I would like to respond to DavidCremeans’ and Wayne Appleton’s op-ed letter concerning recognition of NativeAmerican tribes in the state of West Virginia. I am a supporter of HB2121 and a
trained academic historian who has spent the last 15 years focused on West
Virginia Native American history. Their proposed law, HB2635, along with their
“history lesson” is dangerously flawed and misguided. They misrepresent the
supporting evidence and wording of their bill. While I share Cremeans’ and
Appleton’s desire to have a formal policy towards Native Americans in the
state, these two do not represent the voice of all Native Americans in the
state.
The story behind these two bills is
complicated but bear with me. For decades “multi-tribal” organizations have
been attempting to pass laws in West Virginia that give them tribal recognition
without any form of documentation. The 566 federally-recognized tribes, such as
the Cherokee and Shawnee, have had to provide detailed historical and genealogical
evidence of their status. Cremeans’ and Appleton’s currently proposed bill,
much like the many before, exempts NAIF and AAIWV from this process but
requires future “tribes” to meet unknown standards. This is not fair or
appropriate and could lead to corruption of Native American rights. In order to
create a fair and equitable solution to this I became supporters of HB2121. I
have four basic reasons for this support:
1.
It
follows the well-established guidelines for tribal recognition that 566 other
tribes have used to protect their sovereignty across the country.
2.
It
provides a beginning of a much needed conversation about Native Americans in
West Virginia, both in the past and in the present.
3.
It
has been supported by tribes and tribal members across the country along with many
residents of West Virginia.
4.
The
alternatives of not doing anything, or passing other proposed legislation (HB2635)
would be damaging to Native American interests and to the state of West
Virginia.
This
support has upset some of the leadership of NAIF and AAIWV, two self-admitted
multi-tribal organizations in West Virginia. This greatly saddens me because I
believe these two organizations could be solid allies in protecting Native
American interests in the state.
Their proposed amending HB2121 is based
on the suggestion that West Virginia Indians “cannot qualify for federal
recognition,” thus requiring the state to give tribal recognition to these two
groups without documentation. HB2121 simply requires that before West Virginia
will recognize a tribe it must “have been” recognized at the Federal or State
level. Or to put it another way, that ALL groups must provide historical and
genealogical evidence of their tribal status. Appleton’s letter plays a
dangerous game with historical events to support his suggestion that the
ethical and moral justice of indiscriminate tribal recognition is the solution
to righting the wrongs of the past. As he puts it: “We believe that it is time …
to restore our history and status to us.” The authors’ historical lesson did
not support any of the claims he makes because:
1.
The
letter is full of gross errors in detail.
2.
He
misuses historical events for emotional support that have nothing to do with
Indian issues in WV.
3.
His
“evidence” has no reference to actual historical documents.
4.
The
evidence does not establish the specific history or cultural context of either
NAIF or AAIWV that would qualify them for tribal recognition.
They
began their diatribe against the injustices perpetrated against Indians in West
Virginia with a criticism of the West Virginia studies curriculum: “Public
school civics classes teach that there were no ‘Indians’ present in West
Virginia when the ‘White’ settlers arrived.” He would find a solid ally in myself
in reforming the educational standards concerning Native peoples in West
Virginia but this is NOT a rationale for giving these two groups “tribal”
recognition. The void in Indian education in the state is ill-served by Cremeans’
and Appleton’s “evidence.” I have provided a guide to the main points of the
letter and rebuttals in the table below.
Please support HB2121 for a historically-sensitive
common sense solution to this very important problem for Indian residents of
West Virginia. Uphold equal application and protection under the law. “Customary
indigenous law aims to restore the harmony and balance in a community; it is essentially
collective in nature.” These collective laws are what is at stake here, not the
heritage or identity of individuals. If these two groups are allowed to misuse
historical evidence and exempt themselves from laws that have protected Indian
tribes across the US then the state of West Virginia will have opened up tribes
to further corruption and blatant identity theft. Please don’t let this happen,
support HB2121 without exemptions for ANY group. We may not be able to correct
the wrongs of the past, but we can avoid adding further injustice. Thank you or
your time. If have further questions please email Isaac Emrick at
iemrick@mix.wvu.edu.
Critical
Examination of Appleton’s Claims
His claim that “prior to 1830, the
boundary between the Cherokee and Shawnee land claims was the Kanawha River and
along the Ohio River,” is grossly inaccurate. The lands south of the Kanawha
River had changed hands from Siouan control during the seventeenth century to dominantly
Shawnee control through most of the eighteenth century. The Treaty of Lochaber,
signed between the Cherokee and British in South Carolina on October 18, 1770
ceded the limited hunting rights that a few northern towns claimed in an effort
to protect southern lands that were more important. The Iroquois had done
similarly in the Treaty of Lancaster 1748, Treaty of Logstown 1754, and the
Albany purchase in 1755, where the Iroquois attempted to protect more important
lands closer to home by “giving” the British access to southern lands. The
Shawnee maintained their claims to the Ohio and Kanawha valleys despite the Cherokee
and Iroquois deals until the Treaty of Greenville in 1814. But one claim made
frequently by Appleton, that Indians in the Ohio were impelled to “hide in the
mountains among the settlers and to intermarry into ‘settler’ families.” This
is completely true but as in many cases across the country, these groups are
often traceable through genealogy and census rolls.[1]
HB2635’s list of groups to be recognized
includes some obvious choices such as the Shawnee and Cherokee, but also
includes others with very limited historical presence within West Virginia,
namely the Ottawa and Lakota. The bill also recognizes the Tutelo and Saponi,
two Siouan-speaking groups that were closely related to the Seventeenth century
inhabitants of the Kanawha-New River Valley. These two nations were dispersed
during the late-Seventeenth and early-Eighteenth centuries. Small bands joined
the Creeks, Catawba, Iroquois and many other nations in the Eighteenth century
and by the Twentieth century were incorporated completely into their hosts. The
last known fluent speaker of Tutelo died in the late-Nineteenth century amongst
the Cayuga. Another Siouan-speaking group, the Monacans, are a state recognized
tribe in Virginia with a complex cultural history closely tied to the
development of the Tutelo and Saponi during the early-Seventeenth century.
Their ancestors may have been closely allied with villages within what are now
West Virginia’s mountains and the Kanawha-New River valley, but there are some
archaeological differences that have yet to be explored.
Two names on the list, Adena and
Uninh, provide the starkest examples of the bill writers’ complete lack of historical
and cultural understanding. Adena is the name of an archaeologically identified
cultural pattern found in Indiana, Ohio, West Virginia and Kentucky during the
millennia before the common era CE, roughly 800 BC to AD 1. This was not the
name of a single political or tribal group but rather a set of cultural traits
practiced in a region and time period. We have no way of knowing what
political-tribal allegiances or identities existed over two thousand years ago.
The name “adena” itself was selected by Thomas Worthington, the owner of the
property containing the first identified Adena site, from a Hebrew word meaning
“delightful place.”[2]
Even so, the cultural changes over nearly three millennia make it impossible
and unsupportable for an individual to claim Adena membership. Uninh is even
more enigmatic. I first encountered this name on a map of Indian nations found
in many cheap shops around the US.[3]
I have searched for the term within the anthropological literature and not found
its origin. I think it stems from an eighteenth century reference to the
mountains being “uninh-abitable.” This is not an Indian political-tribal term
historically nor in the present.
Returning to the letter, Appleton’s most
blatant historical misuse comes from his attempts to use the Indian Removal Act
of 1830 to support his case. He begins by referring to the 1823 Marshall Court
decision “that individual Indians could not own or sell land as that land
belonged to their tribes not to individuals.” The 1823 Johnson v. M'Intosh decision was US Supreme Court Chief Justice
Marshall’s attempt to protect the Piankeshaw from individual members being
coerced by non-Indians into selling lands, instead land cessions must be
through a treaty with the Federal government and the tribal government.[4]
The only connection between the M’Intosh decision and the Trail of Tears was that
it may have given Andrew Jackson the idea of using treaties to remove all
Indians from the East.
Sadly, the history of the
removal period, is much more complicated than Appleton might want to admit. The
Treaties of Greenville of 1795 and 1814, drew the line between Shawnee and
American land along the Great Miami River. Wapakoneta and Lewistown in western
Ohio were the last vestiges of Shawnee control and they were only permitted
through the grace of Miami and Wyandot owners. Progressively, the populations
of these towns had dwindled as they gathered in Missouri, Arkansas and Indian
Territory [Oklahoma] by 1831 when Andrew Jackson’s administration sent
representatives to “aggressively negotiate” with leaders they knew were too
weak to resist.[5] “Ohio
where the Shawnee were forcibly removed in 1831. These forced removals were
powerful motivators for Indians and “mixed bloods” to hide in the mountains
among the settlers and to intermarry into “settler” families.” The ethics of
his move aside, the transaction of 1831 was an offer of a land swap, giving
them reservations in Oklahoma. They had the option, however ill-advised to
stay, but they would lose their tribal status. These two groups, and many
others, decided to keep their tribal rights and move west. But again we return
to the serious flaw of Appleton’s logic that this rationalizes giving his two
groups tribal recognition in West Virginia. The Indian residents of what would
become West Virginia may have hid, but at this time there is no evidence that
any Indian individuals were removed in the 1830s.
The Dawes Act of 1880, a
deeply flawed federal law with dire consequences for Native Americans
throughout the US, was thankfully never applied to tribal members living
outside reservation boundaries. Therefore, the Dawes Act had no effect on whether
an individual could or could not be called Indian in West Virginia. In fact, in
the US Decennial Census in 1870 there was one individual of Indian descent
living in West Virginia. As you can see from the table below, the US census has
shown identifiable Indians living in the State in every Census since Indians
were first counted in 1870. This alone undercuts Appleton’s argument that “we [state
residents] could not be ‘Indian’ and still live in West Virginia as citizens or
own land here.”
US Decennial Census 1870-2010
|
|||||||
1870
|
1
|
1920
|
7
|
1970
|
808
|
||
1880
|
29
|
1930
|
18
|
1980
|
1555
|
||
1890
|
9
|
1940
|
25
|
1990
|
2385
|
||
1900
|
12
|
1950
|
160
|
2000
|
3606 (10644)
|
||
1910
|
36
|
1960
|
181
|
2010
|
3787 (13314)
|
||
For
the data, see http://mapserver.lib.virginia.edu/.
Individuals could self-identify in 1970, then in 2000 and 2010 individuals
could identify as more than one race, the combined solely Indian and Indian
plus another race are combined in the parentheses.
|
|||||||
It is difficult to verify many of
the legal issues that Appleton brings up in the West Virginia constitution and
legal code. Quite simply, it was never tested that it was “illegal under state
Code to register ‘Indian’ births by tribe and it was illegal for ‘status
Indians’ to own land in West Virginia or to vote.” There were many racial
issues and injustices that the state continues to combat but there has not been
a single court case concerning Native American issues in the state courts since
1865. Considering the Census data above, and the bold accusation that recording
Indian births was illegal, there would have to be evidence of some legal
challenge at some point. There were none.[6]
Likewise, the suggestion that Indians
could not own land in West Virginia until the reforms of the 1960s is more
based on the broad racial codes than any statements explicitly barring Indians
from landownership. But the social perception of threats to property from
identifying as Indian have a foundation in the state’s historical issues with
racism. But there is also no evidence that land was ever confiscated for the
individual identifying as Indian.
This brings us to the underlying concern of both NAIF and AAIWV, “Because
we are unable to document our heritage due to past state and federal laws, it
is not possible to fulfill the requirements for Federal Recognition.” This research
is difficult, but not impossible. I should know, I have spent nearly 15 years
gathering historical information about the Native American history of the
state, especially from 1500-1760. I have successfully connected many historical
communities to modern tribes like the Catawba, Shawnee, and Seneca. The
difficulty of documenting heritage, though, is not an excuse for giving these
two groups tribal recognition without examination of their claims. ALL tribes
currently Federally-recognized in the US have gone through the Federal
application process under 25 C.F.R. §83.7. Some groups, like the Monacans, a
group mentioned by John Smith in 1607, continue to struggle with their efforts for
tribal recognition. All HB2121 asks is that if these two groups want tribal
recognition that they meet the same standards that 566 tribes have met.
This brings me to the last error Appleton makes in support of his
group’s right. He claimed that Virginia recognized the Monacans “because of
similar past discrimination that prevented Federal Recognition.” This is also a
misrepresentation of the situation. The Monacans had existed as a close-knit
and historically identifiable community in Virginia since at least the
mid-nineteenth century and then began building a case for Federal recognition.
In this effort they submitted documentation to the Virginia Indian Council,
comprised of other Indian groups, seeking help getting the Virginia legislature
to fund research for a Federal application for tribal recognition. They were
state recognized through a series of evaluations of their research into their
history and language. This was not just to “correct an historical wrong.”[7]
While this has hardly been ideal for the Monacans, the difficulty is a Federal
matter, NOT a state concern.
The newly proposed HB2635 causes more
problems than it solves. The cost of managing the state recognition process,
alone, will be high. Not only will the bill require the Office of MinorityAffairs to hire individuals trained in tribal recognition but they will also
have to find ways to manage the increased contact with Federal government.
Despite Appleton’s suggestion that his bill “affects thousands of West
Virginians in a positive way without any expense to the state,” it will
be extremely expensive.
Appleton’s letter misrepresents so
much, from the history of Indians in the state, to the realities of HB2121, all
the while attempting to give NAIF and AAIWV tribal recognition without showing
the historical evidence specifically addressing these two groups. These two
groups should be required to meet the same guidelines that 566 tribes have met.
This is especially true since HB2635 requires all subsequent groups [exempting
NAIF and AAIWV] to meet guidelines “to be established” later by the Director of
the Office of Minority Affairs.
[1]
Lakomaki 66-70, http://www.wvencyclopedia.org/articles/773
[2] http://www.ohiohistorycentral.org/w/Adena
[3] http://www.michellehenry.fr/amertribes.jpg
[4] https://supreme.justia.com/cases/federal/us/21/543/case.html
[5]
Sami Lakomaki, Gathering Together,
2014: 132-164.
[6]
Per conversations with Lee Ayers, attorney, Eastern Band Cherokee
[7] http://www.monacannation.com/history.shtml
