Donald Trump and Andrew Jackson: More in common than just populism

U.S. President Donald Trump speaks in front of a portrait of former U.S. President Andrew Jackson. REUTERS/Kevin Lamarque
U.S. President Donald Trump speaks in front of a portrait of former U.S. President Andrew Jackson. REUTERS/Kevin Lamarque

Billy J. Stratton, University of Denver

At President Donald Trump’s request, a portrait of former President Andrew Jackson now hangs in the Oval Office. Commentators have cast Trump’s populist appeal and inaugural address as “Jacksonian,” while others have tried to emphasize their major differences. One writer lauded Jackson as “the president who, more than any other, secured the future of democracy in America.” The Conversation

However, these comparisons overlook experiences of marginalized people while defining history in terms of the ideologies of progress and American exceptionalism.

Jackson’s intolerant attitudes and harsh treatment of African-American and Native American peoples have not gone without mention. They are indeed inescapable. As a scholar who has written about Native American history and literature, I am aware of just how often the perspectives of native people are neglected in conventional historical discourse.

The criticisms Trump has directed against Indian casinos in the 1990s, along with his insult of calling Senator Elizabeth Warren “Pocahontas,” casts his veneration of Jackson in a particularly disturbing light.

Andrew Jackson and the Trail of Tears

Jackson was a staunch supporter of slavery and policies that forcibly removed Indians from their lands. The passage of the 1830 Indian Removal Act was aimed at isolating native peoples to prevent conflict over territory and allow increased settlement.

The solution, originally conceived by Thomas Jefferson, was to empower the government to evict native peoples living east of the Mississippi River from their lands. Those subjected to removal would be moved “beyond the white settlements” to distant reservations in the West, known at the time as “Indian territory.” It was a form of segregation.

R. Ridgway, engraving, c.1859, Muscogee Creek Chief William Weatherford surrenders to Andrew Jackson after the 1814 Battle of Horseshoe Bend. As a result, Jackson forced the Creek to cede over 20 million acres of land in Alabama and Georgia, including almost two million acres claimed by Cherokee Nation, allies who had fought in support of Jackson’s forces.
Library of Congress

In 1832, the Supreme Court struck down Georgia laws aimed at depriving the Cherokee people of their rights and property in Worchester v. Georgia. The court affirmed a degree of native political sovereignty and annulled state jurisdiction over native lands. It was the final case of the so-called Marshall trilogy, named for Chief Justice John Marshall – the author of the majority decisions – and established major precedents of federal Indian law.

The immediate effect of the decision was to grant protections to the Cherokee Nation, and by extension to other tribes. It could have prevented forced removals, but Jackson was reportedly indignant at the result. According to the famed journalist Horace Greeley, Jackson was said to have responded, “John Marshall has made his decision, now let him enforce it.”

Whether Jackson spoke those words has been contested by historians ever since. But his strong support for removal policy and subsequent refusal to enforce the court’s decision made his position clear. The response was a stern rebuke of the legitimacy of the Supreme Court, the doctrine of the separation of powers, the rule of law and ultimately the Constitution.

The result was the Trail of Tears, in which Cherokee and other native peoples of the Southeast were forced at gunpoint to march 1,200 miles to “Indian territory.” Thousands of Cherokee died during the passage, while many who survived the trek lost their homes and most of their property. Ironically, much of the land on which the Cherokee and other removed tribes were settled was opened to homesteading and became the state of Oklahoma some 60 years later.

Yet, the violent manner by which removal was carried out had been ruled illegal and unconstitutional by the Supreme Court in the Worchester case.

New assault on native rights?

The new administration is showing similar malice toward the legal status and rights of native peoples secured in American law. For example, Trump recently lifted President Obama’s injunction halting the construction of the Dakota Access Pipeline. Last week’s eviction of pipeline opponents from Sacred Stone Camp, led by the Standing Rock Sioux Nation, under threats of arrest has led to renewed uncertainty about native rights.

Statements by Trump’s advisers and government officials calling for the privatization of native lands guaranteed by treaties to seize valuable natural resources have only heightened these concerns.

This rhetoric echos policies that oppressed native people in the past. These include allotment, extending from 1887 to the 1930s, which eliminated communal ownership and led to the taking of millions of acres of native land. This was followed by termination and relocation of the 1950s, aimed at eliminating the legal status of native people while sending individuals from reservations to urban areas, further depriving native peoples of their lands, liberty and culture.

Native treaties are unequivocally assured in Article 6, the Supremacy Clause, of the U.S. Constitution. It states: “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land…”

Tribal leaders negotiated treaties in good faith to reserve what amounts to a fraction of their original lands, with all attendant rights. Privatizing tribal lands would be a violation of these treaties.

The casual rejection of these covenants heighten the insecurity among native people evoked by Trump. His esteem for Jackson and their shared attitudes toward their legal rights and status should give us pause. That journalists and historians continue to offer positive views of Jackson’s presidency in light of this legacy underscores how the suffering of native people continues to be ignored.

Billy J. Stratton, Professor of contemporary American literature and culture; Native American studies, University of Denver

This article was originally published on The Conversation. Read the original article.

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How will Native Tribes Fight the Dakota Access Pipeline in Court?

After the Army Corps of Engineers approved an easement for the North Dakota Pipeline, two tribes requested – unsuccessfully – to halt construction while their lawsuit over the project is resolved. AP Photo/Susan Walsh
After the Army Corps of Engineers approved an easement for the North Dakota Pipeline, two tribes requested – unsuccessfully – to halt construction while their lawsuit over the project is resolved. AP Photo/Susan Walsh

Monte Mills, The University of Montana

On Feb. 8 the U.S. Army Corps of Engineers reversed course and issued an easement allowing the installation of the Dakota Access Pipeline under Lake Oahe in North Dakota. That decision followed a presidential memorandum indicating that construction and operation of the pipeline would be in the “national interest,” and set the stage for a final showdown over the pipeline’s fate.

In response, two Indian tribes, the Standing Rock and Cheyenne River Sioux, filed new motions to halt the pipeline’s construction and operation. After an initial hearing on those motions, the federal judge on the case allowed construction to proceed but will be considering the Tribes’ claims before oil will pass through the pipeline under Lake Oahe. That means, unlike the voices of thousands who joined the Standing Rock Sioux Tribe in protest against the pipeline, the next chapter of this fight will be argued by a few lawyers in the pin drop silence of a federal courtroom.

Although the details of those arguments will be complex, as a legal scholar focused on Native American law I see the case addressing an essential question at the heart of our legal system: namely, how does federal law and judicial process protect the fundamental values and structure of the Constitution?

The central issues in the case are now whether the U.S. Army Corps of Engineers’ approval of the pipeline and easement illegally interferes with the tribes’ religious beliefs and whether the corps adequately considered the tribes’ water and other treaty rights before issuing that approval.

Religious Freedom and Restoration Act

According to the Cheyenne River Sioux Tribe, oil running through the pipeline would represent the fulfillment of a generations-old prophesy, passed down through the oral traditions of tribal members, that warned of a Black Snake coming to defile the sacred waters necessary to maintain the tribes’ ceremonies. Beyond the environmental concerns often at the center of the pipeline protests, the tribe’s motion for an injunction squarely defines final authorization of the pipeline by the Corps as an existential threat: destruction of the tribes’ religion and way of life.

One of the key legal questions in the North Dakota Access Pipeline case whether federal interests can supersede religious freedoms of native groups.
vpickering/flickr, CC BY-ND

The Constitution’s First Amendment guarantees the exercise of religion free from governmental interference. But the Supreme Court, in Lyng v. Northwest Indian Cemetery Protection Association, in 1988 upheld the Forest Service’s approval of a road across an area on federal land sacred to local tribes even while recognizing the road could have devastating effects on their religion.

Then in 1993, Congress enacted the Religious Freedom and Restoration Act (RFRA), which requires that the government demonstrate a compelling interest and use the least restrictive means to achieve that interest if its actions will substantially burden religious practice.

In other words, even if approving the Dakota Access Pipeline served a compelling governmental interest, RFRA may require the U.S. Army Corps of Engineers to show that the pipeline easement under Lake Oahe would have the least impact on tribal religion. That approach would be consistent with the Supreme Court’s broad application of RFRA in a 2014 case not involving tribal interests or federal lands and may pose a significant challenge to the corps, which considered but rejected a different route that did not pose the same threat to the tribes.

Both the Corps and company behind the Dakota Access Pipeline argue that the risk of spill from the pipeline is minimal and that the tribes failed to raise these religious concerns in a timely manner. In addition, the Corps contends that, consistent with the Lyng case, governmental action on federal land should not be restricted because of religious concerns raised by local tribes.

Thus, resolution of the case will turn upon whether the court recognizes the legitimacy of the tribal religious concerns and broadly applies RFRA or, instead, chooses to prioritize federal authority over federal land to the detriment of those concerns. The parties will argue whether the religious freedom issues support an injunction on February 27.

Arbitrary or capricious decisions?

In addition to their religious concerns, the Sioux Tribes challenge the Corps’ decisions based on the rights they reserved in treaties made with the federal government in 1851 and 1868.

The Constitution recognizes treaties as the “supreme law of the land” and, according to a 2016 analysis done by the Solicitor of the U.S. Department of the Interior, both the Standing Rock and Cheyenne River Sioux retain treaty-reserved water, hunting, and fishing rights in Lake Oahe.

The pipeline company has argued that the risks to the water supply are minimal and that the tribes didn’t raise religious concerns earlier in the approval process.
diversey/flickr, CC BY-NC-SA

Before reversing course in February, the Corps refused to issue the easement last year in order to further understand and analyze those treaty rights.

Importantly, federal law generally allows courts to set aside arbitrary or capricious agency decisions. In a February 14th filing, the Standing Rock Sioux Tribe asks the court to review the Corps’ about-face under that standard and argues that the federal trust responsibility,recognized by the Supreme Court since the early 1800’s, demands more than just a cursory review of tribal treaty rights.

The parties will be briefing the treaty rights issues into March but the judge is keeping a close eye on Dakota Access’ progress in the meantime.

The ultimate fate of the pipeline will turn on how the courts recognize the rights asserted by the Sioux Tribes, rights rooted in the Constitution’s values and structure – precisely the type of rights our rule of law and federal courts are meant to protect.

The Conversation

Monte Mills, Assistant Professor of Law & Co-Director, Margery Hunter Brown Indian Law Clinic, The University of Montana

This article was originally published on The Conversation. Read the original article.

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How Standing Rock became a site of pilgrimage

Protesters block a highway in near Cannon Ball, North Dakota. AP Photo/James MacPherson
Protesters block a highway in near Cannon Ball, North Dakota. AP Photo/James MacPherson

Rosalyn R. LaPier, Harvard University

The Army Corps of Engineers, the federal agency responsible for investigating, developing and maintaining water and related environmental resources, recently announced that they would not allow the Dakota Access pipeline to be constructed under the Missouri River and through Lakota territory.

This decision essentially ended the Standing Rock Sioux tribe’s protest against the pipeline, which they claimed would both desecrate their sacred sites and cause potential environmental harm.

The Standing Rock Sioux tribe was able to achieve this victory in part because of the assistance of thousands of “water protectors.” In his letter of thanks, Standing Rock Sioux Tribe Chairman David Archambault Jr. wrote,

“Standing Rock could not have come this far alone. Hundreds of tribes came together in a display of tribal unity not seen in hundreds of years. And many thousands of indigenous people from around the world have prayed with us and made us stronger.”

Thousands of people, both those within Native American communities and their non-Native allies, felt called to go to Standing Rock. But what drew that many people to Standing Rock?

As a Native American scholar of environmental history and religion, I believe that for most individuals who gathered at the site, it was a modern-day pilgrimage.

Here’s why.

Idea of pilgrimage

First, what is a pilgrimage? Anthropologists Victor Turner and Edith Turner in their classic study “Image and Pilgrimage in Christian Culture” addressed that question when they researched the personal motivations of those who traveled long distances on pilgrimage.

Their answer was twofold. The Turners contended that individuals on a spiritual quest seek both an “out of this ordinary world” experience and a sense of community, “unity” or “oneness” with those on a similar quest. Individuals on a pilgrimage usually have these experiences both while traveling to certain places of transcendence and while at those sacred places.

What does pilgrimage mean?
Joe Brusky, CC BY-NC

Lakota scholar Philip Deloria, has also described how the transformative experience of Native American sacred places provides meaning and personal growth for individuals who journey to be in their presence. In the book “American Indian Places,” Deloria discusses how people are likely to return to these important places again and again.

Going to Standing Rock evolved into a pilgrimage for many Native Americans: they left their “ordinary” lives behind to journey to a Lakota sacred place, and participate in a larger collective action.

My cousin Renee LaPier and her daughter Modesta LaPier, for example, journeyed 2,600 miles to and from Standing Rock. As Ojibwe women, with family on the Turtle Mountain reservation in North Dakota, they felt inspired to go to Standing Rock after meeting hundreds of like-minded individuals at a “water protectors” gathering they organized in their hometown of Portland, Oregon.

Going to Standing Rock forced them and others to step out of their “ordinary” modern lives and travel to a remote rural area of the U.S. with few amenities including no cellphone coverage. And once at the site, they encountered a transformative experience. Reflecting on her experience, Renee said, “It’s personal. It’s deeply deeply personal. It’s important for all of us to stand up together.”

Going on a pilgrimage.
Joe Brusky, CC BY-NC

Modern-day pilgrimage

It is not just Native Americans who have gone to Standing Rock. On Dec. 5 an estimated 2,000 U.S. veterans, both Native American and their non-Native allies, made their pilgrimage to Standing Rock in a freezing blizzard. They came from across the U.S. and other parts of the world; they represented American veterans from many conflicts and wars, including older Korean and Vietnam vets and younger Iraqi vets. They said they came to Standing Rock for “peace and prayer.”

What does this mean?

Religious scholar Laurel Zwissler has studied why and how young people are “refocusing their personal religious practices” to include “religious practice with public action.” She explains how they are blending their individual religious ideas and political activism into a new form of religious expression.

Zwissler’s research reveals participating in protests, even those across a great distance, becomes a new place of individual and collective spiritual practice.

Many Native Americans and non-Native allies viewed going to Standing Rock as a pilgrimage. I have read hundreds of social media posts of people who were drawn to go there as a spiritual quest, reflecting on how the experience changed their sense of identity, gave meaning to their lives, provided a sense of community and transformed them forever.

Even Chairman David Archambault Jr., in an address to the veterans, said their pilgrimage had meaning because “What you’re doing is sacred.

I believe a modern kind of pilgrimage for Native Americans is emerging in which people travel to sites of collective action as a form of religious practice. It is true that some come for personal goals of spiritual awakening and some to journey to a sacred place. And, there are others who undertake a spiritual journey to find community, and purpose.

In the end, utilizing prayer and ceremony, they would have all experienced a pilgrimage – returning to their home different from when they left.

The Conversation

Rosalyn R. LaPier, Visiting Assistant Professor of Women’s Studies, Environmental Studies and Native American Religion, Harvard University

This article was originally published on The Conversation. Read the original article.