BY KATHERINE M.B. OSBURN, PH.D.
In 1727, an Abenaki named Panaouamskeyen replied to demands for submission to the British sovereign:
Yes, I recognize him as King of all his lands; but ... do not hence infer that I acknowledge thy King as my King, and King of my lands. Here lies my distinctionmy Indian distinction. God hath willed that I have no king, and that I be master of my lands in common.
Panaouamskeyen's words remain relevant 266 years later, as the Abenaki continue to struggle for self-determination in relation to the United States and the state of Vermont. The Abenaki have recently experienced a setback in their bid for official recognition as a juridical entity. This event corresponds to a similar case of the Miami Nation of Indiana which, in the last year, was denied recognition of its existence by the United States. Their stories together reflect the contradictions inherent in the statist control of defining the national identity of indigenous peoples.
The Abenaki Nation of Missisquoi is located in north-western Vermont, on the shores of the lake which Euro-Americans call Lake Champlain and which the Abenaki named Betawbagok. Archeological evidence indicates an Abenaki presence there for well over 10,000 years. Originally, Abenaki territory reached from the Atlantic Ocean to the western rivers of present- day Vermont, and ran from what is now Canada into present- day northern Massachusetts.
The Abenaki probably came into contact with European fishermen early in the 16th century, but Europeans did not begin settling in Vermont until around 1724. During the 17th and 18th centuries, the French, British, and Dutch competed for Abenaki loyalties in trade and warfare; the Abenaki conducted relations with all of the European colonialists. As British settlers continually encroached on their lands, the Abenaki allied themselves with the French and were drawn onto the losing side of the so-called "French and Indian Wars" for control of the continent.
The final defeat of the French in 1760 left the Abenaki without a strong ally, resulting in the erosion of the Abenaki land base under British rule. The Abenaki were further dispossessed of their lands after the American Revolution, when settlers of the new United States overran their territory. Many Abenaki resettled in the west, but a large number remained in Vermont, where they survived by withdrawing into a closed community and adopting European material culture in an attempt to "blend in" with the surrounding settler population.
Throughout their struggles with Europeans and Americans, the Abenaki continually took the initiative in diplomatic relations, appearing before government officials to voice their concerns and present their demands. In all negotiations, the Abenaki proved themselves skillful diplomats. A careful reading of the treaty documents concluded with the British indicates that the Abenaki never intended to surrender their sovereignty to either the British or, later, to the Americans. Panaouamskeyen's quote cited above illustrates this point explicitly.
The Abenaki pursuit of peaceful co-existence and their demand for compensation for lost territory has been a response common to many native peoples faced with Euro-American encroachment. However, like certain other Indian peoples (especially those of eastern North America) who were recognized and treated as nations by the British colonial government, the Abenaki were never recognized as a nation by the U.S. government. Further west, in what is present-day Indiana, the Miami Nation pursued a similar strategy and endured a similar experience.
Like the Abenaki, the Miami sided with the French in wars against the British, but were more successful in achieving recognition as a self-determining nation. They had managed to maintain a relatively greater amount of neutrality during the French and Indian War (due in part to their location further west), and they escaped the most devastating effects of that war. Again, it was after the British finally defeated the French, in 1763, that Miami sovereignty began to erode more rapidly.
The Miami had a well-developed concept of their right to control their homelands. They had allowed the French to have tenancy within certain territories, but had not transferred title to them. The French, for their part, did not presume to hold title over Miami lands. The British, however, assumed that the Treaty of 1763, which ended the French and Indian War, had given them control over that territory. The Miami believed that the British would hold the same kind of tenancy rights as the French, but soon discovered otherwise.
At first, the British acknowledged Miami sovereignty within their traditional homeland. The Proclamation of 1763 (which followed the treaty) forbade settlers from moving into the old "Northwest Territories" without proper negotiation and compensation to the native nations (including the Miami) located there. The settlers, however, ignored that proclamation and moved onto those lands, anyway.
As a result of the white invasion, pan-Indian resistanceled by the Delaware prophet Neolin, in 1761, and the Ottawa leader Pontiac, in 1763flared up throughout the old Northwest, including in Miami territory. The Miami were faced with a situation of great complexity in the choice of how best to ensure their survival as a nation. They refused to be forced into choosing sides in the Pontiac Wars, however, and shifted allegiances from the British to the allied Indian forces, depending on the relative advantages of the moment. Despite their attempts generally to avoid the conflict, the Miami lost much of their original territory as a result of the warfare.
The Treaty of Fort Stanwix, which ended hostilities in the region in 1768, pushed the border of Miami territory further west and resulted in the usurpation of thousands of acres of Indian land to European squatters. As compensation, the British promised to protect the remaining Miami lands from encroachment. The Miami accepted this treaty as their final concession to the British, and based all their subsequent diplomacy and warfare on its terms.
In 1784, the newly-formed U.S. government attempted to renegotiate the Fort Stanwix Treaty with many of the Indian nations in the old Northwest. The Miami, fearing the loss of more lands, refused to consider revision of the agreement. Later, in 1792, the United States tried to argue that its victory in the Revolution had negated the Treaty of Fort Stanwix and gave it control over Miami lands. The Miami chiefs responded succinctly that the American claim to Miami lands, based on a transfer from the British King, was "an affair which concerns you and him, and not us. We have never parted with such a power." The United States then grudgingly acknowledged Miami sovereignty and agreed to uphold the Fort Stanwix Treaty. It failed to do so, however, and Americans flooded into Miami land, paying some compensation according to terms of the 1795 Treaty of Greenville, Ohio.
Under the unrelenting pressures of invasion, the Miami, their relatives (the Piankashaw, Kaskaskia, Wea, Eel River, Kickapoo, Delaware, and Shawnee Nations) and other nations in the region (including the Wyandot, Ottawa, Chippewa, and Potawatomi) were subsequently compelled to negotiate a succession of treaties with the U.S. government over lands which were ceded piece by piece until they became the states of Ohio, Indiana, Illinois, Michigan and Kentucky. The United States violated all of those treaties, however (although they still exist today as binding documents of international law). Consequently, faced with the same impossible situation experienced by the Abenaki in Vermont, many Miamis adopted a strategy of "blending in" with the surrounding settler population.
In contrast to the Abenaki, the Miami peoples were clearly recognized as a nation by the United States. In 1841, however, their resistance was diminished due to the continuing usurpation of their lands, and finally the Miami government reluctantly agreed to move the majority of the population to "Indian Territory" (which later became the state of Oklahoma, when it, too, was taken by the United States from the many different Indian nations forced to move there, as well as from thoselike the Osage, Pawnee and Comanchewhich were indigenous to those lands).
Although a small number of Miami remained in Indiana, the federal government recognized only the relocated Oklahoma Miami as the "real Miami." The United States considered the Indiana Miami "absent members" who deserved recognition as individual Indians but without a collective juridical identity in their own right. This dual policy led to a long-standing dispute, which remains unresolved today, between the Oklahoma and Indiana Miami over which fraction of the original nation was and is legitimate.
In 1854, the federal government pronounced the Indiana Miami part of the official "tribe" and authorized a "council" to represent them. In 1871, however, Miami land in Indiana was allotted and the U.S. government declared the Miami people to be U.S. citizens. Then, in 1897, an administrative order of the Interior Department proclaimed that all Miami who did not go to Oklahoma at that time were no longer to be considered part of the "tribe."
By the 20th century, then, both the Abenaki and the Miami found themselves in similar straits with respect to the U.S. government. Neither group had the federal recognition necessary to be eligible to receive Bureau of Indian Affairs (BIA) funds. Because their sovereignty as indigenous nations had not been recognized, they retained little if any control over their traditional lands and resources. Both the Abenaki and the Miami resisted being so disempowered, however, and have continued to do so consistently over the years.
In recent years, both nations have claimed their sovereignty in several ways. They have declared the right to hunt and fish in their traditional homelands without state licenses, sought to regain control over at least part of their traditional lands, run "self-help" programs for education and job training, and exercised their authority as sovereign juridical entities. With respect to this last issue, both nations have undertaken the arduous process of attempting to achieve official governmental recognitionthe Abenaki with both the state of Vermont and the federal government, and the Miami with the federal government alone. An examination of this struggle reveals major disagreements between Euro-American and indigenous interpretations of the impact of history on native sovereignty, while highlighting BIA contradictions with respect to its own recognition policy.
Until the 1970s, the Abenaki continued to isolate themselves in their own communities. Then, in 1972, influenced by the increased political activism of indigenous peoples throughout the Western Hemisphere, the Abenaki established a "Tribal Council" and declared themselves a nation. They petitioned the state of Vermont for hunting and fishing rights in 1976. That same year, the Abenaki won their most significant concessions from the state of Vermont, when the governor, Thomas P. Salmon, designated the Abenaki an "Indian tribe." The order created a commission to "study their problems" and "review their claims" to aboriginal hunting and fishing rights. It noted that the modern Abenaki traced descent from an aboriginal nation, that they had a government, and that the Canadian government had recognized the Abenaki of Canada. It did not concede any particular obligation to restore Abenaki rights or resources, however.
The relative progress was short-lived, for the next administration revoked Salmon's order the following year. Republican Governor Richard A. Snelling prefaced his revocation with a patronizing paragraph noting that the state of Vermont was "aware of problems common to persons of American Indian heritage" in Vermont. He created yet another commission to advise him of discrimination against Indians, assist them in obtaining social services and gather information "of use and interest relating to Indian affairs." Without a single word of justification, he revoked Governor Salmon's Executive Order 36, which had recognized the Abenaki under the federal definition of a "tribe."
In response, the Abenaki staged fish-ins and issued their own license plates marked "Abenaki Nation of Missisquoi," which led to the arrests of many Indians and their supporters. In 1989, Vermont Judge Wolchik upheld Abenaki aboriginal title to a portion of their homeland, and dismissed charges against the fish-in and license plate defendants. Wolchik further ruled that the state could not appeal against any Abenaki defendants. The state circumvented Wolchik's edict against appeal by prosecuting defendants who did not meet the judge's definition of who was Abenaki.
In 1992, in State v. Elliot, the Vermont Supreme Court reached the debatable conclusion that Abenaki aboriginal rights had been extinguished by "the increasing weight of history." According to the Court, the establishment of the state of Vermont in 1791 had negated Abenaki claims, even though there had never been any kind of treaty or agreement of cession.
Following this ruling, Vermont reopened its cases against the Abenaki who violated state game laws and tagged their cars with Abenaki license plates. Then, in the spring of 1993, Vermont suddenly reversed its policy again. The state dismissed charges against the majority of defendants and passed a bill granting the Abenaki "cultural recognition" by the Historical Preservation Division of the Vermont government. This bill allows the preservation of Abenaki archeological artifacts and sites, and declares the first week of May to be "Abenaki Cultural Heritage Celebration Week."
Some Abenaki are cautiously optimistic about these developments. Others interpret state concessions to their "heritage" as condescending, and they are unhappy that the state of Vermont did not provide funding for any of the week's activities. Nevertheless, they all witnessed a tremendous response to the programs of Heritage Week. People came from all over Vermont to learn about the Abenaki and demonstrate support for the tribe. Tribal Attorney Michael Delaney noted that harassment of Abenakis for fishing and driving with Abenaki plates has dropped off during the last month. He believes the state government may now actually be sincere in its desire to communicate with the Abenaki.
At the same time that the Abenaki were wrestling with the Vermont government over their aboriginal rights, they were also pursuing BIA recognition of their nation under the federal definition of a "tribe." Recognition involves exhaustive documentation to meet seven criteria established by the BIA. The "tribe" must prove that: "from historical times to the present," it has been identified as Indian; is a community distinct from surrounding communities, or descends from Indians of a specific homeland; and that it holds political authority or influence over its members. The tribe must submit a copy of a governing document and/or criteria for membership, list all current members (who must trace descent from the historical tribe), document that members do not belong to any other tribe and show that the tribe has not been terminated by Congress.
Evidence may come from federal authorities, state or local governments, church or school officials, anthropologists or historians, newspapers and books, or national Indian organizations. All materials are evaluated by a team of historians, anthropologists and genealogists in the BIA's Branch of Acknowledgment and Research (BAR). The BIA contends that its criteria for "acknowledgment" were legitimately established after more than 400 consultations with representatives of numerous Indian nations.
After preparing the required documentation, the Abenaki filed a petition with the "acknowledgment" office in 1984 and updated it in 1986. A senior historian at the BAR noted that they had an excellent case and would most likely have received federal recognition. In 1989, however, the Abenaki suddenly withdrew their petition, when the BIA sent their confidential membership list to the state of Vermont, in violation of BIA's own regulations. Due to the ongoing harassment of its members by Vermont officials, the Tribal Council sued for return of the materials, and the court ruled in its favor. The petition for recognition remains on hold until the Abenaki decide to reactivate it.
The Abenaki have now taken their case to the United Nations Working Group on Indigenous Rights to seek international recognition. Current Tribal Chief Homer St. Francis argues that the international arena is the proper forum for debate on this topic, in order for the Abenaki to remain a sovereign nation regardless of U.S. recognition. In that arena, the Abenaki claim is based on the treaties concluded with the British, which, as mentioned above, confirm not that the Abenaki ever officially surrendered their national rights, but only that those rights were never recognized by the United States. After their nation was overrun, the Abenaki did not conduct official political relations with the United States, because the United States refused to carry on those political relations. Despite that refusal, the Abenaki did continue to maintain a clearly documented political identity.
In contrast, the Indiana Miami, who actually were recognized through treaty as a nation by the United States, have ironically been unable to demonstrate their continued political existence to the BIA's satisfaction. The Miami proved that they were an identifiable national entity through presentation of a governing document and criteria for membership, demonstration that less than one percent of the tribe were members of another tribe, and documentation that they were not subject to termination legislation. They also produced a genealogy tracing their members to the 1889 and 1895 tribal census rolls. They met five of the seven mandatory criteria for recognition. They failed, however, to meet the other two, due to the effects of being colonized for so long.
While they could outline strong community ties until the 1940s, the Miami could not show that most of their population lived in a specific Indian community from historic times to the present. Because they no longer suffered from direct discrimination, and because they frequently married non-Miamis, the BIA ruled that there was no social distinction between the present-day Indiana Miami and the surrounding non-Miami peoples. Similarly, the Miami could not satisfy the Bureau that they had maintained significant political power or influence over the majority of their members after the 1940s.
According to the BIA, Miami leaders continued to have "a significant following," but their objectives were "somewhat limited," because they focused on recognition of juridical status and hunting and fishing rights, rather than on issues which the Bureau regarded as more politically significant. As examples of what behaviors it considered to be legitimate governmental functions, the BIA criticized the Miami for not being able to allocate resources, influence individual behavior, or provide economic assistance to the members. The BIA conceded that the inability to carry out those duties was indeed due to the loss of Miami lands after 1890.
The BIA decision illustrates the arbitrariness of its recognition procedure. The Miami were penalized for interacting with and marrying non-Miamis, as if their national existence, to be considered, required the eternal hostility of their neighbors. The Bureau dismissed the legitimacy of the Miami government because its activities have been reduced (through no fault of its own) to a struggle simply to exist. One might ask how the BIA could condemn the council for not allocating resources, exercising political influence, or providing economic assistance when the United States systematically denied the Miami the juridical status and resources necessary to carry out those functions. Miami elders have stated this very position, and they argue that their membership rolls are exceptionally well-maintained and should suffice to demonstrate their existence as a "tribe." They have recently filed a lawsuit against the BIA in protest of the decision not to acknowledge their identity.
Most distressing, from the Miami point of view, is the fact that the ruling dismisses previous recognition by the federal government itself, established by a treaty of 1854, the terms of which the Miami have never abandoned. Miami lawyers contend that unilateral dismissal of their status as an indigenous nation by the BIA is illegal. In response, the government cites as legal precedent United States v. Washington (1981), in which the Ninth Circuit Court concluded that prior treaty relationships do not imply that a present-day Indian nation can continue to count on having recognition by the U.S. government. A modern "tribe" (as defined by the BIA) is required to demonstrate that it has continued to function as a recognized juridical entity from the time of its initial recognition. In the Indiana Miami case, however, this would have been difficult, because their land base was broken up and allotted in 1871, and the BIA stopped treating them as a nation in 1897.
This ruling has important implications for other indigenous nations, for, in a significant clarification of its policy, the U.S. government has declared its power unilaterally to determine the juridical identity of indigenous nations, to suit its purposes at any particular moment. In an official statement (of the Bush Administration), Assistant Interior Secretary Eddie Brown asserted that the Miami ruling actually protects Interior's responsibilities to Indians from being "diluted or diminished," while he assured "acknowledged" tribes that they had nothing to fear. "To suggest otherwise," he concluded in a letter to The Oregonian on July 8, 1992, "is simply an inflammatory misrepresentation."
The fact remains that the Miami were indeed a "legitimate tribe." They entered a treaty relationship with the U.S. government as a legitimately recognized nation similar to other sovereign nations; the salient question is whether that relationship could ever legally be abrogated unilaterally by the United States. So, despite the BIA's reassurances, American Indians have reason to be concerned by the Miami ruling.
The Abenaki and Miami cases highlight several issues relevant to indigenous self-determination. First, in any analysis of aboriginal sovereignty, the indigenous perspective of history must be given consideration equal to that of the state. Neither indigenous nation treated here believed that it had ever surrendered its own sovereignty when its French allies were militarily defeated. Both nations continued to exist by self-definition, regardless of the government's opinion of their legitimacy. The U.S. government, however, regards the only correct historical interpretation to be that of the state.
Although the Abenaki are hopeful that their Cultural Heritage Week will
improve their dialogue with the Vermont government, their case also illustrates
a disturbing statist response to indigenous claims-acknowledgment of the
cultural and historical heritage of a "tribe" as a means of voiding
political recognition of a nation's contemporary juridical identity. State
governments willingly embrace the poor departed "noble savage,"
as a salv
e to liberal guilt. Once commitment to "preservation" of "tribal
culture and history" has been proclaimed, it becomes easier to dismiss
the continued presence of indigenous nations.
These cases also disclose the arbitrary nature of BIA decision making. Regulations note that the "tribe" need only have "historically inhabited a particular territory," not that it presently inhabit one. Thus, BIA denial of Miami claims on the grounds that they were "dispersed" is not legitimate under the very regulations defined by the government. Further, according to the BIA's own literature, current criteria rest on "social solidarity, political authority, [and] demonstration of ancestry," all of which the Miami have demonstrated. The BIA decisions make it clear that the federal government has monopolized control over determining what is acceptable "solidarity and authority," and that the state will exercise that control, without reference to the historical circumstances in which it deliberately undermined indigenous abilities to preserve social cohesion and political power.
For further information, contact:
Wabanaki International Sovereign Nation
Chief David A. Hill - Wawanolette
Wabanaki International Sovereign Nation
29 Cross Street
Newport, Vermont 05855 USA
802-334-2264
[email protected]
Or you can contact me:
Barry Stephen Newport "Poorneuf"Miami Nation of Indians of the
State of Indiana, Inc.
P.O. Box 41
Peru, Indiana 46970
phone 317-473-9631.
REFERENCES
Secondary Sources
Bert Anson, The Miami Indians. Norman: University of Oklahoma
Press, 1969.
Copyright © 1997, 2004
Barry Stephen Newport "Poorneuf"
P.O. Box 12696
Cleveland, Ohio 44112 USA
216-249-2533
[email protected]