Repeating the Mistakes of the Past in “The New Trail of Tears”
By Matthew L. M. FletcherOctober 21, 2016
The New Trail of Tears by Naomi Schaefer Riley
Grand Traverse Band’s success story (full disclosure, I am a tribal member and judge) has been shared by hundreds of Indian tribes in the decades since the 1970s. The Cherokee Nation of Oklahoma, the Mississippi Band of Choctaw Indians, the Poarch Band of Creek Indians, the Suquamish Indian Tribe, Southern Ute Tribe, and the Pascua Yaqui Tribe of Arizona are representative of the hundreds of tribes that have brought themselves back from abject poverty and hopelessness — and from the brink of extinction — since the 1970s. They have become viable and important governmental, economic, and cultural centers. Verifiable tribal success stories from all over Indian country can be found many places; on the website of the Harvard Project on American Indian Economic Development, for example, or in Charles Wilkinson’s books on the Menominee Tribe and the Siletz Tribe of Oregon.
Naomi Schaefer Riley’s The New Trail of Tears doesn’t talk about any of these tribes or about self-determination. Instead, in Riley’s world, Indian people are uniformly sad and angry, shaking their heads at the hopelessness of their situations. In Riley’s alternate universe, the Bureau of Indian Affairs dominates reservation life, sucking the entrepreneurial spirit from Indian people, who have no agency in their own lives. She sees today’s Indian country as a model of “central planning,” as a perverse combination of Soviet-style government and state-owned industry.
Riley’s descriptions of Indians evoke stereotypes of lazy, drunken Indians. In her world, Pine Ridge and Rosebud reservation residents’ pitiful lives revolve around government handouts, and Seneca children are so rich they buy candy with $100 bills. Claims that Indians wallow in their own misery are belied by current events, such as the South Dakota tribes that have organized effectively enough to shut down the Keystone XL and Dakota Access pipelines, drawing global support in the process. Riley instead quotes Lumbee Indians and their Robeson County neighbors as saying that more tribal money would just mean more alcoholism. It’s all dog-whistle politics in The New Trail of Tears.
Riley’s analysis relies upon non-Indian free-market advocates and anti-government think tanks. She uses this one-sided approach to develop a theory that the best thing for Indian people is to dismember their governments and liquidate their reservation and trust lands. Only then, she writes, will Indian people benefit from the “magical force” of private property. These 19th-century assimilationist ideas would terminate Indian tribes, destroying what little is left of Indian country.
Riley calls out several tribes for their failures — the Seneca Nation of Indians, the Oglala Sioux Tribe, the Rosebud Sioux Tribe, the Crow Nation, and the Northern Cheyenne Tribe. She uses the Lumbee Tribe in North Carolina for comparison because the federal government doesn’t formally recognize the tribe. But based on some of these tribes’ recent advances toward self-determination, the vast majority of their citizens would chafe at being held up to Riley’s cramped worldview.
The Seneca Nation is an especially strange vehicle for her argument, in that the tribe has a billion-dollar gaming enterprise and a long and storied history of economic creativity: tobacco products import-export businesses, for example, that have been operated by its individual members for decades. The federal government flooded most of the tribe’s best land to make way for the Kinzua Dam in the mid-20th century. But now Seneca is one of the key economic engines in western New York. Riley chooses to demonize the tribe, comparing its leaders to the authoritarian sheikhs of Saudi Arabia rather than successful entrepreneurs.
Riley also alleges that the Bureau of Indian Education and tribal education leaders are corrupt, and that they have failed their students. She wonders why more Indian children are not educated in private boarding schools, far from their reservation homes, ignoring the brutal history of Indian boarding schools. Moreover, two of her significant sources, Keith Moore and Stacy Phelps, both education consultants in Indian country, have a vested interest in damning the government since their businesses are routinely in hot water. Moore has been a subject of a federal investigation, and Phelps has been indicted by South Dakota officials for aiding a massive corruption scheme in the state’s Indian education program that also involves Moore.
Riley’s largest blind spot is that she does not recognize that Indian tribes usually administer their own federal services, and that they have already begun the slow process of revitalizing their educational systems. She blames Indian gaming income for the lack of motivation she perceives in Indian children and their failures when they do go to college, ignoring the fact that many reservation students are the first in their family to attend college and that the atmosphere at many colleges and universities is pretty hostile to people of color.
Anyone with a gripe against Indians and Indian tribes finds a home in The New Trail of Tears. Riley quotes Mark Fiddler, a man who wants as many Indian children in foster care as possible, to criticize tribal child welfare programs instead of describing the horrors that Indian children too often face in non-Indian foster care. Riley highlights a Cato Institute report condemning a bloated Bureau of Indian Affairs for its 9,000 employees, ignoring that the Bureau has shrunk from 16,000 employees in the late 1960s because of tribal self-determination programs. Riley lionizes Ben Chavis, the radical, boot camp-style educator run out of Oakland for financial self-dealing. Conversely, she rips to shreds Cecelia Fire Thunder, the Lakota woman who stood up for women’s rights and offered to support a clinic on Indian lands when South Dakota attempted to ban abortion.
The New Trail of Tears also indiscriminately accuses the tribes — across the board — of rampant corruption, and does so without any hard evidence. As with other governments, some tribal governments may struggle with corruption, but tribes — and the federal government in the worst cases — usually respond effectively. But Riley instead cites “experts” like Phelps who have actually been indicted for aiding corruption against Indians.
Riley’s real interest is to bring unfettered free markets and “property rights” to Indian country. She suggests the disestablishment of tribal land holdings as the solution to imaginary corruption, as well as to all the other problems in Indian country. In other words, corruption and mismanagement starts with sovereignty and collective property, so if we get rid of both Indians will be better off. Unsurprisingly, Riley hearkens back to the allotment policies enshrined under the Dawes Act, a federal program in the 19th century that mandated the confiscation of Indian reservations by the federal government, followed by the liquidation of those assets at pennies on the dollar of their market value and their public sale to non-Indians on the cheap. It was a state-sponsored land grab of unprecedented proportions with negative effects on Indians still felt to this day. What an odd model for a property rights advocate! Allotment meant the dispossession of 100 million acres of Indian lands from 1887–1934 and economic devastation from which most tribes have not, and maybe cannot, recover. The depredations of the Dawes Act are a major reason why federal law and policy was reoriented to protect tribal lands and sovereignty, yet Riley’s ahistorical analysis ignores all of this.
Maybe the worst omission in The New Trail of Tears is ignoring what may be the saddest story in Indian country, that of the Oglala and Rosebud Sioux Tribes of the Black Hills. The Obamas visited there a few years back and were shaken to core by what Lakota children told them candidly in a private meeting about suicide and violence. Riley mocks that visit. Those tribes and other Sioux tribes have refused more than a billion dollars from the United States that sits in a Treasury Department trust account, the acceptance of which would mean they could never return to the Black Hills. Reading The New Trail of Tears without that context, the reader might not realize that the true homeland of these tribes is the Black Hills, not the hardscrabble dirt of their current reservations. The Grand Traverse Band has the Grand Traverse Bay and the Great Lakes. But the Oglala and Rosebud communities are part of a larger tribe exiled from its homeland. The New Trail of Tears widely misses the mark by failing to realize that for many tribes, the land, not the quick cash, is the real property in question.
Riley’s book will appeal to anyone who is reflexively hostile to government and tribal sovereignty. But to anyone versed in actual tribal–federal relations, in what economically successful tribes are actually doing, or in the real, but nuanced challenges of governance in Indian country will see this book for what it is: a modern-day screed that promotes the very ideas that led to some of the most disastrous policies toward Indians in American history.
Matthew L. M. Fletcher is Professor of Law at Michigan State University College of Law and Director of the Indigenous Law and Policy Center. He is a citizen of the Grand Traverse Band of Ottawa and Chippewa Indians and a tribal judge.
Matthew L. M. Fletcher is professor of Law at Michigan State University College of Law and Director of the Indigenous Law and Policy Center. He is a member of the Grand Traverse Band of Ottawa and Chippewa Indians, located in Peshawbestown, Michigan. He sits as the Chief Justice of the Poarch Band of Creek Indians Supreme Court and also sits as an appellate judge for the Grand Traverse Band, the Hoopa Valley Tribe, the Lower Elwha Tribe, the Nottawaseppi Huron Band of Potawatomi Indians, the Pokagon Band of Potawatomi Indians, and the Santee Sioux Tribe of Nebraska. With David Getches, Charles Wilkinson, and Robert Williams, Professor Fletcher co-authored the sixth edition of Cases and Materials on Federal Indian Law (Thomson West, 2011). His books include American Indian Tribal Law (Aspen, 2011), the first casebook for law students on tribal law; The Return of the Eagle: The Legal History of the Grand Traverse Band of Ottawa and Chippewa Indians (Michigan State University Press, 2012); and American Indian Education: Counternarratives in Racism, Struggle, and the Law (Routledge, 2008). His articles have appeared in American Indian Law Review, Arizona Law Review, California Law Review Circuit, University of Colorado Law Review, Harvard Journal on Legislation, Michigan Law Review First Impressions, Yale Law Journal Online, and many others, and he is the primary editor and author of the leading law blog on American Indian law and policy, Turtle Talk.
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