George W. Bush is the first candidate to address the issue of Indian affairs, but in so doing he has tilted against the Constitution.
During a visit to Syracuse, N.Y., late in October, Bush claimed that “state law reigns supreme when it comes to Indians, whether it be gambling or any other issue.” Whether through carelessness or calculation, Bush has taken a position bound to resonate with New Yorkers and others in the country confronted with the significant challenges posed by increasingly assertive Native American tribes.
In so doing, however, Bush has advocated a position that flagrantly contradicts the Constitution and over 200 years of federal law, and raises a critical issue affecting state governments, Native Americans, and non-Native Americans everywhere.
The U.S. Constitution vests exclusive jurisdiction over Indian affairs in the hands of the federal government. The Founding Fathers drew on their experience when they drafted the Constitution, knowing that states could not be trusted to restrain their citizens from intruding on Indian lands.
Indeed, Congress defined federal power over Indian policy when it passed the Indian Trade and Intercourse Act in 1790 (it was revised and strengthened periodically thereafter) which declared that “no sale of lands made by any Indians . . . shall be valid to any person or persons, or to any state . . . unless the same shall be made and duly executed at some public treaty, held under the authority of the United States.”
Several states ignored these laws, and New York was among the worst of the offenders. New York, in fact, now is confronted with land claim suits filed by the Cayugas, Oneidas and Senecas precisely because it purchased land illegally from different Iroquois tribes in direct violation of the federal Indian Trade and Intercourse Acts. Other states likely also will be facing land claims suits and, as well, Indian-sponsored litigation involving gambling, water and mineral rights, and a host of other issues.
It is in this context that Governor Bush’s statement is so troubling. If elected Bush will swear an oath to “preserve, protect and defend the Constitution of the United States.” Yet in his only public statement as a candidate on the issue of Indian affairs, Bush has taken a position that unambiguously violates the Constitution. As a candidate for the highest office in the land, Gov. Bush ought to know better.
The constitutional issues at stake in New York’s Indian land claim cases, however heartrending the controversy is for residents living in the claim areas, are fairly simple. New York purchased land from Indians in violation of the Trade and Intercourse Acts and the Constitution. Assertive Indian tribes are now forcing the state to pay for its past misdeeds.
Settlement talks are now underway between federal, state and tribal officials to resolve the claims with as little pain and disruption as possible. At the same time, anger about the land claims is growing in New York, manifesting itself both in the angry rhetoric of roadside signs in the claims area and, recently, in the death threats issued against the Oneida Indians by a group calling itself the “United States National Freedom Fighters.”
Gov. Bush could have lent his support to the settlement talks. Instead he has chosen to advance a policy position reminiscent of the ugly states’ rights sentiment of segregationist politicians like George Wallace.
Let states deal with Indians, Bush seems to suggest, whatever the Constitution says to the contrary. Though this position will appeal to embattled New Yorkers, and likely to voters in other states as well, one wishes that Gov. Bush had used his considerable influence to help settle peacefully a difficult issue, rather than engaging in the politics of division. That, after all, is what courageous leadership is all about.
Michael L. Oberg teaches history at SUNY-Geneseo and is the author of "Dominion and Civility: English Imperialism and Native America, 1585-1685" (1999). He is also a writer for the History News Service.
