Beginning in the early 1700s, a hitherto rather peripheral group of Native Americans called the Comanche swept into a vast area comprising much of what is now the southwestern United States, creating an empire that spanned parts of the modern states of Colorado, Texas, New Mexico, Oklahoma, and Kansas. In the process they dispossessed rival Native American tribes already occupying those lands – among them the Apache, who were fortunate to be able to relocate and preserve their nation further to the southwest.
Others were not so lucky. As Oxford University Professor Pekka Hämäläinen recounts in his book, The Comanche Empire (Yale University Press, 2008), the Comanche were ferocious and often brutal, wiping out opposing tribes, enslaving, or forcibly assimilating them—until they themselves were defeated and marginalized by the westward-moving Americans in a series of conflicts in the mid-nineteenth century.
The Comanche were far from singular in this regard, and the history of their empire is meant to illustrate the futility, and sometimes inanity, surrounding much of the discussion regarding the prospective return of Native American land by the federal government. Much of the latter comes from an ahistorical unwillingness to accept that for most of human history what was described above was the norm. It is how all of us got here: competition between opposing groups over scarce resources, with all other considerations being secondary. Sometimes the groups were big, sometimes they were small. Large confederations or patrimonial clans, it doesn’t matter; the basic logic of what groups want and how they go about getting it is the same.
This isn’t to excuse violent dispossession, only to observe the historical fact of power’s preeminence in geopolitical relations. All the major Native American nations and confederacies came about in this way. Further, unequal treaties are, and have been, the rule, not the exception, throughout human history: just ask the Germans, Japanese, or anyone else that has lost a war to a recognizably superior power capable of dictating terms at war’s end.
Therefore, while we may be appalled by the accounts of atrocities that transpired in the forging of the nation, reflect too on the impact of scientific racism in the shaping of American society, the economy, and government, these considerations cannot be allowed to stand in the place of an examination of the evidence and the logic underlying claims on the US government by members of a given tribe.
As Robert Nozick argued in his masterpiece of political philosophy, Anarchy, State, and Utopia, violation of a moral side constraint, in this case any nonconsensual transfer of one party’s property to another, renders the transaction, or should render it, void—morally if not legally.
To illustrate the implications of this, what I presume to be a principle almost universally accepted, take the example of the Comanche presented in our opening. They seized their lands from numerous other tribes. As a further look back into history shows, those tribes had taken the land from others before them—and so on. At what point did anyone have a clear title apart from by violent means? If the land were to be turned over to the remaining members of the Comanche by the US government, should they in turn give it to the Apache? What greater right do they have, and on what grounds?
The logic of continuing on in this way is futile and readily apparent.
The US Constitution clearly states, under article VI, clause II, that any treaties ratified by the legislature are to become part of the supreme law of the land. Having entered into over three hundred treaties with various Native American tribes since the nation’s founding, it is impossible to make any sweeping generalizations: each must be analyzed in its own right. In some cases treaties were never ratified, such as in California. In others, like the Black Hills, land that had been granted to the Lakota via ratified treaty was seized illegally shortly after gold was discovered there—a fact recognized by the Supreme Court. More opaquely, other treaties were ratified but various circumstances precipitated warfare between the Americans and the various Native American tribes party to the agreements. These would need to be considered in detail on a case-by-case basis before any verdict could be promulgated.
While the process of returning any lands might be messy or even outright impossible, that is not our concern here. We seek only to establish a clear picture of what the federal government is obligated under the Constitution to do. The Constitution isn’t a moral document; it is a legal document; and the federal government’s obligations should therefore be considered only in this light and in the proper historical context.
