Why I Am The Wrong Speaker For Today: In Search of My Replacement

James D. Diamond

Address to the International Indigenous Peoples Cultural Conference, Roger Williams University, Bristol R.I. April 17, 2021.

I’m here to tell you why I should not be speaking here today. Don’t misunderstand me. I’m honored to have been invited and included. But as I reflected on the 400 year anniversary of the Treaty made, not far from here, between Ousa-mequin, the Massasoit, with his people and the settlers at Plymouth what I wanted to do was call for a new peace–a new kind of peace agreement between the United States, along with the state governments and the Indians of the Northeast.

I wanted to talk about a new peace agreement among and between the many indigenous people of the Northeast. The indigenous people of the Northeast, 383 years after the Pequot War, are still battling over territory.  And the colonial governments are still benefitting from a “divide and conquer” strategy. 

The battles today end up in the Courts, over who gets to build a casino, for example and where. Who gets to ask for the legal permission from the U.S., its States or local governments, to build and run games of chance?

I wanted to talk about the modern crisis of tribal governments denying tribal people of civil rights and the international human right of citizenship, often after tribal nations realize the benefits of gaming revenues. 

I wanted to talk about all of that that, but I said, “I can’t do that.” (I can’t be the person to do that). I’m not indigenous. I’m not an Indian. What right do I have to weigh in on these subjects? What credibility does a Jewish guy who grew up in the affluent suburbs of New York have with my audience? As a non-Indian lawyer and law professor, what right do I have to even suggest to Native Nations how to govern themselves? I understand that Native Nations need allies. Just yesterday Letitia Stover, District Court Judge for the Navajo Nation, Kayenta District, reminded me of the important role non-Indian “allies” play with Navajo people and played in her life and her career. 

But I wondered, how can I call for these new peace accords when the U.S. has never grappled with or acknowledged the unmitigated failure of the last 400 years of policy toward the indigenous peoples, and all done under the protective guise of the rule of law?

In considering the Treaty whose anniversary we are honoring today let’s examine the way the Indians of the Northeast felt about those early accords. My teacher, Robert A. Williams Jr. wrote about one such treaty, the treaty made in 1613 between the Haudenosaunee and the Dutch which would govern how the two peoples would treat each other and live together, in perpetuity.

The Haudenosaunee made a wampum belt to record this agreement, the Gus-Wen-Tah.  The wampum belt has two purple rows running alongside each other representing two boats.

One boat is the canoe with the Haudenosaunee way of life, laws, and people. The other is the Dutch ship with their laws, religion, and people in it. The boats will travel side by side down the river of life. Each nation will respect the ways of each other and will not interfere with the other.

“Together we will travel in Friendship and in Peace Forever; as long as the grass is green, as long as the water runs downhill, as long as the sun rises in the East and sets in the West, and as long as our Mother Earth will last.”

The birch bark canoe. Painting by Alfred Jacob Miller. Walters Art Museum Baltimore, MD.

That’s how the Indians felt about the peace treaty. But that’s not what happened. Not only did the two ships NOT proceed peacefully side by side down the river, the European vessel tried to sink the canoe!

Then, as more and more treaties were signed all the way into the middle of the 19th century it became the official policy of the United States to break the treaties. And they didn’t deny it as an official policy. 

When the Medicine Lodge peace Treaties of the 1860’s were abrogated by the U.S., as it satiated its voracious appetite for land and the simultaneous goal of assimilating the indigenous people the Supreme Court, in Lone Wolf v. Hitchcock (1903) said:  

“The contention that Congress could not divest the tribes of their lands except according to the terms of the treaty in effect ignores the status of the contracting Indians and the relation of dependency they bore and continue to bear towards the government of the United States.”

and continued:

…“When, therefore, treaties were entered into between the United States and a tribe of Indians it was never doubted that the power to abrogate existed in Congress…”

So, how I thought, can I call for a new peace accord before the U.S. has ever reconciled with that decision, which is still the law of the land, and treaty abrogation as an official nation-to-nation policy? 

And, as I wrestle with being a non-indigenous voice at an indigenous peoples conference I find myself in the awkward position of replicating the non-indigenous practice of thinking I know better.

In 1991 when Canada was examining the history of how its judiciary treated the Metis and other indigenous people of Alberta, the Chief Judge of the Provincial Court of Alberta said

“Everything that has worked when we’re dealing with natives has come from Natives. I don’t know of anything that has worked that has been foisted upon them from above.”

That astute observation is profound, and it’s even more true here in the U.S. than in Canada. But how would we expect to honor indigenous voices after the trauma U.S. forced the following six policies on the Indians:

1. Quantifying Blood Quantum-the amount of Indian blood as a system for deciding tribal citizenship, like you might for thoroughbred racehorses;    

2. Assimilation of Indians to become Christian farmers;

3. Allotment of parcels of land to farm as Christian farmers—which resulted in the eventual more loss of land to non-Indians;

4. Residential Boarding Schools as tools of assimilation-ended up as dens of mental, sexual and  cultural abuse, tore apart families;

5. Western Rule of Law and Courts: strict rules of evidence where storytelling or testimony of indigenous elders are considered not relevant or hearsay evidence;

6. Patriarchal systems that replaced matriarchal systems with resulting domestic and sexual violence;   

When you consider those failed policies forced on Indians, now consider the impact on indigenous voices on the following failures of U.S. K-12 education policy:

1. Failure of the U.S. to adequately fund education of Indians in school;

2. Taught an incorrect history;

3. Failed to hire indigenous teachers;    

4. Disciplined them at a far greater percentage than Non-Indians;

5. Insulted or demeaned them with stereotyping, and sponsored sports teams with insulting names and mascots;   

If you add in the failure of academia to promote indigenous scholars, PhDs, professors, and fellows, to fund scholarships and make Indians feel welcome on campus, how could we possibly expect to end up with sufficient indigenous voices?

As I reflect upon my own career, the subject of whether I belong where I am has come up over and over again. Take my interview a few years ago for the position as Chief Judge of the Hopi Tribal Court. Wayne Taylor, the Hopi former Chairman who grew up in the traditional Hopi Village of Shungopavi, asked me, “Mr. Diamond, shouldn’t we have a Chief Judge who is Hopi?” I said “yes, you should” and I didn’t get the job. I talked my way out of a good job. But I was honest. So, at Hopi I didn’t get an opportunity to find my replacement; they did it first and they were right.

The search for indigenous voices plays out quite frequently in tribal courts. You see it when tribal court judges are trying to weave tribal customs into a tribal common law. It’s a very challenging task under the best of circumstances, a task some indigenous scholars like Pat  Sekaquaptewa, (Hopi) cautions against attempting at all. But what emerges is a great skepticism of non-indigenous academics, of anthropologists, researchers or scientists. Standing Rock Sioux Scholar Vine DeLoria joked, “Indians are certain that Columbus brought anthropologists on his ships when he came to the New World. How else could he have made so many wrong deductions about where he was?”

Professor and Tribal Court Judge Matthew Fletcher, of the Grand Traverse Band of Ottawa and Chippewa Indians, writing about tribal courts and reliance on non-Indian anthropologists, scientists and researchers wrote: “There is a significant bias of Indian people against the work of these academics.” AndNavajo Nation Supreme Court Justice Tom Tso in a 1983 case said this about tribal courts relying on non-Indian academics:

“The Dine are the most accurate commentators on themselves. Studies of Navajo are incomplete, inaccurate or don’t reflect the current state of Navajo common law.”

So in my previous positions, Director of a tribal law school clinic, a tribal prosecuting attorney, and in my current positions as a law professor teaching indigenous law, dean of tribal trial advocacy college that trains survivors of violence to be victim advocates, and as a tribal court judge I have always trusted that my responsibility was to contribute what I can to right a 400 year historical wrong, to help reverse a 400 years of trauma to raise up an incoming generation of indigenous voices.

I can afford to talk my way out of jobs, as a person of privilege, educated at good schools and with a spouse who has an exceedingly generous corporate employer. I’m cognizant of the luxuries those privileges afford us and that’s why we can afford to volunteer and to give. Not everyone is in my position.

Another son of this region, President John F. Kennedy, recognized the debt of service. As he took the mantle of leadership, leaving Massachusetts, he addressed the judicial conference of Massachusetts saying the now famous words:

            “For of those to whom much is given, much is required.”

Then President Kennedy said each of us would be judged “at some future date” when “the high court of history sits in judgment on each one of us” our lives would be measured by a series of questions, the second of which was this:

“…were we truly men of judgment–with perceptive judgment of the future as well as the past–of our own mistakes as well as the mistakes of others–with enough wisdom to know that we did not know, and enough candor to admit it?

When we possess the wisdom to admit our mistakes then we will be ready to begin to confront the painful past and make a new peace. And yes, indigenous voices ARE here in Rhode Island and in neighboring Massachusetts and Connecticut.  My friend, Shannon O’Loughlin, the Director of the Association on Indian Affairs (Choctaw) told me: “Native Americans have been made invisible in so many places. Not the kind of invisible where we aren’t there. The kind of invisible where we ARE there – standing right in front of you and you still don’t see us.”

You ARE on the program and in the audience here today. I see you. We see you, and we honor you. Thank you.