BY ETHEL BRANCH
Every year when Columbus Day rolls around I ponder its existence and meaning. I used to take great offense at its observance in the American calendar. Yet over the past few years, and especially after Monday’s event “The Legacy of Columbus: Indigenous Perspectives,” I have come to appreciate the day. As with many things in this world, there are often two sides to things. I had only seen Columbus Day as an opportunity for celebration by a subset of Euro-Americans who lacked knowledge of my side of the Columbus story. Indeed, I saw it as insulting that a man I saw as a symbol of tremendous death and destruction should be revered in such a way.
In Hispaniola alone, the firsthand account of Bartolome de Las Casas, Columbus’ journal transcriber, records that from 1494 to 1508 over 3 million people died from the war, slavery, and mines that Columbus brought to the island. I saw the day as a day of mourning and remembrance for those millions upon millions who had died in a genocidal process. Germany would never do such a thing with Hitler and his legacy.
Then I reached a point where in defiance I rejected Columbus Day. Many tribes have taken this path by reclaiming the day as Native American Heritage Day. I used to think this was fantastic, but this approach denies the fullness of the day’s potential. I now value the day as an opportunity to really think about Columbus and both sides of his story.
One side of the story is that of Columbus as the quintessential Western man with, in the words of historian Samuel Eliot Morison, “his indomitable will, his superb faith in God and in his own mission as the Christ-bearer to lands beyond the seas, his stubborn persistence despite neglect, poverty and discouragement.” The other side of his story is that of genocide. Even a tremendous fan of Columbus such as Morison had to acknowledge that “the cruel policy initiated by Columbus and pursued by his successors resulted in complete genocide.”
Yet where does the succession end? Indeed, when does the genocide end? Raphael Lemkin, a Polish-Jewish legal scholar who coined the term genocide, intended it to:
signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be the disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups.*
The policies, laws, and legal decisions that American presidents, Congressmen, and justices have used to define and redefine the relationship between Indian nations and the U.S. have oftentimes fit this definition in its various forms and have thereby continued the legacy of Columbus and, indeed, the genocide upon American Indian nations even to this day. For example, in 2005 in City of Sherrill v. Oneida Indian Nation, Justice Ginsburg and her majority of 7 cited the Doctrine of Discovery in Footnote 1. The Doctrine of Discovery established the presumption that whatever European Christian nation arrived first in non-European, non-Christian lands had the right to explore, colonize, and expropriate the Indian nations’ resources and land It validated Columbus’ discovery of and Spain’s claim to the new world. By disregarding the institutions, values, and governments of the Indian nations, the doctrine advanced Eurocentric, religious-centric, and racist ideals. The case is incorporated into American jurisprudence in the foundational case in Indian law, Johnson v. McIntosh (1823).
Curiously, Ginsburg refers to the Doctrine by citing Oneida County v. Oneida Indian Nation (1985), which itself relies on Johnson. Perhaps it would be uncomfortable for her or any justice to justify a 21st century decision by citing to an 1823 case that referred to American Indians as “heathens” and “fierce savages.” Maybe Ginsberg doesn’t cite Johnson because Sherrill is the first case to outright ignore and in fact challenge the foundational law of Johnson, which recognizes aboriginal title until proper extinguishment as outlined in the case. Though Sherrill never cites Johnson, it holds that aboriginal title can be extinguished by the equitable doctrines of laches, acquiescence, and impossibility.
The law of Johnson (or the clear rules of the game established in that case) has been blurred. However, it appears that the Euro-centric, religious-centric, and racist backdrop of the Doctrine of Discovery as canonized in Johnson remains as lucid today as it did in 1823. It is probably even as clear as it was in 1532 when the Doctrine was first articulated by philosopher Franciscus de Victoria.
Perhaps I’m reading too much into this. I hope this outcome was more a matter of misunderstanding on behalf of the court and its clerks rather than an overt act of “isms” or “genocide.” And I hope you will take it upon yourself to not fall prey to similar unknowing acts.
And what about the other side of Columbus’ legacy, that of his pluck and curiosity that helped advance civilization and progress? Can the United States have one aspect of the Columbus legacy without the other? Is it possible for this nation to advance without continuing the legacy of genocide on its indigenous people? Can we have leaders who are tolerant of other forms of “culture, language, national feelings, religion, and economic existence”? Indeed, of other forms of governance? These questions apply both within and without our borders.
Before penning a decision, drafting legislation, or voting on legislation that will impact tribes, please take the time to learn the history of federal Indian policy and the nuances of federal Indian law. It behooves you to do so if we as a nation are to move away from the legacy of Columbus towards a more tolerant and genocide-free world. If we cannot create such a world at home, how can we possibly hope to do so abroad? And how can we judge and seek to punish those who undertake such acts of intolerance and genocide elsewhere on this globe without first curing our own similar maladies?
Can we do this while Indian nations remain at the whim of Congress’ plenary power? While they are held subject to the freneticism (or as Thomas would say, schizophrenia) of a corpus of Indian law that has its roots in the Doctrine of Discovery, itself a Eurocentri, religious-centric, and racist doctrine?
As Felix Cohen noted, ”We have a vital concern with Indian self-government because the Native American is to America what the Jew was to the Russian Czars and Hitler’s Germany. For us the Indian tribe is the miner’s canary, and when it flutters and droops we know that the poison gases of intolerance threaten all other minorities in our land.” Laws reflect our values and assumptions. They are a reflection of how we define ourselves as a nation. How shall we define ourselves in the 21st century? Are we still in the shadow of Columbus’ legacy, both the good and bad parts, or can we transcend it?
Ethel Branch (’01, JD/MPP ’08) is a member of the Navajo Nation and serves on the Executive Board of the HLS Native American Law Students Association
* Raphael Lemkin, Axis Rule in Occupied Europe (Wash., D.C.: Carnegie Endowment for International Peace, 1944), p. 79.