency on indigenous stakeholders, orga­n izational responses incorporating indigenous values and practices, orga­n izational support for indigenous self-­determination, and indigenous orga­n izational governance” (Nielsen and Brown 2012, 48–49). They usually operate on a more effective resilience model rather than the deficit model more common to non-­ Indigenous organ­izations ( Jarratt-­Snider and Nielsen 2018). The recognition of the resilience and endurance of Indigenous p­ eoples is necessary, as is recognition of their resources, flexibility, and adaptability (Sarche and Spicer 2008). Two successful models are “pan-­Indigenous” organ­izations, which comprise members of several Indigenous nations, and community-­owned institutions. pan-­indigenous organ­i zations.  ​ L ocal, national, and regional organ­ izations in and around Indigenous lands work to provide a broad diversity of often interlinked ser­v ices. Some primarily serve Indigenous p­ eople living

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off Indigenous lands, which in many colonized countries is the majority of Indigenous ­people. In the United States, residents living off Indigenous lands are about 78  ­ percent (U.S. Census 2012), in Canada more than 50 ­percent (Statistics Canada 2017), in Australia about 33 ­percent (AIATSIS 2015), and in New Zealand about 80 ­percent (Meredith 2015). Indigenous populations in Bolivia, Brazil, Chile, Venezuela, Norway, and ­Kenya are also less likely to live on Indigenous lands (Brand et al. 2016). ­These organ­izations provide a range of ser­v ices, though most receive some form of government funding for only one or two mandated ser­v ices, and as such may be constrained in how holistic and broad-­ranging their other ser­v ices can be. Other pan-­Indigenous organ­izations receive funding from several sources and are therefore able to provide a wide range of ser­ vices that tackle the under­lying social justice issues caused by colonialism In Canada, Native Counselling Ser­v ices of Alberta provides court workers who assist Aboriginal ­people accused in criminal, ­family, and youth courts with information and emotional support, but the organ­i zation also provides healthy families ser­v ices, resiliency and ­mental health programs, programs for at-­r isk youth, two healing lodges (one for men and one for w ­ omen), and a ­legal education program (http://­ncsa​.­ca). The Aboriginal ­L egal Rights Movement of South Australia provides field officers who help Indigenous Australians access ALRM l­awyers and provide l­egal education, but the agency also assists clients with claiming stolen generations compensation and provides financial counseling ser ­v ices (https://­a lrm​.­org​.­au). The reliance, direct or indirect, of t­ hese organ­izations on colonial government funding means that they are ­u nder pressure to adopt dominant society standards of orga­n izational operation and ser­v ice provision, based on Eurocentric, racist, patriarchal assumptions about Indigenous social institutions (see Smith 2005). The organ­izations must be careful to avoid cooptation into the dominant criminal justice or social ser­v ices systems and have developed a variety of strategies to lessen the impact of economic dependence (see Nielsen 1991). community-­owned institutions. ​ Indigenous land-­ based nations and

other communities have been retaking control of their social institutions since the early twentieth c­entury, including education, health ser­ v ices, leadership structures, economies, and justice. To be most effective, ­these initiatives need to be “community owned” not just community based (Blagg 2008). Programs need to meet the specific needs of each community and not be imposed by government departments; such “top down” approaches frequently lead to failure b­ ecause of the lack of community buyin. Indigenous communities also have to be wary of the appropriation of successful programs by colonial governments since this often decreases their



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success rates (Hewitt 2016; Nielsen 2016). Blagg (2008, 185) lists key ingredients for a successful program as “a strong focus on achieving sustainability, durability and resilience in structures, pro­ cesses and programs; a willingness to take into account Aboriginal law and culture in the way structures, pro­cesses and programs are devised and executed; a commitment to nurturing the necessary governance structures; and a pro­cess of capacity building, both in Aboriginal communities and the government agencies that partner with them.” Restorative justice programs that are developed by Indigenous ­people for Indigenous p­ eople have low recidivism rates (Hewitt 2016). As Hewitt (2016, 317) writes, “Restorative justice is a location of decolonization in that Indigenous models of justice assist in revitalizing Indigenous law through practice. . . . ​Indigenous restorative justice seeks to reinvent the criminal justice system.” Some traditionally based justice practices may not be separate “programs” as such ­because they are woven into everyday life. Another example is economic development-­ oriented community organ­izations that decrease community poverty and increase tribal autonomy. Some Indigenous communities have engaged in capacity building by improving their infrastructure—­schools, hospitals, roads, utilities, and ser­ vice organ­i zations—­for which colonial government funding has been insufficient (Nielsen 2004). Some, though not all, of the relatively few “casino tribes” in the United States have been successful in using gaming to pull their nations out of poverty (Bennett 2018b). Challenges to such initiatives exist, and include discriminatory laws, lack of resources such as funding and trained personnel, small populations, lost culture and language, re­sis­tance from colonial governments, and the structural racism, classism, and sexism inherent in dominant socie­ties ( Jeffries and Stenning 2014; Smith 2005). To overcome ­these obstacles and decrease de­pen­dency on colonial governments, nations are developing ser­ vices that are relatively low cost with funding that comes from many sources, and that rely on the participation of many community members. National and International Organ­izations Many national and international Indigenous organ­ i zations focus on improving the h ­ uman rights of Indigenous p­ eoples by influencing national and international laws or resolving issues in international courts. They also share information as part of networks. National Indigenous organ­izations include the National Congress on American Indians (http://­w ww​.­ncai​.­org) in the United States, the Assembly of First Nations (http://­w ww​.­afn​.­ca) in Canada, the National Congress of Australia’s First P ­ eoples (http://­nationalcongress​ .­com​.­au), and the New Zealand Māori Council and four other national organ­ izations in New Zealand (http://­w ww​.­tkm​.­govt​.­nz​/­omo).

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National nonprofits with Indigenous and non-­Indigenous members also promote Indigenous ­human rights. Huy, for example, is a nonprofit that “provides economic, educational, rehabilitative, and religious support for American Indian, Alaska Native and other Indigenous prisoners in the Pacific Northwest and throughout the United States” (ICMN Staff 2017; http://­w ww​.­huycares​.­org). Wellbriety is an alcohol-­abuse treatment program operating across the United States. Participants “go beyond ‘clean and sober’ by entering a journey of healing and balance—­mentally, physically, emotionally and spiritually. For many Native Americans, it also means recovering culturally” (Coyhis and Simonelli 2008, 1928). International organ­izations such as the UN Working Group on Indigenous Populations, and the Expert Mechanism on the Rights of Indigenous ­People continue to represent the rights of Indigenous ­peoples in the international arena. In the opinion of Gosart (2017) they have been highly successful: “Thirty-­five years is a relatively short period given the centuries-­long history of vio­lence against indigenous communities. The unpre­ce­dented changes that indigenous politics produced in the l­egal treatment of nation populations and to the U.N. system, over such a l­imited stretch, makes indigenous advocacy an astounding po­liti­cal phenomenon.” International nonprofit organ­izations such as the International Work Group for Indigenous Affairs (IWGIA), the International Indian Treaty Council, and Amnesty International represent Indigenous ­peoples in forums where they have no l­egal standing or are likely to be ignored in f­ avor of the interests of nation states. Law and Courts ­L egal recourses in courts for Indigenous individuals and ­peoples include using traditional law, tribal law, national laws, and international covenants and law. While t­here are still many obstacles and challenges in the use of law and courts by Indigenous ­people, the law—­whether Indigenous or colonially based, has become an occasionally successful recourse for Indigenous ­people in seeking reparations for ­human rights violations, prevention of h ­ uman rights violations, and increased sovereignty. Indigenous law prac­ ti­t ion­ers contribute their expertise at all levels of court. customary law.  ​Zion and Yazzie (2020) ask if Indigenous law has a f­uture as they point to the denigration of traditional law by colonial governments, and the intrusion of alien colonial law and institutions into Indian country. Austin (2020) states that the U.S. Supreme Court shows “active hostility ­towards Indian customary law.” Similar observations can be made for other colonial countries.



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In the United States, the federal government banned customary practices, ceremonies, and law (Austin 2020), but t­ hese are still desired by many Indigenous p­ eople. ­There are, however, few American Indian justice systems that incorporate them, though their tribal codes may authorize it (Austin 2020). In Australia, traditional justice values and practices still exist in some Aboriginal communities despite the dominance of the imposed colonial system (Behrendt 1995, 27–29). Efforts by the Australian Law Reform Commission in the 1970s to have Aboriginal customary laws recognized in Australian courts met with no success (Behrendt 1995, 47). In Canada, customary laws regarding marriage, adoption, and language are recognized (Henderson 2016), but other­w ise customary law is not considered legitimate law. Zion and Yazzie (2020) identify two needs in order for an Indigenous community to readopt customary law. First, it needs to recognize existing community “institutions”—­the elders who have the knowledge of law and values. Second, tribal and non-­Indigenous community colleges and universities, as well as Indigenous ­people working in non-­Indigenous institutions, need to fund scholarship and community initiatives that do this. As well, tribal judges need to incorporate customary law into their tribal court jurisprudence, writing customary law into the court’s decisions (Austin 2020). tribal law and justice systems. ​T he extreme poverty of most Indigenous nations makes it difficult for them to set up community-­operated, traditionally based justice programs to “compete” with Euro-­based law and justice, if they want to (Zion and Yazzie 2020). One of the best-­k nown and successful examples is Navajo Nation peacemaking that has been integrated into the Navajo court system. Peacemaking relies on community members to facilitate the resolution of disputes that can vary from grazing rights to child custody to wrongful death (see Nielsen and Zion 2005). Other American Indian nations have their own dispute resolution mechanisms that incorporate cultural values and practices (see https://­peacemaking​.­n arf​.­org), as do Indigenous ­peoples in other countries. Despite community participation, many programs to some extent are adaptations of colonial justice practices ( Jeffries and Stenning 2014). In general, the programs become professionalized or “deculturated” as non-­Indigenous staff take over (Smith 2005). Like Māori ­f amily group conferencing in New Zealand, once marae-­based (community-­based, roughly) (Tauri 2014), when the non-­Indigenous justice system integrates ­t hese Indigenous practices into the dominant justice system, they become bureaucratized and Indigenous ­people lose control over them. The ser­v ices often become less effective, as

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happened with Aboriginal healing lodges in Canada when the federal correctional ser­v ice took over the operation of some of the lodges (Office of the Correctional Investigator 2014). As well, the programs may be perceived as less legitimate due to the influence of non-­Indigenous justice values. Fi­n ally, potential participants sometimes request Indigenous-­based ser­v ices b­ ecause they see them as “easy” when, like other restorative justice practices, they are anything but, in that they require taking responsibility and making behavioral changes (see, for example, Locke 2014a; Smith 2005). national laws and court decisions. ​National laws and court decisions dealing with Indigenous ­peoples are based in colonial ideologies of Indigenous control and inferiority, and in general, disadvantage Indigenous ­peoples by putting the interests of the dominant society first. Not only are the laws concerning Indigenous p­ eople the only race-­based laws that remain in most colonized countries, Indigenous ­peoples have more laws that apply to them than any other citizens of t­ hose countries. Although federal courts historically have been more likely to f­avor national interests over Indigenous interests (see Echo-­Hawk 2010; chapters 2 and 3), more recently federal courts in the United States have supported some civil law suits in environmental and economic crimes. For instance, in 2007, the U.S. Court of Appeals in Albuquerque ruled that the Peabody Coal Co. and the federal government “conspired to cheat” the Navajo Nation out of royalty payments (Associated Press 2007), resulting in the payment of millions of dollars in damages to the nation. As well, American state civil and ­f amily courts are sometimes open to deciding in ­f avor of Indigenous victims of crime. In 2018, several tribes filed lawsuits against drug companies ­because Native Americans have the highest death rate of any group from opioid overdoses (Associated Press 2018). In Canada, a Cree member of Parliament introduced Bill C-262, “An Act to Ensure that the Laws of Canada are in Harmony with the United Nations Declaration on the Rights of Indigenous ­Peoples.” “The bill establishes two collaborative pro­cesses with Indigenous p­ eoples—­one to ensure that the laws of Canada are consistent with the UN Declaration, and the other to develop and implement a national action plan to achieve the objectives of the Declaration” (IWGIA 2017, 96). New Zealand is the only colonized country in which an Indigenous language, Māori, is permitted in court as declared in the Māori Language Act of 2016 (Greenland 2016). As well, the Waitangi Tribunal was basically “taken over” by Indigenous ­peoples, despite the intentions of the colonial government. As Tauri (2015, 302) describes, “It was not intended to enable Māori a forum through which their po­liti­cal aspirations for self-­determination in justice, social policy and economics self-­sufficiency could be realised. That it did result in what is



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now referred to as the treaty settlement pro­ cess, was in the main unintentional.” Ambivalence by the courts is not restricted to the United States. In Canada, the Ktunaxa Nation of British Columbia tried to stop the development of a four-­season resort on their sacred lands, but the Canadian Supreme Court ruled against them (Cobb 2017). Cunneen believes that litigation to obtain reparations is generally unsuccessful, at least in Australia, and states that “the con­temporary l­egal system privileges colonial discourse at the expense of Indigenous understandings of the past” (2005, 68), and that government rec­ ords fail to rec­ord the crimes committed. The track rec­ords of the colonially based courts in most colonized countries suggest that using them for purposes of reparations is a risk for Indigenous ­people. Nevertheless, such cases bring public attention to harms committed against Indigenous nations and communities, even if criminal charges are not or cannot be laid. International Law and Courts When Indigenous p­ eople face h ­ uman rights violations by their home colonial states, they have international laws and courts as one pos­ si­ ble recourse (Contreras-­Garduño and Rombouts 2010). The United Nations and the Organ­ization of American States are the main sources of l­egal standards that inform treaties, declarations, resolutions, and jurisprudence concerning ­human rights for Indigenous p­ eoples, with the latter a main source for Indigenous p­ eople in the Western Hemi­sphere. Three impor­t ant international documents are the UN Declaration on the Rights of Indigenous ­Peoples (UN 2007), the American Declaration on the Rights of Indigenous ­People (2016), and the 1989 Indigenous and Tribal P ­ eoples Convention (Convention 169) of the International ­L abor Organ­i zation. T ­ hese have been applied to rights issues concerning land, natu­r al resources, consultation by governments, and informed consent in dealing with extraction and ­development industries such as mining (Alvarado 2020). The recognition of Indigenous cultures, laws, and institutions are included in all of them. ­Unfortunately, not all countries have ratified t­hese treaties and declarations. Despite ILO 169 being used in many South American countries to inform domestic constitutions, laws, and local jurisprudence, only twenty-­t wo countries, mostly in Latin Amer­i­ca, have ratified the ILO 160 treaty (Alvarado 2020). Each country applies t­hese treaties and conventions differently depending on issues of jurisdictional competencies, coordination between Indigenous and colonial systems, and the pos­si­ble disadvantages faced by subgroups within the culture, such as disabled ­people, ­women, and c­ hildren (Alvarado 2020). The American Declaration is of special importance as one of the primary l­egal sources used by the two regional h ­uman rights monitoring

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bodies for North and South Amer­i­ca, the Inter-­A merican Commission on Human Rights, and the Inter-­A merican Court of H ­ uman Rights (Alvarado 2020). The focus of the Inter-­A merican Court of H ­ uman Rights on collective as well as individual ­human rights is particularly relevant to Indigenous ­human rights violations. The Court’s “asserted remedies focus on pragmatic solutions to real-­life prob­lems faced by dif­fer­ent indigenous and tribal communities in the Amer­i­cas” (Contreras-­G arduño and Rombouts 2010, 122). Indigenous ­people can only have ­m atters heard by the International Court of Justice or “World Court” if their issue is brought by a nation-­state, but it has consistently upheld the right of self-­determination for all p­ eoples, an impor­tant pre­ce­dent (Koivurova 2007). Nevertheless, the idea of Indigenous justice systems as basic ­human rights is still challenged by prejudice and stereotyping by colonial authorities (Alvarado 2020). indigenous law prac­ti­tion­e rs.  ​­ There has been a relative boom in Indigenous law prac­t i­t ion­ers in many colonized countries. As Brewer (2017, 94) states about the United States, “­L awyers expert in federal Indian law are a tribal nation’s first line of defense against federal and state intrusions on treaty rights and sovereignty.” Some of t­ hese ­lawyers work at the local level to provide ­legal assistance in their home communities; ­others work for national organ­izations. One well-­k nown national ­legal organ­ization in the United States is the Native American Rights Fund, which challenges treaty violations, state intrusion into Indigenous lands, w ­ ater rights, tax issues, and federal recognition and trust and mismanagement (Brewer 2017; NARF 2016). Some pan-­Indigenous organ­izations also offer ­legal prac­ti­tion­ers to assist Indigenous p­ eople. ­There have been noted successes among Indigenous prac­ti­tion­ers. For example, in 2014, Diane Humetewa of the Hopi Nation was the first American Indian w ­ oman to be appointed by the U.S. Senate as a judge for the Federal District Court of Arizona (Locke 2014b). Canada appointed its first female Native judge, Terry Vyse, in 1991, when she became the fourth sitting Aboriginal judge in the country (Eggertson 1991). Canada is also the only colonized country to have had an Aboriginal ­woman, Jody Wilson-­ Raybould, a member of the We Wai Kai Nation, as its justice minister and attorney general (Huffpost n.d.). Māori ­lawyers are becoming more common in New Zealand although they are still underrepresented (New Zealand Law Society 2012). In Australia, the number of Indigenous ­lawyers is increasing, with about 500 Indigenous ­lawyers countrywide, and at least two Indigenous Australians who have served as judges (Walsh 2015; ABC Newcastle 2013).



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Media Indigenous communities have made extensive use of the media at the regional, national, and global levels to educate Indigenous and non-­Indigenous ­people about Indigenous culture, issues, and successful healing and re­sis­ tance efforts, to lobby, and to communicate with like-­m inded Indigenous groups. This reflects Frantz Fanon’s (1963) argument that cultural works prepare the way for activism, for the “inevitable conflict” between oppressed and oppressor. The popu­lar media also play a role in raising awareness. information sharing.  ​M any Indigenous po­liti­cal, justice and social ser­ vice organ­izations have websites that contain not only information on their programs but information of interest to the general Indigenous population. For example, the website of the Aboriginal Rights Movement of South Australia contains the recommendations of the report on Aboriginal Deaths in Custody and the latest news on legislation and community issues (https://­ www​.­a lrm​.­org​.­au). The website of the Hamilton Abuse Intervention Program that serves Māori and non-­M āori abuse victims in Hamilton, New Zealand, is linked with other ser­v ice organ­izations and contains information about rights to health and disability ser ­v ices (http://­w ww​.­terunanga​.­org​.­n z). Jeffries and Stenning (2014) found evidence of increased sharing of ideas about Indigenous courts and other justice alternatives among Indigenous p­ eople in Australia, Canada, and New Zealand. The United Nations Special Rapporteur on Indigenous issues has issued a number of reports on the conditions of Indigenous p­ eople in vari­ous countries and globally (see https://­w ww​.­u n​.­org​/­development​/­desa​/­i ndigenouspeoples​/­reports​-­by​-­t he​ -­special​-­r apporteur​-­on​-­t he​-­r ights​-­of​-­i ndigenous​-­peoples​.­html), as have such international organ­i zations as Amnesty International (see https://­w ww​ .­a mnesty​.­org​/­en​/­what​-­we​-­do​/­i ndigenous​-­peoples​/­). Indigenous newspapers and news feeds reach large audiences. In the southwestern United States, Indian Country T ­ oday and the Navajo-­Hopi Observer are read by Indigenous and non-­ I ndigenous ­ people alike. In ­Canada, t­here are at least fifteen regional and national Indigenous newspapers (http://­g uides​.­l ibrary​.­ubc​.­ca​/­c​.­php​?­g ​=­307187&p​=­2050818). Local and regional newspapers also educate about issues and solutions. The Arizona Daily Sun, for example, is a small daily paper that serves Flagstaff and the surrounding region. On May 15, 2018, it contained two stories highlighting Native American issues: one described the dilapidated condition of many American Indian schools due to a lack of resources (Schultz 2018), and the other told the story of two American Indian youths pulled out of a campus tour by campus police at Colorado State University. They w ­ ere

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accused of wrongdoing b­ ecause they “­really stood out” by being h ­ umble and quiet (Hudetz 2018a). popu­lar media.  ​Popu­lar media include a wide range of formats. Some Indigenous and non-­Indigenous organ­izations have produced films about Indigenous issues. In the United States, the film Out of State (Ciara Lacy, director, 2017) describes the challenges faced by Native Hawaiians incarcerated in the Arizona criminal justice system. In Australia, Rabbit-­P roof Fence (Phillip Noyce, director, 2002) poignantly describes the situation of young Aboriginal c­ hildren taken from their home communities. In Canada, the Aboriginal P ­ eoples Tele­v i­sion Network (APTN) has devoted itself to Aboriginal voices since 1999. In En­g lish, French, and twenty Aboriginal languages, it produces and broadcasts c­ hildren’s shows, investigative reports, dramas, comedies, food shows, and documentaries on impor­ t ant issues (Levin 2016). In contrast, in the United States, as Desta (2015) notes, “On tele­ v i­ sion screens, American Indian characters are virtually invisible,” though not due to lack of trying to sell American Indian–­based shows; on a more positive note, such programming does have a stronger presence online. Popu­lar m ­ usic also communicates the impacts of colonialism. In the United States, the song “Comply/Resist” ( John Paul (Ringo) Peters and Propagandhi, producers, 2017) speaks about settler-­colonist delusions about the “gifts” they bestowed on Indigenous p­ eoples (Peters and Propagandhi 2017). In Australia, the singing group the Stiff Gins has used its popularity to sing about Aboriginal issues, and in Canada, Juno Award–­w inning Inuktitut singer Susan Aglukark uses her ­music to inform listeners about her culture. Indigenous writers and some culturally sensitive non-­Indigenous writers have been informing the reading public for centuries about Indigenous life, culture, and issues. In California, Indigenous writers are making public per­for­m ances of their works in “Zapotec, Tzotsil, Mayan and other languages spoken long before Eu­ro­pe­a ns washed up on the shores of what is now Mexico” (Ballew 2017). As well, humor plays an invaluable role in healing, as does Indigenous art, which can be both an outlet and a form of activism. The media are a power­f ul expression of the survival of Indigenous ­people and cultures. They are the modern version of the “lit­er­a­t ure of combat” that Fanon (1963, 240) describes as calling “on the ­whole ­people to fight for their existence as a nation.”

Research Scholarly research at the community, national, and international levels carried out by Indigenous and non-­ Indigenous scholars contributes to understanding the continuing impacts of colonial ideology and structures. Postero and Zamosc (2004, 3) emphasize the impor­t ant relationship between



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research and po­liti­cal activism (in this case in Latin Amer­i­ca), stating, “By bringing native ­people’s resilience and agency to the attention of the public, scholars have helped establish indigenous movements as legitimate actors worthy of re­spect and l­egal protections.” Research studies can raise awareness about local Indigenous issues. The Lakota P ­ eople’s Law Proj­ect published a report in 2015 titled Native Lives M ­ atter that provides empirical data on police vio­lence against Native p­ eople in South Dakota, as well as conditions for adults and youth in holding facilities, and the financial incentives to remove Native ­children from their homes. The lack of action by state leaders is also documented. Colleges and universities, Indigenous and non-­ Indigenous, play an impor­tant role in not only d­ oing culturally sensitive research but bringing information to Indigenous nations. For example, in March 2017, Athena Talk, a Northern Arizona University Navajo student intern, made a pre­sen­t a­t ion to Shonto Preparatory Acad­emy students on the Navajo Nation about the serious health consequences of indiscriminate uranium mining on the nation (Hartman 2017). At the national level, research informs policy makers, the media, and the general public. In Canada, the Legacy of Hope foundation is recording the oral histories of Indigenous survivors of residential schools in five provinces and territories to act as counterpoints to colonial histories (Park 2015). Government task forces such as Royal Commissions carry out research and publish reports about Indigenous issues. Examples include the 1997 Bringing Them Home report from the Australian National Inquiry that investigated the kidnapping of Aboriginal ­children, the stolen generations; from Canada, the 2015 report of the TRC that investigated the impacts of the residential schools on Aboriginal ­children, families, and communities; and the National Inquiry into Murdered and Missing Indigenous ­Women and Girls, established in 2016. Sometimes t­ hese reports have led to changes in legislation and government policies, but more often they have led to ­little or no action at all by the governments (see, for example, TRC 2015, 7). At the international level, the International Work Group for Indigenous Affairs has collaborated in setting up an online platform focusing on the implementation of the UN Declaration of the Rights of Indigenous ­People. The Indigenous Navigator gathers community-­generated data submitted by Indigenous p­ eople globally (http://­iwgia​.­org). Research still needs to be done on many social and criminal justice issues for Indigenous p­ eoples as discussed elsewhere in this book. As well, for the sake of perpetuating effective Indigenous-­owned ser­v ice programs, more “rigorous, systematic, and in­ de­ pen­ dent” evaluation research is needed ( Jeffries and Stenning 2014, 481); however, as the UN Permanent Forum on Indigenous P ­ eoples has declared, evaluation research indicators need to be “be meaningful to Indigenous p­ eople’s values, traditions and laws” (Schwartz et al. 2017, 6).

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Three of the most impor­t ant research issues for Indigenous ­peoples are the lack of statistics in some countries on Indigenous inhabitants, the perceived lack of legitimacy of Indigenous researchers, and the exploitation of Indigenous p­eoples by non-­Indigenous researchers. In the Scandinavian countries, most federal governments have no rec­ord of the number of Sāāmi imprisoned or arrested, making it extremely difficult to show pos­si­ble discrimination in arrest, sentencing, or incarceration and to develop culturally appropriate programming (personal communication). As well, anecdotal evidence is not sufficient to obtain reparations from colonial governments. This policy of not collecting data needs to be revisited and revised. A second issue is a perceived lack of legitimacy of research done by Indigenous scholars and communities since they may not follow Eurocentric methods. As Juan Tauri (2015, 300), warns, t­here is “a strategy of discrediting any/all Indigenous approaches to criminological research and dissemination of our knowledge, as unscientific, and therefore unworthy of serious consideration for the development of con­temporary crime control policy.” This “silencing” of Indigenous research methods and hence many Indigenous scholars has led to the exclusion of Indigenous knowledge from policy making and program development, and decreased sovereignty (Deckert 2015). Fi­n ally, Indigenous p­ eoples too often have been the targets of unethical research by academic researchers. Winona LaDuke (2005, 114) describes the misuse of Havasupai blood samples by Arizona State University as done by “ge­ne­tic pirates.” The biased research done by Eurocentric anthropologists still colors educational materials to the detriment of their ste­reo­typed and misinterpreted Indigenous subjects. Intellectual property is also a resource that has been taken by researchers (see chapter 8). One strategy to prevent ­these issues is for Indigenous communities to establish their own research protocols and institutional review boards. In Arizona, both the Navajo Nation and the Hopi Nation have them, and all public universities have developed policies that re­spect them. More educational institutions need to teach their non-­Indigenous and Indigenous students about culturally appropriate research. More Indigenous and non-­Indigenous researchers trained in Indigenous research protocols are needed so that they provide communities with the information Indigenous ­people need to tackle the issues resulting from colonialism. C onclusion This has been a somewhat “listy” chapter, but as Hall and Fenelon (2009, 143) write, “Indigenous survival and re­sis­t ance are s­ haped by local, regional, national, and especially global forces and ­factors. To omit any level of ­these interactions is to distort and fundamentally misunderstand indigenous



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survival and re­sis­tance.” We have tried to include a wide variety of suggestions for amelioration by settler-­colonists and examples of ongoing Indigenous initiatives; yet, we must acknowledge that ­there is a g­reat deal of cynicism about amelioration among both Indigenous and non-­Indigenous ­people. Indigenous re­sis­tance to colonial crimes has slowed their commission but has done ­l ittle to stop them. Indigenous ­people want to control their own lives, lands, and resources, but colonial governments want the opposite. Point, who writes about the increasing vio­lence in Canadian Aboriginal protests in the early 1990s, describes how futile past efforts have been to produce change: “Through the years the native strategies included petitions to the Queen of ­England, del­e­g a­t ions to Ottawa and the United Nations, peaceful demonstrations, public awareness campaigns, and ­legal action. Through all of this the government’s response was minimal, although t­here has been much rhe­toric about the government’s commitment to change. The government and the natives, however, still are on a collision course ­because their objectives are mutually exclusive. Native ­people want to remain distinct and be self-­governing; governments want to end the Indian Prob­lem” (1991, 125). This feeling of frustration could be generalized to most, if not all, Indigenous nations and their relations with colonial governments. Indigenous p­ eoples are the survivors of some of the most massive and continuous crimes committed in ­human history—­the theft of their lands and resources, cultural genocide, and the commission of past and current vio­lence against them as individuals and p­ eoples. This cannot be forgotten or ignored. As Cunneen (2005, 60) points out, “­There can be no effective reconciliation without addressing in a meaningful way the wrongs of the past.” The enormous social and structural inequalities that colonialism caused, and with which we still live, must be repaired. It is not pos­si­ble to restore the millions of lost Indigenous lives due to colonial vio­lence, but healing programs for the generations of survivors are needed. Reparations for stolen property and lost cultures are still pos­si­ble, even if they must be done on a scale that ­w ill change ­whole countries. A strategy of amelioration that has been suggested repeatedly in the lit­er­ a­t ure is to restore sovereignty for Indigenous ­people—­not self-­determination, since that can be of varying degrees, but complete sovereignty, that is, “the right to make decisions for themselves” ( Jarratt-­Snider and Nielsen 2018, 187). It should be noted that increased sovereignty is not the goal of all Indigenous p­eople. For example, Indigenous p­eople in Canada and the United States strug­g le for increased sovereignty, but in Mexico and Bolivia, Indigenous p­ eople strug­g le for increased autonomy, and in South Africa and Australia, for increased minority group status (Hall and Fenelon 2009, 140). ­There are many ways that Indigenous ­people can exercise and increase their sovereignty. Behrendt (1995, 98, 99) points out that non-­Indigenous

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Australians have “never recognized the sovereignty of Aboriginal ­people. . . . ​ But just ­because non-­Aboriginal Australia refuses to recognize our sovereignty does not mean that it does not exist” As she states so eloquently, The Aboriginal perspective is easily dismissed by non-­indigenous Australians. But our view of the world and our view of our relationship to land is as valid as the way in which Eu­ro­pe­a ns choose to see the world. To dismiss our views as irrelevant is ethnocentric. We have always been told that we have to do t­ hings the way Eu­ro­pe­a ns do t­ hings and that we have to think like Eu­ro­pe­a ns. We cannot. Our culture is dif­fer­ent. We see ourselves as a nation. We are not part of the dominant, non-­ Aboriginal community. (Behrendt 1995, 98) Many groups are already practicing de facto sovereignty, that is, they have assumed authority and asserted sovereignty by developing and operating their own programs. “De facto sovereignty also includes Indigenous nations creating new ­legal codes to address criminal justice issues that affect Indian ­women, youth and all citizens to address safety, health, and well-­ being—­basic everyday needs—­a ll of which have been dismantled to one degree or another by colonization” ( Jarratt-­Snider and Nielsen 2018, 191). More Indigenous-­based research needs to be done, as mentioned ­earlier, for the benefit of Indigenous sovereignty efforts. As Tauri (2015, 307) writes, Indigenous p­ eoples resist many ­t hings; the poaching of ele­ments of our life-­worlds by cultural entrepreneurs, franchise companies and the like; or the importation of western, globalised crime control products that we are forced to use in place of our own, more appropriate pro­cesses. And of course, we continue to resist the settler-­colonial states ongoing manoeuvres to frustrate our aspirations for self-­determination. This is the area most in need of empirical research analy­sis and theorising. The importance of focusing on Indigenous re­sis­t ance cannot be over-­stated: we need to be mindful of portraying Indigenous ­peoples as (more often than not) the non-­responsive, passive recipients of White Man’s Law and the gifts of western crime control. The influence of assimilation on Indigenous ­people means that patriarchy, racism, and other marginalizing strategies have led to power differentials in Indigenous institutions and caused even greater social harm against specific populations within Indigenous populations such as ­women, LGBTQIA, and the disabled. Research to document this historically and t­oday, is needed in order for it to be eliminated (Smith 2005, 158). The concept of sovereignty is usually associated with Indigenous tribes and nations on their own lands, which in some countries leaves out 50 to 80 ­percent of the Indigenous population, many of whom also face serious



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inequalities and discrimination compared to their non-­Indigenous neighbors. As Brand et al. (2016, 4) write, “Both the UN and global indigenous organisations have raised concerns over the danger of conflating indigenous identity with rural connections, as it risks ignoring the real­ity of large urban indigenous populations.” Out of necessity, Indigenous p­ eople are forming new entities outside of Indigenous lands and finding ways to exercise de facto sovereignty. They need to have the autonomy and resources to develop more social institutions and programs (Brand et al. 2016), and they need the support of colonial governments and land-­based Indigenous communities to do it. Based on our research as criminologists, we believe that programs that exercise Indigenous sovereignty can be an effective path to the amelioration of the social justice issues that contribute to crime by Indigenous individuals. Colonial governments have been completely unsuccessful in preventing the poor health, internalized vio­lence, over-­incarceration, and other social justice ills that afflict Indigenous ­people as a result of colonial crime, but they are singularly unwilling to give up control and provide the real resources needed to allow Indigenous communities to solve the prob­lems for themselves. Indigenous communities have found partial solutions to many of t­hese issues but have never had the resources or l­egal authority—­ including sovereignty—to tackle them all together. The ser­v ices needed are interconnected and holistic, and need to overcome all the social harms of colonialism, not just a symptom ­here and a symptom t­ here. Indigenous communities ­w ill need the financial, social, and po­liti­cal support of colonial governments and the descendants of the settler-­colonists. The communities themselves are the ones to decide what must be done, when, how, and by whom to ameliorate the consequences of the crimes of colonialism. Is this pos­si­ble? We certainly hope so.

Ac k nowl­e dgm e nt s

We would like to express our deepest gratitude to Raymond Michalowski for his assistance in fine-­tuning the path of this book, finding it a suitable home, and being a supportive colleague (and very picky editor) for many years; and to Gary Potter and Dawn Rothe for their kind comments and excellent suggestions for improving the book. We would also like to acknowledge the superb editing assistance of Meredith Brown and creative research assistance of our NAU gradu­ate students, Nour Alnabhany and Allison Robb in par­t ic­u ­lar. As well, we would like to acknowledge Northern Arizona University for its many efforts to live up to its strategic goal of being the primary university serving Native American communities. We would not be teaching what we teach or ­doing the research we do without the support and encouragement of NAU. Fi­n ally, we want to express our profound gratitude to our families for putting up with us as we sometimes ignored them and often got stressed and depressed as we wrote. We owe you.

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Note s

I ntroduction 1. Note that ­t hese are the adoption dates. For some countries, the ratification dates came years ­later (see ­Table 1.1). The date the intention was stated seemed most relevant since it was the date the countries w ­ ere put on notice about the illegality of the actions covered in each. 2. O’Grady (2011, 143) quotes Walker and Walker (1997, 8) when he defines social exclusion as “the pro­cess of being shut out, fully or partially, from any of the social, economic, po­liti­cal or cultural systems that determine the social integration of a person in society. Social exclusion may, therefore, be seen as the denial (or non-­realization) of the civil, po­liti­cal and social rights of citizenship.”

Chap te r   2   B reak i ng and Be nding the L aw H i stori cal ly 1. It should be noted that two of the countries did eventually experience war a­ fter contact between Indigenous p­ eople and the invading settlers (New Zealand and the United States). 2. It should be noted that the diseases brought by Eu­ro­pe­a ns killed the majority of the Indigenous populations in each of the four countries. In New Zealand, for example, the Indigenous population dropped from about 100,000 in 1769 to a low of 42,000  in 1896 (Pool 2012), and in the contiguous United States the Indigenous population dropped from somewhere between 1 million and 5.5 million pre-­contact to a low of 237,000 in 1900 (Shoemaker 1999). By ­legal or ­human rights standards, this depopulation is not an excuse, however, for taking Indigenous land.

Chap te r   5   In stitutionaliz e d Torture and Pe doph i l i a 1. New Zealand is not included in this chapter b­ ecause the government policy was to keep “Native schools” on Māori land, meaning that Māori parents and communities had more control over potential abuses in the schools. ­T here ­were missionary-­run boarding schools, but they w ­ ere primarily private secondary schools for wealthier Māori (see Armitage 1995; Walker 1990; Smith 2009). 2. Note that t­hese are the adoption dates; for some of them the ratification dates came years l­ater. The date the intention was stated seemed most relevant since it was the date the countries w ­ ere put on notice about the illegality of the actions covered in each. See chapter 1 for more information.

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Notes

Chap te r   7   Th e Cone stoga I ndians, Hate Cri m e s, and Dome sti c Te rrorism 1. This account of the massacres is based on the work of Jack Brubaker, a journalist who reviewed the major historical accounts of the massacre as well as original source documents with the help of historical socie­ties and historians. When he reviewed the scholarly works most cited on this event, he found that some of them ­were based on false descriptions penned by self-­i nterested Lancaster parties ­a fter the event and that ­t hese accounted for the discrepancies in the accounts. His book Massacre of the Conestogas: On the Trail of the Paxton Boys in Lancaster County (2010, History Press) is the account of his investigations and a description of the events based on the best-­supported evidence. Secondly, Nielsen would like to acknowledge the invaluable partnership of Barbara Heather in researching the information on Quakers and American Indians as part of a Gest Fellowship at Haverford College. 2. Hate speech, despite its extremely harmful impacts on Indigenous p­ eoples, is not discussed h ­ ere. B ­ ecause of its cumulative nature it can have longer-­term effects on its victims than direct physical vio­lence. Hate speech can be defined as “verbal be­h av­ior that stigmatizes or victimizes an individual on the basis of his or her race or ethnicity and that creates an intimidating, hostile or demeaning environment of racial vilification” (West-­Newman 2001, 232) and is often used as an indicator that a criminal act is a hate crime (Boeckmann and Turpin-­Petrosino 2002). The debate about the legality of hate speech is ongoing in the United States where it is protected speech b­ ecause of the First Amendment, although ­there are degrees of illegality of racist speech in Canada, Australia, and New Zealand (Gadd 2004; West-­Newman 2001; Cunneen et al. 1997). As Cunneen (1997, 150) states, what is “acceptable” racist discourse is controversial and constantly ­u nder challenge and negotiation in colonial socie­t ies. 3. Historical hate crimes are not easy to identify ­because they ­were not crimes in some jurisdictions, the victims did not have any constitutional or statutory rights, many disadvantaged groups that w ­ ere targeted w ­ ere not seen as “persons,” nonpersons could not seek l­egal redress, and governments played an active role in some of the crimes (Petrosino 1999).

Re f e re nc e s

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Inde x

Aboriginal and First Nations ­peoples (Canada), 2–3, 164, 173–174, 196–200, 206, 209–210, 213; Aboriginal ­children, 90, 92, 96, 100, 108; Aboriginal ­women, 136, 139, 206; Assiniboine, 71, 77, 79; Chipewyan, 77, 198; Cree, 71, 77–79; criminal justice system involvement, 22, 86, 160; ­labor, 69, 177–178, 180; Metis, 79, 92, 121–122, 198; Saulteaux, 77; treaty–­m aking, 61–62, 77–80 Aboriginal and Torres Strait Islanders (ATSI), 86, 102, 235 activism, 157–158, 160, 208, 211–214, 219–224. See also re­sis­t ance adoption. See foster placement Alaska/n Natives, 17, 58, 85–86 passim, 142, 156, 214; w ­ omen, 124, 127, 134 alcohol. See substance abuse American Indian Nations and ­peoples: Apache, 36, 55, 93–94; Arapahoe, 56, 81–82; Blackfoot, 79, 170–171; Cherokee, 7, 34–38, 60, 83, 93, 119–120; Cheyenne, 80–82; Chippewa, 49–55, 157, 162, 164; Choctaw, 36, 52, 93; Conestoga, 146–149, 152–156, 159–161; Creek, 36, 52, 81; Crow, 56, 80; Delaware, 48, 50, 52, 156; Fox, 52, 81; Hopi, 107, 110, 175–176, 183–185, 190, 218, 222; Lakota, 80, 82, 152, 205–206, 221; Mohawk, 211; Navajo, 15, 36, 55–57 passim, 81, 107, 124, 181–191, 215–216, 221–222; Osage, 52, 169–170; Paiute, 183;

Pequot, 71; Sauk, 3, 52, 81; Seminole, 81, 178; Shawnee, 52, 156; Sioux, 39, 54, 56–57, 71, 81–82, 202; Ute, 183; Winnebago, 53 Aotearoa. See Māori assimilation, 3, 30, 89–91, 121, 168–169, 224; and c­ hildren, 6, 9, 90–95, 109, 112, 203 Austin, Ray, 142, 214–215 Big Bear, 78–79 Black K ­ ettle, 81 boarding schools, 9, 18–19, 88–103, 122, 203–204, 210; and parents, 66, 74, 91, 93, 97, 105–107; and psychosocial impacts, 18–19, 103–105, 117 buffalo, 61, 77–78, 83 Bureau of Indian Affairs (BIA), 61, 101, 108, 110, 170, 189–190 casinos. See gaming Catholic Church, 27, 29, 110 ­children, Indigenous, 135, 138–139 passim, 187, 209, 221; and juvenile justice involvement, 86, 113; and ­labor, 98; and removal, 66–67, 74, 123, 168–169, 206, 220; and sexual abuse, 6, 88, 100–102, 104, 106–111, 126, 128, 137. See also assimilation; boarding schools; ­family vio­lence; foster placement; kidnapping Chivington, John, 81–82 colonialism: definition of, ix, 1–12; and disease, 4, 36–37, 48, 65, 78, 83, 89, 98

255

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corporate crime. See state– ­corporate crime Crazy Horse, 82, 84 crimes, colonial: economic, 33–34, 37–39, 41–64, 163, 166–176, 180, 205–206, 216; environmental, 7, 18–19, 167, 171–175, 181–202, 216; intellectual, 174–175, 222; land, 7, 28–29, 35, 165–167, 205; l­egal, 37–39, 55–56, 58–64, 88, 91; violent crimes, 30, 33, 65, 73–74, 88, 99–100, 102–103, 146–149. See also massacres; Trail of Tears; treaties; vio­lence against w ­ omen criminology, 1, 11, 13–14, 20, 22, 168, 222, 225 culture, Indigenous, 15, 116, 118, 164, 173–174, 209–211 Custer, George Armstrong, 56, 82 development, economic, 176–180, 213 displacement, 2, 36, 67, 105, 138, 183 Doctrine of Conquest, 28, 32–33, 38–39 Doctrine of Discovery, 26–28, 32–33, 38–39, 59 domestic vio­lence, 106, 115, 117–118, 120, 123, 126–130, 137, 143 drugs. See substance abuse education, 34, 90, 97–98, 103. See also boarding schools employment, 207; obstacles to, 177. See also unemployment encomendero system, 29–30 environment. See crimes, colonial: environmental ethnic cleansing/ethnocide. See genocide eugenics. See social Darwinism; sterilization, involuntary ­family vio­lence, 86, 121, 124, 126–130, 140, 143. See also domestic vio­lence famine. See hunger/malnutrition

Federal Bureau of Investigation (FBI), 101, 142, 150, 170, 176 foster placement, 22, 88, 91–92, 96, 101, 105 fraud. See treaties gaming, 176–177, 179, 213. See also development, economic gender. See culture, Indigenous; ideology, colonial genocide, 7–9 passim, 33, 38, 40, 49, 112, 166, 187; cultural, 88–90, 95, 210, 223; definition of, 65–66; impacts from, 137–139; and settler colonialism, 67–68 gold, 26, 29, 35, 42, 48–49, 65, 82 governments, colonial: Australian, 28, 68–70, 92, 96, 109–110, 153, 171, 204; British, 42–47, 72–76, 92, 117; Canada, 14, 28, 61–62, 76–80, 92–93, 95, 108–109, 122, 131, 168–169; Spanish, 28–34, 37; United States, 28, 48–61, 80–86, 93–95, 110–111, 120, 164. See also Trail of Tears Gramsci, Antonio, 89, 112 hate crimes, 16, 18–19, 124, 146, 149–153, 156–162, 230 healing, 109, 113, 116, 142, 204–205, 208–211, 220; obstacles to, 85, 106 health issues, 19, 150, 179, 185–188, 194–195, 201, 207–209 passim. See also colonialism; m ­ ental health/illness historic trauma. See trauma, intergenerational hunger/malnutrition, 36, 42, 57, 61, 77–78, 98 identity, Indigenous, 96, 99, 105, 225 ideology, colonial, 64, 161; and Chris­ tian­ity, 29, 164; Manifest Destiny, 28; paternalist, 33, 80, 115, 123; racist, 5, 15–16, 88–90, 97, 112–113, 205–206, 220; sexist/patriarchal, 115, 117, 120. See also Doctrine of Conquest;

Index

Doctrine of Discovery; ste­reo­t ypes: and public attitudes incarceration, 17, 85–86, 126, 137, 207, 220–225 passim Indigenous Australians, 27, 73–75, 129, 138, 159–160, 215, 218, 224; ­children, 96, 101, 109, 117; criminal justice system involvement, 17, 86; and land claims, 62–63; and mining, 193–196; and slavery, 68–69; w ­ omen, 135 internalized oppression/violence, 3, 89, 113, 117, 120–121 passim, 158; and institutionalization, 106 intimate partner vio­lence, 117, 123, 125, 127–129, 137, 142 Jackson, Andrew, 26–27, 34–37, 51, 53, 81, 83, 205 juvenile justice. See ­children, Indigenous kidnapping, 67, 88, 90–96, 103, 123, 221. See also boarding schools; foster placement law, 5–7, 10–12, 22, 26–40, 64; Aborig­ inals Protection and Restriction of the Sale of Opium Act, 69; American Indian Religious Freedom Act, 39; Constitution Act of 1982, 61, 173; customary, 116, 127, 140–142 passim, 214–215; Diné Natu­ral Resources Protection Act, 188; First Nation Gaming Act, 177, 179; Fisheries Management Act, 171–172; Hate Crime Prevention Act, 150; Hate Crime Statistics Act, 149; Indian Act, 95, 104, 122, 168, 206; Indian General Allotment Act/Dawes Act, 58, 166, 170; Indian Removal Act, 35, 53, 81; Indian Reor­g a ­n i­z a­t ion Act, 95; Indian Residential Schools Settlement Act, 109; Indian Trade and Intercourse Act, 54, 83; Indigenous prac­t i­t ion­ers, 216–217; international, 27–28, 33, 41–42, 47, 66, 140–143, 217–218;

257

Major Crimes Act, 141, 206; Māori Language Act, 216; Native Title Act, 62; New Zealand Environment Act, 191; New Zealand Parks Act, 192; Resource Management Act, 192; Safe Drinking ­Water Act, 189; tribal, 143, 215–216; Tribal Law and Order Act, 39, 142; Vio­lence Against ­Women Act, 125, 142 ­legal decisions: Cherokee Nation v. Georgia (1823), 60; Cobell v. Salazar (ongoing), 12, 61, 170–171; Johnson v. M’Intosh (1823), 38, 59; Mabo v. Queensland (1992), 39, 41, 62; Oliphant v. Suquamish Indian Tribe (1978), 141; United States v Sioux Nation (1980), 39; Wi Parata v. Bishop of Wellington (1877), 46; Worcester v. Georgia (1832), 35, 60 Māori, 64, 68, 75–76; criminal justice system involvement, 17, 86; and environment, 191–193, 201, 205, 210, 213, 215–216, 218–219; and treaty-­making, 42–47; ­women, 120–121, 125, 128, 131, 134, 172–173, 176–177 massacres, 16, 24, 32–34, 65–67, 71–82; ­Battle of Pinjarra, 74; B ­ attle of Sand Creek, 81–82; of Conestoga Indians, 146–149, 153–156, 161–162; massacre of the Wiradjuri, 73–74; Wounded Knee, 82. See also crimes, colonial media, 16, 23, 111, 135, 197, 205; and Indigenous organ­izing, 18, 219–220 ­mental health/illness, 85, 104, 133, 187, 209, 212 mining, 54, 167, 170, 183–196, 200–201, 217, 221. See also crimes, colonial: environmental Mormon colonizers, 81, 183 Native Hawaiians, 17, 179, 204, 207, 220 oil/tar sands, 198–200 organ ­izing. See activism

258

Index

Papal Bulls, 26, 32–33. See also terra nullius “Paxton Boys,” 146–149, 153–156 pedophilia. See also ­children, Indigenous po­l iti­cal economies. See crimes, colonial pollution. See crimes, colonial: environmental “prob­lem”: Aboriginal, 14, 22; First Nations, 136; Indian, 22, 83, 89, 165, 223; Indigenous, 205; Māori, 22. See also ideology, colonial programs, 207–210 Quakers, 93–94, 146–149, 153–156 racism, institutional, 113–114. See also ideology, colonial; ste­reo­t ypes rape. See also vio­lence against Indig­ enous ­women recidivism, 15, 86, 213 removal. See boarding schools; kidnap­ ping; reservations reparations, 2, 19, 22–23, 87, 116, 203–208, 217, 222–223 Requerimiento, 31–32 research, 220–221 reservations, 34, 55–57, 82–84 residential schools. See boarding schools resilience, 89, 125, 179, 209–212 passim re­sis­t ance, 79, 113, 157–158, 163, 170–171, 183, 196–200, 210–213; and ­children, 99 restorative justice, 204–208, 213, 216 rights: civil, 2, 8–11, 112, 150, 181, 187, 200, 207; fishing, 157, 164, 171–174, 197; ­human, ix, 3, 6–10, 13, 22–23, 37–40, 111–112, 124, 130–132, 138–145, 161, 196, 203, 206, 213–218; reserved, 60; resources, 60, 157, 165, 167, 171–176, 196–197 Sitting Bull, 82, 84 slavery, 29, 68–72, 133–134 social Darwinism, 89, 91, 130–131. See also ideology, colonial

sovereignty, 4, 23, 34, 38, 44–48, 59–60, 83, 171–173, 178–179, 218; decrease of, 139–142, 165; de facto, 224–225; increase of, 10–11, 14–15, 21, 83, 206–208, 210, 214, 222–223 state–­corporate crime: definition of, 7, 174, 181–182; examples of, 182–202 state crime, ix, 1, 6–7, 138–145. See also crimes, colonial ste­reo­t ypes, 16, 19, 21, 113, 138, 141, 154, 205, 218, 222; of Indigenous ­women, 115, 117–119, 124; and public attitudes, 2, 23, 46, 50, 53, 86 sterilization, involuntary, 66, 130–132, 138–139 “stolen generations”, 88, 91, 105–106, 204, 212, 221. See also boarding schools substance abuse: alcohol, 21, 74, 106, 120, 123, 127, 133, 137, 142, 214; drug, 16, 18, 104, 179 suicide, 13, 22, 85, 101, 105–106, 117, 126 Tecumseh, Chief, 52 terra nullius, 26–28, 38–39, 62, 72. See also Papal Bulls terrorism, domestic. See hate crimes torture, 74, 102, 120. See also crimes, colonial Trail of Tears, 7, 34–36, 38, 57, 119, 205 trauma, intergenerational, 84–87, 105–107, 126, 208 treaties, 34–35, 38–39, 41–42, 48, 52, 83; Alaska Native Claims Settlement, 57–58; Copper Treaty, 54–55; First Treaty of Ft. Laramie, 56; Pine Tree Treaty, 53–54; Treaty No. 6, 77–79; Treaty of Bosque Rodondo, 56–57; Treaty of Greenville, 51–52; Treaty of Guadalupe Hidalgo, 48, 81; Treaty of New Echota, 35–37; Treaty of Paris, 50–51; Treaty of Waitangi, 43–47; Walking Purchase (1737), 50 Truth & Reconciliation Commission, 95, 109, 113, 209

Index

259

120–121; and colonial United States, unemployment, 13, 85, 150, 179, 201; as a 118–120; missing/murdered, 133, 136, source of vio­lence, 107, 129, 133, 138 United Nations: Convention on the 139, 211; and ser­v ices, 143–144; sex Prevention and Punishment of the trafficking, 117, 132–136, 138–143; Crime of Genocide, 8–9, 66–67, sexual assault, 124–126; spiritual, 106, 137–138; stalking, 136–137. See also 112; Declaration of H ­ uman Rights, 140; Declaration of the Rights of domestic vio­lence; intimate partner Indigenous ­Peoples, 8–10, 112, 141, vio­lence; sterilization, involuntary 200, 216–217, 221; Declaration on the Elimination of Vio­lence Against wage theft. See crimes, colonial ­Women, 140 warfare, 75–76; B ­ attle of Batoche, 79; uranium. See crimes, colonial; mining ­Battle of Duck Lake, 79; B ­ attle of Fish Creek, 79; ­Battle of ­Little Bighorn, vio­lence against Indigenous w ­ omen, 13, 82; B ­ attle of Ohaeawai, 76; intertribal, 18–19, 24, 36, 54, 57, 69, 73, 87, 102, 80, 116; Mexican–­A merican War, 81. 106, 115–118; and colonial Australia, See also massacres 122–123; and colonial Canada, ­water, 42, 181–201, 205, 209, 218. 121–122; and colonial New Zealand, See also rights: resources

About th e Auth or s

Marianne   O. Nielsen is a professor in the Department of Criminology and Criminal Justice at Northern Arizona University. Her research focuses mainly on the many aspects of Indigenous justice organ­i zations. She teaches an undergraduate-­level course, “Native Americans and Criminal Justice,” and a graduate-­level seminar, “World Indigenous P ­ eoples and Justice.” She has worked for Native organ­izations and done research in Indigenous communities in Canada, Australia, New Zealand, and the United States. She is coeditor with Robert Silverman of Aboriginal P ­ eoples and Canadian Criminal Justice (1992), Native Americans, Crime and Criminal Justice (1996), and Criminal Justice in Native Amer­i­ca (2009); with James W. Zion of Navajo Peacemaking: Living Traditional Justice (2005); and with Karen Jarratt-­Snider of Crime and Social Justice in Indian Country (2018). Linda  M. Robyn is a professor in the Department of Criminology and

Criminal Justice at Northern Arizona University. Her expertise is in environmental and po­liti­cal/corporate justice issues affecting world Indigenous populations. She also teaches the undergraduate-­ level course “Native Americans and Criminal Justice.” Her publications include book chapters and articles on state/corporate crime, including uranium mining on the Navajo Nation, the removal of the Southwest Michigan Potawatami, the criminalization of treaty rights, corporate vio­lence against American Indians, the involuntary sterilization of Indigenous ­women, Indigenous w ­ ater rights, and a critical model for the study of resource colonialism and Native re­sis­t ance. Donald L. Fixico (Shawnee, Sac and Fox, Mvskoke Creek, and Seminole) is Distinguished Foundation Professor of History in the School of Historical, Religious and Philosophical Studies, affiliate faculty in American Indian Studies, and Distinguished Scholar of Sustainability in the Wrigley Global Institute of Sustainability at Arizona State University. He has been on faculty and a visiting professor at eleven universities (including the University of Nottingham in E ­ ngland and the John F. Kennedy Institute at the Freie

261

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About the Authors

University in Berlin, Germany) with postdoctoral fellowships at UCLA and the Newberry Library in Chicago. He has worked on more than twenty documentaries on American Indians and is the author and editor of fifteen books. His most recent books are “That’s What They Used to Say”: Reflections on American Indian Oral Traditions (2017) and Indian Treaties in the United States (2018). In 2018, he was the president of the Western History Association.

Available titles in the Critical Issues in Crime and Society series: Laura S. Abrams and Ben Anderson-­Nathe, Compassionate Confinement: A Year in the Life of Unit C Laura S. Abrams and Diane J. Terry, Everyday Desistance: The Transition to Adulthood among Formerly Incarcerated Youth Tammy L. Anderson, ed., Neither Villain nor Victim: Empowerment and Agency among ­Women Substance Abusers Miriam Boeri, ­Women on Ice: Methamphetamine Use among Suburban ­Women Scott A. Bonn, Mass Deception: Moral Panic and the U.S. War on Iraq Mary Bosworth and Jeanne Flavin, eds., Race, Gender, and Punishment: From Colonialism to the War on Terror Henry H. Brownstein, Timothy M. Mulcahy, Johannes Huessy, The Methamphetamine Industry in Amer­i­ca: Transnational Cartels and Local Entrepreneurs Loretta Capeheart and Dragan Milovanovic, Social Justice: Theories, Issues, and Movements Alexandra Cox, Trapped in a Vice: The Consequences of Confinement for Young P ­ eople Anna Curtis, Dangerous Masculinity: Fatherhood, Race, and Security inside Amer­i­ca’s Prisons Walter S. DeKeseredy and Martin D. Schwartz, Dangerous Exits: Escaping Abusive Relationships in Rural Amer­i­ca Patricia E. Erickson and Steven K. Erickson, Crime, Punishment, and ­Mental Illness: Law and the Behavioral Sciences in Conflict Jamie J. Fader, Falling Back: Incarceration and Transitions to Adulthood among Urban Youth Luis A. Fernandez, Policing Dissent: Social Control and the Anti-­G lobalization Movement Mike King, When Riot Cops Are Not Enough: The Policing and Repression of Occupy Oakland Timothy R. Lauger, Real Gangstas: Legitimacy, Reputation, and Vio­lence in the Intergang Environment Margaret Leigey, The Forgotten Men: Serving a Life without Parole Sentence Andrea Leverentz, The Ex-­P risoner’s Dilemma: How W ­ omen Negotiate Competing Narratives of Reentry and Desistance Clara S. Lewis, Tough on Hate? The Cultural Politics of Hate Crimes Michael J. Lynch, Big Prisons, Big Dreams: Crime and the Failure of Amer­i­ca’s Penal System Liam Martin, The Social Logic of Recidivism: Cultural Capital from Prisons to the Streets Allison McKim, Addicted to Rehab: Race, Gender, and Drugs in the Era of Mass Incarceration Raymond J. Michalowski and Ronald C. Kramer, eds., State-­Corporate Crime: Wrongdoing at the Intersection of Business and Government Susan L. Miller, Victims as Offenders: The Paradox of W ­ omen’s Vio­lence in Relationships

Torin Monahan, Surveillance in the Time of Insecurity Torin Monahan and Rodolfo D. Torres, eds., Schools ­under Surveillance: Cultures of Control in Public Education Ana Muñiz, Police, Power, and the Production of Racial Bound­aries Marianne O. Nielsen and Linda M. Robyn, Colonialism Is Crime Leslie Paik, Discretionary Justice: Looking Inside a Juvenile Drug Court Anthony M. Platt, The Child Savers: The Invention of Delinquency, 40th anniversary edition with an introduction and critical commentaries compiled by Miroslava Chávez-­G arcía Lois Presser, Why We Harm Joshua M. Price, Prison and Social Death Diana Rickard, Sex Offenders, Stigma, and Social Control Jeffrey Ian Ross, ed., The Globalization of Supermax Prisons Dawn L. Rothe and Christopher W. Mullins, eds., State Crime, Current Perspectives Jodi Schorb, Reading Prisoners: Lit­e r­a­ture, Literacy, and the Transformation of American Punishment, 1700–1845 Susan F. Sharp, Hidden Victims: The Effects of the Death Penalty on Families of the Accused Susan F. Sharp, Mean Lives, Mean Laws: Oklahoma’s W ­ omen Prisoners Robert H. Tillman and Michael L. Indergaard, Pump and Dump: The Rancid Rules of the New Economy Mariana Valverde, Law and Order: Images, Meanings, Myths Michael Welch, Crimes of Power and States of Impunity: The U.S. Response to Terror Michael Welch, Scapegoats of September 11th: Hate Crimes and State Crimes in the War on Terror Saundra D. Westervelt and Kimberly J. Cook, Life a­ fter Death Row: Exonerees’ Search for Community and Identity