It’s More than Nuclear Issues, Native Americans Tell Activists

U.S.-Indian Conflict about Concepts of Property, Christian Supremacism

by MARK GABRISH CONLAN

Copyright © 2008 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

Photos, top to bottom: Ian Zabarte, Steven Newcomb

The August 29 “Matters of Controversy” program sponsored by the Peace and Democracy Action Group at the First Unitarian-Universalist Church in Hillcrest was billed as about Native American activism against nuclear weapons testing and waste disposal on Native American lands in Nevada. But speakers Ian Zabarte, foreign minister of the legally independent Western Shoshone nation whose territory covers much of the state of Nevada, and professor Steven Newcomb, author of a provocative new book called Pagans in the Promised Land, turned the meeting into a history lesson, tracing the U.S. oppression of so-called “Indians” back over 500 years to Columbus’s explorations and the papal bulls issued by the pope at the time, Alexander VI, who argued that both the people and the land of the western hemisphere were fair game for exploitation by the Christians of western Europe.

Zabarte began by explaining the Shoshones’ concept of land ownership, which is that land belongs to the tribe as a whole and not to individual property owners. “We cannot sell our land out from under our brothers and sisters and cousins,” he explained. “Nuclear weapons test sites have been created on our lands by force and trespass.” According to Zabarte, the U.S. claims ownership of the Shoshones’ land by virtue of the Treaty of Guadalupe Hidalgo, which ended the 1846-1848 Mexican war — but, he said, all this treaty did was fix the new boundary between the U.S. and Mexico after the U.S. conquered and occupied nearly half of Mexico’s territory (the current states of California, Nevada, Wyoming, Colorado and Texas). Zabarte pointed out that the treaty itself provided that neither the U.S. nor Mexico could keep Indians off their traditional tribal lands.

According to Zabarte, the cataclysmic events that affected the U.S. between 1848 and 1863 shaped U.S. relations with the Shoshone and enabled his tribe to get — at least on paper — the best deal any Native Americans ever got from the U.S. government. In 1857 the Comstock Lode was discovered in Nevada, keeping the western gold rush going after it had started petering out in California. In 1861 Abraham Lincoln took office as president and the U.S. Civil War started. The same year, Congress organized the Nevada Territory, but its founding document “specified that it would not include or infringe on the rights of Indians until the tribes themselves should signify their assent.”

Because of its need for money and resources to fight the Civil War, the U.S. was actually in a highly weak position when it dealt with the Shoshones in the early 1860’s, Zabarte said. At the start of the war, gold from California and Nevada had to be sent to San Francisco and from there shipped down the Pacific coast to Panama, carried over land through the Panamanian jungle (the Panama Canal wasn’t opened until 1914), then shipped again up the Atlantic coast to Washington, D.C., New York and other eastern cities. When one such ship, the U.S.S. Central America, sank 200 miles off the Carolina coast in 1857 and took down $100 million in gold (which wasn’t recovered until the wreck was discovered in 1989), it “caused the first stock-market crash in U.S. history,” Zabarte said.

Therefore, he said, when the U.S. government and the Shoshone Nation negotiated the Treaty of Ruby Valley in 1863, it was the Shoshone who had the U.S. over a barrel — not the other way around — Zabarte explained. The U.S. needed the gold from the Comstock Lode and a way to send it to the east over land instead of the roundabout and dangerous sea route. Zabarte described the 1863 treaty as an alliance, not a sign of conquest as most other U.S. “treaties” with Native American tribes were. The treaty, he said, “does not cede land to the U.S.” Instead, it gives the U.S. the right to use Shoshone land and provided “that the U.S. pay us $5,000 per year for 20 years” — payments, Zabarte added, that were never made. What’s more, after the war the U.S. acted as if it now owned the Shoshone land, moving its people there and extracting its resources.

Things got worse for the Shoshone in the 1950’s, when the U.S. chose Nevada as the site of nuclear weapons tests. Now the American government’s actions were not only taking away the Shoshones’ lands but directly threatening their survival, Zabarte said. “The U.S. has conducted 154 nuclear tests on Shoshone land,” he explained. “Sub-critical weapons tests continue. Every underground test leaks radioactivity. … Since I was 18 I have been dealing with nuclear issues. I saw my family dying. Nuclear weapons testing was killing my people, and they didn’t know how to deal with it. They were in denial. I started hearing the stories and I was mad. Something had to be done, and the first thing we had to do was change ourselves from victims to fighters.”

At least part of the problem for the Shoshone was that their population was too small to conduct the usual scientific tests “to prove a causal relationship between radiation and disease,” Zabarte explained. Instead, he said, “we talked about the things our people saw: the flash, the mushroom clouds, and several hours later the fallout. Our lifestyle forces us to eat the food in our garden, wild food, the game that we hunt. We burn deadwood for our homes and sweats, and [by doing so] we create an exposure pattern unique to our people. When we kill a deer we eat the whole animal, including the thyroid where radioactive iodine-131 concentrates.” Zabarte said the U.S. Department of Energy (DoE) used a “sheepherder’s model” to estimate the extent to which the Shoshone were being exposed to radiation from the tests, “and we had to create our own model,” under which the iodine-131 exposure of adults was seven to 15 times greater than DoE estimates, while for youths it was 15 to 30 times greater and for fetuses in utero it was 30 to 60 times greater.

As if living on ground zero for the U.S.’s nuclear weapons tests wasn’t bad enough, in the 1970’s the U.S. government began to look at Yucca Mountain, located on Shoshone land, as one of the sites to dump all America’s high-level nuclear waste. In 1987 the U.S. Congress officially fixed Yucca Mountain as the site for the nuclear waste dump in the U.S. — and Zabarte got involved in the campaign against it. What incensed him the most was the so-called “cultural resources” studies commissioned by the Department of Energy and carried out by the University of Michigan under a concept called “cultural triage.”

The word “triage” was first coined by the French military in World War I to decide which wounded soldiers should be treated by medical units. They divided the wounded into three groups: those who would survive even if they weren’t treated, those who would die even if they were treated, and those for whom treatment might make the difference. The term is still used in medicine — virtually all hospitals have “triage units” and “triage nurses” to staff them and make those to-treat-or-not-to-treat decisions — but, as Zabarte noted, it’s been extended to the cultural field as well.

“The U.S. is acting as broker for the commercial nuclear industry and determining which parts of my culture can and can’t be saved for the needs of the nuclear industry,” Zabarte said. “This is genocide, and it’s being conducted by the U.S. I have an obligation to explain this issue so you can confront your government. What nation signs treaties with smaller nations, violates their borders and conducts itself this way? I’m addressing this to Americans first because our futures are inextricably linked. I don’t want the U.S. out of my country.” Zabarte concluded his presentation by saying that, rather than wiping out traditional Native American culture, the U.S. should be looking towards it as a model for the “more sustainable ways of living” we need to adopt to avoid future energy and environmental crises.

Newcomb’s talk was largely an attempt to answer Zabarte’s question — why would the United States systematically break its treaties with its indigenous people and treat them as second-class citizens? He found his answer in 10 years of extensive research into a surprising source: the laws and decrees promulgated by the Vatican and the empires of Spain and Portugal in the early years after Christopher Columbus (whose last name, he noted, came from the same Latin root as the word “colonize”) made his so-called “discovery” of America in 1492. Indeed, he traced it even farther back than that, to the Old Testament and in particular those notorious passages (particularly in the Book of Deuteronomy) in which God actually orders the Israelites to commit genocide against the Philistines, Canaanites and other indigenous people of the Middle East who were in the way of their colonial ambitions.

“The [U.S.] federal Indian system finds much of its basis in the 1493 Papal Bull of Pope Alexander VI, which divided the world between Spain and Portugal and invited the monarchs of Aragon and Castile [the Christian kingdoms in northern Spain who drove out the Muslim Moors and created the modern Spanish nation] to ‘seek dominion over any lands, discovered and undiscovered,’ that were ‘not in temporal possession of Christian rulers.’” Discussing the meaning of the world “dominion” in this context, Newcomb explained, “It meant to subjugate, to force to pay tribute, to force into submission; to tame, to break the spirit of; to cultivate, colonize and filter out impunities. The fundamental focus is mining everything: people, land, resources, anything that will create more wealth for the principalities that govern the world. The Bull says, ‘All good things proceed from Him’” — a claim of divine sanction for imperialism and genocide — “and the Latin word for ‘government’ used in the document is ‘dominaciones.’”

What this meant in practice is that anyone who wasn’t a duly baptized Christian was not in fact human at all — and therefore their persons, their lands, their resources and anything else they had was fair game for their properly “Christian” conquerors. Newcomb cited the writings of Francis Lieber, a scholar who researched the legal bases for Christian imperialism and discussed a doctrine called terra nulles. “The term,” Newcomb explained, “means ‘null and void’ and refers to people who are pagan, heathen or unbaptized, and therefore they did not have legal existence under the laws of Christendom.”

According to Newcomb, this doctrine that non-Christians were not really “persons” and therefore their rights did not have to be respected got written into American law by the U.S. Supreme Court in the 1823 decision of Johnson & Graham’s Lessee v. M’Intosh. Native Americans weren’t parties on either side of this case, which turned on which white landowners were entitled to thousands of acres of land in Illinois: the ones who had purchased it from the Indian tribes who were occupying it when Illinois was “discovered” or the ones who had bought it from the U.S. government after Illinois became a state in 1818. Actually, as Newcomb points out in his book, the case was a sham — the parties’ landholdings weren’t anywhere near each other and the attorneys for one side hired the attorneys for the other — but the decision, written by the great Chief Justice John Marshall, was a sweeping declaration that Indians had no property rights that Christian whites were obliged to respect.

“On the discovery of this immense continent,” Marshall wrote for a unanimous Court in his Johnson opinion, “the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them [the Indians] as a people over whom the superior genius of Europe might claim an ascendancy.” According to Newcomb, Marshall didn’t specifically claim the Papal Bull of 1493 as a precedent for his decision, but he did cite a decree of English King Henry VII to the explorer John Cabot in 1496 “to discover countries then unknown to Christian people, and to take possession of them in the name of the king of England … thus asserting a right to take possession, not-withstanding the occupancy of the natives, who were heathens, and at the same time, admitting the prior title of any Christian people who may have made a previous discovery.”

According to Newcomb, the doctrine that, because they weren’t Christians, native Americans weren’t really people and therefore had no rights Christian whites were required to respect has been the guiding principle of all American law about Indians ever since. “The U.S. entered into a treaty with the Shoshone in 1863,” Newcomb explained, “but under the Johnson decision of 1823 they assume these are simply open public lands and the U.S. can stage nuclear tests and dump nuclear waste there with impunity.” Newcomb added that as recently as August 2001, at the United Nations Commission on the Elimination of Racial Discord hearings in South Africa, “certain committee members asked U.S. representatives how they interpreted the 1863 treaty. They said they interpreted it in the light of Johnson v. M’Intosh.”

Newcomb cited one particularly convoluted ruling by the Indian Claims Commission, a quasi-judicial U.S. government agency, in 1923 that is claimed as the basis for the idea that the U.S. government “owns” Yucca Mountain and therefore can dump nuclear waste there without the Shoshone having any say in the matter. “It is clearly on Shoshone land,” he explained, “but the Indian Claims Commission ruled it had been taken by ‘gradual encroachment.’ One of the most interesting things about that is that ‘encroachment’ means ‘trespassing.’ When assistant U.S. attorney general John O’Connell made his argument before the U.S. Supreme Court, he was asked how the Shoshone lost their land, He answered that they had never had ‘fee title’ but just the right to ‘roam and wander,’ and [they lost those rights] once mines, ranches, telegraph lines and railroads were established. But all these were explicitly permitted in the 1863 treaty, and the commissioners made a corrupt ‘decision’ and now it’s called ‘the law.’”

The bottom line for both Zabarte and Newcomb is that not only are non-native Americans the beneficiaries of genocide against the Indians, the genocide is still going on — and until the American people face up to it, use their rights as citizens of a republic to demand that it stop, and make amends, in Newcomb’s words, “this will not be corrected and will always be out of balance.”