Peter d'Errico

Canaries, Frogs and the National Congress of American Indians: What’s Realistic?

Felix Cohen, author of the original Handbook of Federal Indian Law, played a major role in the Indian New Deal (aka, Indian Reorganization Act) to end the Dawes Act allotment era. In 1953, the year he died, he wrote, “Like the miner’s canary, the Indian marks the shifts from fresh air to poison gas in our political atmosphere.” What he meant was that attacks on Indian self-determination are a sign of danger to everybody’s freedom.

Canaries are sensitive to poisonous gasses; they were companions for miners in the days before detection devices: When a canary stopped singing and started to sway on its perch, the miners knew it was time to get out of the mine. What threatens the canary threatens the miners… and the canary knows first.

Cohen worked within the Interior Department Solicitor’s Office; but he stretched legal doctrines of federal domination (e.g., “wardship”) to support Indian rights. His emphasis was on government’s responsibilities to Indians, not on the powers of the U.S. against Indians. This changed soon after Cohen’s death, when Interior issued a “revised edition” of the Handbook.

In the years since, as evidenced, for example, by decisions in the Navajo coal royalties case and the Oneida land litigation, the U.S. Supreme Court has been turning federal Indian law away from Indian rights and toward federal power.

Is the canary still alive? If so, it would have stopped singing and started swaying on its perch, telling us the atmosphere for Indian rights (and hence, as Cohen suggested, all human rights) is getting poisonous. The basic doctrines Cohen thought could protect Indians are withered, like the “trust” doctrine, or undermined, like the right to lands that have never been sold or ceded. And, as Cohen predicted, keeping pace with these attacks on Indians, comes an array of “national security” laws strangling American freedom. As Cohen wrote, the government’s “treatment of Indians…reflects the rise and fall in our democratic faith.”

The problem seems to be that the canary is still singing, but not its own song. For example, an NCAI staff attorney was recently quoted on whether Native leaders will hold the US accountable for Indigenous Peoples’ “traditional ownership” of lands, as called for in the UN Declaration on the Rights of Indigenous Peoples. She responded that tribal leaders—in the US—do not interpret such articles literally: “The vast majority of tribal leaders are more realistic, today. They still interpret [the Declaration] in a reasonable manner. They just think they should have more access and control of lands than they do right now.”

What does it mean to be “realistic” when faced with opposition to a fundamental right like land ownership? One might think it would be to name the opposition for what it is, instead of going along with it to be “reasonable.” What is “reasonable” anyway? Does it mean pulling back from a strong critique? Does it mean moving away from your own position when your opponent is moving aggressively against you? These questions were not asked or answered by NCAI.

NCAI President Keel is fond of referring to “our America” and emphasizing that Indians are “American citizens.” In his 2012 State of Indian Nations speech, he went further, thanking Native people in the military for “protect[ing] the sovereignty of the United States and the tribal nations of North America.” He did not discuss how the 1924 Citizenship Act was an extension of the Dawes Act assimilation process; nor did he examine how the US denies equal sovereignty to “tribal nations.”

What’s going on here? Was Felix Cohen wrong about Indians as canaries? Steven Paul McSloy, in “A Bird’s Eye View of Native American Law,” suggests that the canary in the coal mine is an apt metaphor for the way Indians were “incorporated” into the United States. But he reminds us that, while Cohen was “looking at Indian law from a sympathetic perspective,…he was wearing the miner’s headlamp, looking at the canary.”

How is it that an Indian leader today can sing the song of the miner instead of the canary, the song of the U.S. instead of the songs of the Native peoples?

Maybe the best metaphor is the boiling frog. It’s not a literal story, like the canary, but it shows how people can ignore warning signs that occur gradually. Attacks on Indian nationhood come in fits and starts, sometimes subtly; one might get used to them and fail to take protective action. One may be seduced by soothing words that often accompany the attacks, like allotment and citizenship sponsored by “Friends of the Indian.”

Cohen warned, “power-drives are always accompanied by soft music.” Will the canary be lulled to sing to the soft music instead of warning us by not singing at all? Maybe we should ask the frog.

Peter d’Errico graduated from Yale Law School in 1968. Staff attorney in Dinébe’iiná Náhii?na be Aga’diit’ahii Navajo Legal Services, 1968-1970. Taught Legal Studies at University of Massachusetts, Amherst, 1970-2002. Consulting attorney on indigenous issues.

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