Ilya Somin reconsiders federalism and the protection of individual freedoms.
The New Trail of Tears opens with the question, “What does America owe Indians?” and closes with the response, “To make them equal Americans.” Between the question and the answer lies a brisk and substantive review of a dysfunctional relationship between federal law and Indian life in the United States. More precisely, it should be noted that the dysfunctional relationship subsists between the federal government and the Indian reservations it maintains. For Riley does not fail to make clear that insofar as Indians live apart from the reservations their lives and fates (with one dramatic exception) do not differ from those of other Americans. And the dramatic exception serves to underscore all the dysfunction that occurs in the reservation/apartheid system: federal law empowers recognized Indian tribes to assert jurisdictional authority over children born to Indians anywhere in the United States, on or off the reservation.
The title of this work invites a return to the scenes of horror that accompanied the mass westward migrations imposed upon Cherokees, Choctaws, Chickasaws and others in the era of Andrew Jackson. It would be a mistake, however, to think of this as a re-telling of that ancient history. For Riley’s thesis is that, incredible though it may seem, the United States made things still worse in the 20th century. The difference between the 19th and the 20th centuries is that the depredations of governmental policy and practice in the latter era have been consistently undertaken under the guise of paternal care rather than overt abuse. Who would believe it? The Americans who ignored treaty obligations and the basic rights of humanity in dealing with Indians in the 19th century nevertheless acted with less inhumanity than their successors. The former at least acted without the hypocritical pretense of doing favors for the Indians (despite the affectations of John C. Calhoun and others), whereas the latter destroy while pretending to sustain.
Riley attempts to make sense of these contradictory dynamics in the specific context of contemporary life on Indian reservations, where, it is well recorded, pervasive unemployment, addiction, criminal violence, sexual abuse, neglect of children, nepotism, and denial of basic civil rights are the rule rather than the exception. She implies that there is nothing intrinsic to Indian culture in North America (she covers Canada as well as the United States) that can explain these conditions. Moreover, they recur so commonly over vast geographic, cultural, and social ranges that the very phenomenon begs for an explanation that isolates the common factor underlying consistent patterns in diverse environments. That common factor is public dependency, cultivated by deliberate policies of subjecting Indians to indirect control over their lives by remote agencies (even if those agencies came mainly to be staffed by Indians).
And that is the great strength of The New Trail of Tears. Riley brings the reader face-to-face with real human stories in diverse environments. Nor is this a panorama from 35,000 feet. It is rather a deep dive into climes as diverse as the Northwest, the Southwest, the Plains, the North East, the South and even British Columbia and other Canadian regions. She traveled widely, identifying reformers and resisters everywhere she went and consistently finding that the reformers lose. They lose to bureaucracies in the U. S. and in Canada, and they lose to the dynamics of social dysfunction in tribal lands. The account identifies specific voices—perhaps most notably Ben Chavis from Lumberton, North Carolina. And their stories converge in expressions of thwarted hopes. She observes in one vignette that “there’s so much guilt about racism, about what was done to these communities in the past, that they [governments] don’t want to shine a light on crimes taking place now. But the truth is that, in the name of protecting these communities, we’re failing to protect their most vulnerable members.”
Most incisively, though, Riley nails the syndrome in its most comprehensive form: destruction of the impulse toward self-sufficiency:
If you live in a place where there are no jobs and no access to capital, not working becomes the norm. Any entrepreneurial impulse you have is quickly squelched. If you live in a place where the only jobs to be had are publicly funded and given out as rewards by political leaders, then nepotism (and the resulting corruption) becomes the norm. If you live in a place where the people who become school teachers are there because they’re related to someone in tribal government, you start to lose respect for educational enterprises. If students who fail classes end up graduating anyway because of their family connections, school starts to seem pointless. And if you do work hard in school but find that it gets you nowhere afterward, you and the people around you start to wonder what the point of education is at all. In other words, Indians, just like all people, respond to the economic incentives and political conditions around them.
Now contemplate what becomes of life when, in these circumstances, basic rights are not protected by law, matters as fundamental as familial integrity are subordinated to corporate imperatives, crimes are not prosecuted, and property cannot be securely possessed. In short, consider the consequences for individuals when the rule of law has been abandoned. If that does not sound like the sum of political and social evil, add only the realization that such conditions are imposed under the guise of legal authority.
The combination of Congress’s asserted “plenary authority” to govern Indian tribes and the immunizing effects of so-called “tribal sovereignty” forms the petri culture in which all the ills here enumerated are cultivated. Riley is careful to identify these false foundations of Indian law, but this is not a book of legal analysis. It is a book of human dramas crafted by misinformed, negligent, and ill-intentioned law makers stretching back over a century. But the systematic demonstrations of these foundations are available. Riley quotes the present author at some length (which perhaps would be reason for him not to write this review, except that the failure to quote his work would equally be reason not to do so), and the basis of the quoted observations points securely to conclusions that should no longer be resisted.
After one has read The New Trail of Tears and been moved to call for an accounting, it would perhaps be timely to recover the full historical review (link no longer available). And if one does not think it enough to answer the query, “what does America owe Indians?” by identifying the Indians’ title to the fundamental rights of American citizenship, perhaps one will be moved by the further reflection that what we owe to the Indians is in fact what we owe to ourselves. For Congress’s assertion of “plenary power” over Indian tribes could not, and did not, fail to recur as an assertion of plenary power over Americans altogether.
The Supreme Court in 1937 did just that in NLRB v. Jones & Laughlin when it interpreted the interstate commerce clause of the Constitution: “That power is plenary and may be exerted to protect interstate commerce no matter what the source of the dangers which threaten it.” This is not the place to elaborate the incompatibility of “plenary power”(not the same as “exclusive jurisdiction”) with limited government, but it may serve if we at least pause to wonder how far what we permit the federal government to do to Indians expresses what we are prepared to suffer ourselves. The tears in The New Trail of Tears may become the tears for lamented American liberty rather than the tears for Indians if Americans persist in this course.