Getting a bead on Felix Cohen’s ‘miners’ canary’

Getting a bead on Felix Cohen’s ‘miners’ canary’.

The famous comparison of American Indians to the “miner’s canary” made an appearance in Indian Country Today’s Vol. 26, Iss. 12 editorial in a way some sharp-eyed scholars might find puzzling. It turns out that quote has a more intricate history than even we suspected, and we’d like to straighten out the record. But as its author, the great Indian law authority Felix S. Cohen, might say, this is not simply an antiquarian enterprise. What might seem like a footnote to his work turns out to inspire some broad and not very flattering comparisons to the federal bureaucracy of our own day.

Cohen, it seems, was quite fond of his paragraph saying that oppression of Indians, like the dropping of the miner’s canary in a mine shaft, was the warning sign of poison in the society. He was so proud of it he used it twice, with some difference in wording. The version we used came from a 1949 lead article titled “Indian Self-Government,” published in The American Indian, Vol. V, No. 2. But we gave as the citation Cohen’s second use, in a 1953 article in the Yale Law Journal, “The Erosion of Indian Rights, 1950 – 1953: a Case Study in Bureaucracy.” The 1949 article is available in the collection of Cohen’s essays, “The Legal Conscience” (Yale University Press, 1960). The 1953 article is not easily accessible, in print or online. (We found it in the bowels of Yale Law School’s Lilian Goldman Library.) Since there are nearly 50,000 references to the canary quote on the Internet, most of them inaccurate, let us get the versions straight.

Here is what Cohen wrote in 1953:

“It is a pity that so many Americans today think of the Indian as a romantic or comic figure in American history without contemporary significance. In fact, the Indian plays much the same role in our society that the Jews played in Germany. Like the miner’s canary, the Indian marks the shift from fresh air to poison gas in our political atmosphere; and our treatment of Indians, even more than our treatment of other minorities, reflects the rise and fall in our democratic faith.”

This version, we think, is pithier than the one we quoted last time, but both have a similar context. In both articles, Cohen was protesting the trend in the BIA to undermine progress toward tribal self-government. By 1953, this trend had accelerated to the point where it was about to emerge full-blown in the policy of termination. We’ve repeatedly condemned this social disaster as a product of the Republican Eisenhower years, but Cohen’s essay shows that we were too narrow. His devastating polemic is directed at then Indian Bureau Commissioner Dillon Myer, who has gone down in history as one of the worst influences on federal Indian policy in the 20th century. But Myer was appointed by Democratic President Harry Truman at the suggestion of Cohen’s own former boss, New Deal-era Interior Secretary Harold Ickes.

Myer knew nothing about Indians. As Cohen and other critics pointed out at the time, he made his name during World War II as administrator of the Japanese-American internment camps. He brought his wartime rigidity to the BIA, even importing former concentration camp wardens as tribal supervisors. Ickes bitterly regretted his recommendation; in 1951 he wrote of Myer, “A blundering and dictatorial tin-Hitler tossed a monkey wrench into a mechanism he was not capable of understanding.”

The later policy of termination and relocation deserves full condemnation. It remains a painful memory for many in Indian country. But as Cohen reminded us, it cannot be blamed simply on one party or one end of the political spectrum. Like the earlier shift in policy that produced the Indian Reorganization Act of 1934 and the restoration of tribal self-government, it had roots in a previous administration. Cohen suggests in fact that the erosion of Indian rights under Myer was not just a matter of policy. He blames it on a universal tendency of unchecked bureaucracy.

Some of Cohen’s charges resonate too clearly today. Indian Bureau rhetoric about winding down its supervision of the tribes accompanied a vast expansion of its actual control and its payroll. “In long-range terms,” wrote Cohen, “we find that between 1851 and 1951, a century in which the Indian Bureau kept talking about working itself out of a job and turning over responsibility to the Indians, congressional appropriations to Indian tribes decreased by approximately 80 percent, while appropriations to the Indian Bureau (chiefly for salaries) increased by approximately 53,000 percent.” He quoted a vigorous remonstrance from the Blackfeet tribe: “Now after five Indian Bureau programs for the Blackfeet reservation, three 10-year programs, one 25-year program and one five-year program, our people are left with less than two percent of the land we owned 97 years ago. The other 98 percent was taken by the Indian Bureau.”

The tribes are much better equipped to defend themselves today, but this pattern persists in trust fund reform. Somehow the bulk of the money spent on the problem seems to have gone to consultants and produced mainly a reorganization of the BIA.

The lesson Cohen drove home was that the arbitrary arrogance of people in power, no matter how well intentioned, did its greatest harm to the marginal people least able to defend themselves. In the United States, this group arguably has been the American Indian, even though the honors are shared with the African dislocation, the Japanese in wartime and the undocumented immigrant, whenever the economy needs his labor. The oppressor can come in any guise, wielding any ideology.

We put this point confusedly in our previous editorial when we wrote, “The forces Cohen fought are still active today, even in the guise of his liberal Democratic co-religionists.” The unfortunate phrase appears intended to generalize when it was actually meant to focus specifically on several Eastern politicians who have taken anti-Indian positions and who happen, like Cohen, to be Jewish. We never intend to refer to or to disparage any people or religion, and we apologize to every person who understandably took it that way. The inference that religion or ethnicity had a bearing on the politicians’ positions was improper.

These men, and many others, should listen to the way Cohen ended his 1949 essay on Indian self-government: “If we fight for civil liberties for our side, we show that we believe not in civil liberties but in our side. But when those of us who never were Indians and never expect to be Indians fight for the cause of Indian self-government, we are fighting for something that is not limited by the accidents of race and creed and birth; we are fighting for what Las Casas and Vitorio and Pope Paul III called the integrity or salvation of our own souls.”

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