Be Clear: Distinguish Between Civil Rights and Treaty Rights

David Treuer Should Know Better

Standing Rock people are protecting the water; they are not just protesting. To protect something means to keep it safe from harm; to protest means to make an objection. Protection means positive action; protest means reaction.

Furthermore, the fact that Americans and other peoples have joined the Standing Rock protectors does not change the fact that the protectors are making a stand on behalf of Creation.

John Trudell said long ago that struggles for water would resonate far more strongly with non-Natives than struggles for land. He said everyone has connections with water every day, no matter how high they may live in a city; but many people have no connection to land, other than as real estate. John said: “The water carries us from birth to life / we are a water voice.” Standing Rock has shown how prescient John was. There was no big gathering last year in Apache country when the U.S. gave Oak Flats to Rio Tinto.

Many are celebrating the U.S. Army decision to require a full environmental impact statement for the proposed Dakota Access pipeline crossing of the Missouri River. But the moment requires continued vigilance and clarity about the basic issue: Indigenous self-determination.

In the past, Treuer made strong statements about the importance of Native languages: In 2008, he wrote in the Washington Post, “Our cultures and our languages—as unique, identifiable and particular entities—are linked to our sovereignty.”

He added, “For most of us, [English] is our only language—through no fault of our own, owing to a federal policy aimed at wiping out Native American languages. Cultural eradication is a process, and it was precisely through the attempt to stamp out Native American languages that the U.S. government tried to stamp out Native American cultures.”

He insisted, “Without our own languages…the markers we use to define ourselves can become arbitrary. … American Indians are fast becoming ethnic Americans like the Irish and the Italians and the Scandinavians, to name a few.”

One would expect from these statements that Treuer would be especially careful about his choice of words in writing about Standing Rock. Indigenous sovereignty struggles are not the same as ordinary American politics.

Treuer got all mixed up in his New York Times article, glossing over important legal and political distinctions that go to the heart of what Indigenous Peoples’ struggles mean. He compared Indian struggles to civil rights struggles: “Like African-Americans, we have fought for and won some of our civil rights.”

Treuer knows civil rights are different from treaty rights. He wrote, “As Indians we belong to sovereign nations and have treaty rights that have always been our rights.” But he mixed it up with the statement, “We have fought for the recognition that we are American and Indian….”

If you are a close reader, you see he fell into the very confusion of language against which he argued in the Washington Post article about language and sovereignty. He mixed up civil rights and treaty rights and he failed to see that the notion of being “American and Indian” constitutes a key move in the “cultural eradication” he previously called out.

Treuer knows, “There are more than 500 tribes in the United States and we all have different cultures, histories, landscapes and ways of organizing politically. We are united by the legacy, and current practices, of colonialism. But we have always been more than what the government has tried, and failed, to do to —and that is to mainstream us.”

Why then did he perpetuate the colonial confusion instead of cutting through it?

In 2008, he wrote, “at some point (and no one is too anxious to identify it exactly), a culture ceases to be a culture and becomes an ethnicity—that is, it changes from a life system that develops its own terms into one that borrows, almost completely, someone else’s.” And he emphasized, “If we allow our own wishful thinking and complacency to finish what George Armstrong Custer began, we will lose what we’ve managed to retain: our languages, land, laws, institutions, ceremonies and, finally, ourselves.”

Yet in the Times article, he criticized David Archambault II, the chairman of the Standing Rock Sioux, for describing the Standing Rock confrontation as “once again cowboys versus Indians.” Treuer said, “to say that the story of the Dakota Access Pipeline is another iteration of that old western story is to repeat the mistakes of past protests and movements. We situate ourselves in a position of powerlessness.”

But how does Dakota Access Pipeline, with its extractive attack on the earth, differ from the old western invasion of Indian lands in the name of ‘progress’? How does Archambault’s accurate statement of history and political-economics put us “in a position of powerlessness”? Are we supposed to pretend that capitalist activities are less threatening to Creation today than they were a century ago?

Treuer wrote of “our own complicity in how the world of power around us has been shaped. … We made the government that is doing this to us.” Which “our”? Which “we”? The real complicity arises from pretending—or really believing—that Indians are “Americans and Indians.”

Treuer criticized Indian leaders for “their reluctance to show up for meetings and to fight diligently and thanklessly in the trenches of numb process.” He wrote, “The civil rights movement got results not just because activists marched in the street but also because activists marched into classrooms, county board meetings, law schools and the voting booth.”

But the point that needs to be made involves the question of what the leaders fight for. In the end, Treuer failed to clarify that Indian leaders have to fight for Indian self-determination. Indian self-determination means respect for all life—for the earth and all Creation.

The Indigenous struggle to protect Creation—a struggle for balance in life, and against commoditization and destruction—attracts non-Natives, including Americans, who exercise their civil rights to support that struggle. But the two forms of rights remain separate.

When we confuse Treaty rights with civil rights under U.S. law, we undermine the clarity needed to stand up for Indigenous self-determination.

As Sterling HolyWhiteMountain wrote in another context, “It has been the great failure of the Indian-mascot debate to connect the issue to something other than racism…. What remains unaddressed is the true history of Indian Country, which is to say the true history of the United States: a story of abrogated treaties, of tribal sovereignty limited by Congressional law and of specious Supreme Court decisions, all of which have either hampered or destroyed the ability of tribal people to govern themselves as political sovereigns on their own land. It is this history that created a set of systems that keep tribal nations locked in a suffocating political and economic limbo. American Indians are not minorities in any traditional sense. We are the descendants of the original majority, citizens of over 500 distinct tribes, and holders of special legal and political status resulting from the treaties we signed with the U.S. government, the same government that broke every one of those agreements.”

We can celebrate Americans who support Standing Rock, but let us not get mixed up about the difference between civil rights and Treaty rights, between the legal definition of “environment” and the reality of Creation.

Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinébe’iiná Náhiiłna be Agha’diit’ahii Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on Indigenous issues.