Treaty Cant
There is a style of public speech that is common here in Oklahoma, the style set by Oral Roberts, Pat Robertson, and Jerry Falwell in evangelical rhetoric. The passionate exhortations of Jebus and the flock of birdman mysterions to caress the quivering nasal hairs of the employer of the rhetorical device is just jive, but it is jive that works for the demographic that is jive predisposed, or jive dependent. If you want an example more cloying than a spoon full of maggots, tune into the Cherokee Nation Tribal Council meetings, where the clerk, occasionally joined by some member in need of Chadalurgical cleansing, work the ceiling tiles as diligently as any self-respecting janitor does floors, sinks, toilets and drains.
It's pious cant associated with some acts of socialized violence against women or children or men who are also "chattel" or "other".
There is another style of public speech that is common here too. Grand phrases which revolve around the word "sovereignty", "treaty" and "constitution", which actually aren't grounded in specific references to what is actually meant. The jive predisposed, or jive dependent, hear what they want to hear, extract their private meanings from the coded words thrown into the air.
The concepts of "sovereignty" and "treaty" and "constitution" can't mean the same things in Oklahoma for the Cherokee Nation, or for the other eastern relocatee polities, as they mean for treaty tribes in the plains and west, or for the modern settlement acts tribes in the east, or for settlement corporations in Alaska, or even tribes with reservations contained within Oklahoma. It can of course, if you're the careless, or worse, author of imaginary pan-indian law opinions, such as Rehnquist, who in Oliphant "discovered" that no tribal officer of a tribe had ever been pushed or punched by a non-indian. Rehnquist did not intend Indian benefit when he re-created the slippery eel of ungraspable meaning out of the unfathomable depths of displaced White collective fiction any more than Marshall, who couldn't lay his hands on a single treaty between an indigenous polity and a european prince, English colony, Articles of Confederation State, or the post-Articles Washington City governments that related to the sale of land.
It's treaty cant, and it isn't just Chad Smith and his coterie using the rhetorical device to promote the momentary swindle of the present -- all across the spectrum of Indian politics the "merits" of Chad Smith's gambit to make the 2007 cycle revolve around his fake controversy, and not his not very effective management of the corporation founded by Ross Swimmer, or the consolidation of a management kleptocracy.
Is the "Cherokee Nation" a polity or a corporation? Is the relationship of Cherokee persons and the entity that of "citizens" or "shareholders"?
These are questions that should not be assumed to be asked and answered.
The fiction of "federal indian law" divorced from stare decisis et non quieta movere has been on my mind of late. In the Tahlequah Public Library, while Jonah flits from CD and VHS covers to picture books to spinning globes of Earth and the Moon, I follow, reading. The book I picked up was "Indian Justice", and its a trial record from an 1844 homicide trial. One evening, an inebriated, armed Cherokee repeatedly rode his horse up against the horse of a secondary leader of the "false treaty" party, making war whoops as he did so, and knocking boards off an intenerant Creek camp where the "false treaty" party Cherokee and his Creek companions were taking shelter. An affray followed in the dusk -- the mounted man used a whip, the man on foot a knife. The next morning the mounted man was found dead some short distance away.
Twenty four persons were empaneled to hear the case. The accused had pre-emptory challenge rights to twelve, and for-cause rights. The remaining twelve heard evidence for days, adjourning when a witness had to be fetched, and the prosecution and the defense made able use of evidence, and its lack, and the commonalities and differences of the narratives of the witnesses, as well as their inherent credibilities, in Cherokee, Creek, and English. After two days of deliberations the jury could not return a verdict, and a second jury was empaneled, and owing to illness, a second judge, and the pre-emptory and for-cause challenges repeated. There was a motion hearing on whether the rights of the accused were being violated by a second trial for the same offense, or if the second hearing was a continuation of the first trial. The record of the evidence presented in the first half-dozen days of the trial was read to the jurors, who then requested that the witnesses be returned to answer questions put by the jurors. This was done, and after another day of deliberation, a guilty verdict for a charge punishable by death was return.
The whole of the process of a trial for murder amazed me. It was a fair trial, and closer to the standard for American jurisprudence in a capital case than actually occurs in most American capital cases, and nearly all that result in a death sentence.
So what about Ex Parte Crow Dog 109 U.S. 556 (1883)? It is why the Major Crimes Act was passed. Its why there is no felony jurisdiction by any tribal court.
Its authors and subsequent recyclers, in particular Rehnquist, who laundered the Crow Dog court's Christian racism in Oliphant, could not cite a specific case, in particular, a capital case involving a political figure which resulted in conviction and execution, (citation omitted, but Sam really wants to go back to the library one last time and read dino books, so I'll get it), and stare decisis.
So we have careless pan-indian pseudo-history to damn, if there were a diety in utterly acculturated uber-Baptist mythology to damn anything other than women, children, and men not willing to be slaves, or thank, depending upon one's outcomes-based expectations and desires, for the basic contours of Federal Indian Law and the sub-genre of Oklahoma Indian Law.
That is why Treaty Cant is dangerous. It confuses the righteous and comforts the wicked.
