Author: Felix S. Cohen
The Association on American Indian Affairs, The American Indian: Volume 2, Number 2, 1949
Not all who speak of self-government mean the same thing by the term. Therefore let me say at the outset that by self-government I mean that form of government in which decisions are made not by the people who are wisest, or ablest, or closest to some throne in Washington or in Heaven, but, rather by the people who are most directly affected by the decisions. I think that if we conceive of self-government in these matter-of-fact terms, we may avoid some confusion.
Let us admit that self-government includes graft, corruption, and the making of decisions by inexpert minds. Certainly these are features of self-government in white cities and counties, and so we ought not to be scared out of our wits if somebody jumps up in the middle of a discussion of Indian self-government and shouts “graft” or “corruption.”
Self-government is not a new or radical idea. Rather, it is one of the oldest staple ingredients of the American way of life. Many Indians in this country enjoyed self-government long before European immigrants who came to these shores did. It took the white colonists north of the Rio Grande about 170 years to rid themselves of the traditional European pattern of the divine right of kings or what we call today, the long arm of bureaucracy, and to substitute the less efficient but more satisfying Indian pattern of self-government. South of the Rio Grande the process took more than three centuries, and there are some who are still skeptical as to the completeness of the shift.
The Association on American Indian Affairs, The American Indian: Volume 2, Number 2, 1949
Not all who speak of self-government mean the same thing by the term. Therefore let me say at the outset that by self-government I mean that form of government in which decisions are made not by the people who are wisest, or ablest, or closest to some throne in Washington or in Heaven, but, rather by the people who are most directly affected by the decisions. I think that if we conceive of self-government in these matter-of-fact terms, we may avoid some confusion.
Let us admit that self-government includes graft, corruption, and the making of decisions by inexpert minds. Certainly these are features of self-government in white cities and counties, and so we ought not to be scared out of our wits if somebody jumps up in the middle of a discussion of Indian self-government and shouts “graft” or “corruption.”
Self-government is not a new or radical idea. Rather, it is one of the oldest staple ingredients of the American way of life. Many Indians in this country enjoyed self-government long before European immigrants who came to these shores did. It took the white colonists north of the Rio Grande about 170 years to rid themselves of the traditional European pattern of the divine right of kings or what we call today, the long arm of bureaucracy, and to substitute the less efficient but more satisfying Indian pattern of self-government. South of the Rio Grande the process took more than three centuries, and there are some who are still skeptical as to the completeness of the shift.
This is not the time and place to discuss the ways in which the Indian pattern of self-government undermined the patterns which the colonists first brought to this country, patterns of feudalism, landlordism and serfdom, economic monopoly and special privilege, patterns of religious intolerance and nationalism and the divine right of kings. It was not only Franklin and Jefferson who went to school with Indian teachers, like the Iroquois statesmen Canasatego, to learn the ways of Federal union and democracy. It was no less the great political thinkers of Europe, in the years following the discovery of the New World, who undermined ancient dogmas when they saw spread before them on the panorama of the Western Hemisphere new societies in which liberty, equality and fraternity were more perfectly realized than they were realized in contemporary Europe, societies in which government drew its just powers from the consent of the governed. To Vitoria, Grotius, Locke, Montaigne, Montesquieu, Voltaire and Rousseau, Indian liberty and self-government provided a new polestar in political thinking. But, for the present, I want merely to emphasize that Indian self-government is not a new or radical policy but an ancient fact. It is not something friends of the Indians can confer upon the Indians. Nobody can grant self-government to anybody else. We all recall that when Alexander was ruler of most of the known civilized world, he once visited the philosopher Diogenes, who was making his home in an old bathtub. Diogenes was a rich man because he did not want anything that he did not have. He was a mighty man because he could master himself. Alexander admired Diogenes for these qualities, and standing before him said, “Oh Diogenes, if there is anything that I can grant you, tell me and I will grant it.” To which Diogenes replied, “You are standing in my sunlight. Get out of the way.” The Federal Government which is, today, the dominant power of the civilized world cannot give self-government to an Indian community. All it can really do for self-government is to get out of the way.
The Federal Government which is, today, the dominant power of the civilized world cannot give self-government to an Indian community. All it can really do for self-government is to get out of the way.
In the history of western thought, theologians, missionaries, judges and legislators for 400 years and more have consistently recognized the right of Indians to manage their own affairs. Nothing that we could say today in defense of Indian rights of self-government could be as eloquent as the words of Francisco de Vitoria in 1532 or of Pope Paul III in 1537 or of Bartholomew de las Casas in 1542 or of Chief Justice Marshall in 1832. For 400 years, men who have looked at the matter without the distortions of material. prejudice or bureaucratic power have seen that the safety and. freedom of all of us is inevitably tied up with the safety and freedom of the weakest and the tiniest of our minorities. This is not novel vision but ancient wisdom.
What gives point to the problem in 1949 is that after 422 years of support for the principle of Indian self-government, in the thinking of the western world, there is so little Indian self-government. Here we have, I think, the main problem on which I should like to throw the light of a few concrete examples and incidents.
I recall very vividly in 1934 working on a study for the Indian Office of legal rights of Indian tribes which was to serve as a guide in the drafting of tribal constitutions under the Wheeler-Howard Act. I found that the laws and court decisions clearly recognized that Indian tribes have all the governmental rights of any state or municipality except insofar as those rights have been curtailed or qualified by Act of Congress or by treaty, and such qualifications are relatively minor, in fact. When, at last, my job was done and the Solicitor’s opinion had been reviewed and approved by the proper authorities of the Interior Department and properly mimeographed, I learned to my dismay that all copies of the opinion in the Indian Office had been carefully hidden away in a cabinet and that when an Indian was found reading this opinion, the copy was forthwith taken from his hands and placed under lock and key. Incidentally, the Indian whose reading was thus interrupted had spent more years in school and college than the men who controlled the lock and key. The Indian Office was sure that the opinion, if released to the public, would be most disturbing. I suppose they were right. The opinion was disturbing to the Indian Office. Its suppression was equally disturbing to me. My despondency was somewhat relieved when I found that Chief Justice Marshall and Pope Paul III and Bartholomew de las Casas had all received the same treatment. It was of John Marshall's decision upholding the rights of self-government of the Cherokee Tribe that an old Indian fighter in the White House, President Jackson, said, “John Marshall has made his decision. Now let him enforce it.” The sovereign State of Georgia paid no attention to the decision of the United States Supreme Court and the good missionary whom the Supreme Court had freed continued to languish in a Georgia prison. And what happened to John Marshall in 1832 was not novel. The same thing happened to Bartholomew de las Casas 300 years earlier when, as Archbishop of Chiapas, he endeavored to read to his flock of Spanish landowners the guarantees of Indian freedom signed by the Pope and by the King of Spain. He was not allowed to read these documents by the outraged landowners of his archdiocese. In fact, he was driven from his church. History has a strange way of repeating itself. I was relieved to find myself in such good company, and so, instead of resigning, I distributed copies of the opinion where I thought they would do the most good.
How can we explain the fact that despite all the respect and reverence shown to the principle of Indian self-government across four centuries, there is so little left today of the fact of Indian self-government? How can we explain this discrepancy between word and deed?
The simplest explanation, of course, and the one that is easiest for simple, unsophisticated Indians to understand is the explanation in terms of white man’s hypocrisy.
I think we must go deeper into the wellsprings of human conduct and belief to understand what is happening in the field of Indian self-government and to relate facts to words.
Double-talk is not always a sign of hypocrisy. Probably the easiest way of maintaining consistency in our principles is to have a second-string substitute vocabulary to use in describing any facts that do not fit into the vocabulary of our professed principles. Thus, if we believe in liberty and find that some particular exercise of liberty is annoying, we may call that license, rather than liberty. So it is possible to talk about the virtues arid values of self-government without allowing this talk to influence our conduct in anyway, if we have a substitute vocabulary handy which will permit us to dismiss the appeal for self-government in any concrete case, without using the term “self-government.”
The second vocabulary to which professed believers in self-government continually turn when concrete cases arise is the vocabulary that talks about “a state within a state,” “segregation,” and, in the words of the Hoover Report, “progressive measures to integrate the Indians into the rest of the population as the best solution of 'the Indian problem.'“
There are two answers to this doubletalk: One is to deny the cliches and to insist that there is nothing wrong about having a state within a state; that, in fact, this is the whole substance of American federalism and tolerance. We may go on to say that the right of people to segregate themselves and to mix with their own kind. and their own friends, is part of the right of privacy and liberty, and that the enjoyment of this right, the right to be different, is one of the most valuable parts of the American way of life. We may say further that it is not the business of the Indian Bureau or of any other federal agency to integrate Indians or Jews or Catholics or Blacks or Holy Rollers or Jehovah's Witnesses into the rest of the population as a solution of the Indian, Jewish, Black, or Catholic problem, or any other problem; but that it is the duty of the federal government to respect the right of any group to be different so long as it does not violate the criminal law.
Apart from this challenging of cliches, there is a second cure for the habit of double-talk in our discussions of Indian self-government. That remedy is to reject what Stuart Chase called “the tyranny of words” and to think facts.
What gives point to the problem in 1949 is that after 422 years of support for the principle of Indian self-government, in the thinking of the western world, there is so little Indian self-government. Here we have, I think, the main problem on which I should like to throw the light of a few concrete examples and incidents.
I recall very vividly in 1934 working on a study for the Indian Office of legal rights of Indian tribes which was to serve as a guide in the drafting of tribal constitutions under the Wheeler-Howard Act. I found that the laws and court decisions clearly recognized that Indian tribes have all the governmental rights of any state or municipality except insofar as those rights have been curtailed or qualified by Act of Congress or by treaty, and such qualifications are relatively minor, in fact. When, at last, my job was done and the Solicitor’s opinion had been reviewed and approved by the proper authorities of the Interior Department and properly mimeographed, I learned to my dismay that all copies of the opinion in the Indian Office had been carefully hidden away in a cabinet and that when an Indian was found reading this opinion, the copy was forthwith taken from his hands and placed under lock and key. Incidentally, the Indian whose reading was thus interrupted had spent more years in school and college than the men who controlled the lock and key. The Indian Office was sure that the opinion, if released to the public, would be most disturbing. I suppose they were right. The opinion was disturbing to the Indian Office. Its suppression was equally disturbing to me. My despondency was somewhat relieved when I found that Chief Justice Marshall and Pope Paul III and Bartholomew de las Casas had all received the same treatment. It was of John Marshall's decision upholding the rights of self-government of the Cherokee Tribe that an old Indian fighter in the White House, President Jackson, said, “John Marshall has made his decision. Now let him enforce it.” The sovereign State of Georgia paid no attention to the decision of the United States Supreme Court and the good missionary whom the Supreme Court had freed continued to languish in a Georgia prison. And what happened to John Marshall in 1832 was not novel. The same thing happened to Bartholomew de las Casas 300 years earlier when, as Archbishop of Chiapas, he endeavored to read to his flock of Spanish landowners the guarantees of Indian freedom signed by the Pope and by the King of Spain. He was not allowed to read these documents by the outraged landowners of his archdiocese. In fact, he was driven from his church. History has a strange way of repeating itself. I was relieved to find myself in such good company, and so, instead of resigning, I distributed copies of the opinion where I thought they would do the most good.
How can we explain the fact that despite all the respect and reverence shown to the principle of Indian self-government across four centuries, there is so little left today of the fact of Indian self-government? How can we explain this discrepancy between word and deed?
The simplest explanation, of course, and the one that is easiest for simple, unsophisticated Indians to understand is the explanation in terms of white man’s hypocrisy.
I think we must go deeper into the wellsprings of human conduct and belief to understand what is happening in the field of Indian self-government and to relate facts to words.
Double-talk is not always a sign of hypocrisy. Probably the easiest way of maintaining consistency in our principles is to have a second-string substitute vocabulary to use in describing any facts that do not fit into the vocabulary of our professed principles. Thus, if we believe in liberty and find that some particular exercise of liberty is annoying, we may call that license, rather than liberty. So it is possible to talk about the virtues arid values of self-government without allowing this talk to influence our conduct in anyway, if we have a substitute vocabulary handy which will permit us to dismiss the appeal for self-government in any concrete case, without using the term “self-government.”
The second vocabulary to which professed believers in self-government continually turn when concrete cases arise is the vocabulary that talks about “a state within a state,” “segregation,” and, in the words of the Hoover Report, “progressive measures to integrate the Indians into the rest of the population as the best solution of 'the Indian problem.'“
There are two answers to this doubletalk: One is to deny the cliches and to insist that there is nothing wrong about having a state within a state; that, in fact, this is the whole substance of American federalism and tolerance. We may go on to say that the right of people to segregate themselves and to mix with their own kind. and their own friends, is part of the right of privacy and liberty, and that the enjoyment of this right, the right to be different, is one of the most valuable parts of the American way of life. We may say further that it is not the business of the Indian Bureau or of any other federal agency to integrate Indians or Jews or Catholics or Blacks or Holy Rollers or Jehovah's Witnesses into the rest of the population as a solution of the Indian, Jewish, Black, or Catholic problem, or any other problem; but that it is the duty of the federal government to respect the right of any group to be different so long as it does not violate the criminal law.
Apart from this challenging of cliches, there is a second cure for the habit of double-talk in our discussions of Indian self-government. That remedy is to reject what Stuart Chase called “the tyranny of words” and to think facts.
It takes a certain amount of sophistication to realize that the vision of others who see the world from different perspectives is just as valid as our own. One of the striking features of the administrative or bureaucratic mind is that it lacks such sophistication. Thus, it often turns out that the officials who have most to say in praise of Indian self-government have a certain blind spot where Indian self-government comes close to their own activities.
The great American philosopher, Ralph Barton Perry, coined the phrase, “the egocentric predicament” to call attention to the fact that each of us is at the center of his world and cannot help seeing the world through his own eyes and from his own position. It takes a certain amount of sophistication to realize that the vision of others who see the world from different perspectives is just as valid as our own. One of the striking features of the administrative or bureaucratic mind is that it lacks such sophistication. Thus, it often turns out that the officials who have most to say in praise of Indian self-government have a certain blind spot where Indian self-government comes close to their own activities.
I recall that when we were helping Indians draft the constitutions and charters which were supposed to be the vehicles of self-government under the Wheeler-Howard Act, all of the Indian Bureau officials were very strongly in favor of self-government, and in favor of allowing all tribes to exercise to the full extent their inherent legal rights. There was only one difficulty. The people of the Education Division were in favor of self-government in forestry, credit, leasing, law and order, and every other field of social activity except education. Of course, education, they thought, was a highly technical matter in which tribal council politics should have no part. Education should be left to the experts, according to the experts, and the experts were to be found in the Education Division. Similarly, with the Forestry Division. They were all in favor of self-government with respect to education, credit, agricultural leases, law and order, and everything else except for forestry. Forestry, of course, involved matters of particular complexity and difficulty in which the experts ought to make the decisions, and the experts, of course, were to be found in the Forestry Division. So it was with the Credit Section, the Leasing Section, the Law and Order Division, and all the other divisions and subdivisions of the Indian Bureau. The result was that while every official was in favor of self-government generally, by the same token he was opposed to self-government in the particular field over which he had any jurisdiction. In that field he could see very clearly the advantages of the expert knowledge which he and his staff had accumulated, and the disadvantages of lay judgment influenced by so-called political considerations which would he involved in decisions of local councils.
I recall that when we were helping Indians draft the constitutions and charters which were supposed to be the vehicles of self-government under the Wheeler-Howard Act, all of the Indian Bureau officials were very strongly in favor of self-government, and in favor of allowing all tribes to exercise to the full extent their inherent legal rights. There was only one difficulty. The people of the Education Division were in favor of self-government in forestry, credit, leasing, law and order, and every other field of social activity except education. Of course, education, they thought, was a highly technical matter in which tribal council politics should have no part. Education should be left to the experts, according to the experts, and the experts were to be found in the Education Division. Similarly, with the Forestry Division. They were all in favor of self-government with respect to education, credit, agricultural leases, law and order, and everything else except for forestry. Forestry, of course, involved matters of particular complexity and difficulty in which the experts ought to make the decisions, and the experts, of course, were to be found in the Forestry Division. So it was with the Credit Section, the Leasing Section, the Law and Order Division, and all the other divisions and subdivisions of the Indian Bureau. The result was that while every official was in favor of self-government generally, by the same token he was opposed to self-government in the particular field over which he had any jurisdiction. In that field he could see very clearly the advantages of the expert knowledge which he and his staff had accumulated, and the disadvantages of lay judgment influenced by so-called political considerations which would he involved in decisions of local councils.
Those of us in the Department who had been given a special responsibility for protecting Indian tribal self-government finally want to the Commissioner and pointed out that if we followed the traditional practice of yielding to each expert division on the matters with which it was concerned, there would be no Indian self-government. There was a long and bloody argument and eventually the Commissioner upheld the principle which is now written into most Indian tribal charters, that the Indians themselves, at some point or other, may dispense with supervisory controls over most of their various activities. Some of the charters include a special probationary period of five years or ten years, during which leases and contracts are subject to Departmental control. In many cases, particularly among the Oklahoma tribes, this period has terminated and the Indians are free, if they choose to do so, to make their own leases and contracts and various other economic decisions without Departmental control. That, at least, is what the charters and constitutions say.
Yet I must add that instances have been called to my attention where decisions and ordinances that were not supposed to be subject to review by superintendents or by the Commissioner of Indian Affairs have been rescinded or vetoed by these officials. Tribes without independent legal guidance frequently acquiesce in such infringements upon their constitutional and corporate powers. Thus many of the gains of the Roosevelt era are being chipped away.
Let me give one more instance of the egocentric predicament in action. A certain Southwestern superintendent recently wrote an eloquent article in defense of Indian self-government, and in support of the idea that the Indian Bureau should work itself out of its job. A few weeks later some of the tribes under his jurisdiction decided that they needed legal assistance and proceeded to employ attorneys to help them handle their own leasing, grazing and social security problems. At this point all- sorts of reasons began to occur to the superintendent why the tribes under his agency should not be allowed to select their own attorneys. In fact, for many months, as fast as one of his objections was met another objection occurred to him.
Here is a superintendent who is doing the best thing, as he sees it, for his Indians. He is, I believe, entirely sincere. Recently he explained that if one of these attorney contracts were approved he would be out of a job, so far as this particular tribe was concerned. Now you will recall that this is the same superintendent who wrote an article urging that the Indian Bureau work itself out of a job. But when the matter came to an issue in concrete terms affecting his own job, he saw the question in a different light. That is only human. That is a part of the egocentric predicament. And it is that predicament which makes the adherents and defenders. of self-government so much more dangerous to the cause of Indian self-government than any outright adversaries. If self-government were a man it might repeat, “God preserve me from my friends. I can take care of my enemies.”
Unfortunately, it is not the tribal decisions which we agree with that test our belief in the right of self-government. It is decisions that we loathe and believe to be fraught with death that test our beliefs in tribal self-government, just as it is religious opinions that we loathe and believe to be fraught with death that test our belief in religious tolerance. But it takes a vast amount of sophistication or philosophy to say what Justice Holmes once said, ''I think we should be eternally vigilant against attempts to check the expression of opinion that we loathe and believe to be fraught with death.” Allowing others to express opinions we agree with is no test at all of our belief in free speech. To quote again from Justice Holmes: “But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe in the very foundations of their own conduct, that the ultimate good desired is better reached by free trade in ideas.”
May we not profit, may not the world profit, if in a few places in our Western hemisphere there is still freedom of an aboriginal people to try out ideas of self-government, of economics, of social relations, that we consider to be wrong? After all, there are so many places all over the world where we Americans can try out the ideas of economics and government that we know to be right. Is there not a great scientific advantage in allowing alternative ideas to work themselves to a point where they can demonstrate the evils that we believe are bound to flow from a municipal government that maintains no prisons, or from a government that gives land to all members of the group who need it? Are we not lucky that the areas within which these governmental ideas can work from themselves out are so small that they cannot possibly corrupt the nation or the world?
Yet I must add that instances have been called to my attention where decisions and ordinances that were not supposed to be subject to review by superintendents or by the Commissioner of Indian Affairs have been rescinded or vetoed by these officials. Tribes without independent legal guidance frequently acquiesce in such infringements upon their constitutional and corporate powers. Thus many of the gains of the Roosevelt era are being chipped away.
Let me give one more instance of the egocentric predicament in action. A certain Southwestern superintendent recently wrote an eloquent article in defense of Indian self-government, and in support of the idea that the Indian Bureau should work itself out of its job. A few weeks later some of the tribes under his jurisdiction decided that they needed legal assistance and proceeded to employ attorneys to help them handle their own leasing, grazing and social security problems. At this point all- sorts of reasons began to occur to the superintendent why the tribes under his agency should not be allowed to select their own attorneys. In fact, for many months, as fast as one of his objections was met another objection occurred to him.
Here is a superintendent who is doing the best thing, as he sees it, for his Indians. He is, I believe, entirely sincere. Recently he explained that if one of these attorney contracts were approved he would be out of a job, so far as this particular tribe was concerned. Now you will recall that this is the same superintendent who wrote an article urging that the Indian Bureau work itself out of a job. But when the matter came to an issue in concrete terms affecting his own job, he saw the question in a different light. That is only human. That is a part of the egocentric predicament. And it is that predicament which makes the adherents and defenders. of self-government so much more dangerous to the cause of Indian self-government than any outright adversaries. If self-government were a man it might repeat, “God preserve me from my friends. I can take care of my enemies.”
Unfortunately, it is not the tribal decisions which we agree with that test our belief in the right of self-government. It is decisions that we loathe and believe to be fraught with death that test our beliefs in tribal self-government, just as it is religious opinions that we loathe and believe to be fraught with death that test our belief in religious tolerance. But it takes a vast amount of sophistication or philosophy to say what Justice Holmes once said, ''I think we should be eternally vigilant against attempts to check the expression of opinion that we loathe and believe to be fraught with death.” Allowing others to express opinions we agree with is no test at all of our belief in free speech. To quote again from Justice Holmes: “But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe in the very foundations of their own conduct, that the ultimate good desired is better reached by free trade in ideas.”
May we not profit, may not the world profit, if in a few places in our Western hemisphere there is still freedom of an aboriginal people to try out ideas of self-government, of economics, of social relations, that we consider to be wrong? After all, there are so many places all over the world where we Americans can try out the ideas of economics and government that we know to be right. Is there not a great scientific advantage in allowing alternative ideas to work themselves to a point where they can demonstrate the evils that we believe are bound to flow from a municipal government that maintains no prisons, or from a government that gives land to all members of the group who need it? Are we not lucky that the areas within which these governmental ideas can work from themselves out are so small that they cannot possibly corrupt the nation or the world?
Indeed, is there not a possibility that we can learn from example—horrible examples, perhaps, or perhaps examples to be emulated? Have we not been learning from Indian examples for a good many years? Have we not been taking over all sorts of horrifying Indian customs, disrespect for kings and other duly appointed authorities, the smoking of poisonous weeds, like tobacco, and the eating of poisonous plant products, like tomatoes, potatoes, tapioca, and quinine, not to mention cocoa and cocaine?...can we not also recognize, with Justice Holmes, that time has upset many fighting faiths, and that even if we are possessed of absolute truth it is worthwhile to have somebody somewhere trying out a different idea?
Indeed, is there not a possibility that we can learn from example-horrible examples, perhaps, or perhaps examples to be emulated? Have we not been learning from Indian examples for a good many years? Have we not been taking over all sorts of horrifying Indian customs, disrespect for kings and other duly appointed authorities, the smoking of poisonous weeds, like tobacco, and the eating of poisonous plant products, like tomatoes, potatoes, tapioca, and quinine, not to mention cocoa and cocaine? Of course, we must all of us start with the assumption that we are right or as near being right as we can be. But can we not also recognize, with Justice Holmes, that time has upset many fighting faiths, and that even if we are possessed of absolute truth it is worthwhile to have somebody somewhere trying out a different idea?
Just as serious as the habit of double-talk or the egocentric predicament is the method of procrastination as a way of avoiding the concrete implications of Indian self-government. On May 20, 1834, not 1934 but 1834, the House Committee on Indian Affairs reported that a large part of the activity of the Indian Bureau was being carried on in violation of law and without any statutory authority. It urged that the Indian Bureau work itself out of a job by turning over the various jobs in the Bureau itself to the Indians and by placing the Indian Bureau employees on the various reservations under the control of the various Indian tribes. These recommendations were written into law. They are still law. The justice of these recommendations has not been challenged for 115 years. But always the answer of the Indian Bureau is: Give us more time. We must wait until more Indians have gone to college, until the Indians are rich, until the Indians are skilled in politics and able to overlook traditional jealousies, until the Indians are experts in all the fields in which the Indian Bureau now employs experts. But we are never told how the Indians are to achieve these goals without participation in their own government. And so perhaps some of us are entitled to look with a skeptical eye upon the new legislative proposals by which the Indian Bureau is to work itself out of a job after the usual interim 10 year or 20 year period of increased appropriations.
What provokes skepticism is the fact that the various bills which are being introduced into Congress to achieve this objective generally end up by giving new powers and new millions of dollars not to the Indian tribal councils but to the Indian Bureau. And when we find that specific dates are not attached to any promised transfers of power to the tribes, we are entitled to be skeptical. The record shows that for more than one hundred years the aggrandizement of Indian Bureau power has been justified on the ground that this was merely needed for a brief temporary period until authority could be conveyed over to the Indians themselves.
Indian Bureau government, like other forms of colonialism, starts from the basic premise that. government is a matter of knowledge or wisdom. If we accept this basic premise, there is no answer to the aristocratic argument of Alexander Hamilton that government should be handled by the rich, the well born, and the able. If it be said that rich people and well-born people are not necessarily able, the obvious answer is that those who are rich or well born are at least more likely to have expert knowledge, training, and experience than those who are poor or the children of poor families, and that in government we must proceed by general rules, under which it is safe to say that the rich, the well-born, and the able will do a more expert job than others in the posts of government. One of the greatest of our Secretaries of the Interior, also, like Hamilton, an immigrant from lands that worshipped empire, Carl Schurz, once said to an Indian group that was inclined to object to the activities of some local agency personnel: ''The Great Father is a very wise man. He knows everything. If there is anything wrong with your agent, he will know it before either you or I know it.”
I think that if government were merely a matter of wisdom and expert knowledge, the argument of Carl Schurz and Alexander Hamilton would be irrefutable. The answer to Schurz and to Hamilton is that government is not a science; it is not primarily a matter of wisdom or technique or efficiency. Government is a matter chiefly of human purpose and of justice, which depends upon human purpose. And each of us is a more faithful champion of his own purposes than any expert. The basic principle of American liberty is distrust of expert rulers, and recognition, in Acton's words, that power corrupts and that absolute power corrupts absolutely. That is why America, despite all the lingo of the administrative experts, has insisted upon self-government rather than “good government,” and has insisted that experts should be servants, not masters. And what we insist upon in the governing of these United States, our Indian fellow-citizens also like to enjoy in their limited domains: the right to use experts when their advice is wanted and the right to reject their advice when it conflicts with purposes on which we are all our own experts. The classical answer to the Hamilton-Schurz Indian Bureau philosophy of “expert government” is the answer given by Thomas Jefferson in a letter to the Cherokee Indians in 1808. Jefferson said: ''The fool has as great a right to express his opinion by vote as the wise, because he is equally free and equally master of himself.”
The other day I heard repeated the words of Nazi Admiral Doenitz, as he faced his judges at the conclusion of the Nuremberg Trial. The principle of expert leadership, he said, had proved itself in the armed forces as a principle of efficiency. It seemed to him that the same principle would prove itself in the field of government, but the results showed that the leadership principle in government had brought in its train only ghastly destruction.
Let us hope that we will not have to wait and see, as Admiral Doenitz saw, what happens when self-government and minority rights are subordinated to expert government and the leadership principle. Let us be thankful that in this country we have, in laboratory proportions before us, in proportions so small that the individual effort of half a dozen of us can make a real difference, this perennial conflict between democratic self-government and the various modem forms of aristocracy, or government by experts. The issue we face is not the issue merely of whether Indians will regain their independence of spirit. Our interest in Indian self-government today is not the interest of sentimentalists or antiquarians. We have a vital concern with Indian self-government because the Indian is to America what the Jew was to the Russian Czars and Hitler's Germany. For us, the Indian tribe is the miners' canary and when it flutters and droops we know that the poison gasses of intolerance threaten all other minorities in our land. And who of us is not a member of some minority?
The issue is not only an issue of Indian rights; it is the much larger one of whether American liberty can be preserved. If we fight only for our own liberty because it is our own, are we any better than the dog who fights for his bone? We must believe in liberty itself to defend it effectively. What is my own divides me from my fellow man. Liberty, which is the other side of the shield of tolerance, is a social affair that' unites me with my fellow man. If we fight for civil liberties for our side, we show that we believe not in civil liberties but in our side. But when those of us who never were Indians and never expect to be Indians fight for the cause of Indian self-government, we are fighting for something that is not limited by the accidents of race and creed and birth, we are fighting for what de las Casas and Vitoria and Pope Paul III called the integrity or salvation of our own souls. We are fighting for what Jefferson called the basic rights of man. We are fighting for the last best hope of earth. And these are causes that should carry us through many defeats.
Just as serious as the habit of double-talk or the egocentric predicament is the method of procrastination as a way of avoiding the concrete implications of Indian self-government. On May 20, 1834, not 1934 but 1834, the House Committee on Indian Affairs reported that a large part of the activity of the Indian Bureau was being carried on in violation of law and without any statutory authority. It urged that the Indian Bureau work itself out of a job by turning over the various jobs in the Bureau itself to the Indians and by placing the Indian Bureau employees on the various reservations under the control of the various Indian tribes. These recommendations were written into law. They are still law. The justice of these recommendations has not been challenged for 115 years. But always the answer of the Indian Bureau is: Give us more time. We must wait until more Indians have gone to college, until the Indians are rich, until the Indians are skilled in politics and able to overlook traditional jealousies, until the Indians are experts in all the fields in which the Indian Bureau now employs experts. But we are never told how the Indians are to achieve these goals without participation in their own government. And so perhaps some of us are entitled to look with a skeptical eye upon the new legislative proposals by which the Indian Bureau is to work itself out of a job after the usual interim 10 year or 20 year period of increased appropriations.
What provokes skepticism is the fact that the various bills which are being introduced into Congress to achieve this objective generally end up by giving new powers and new millions of dollars not to the Indian tribal councils but to the Indian Bureau. And when we find that specific dates are not attached to any promised transfers of power to the tribes, we are entitled to be skeptical. The record shows that for more than one hundred years the aggrandizement of Indian Bureau power has been justified on the ground that this was merely needed for a brief temporary period until authority could be conveyed over to the Indians themselves.
Indian Bureau government, like other forms of colonialism, starts from the basic premise that. government is a matter of knowledge or wisdom. If we accept this basic premise, there is no answer to the aristocratic argument of Alexander Hamilton that government should be handled by the rich, the well born, and the able. If it be said that rich people and well-born people are not necessarily able, the obvious answer is that those who are rich or well born are at least more likely to have expert knowledge, training, and experience than those who are poor or the children of poor families, and that in government we must proceed by general rules, under which it is safe to say that the rich, the well-born, and the able will do a more expert job than others in the posts of government. One of the greatest of our Secretaries of the Interior, also, like Hamilton, an immigrant from lands that worshipped empire, Carl Schurz, once said to an Indian group that was inclined to object to the activities of some local agency personnel: ''The Great Father is a very wise man. He knows everything. If there is anything wrong with your agent, he will know it before either you or I know it.”
I think that if government were merely a matter of wisdom and expert knowledge, the argument of Carl Schurz and Alexander Hamilton would be irrefutable. The answer to Schurz and to Hamilton is that government is not a science; it is not primarily a matter of wisdom or technique or efficiency. Government is a matter chiefly of human purpose and of justice, which depends upon human purpose. And each of us is a more faithful champion of his own purposes than any expert. The basic principle of American liberty is distrust of expert rulers, and recognition, in Acton's words, that power corrupts and that absolute power corrupts absolutely. That is why America, despite all the lingo of the administrative experts, has insisted upon self-government rather than “good government,” and has insisted that experts should be servants, not masters. And what we insist upon in the governing of these United States, our Indian fellow-citizens also like to enjoy in their limited domains: the right to use experts when their advice is wanted and the right to reject their advice when it conflicts with purposes on which we are all our own experts. The classical answer to the Hamilton-Schurz Indian Bureau philosophy of “expert government” is the answer given by Thomas Jefferson in a letter to the Cherokee Indians in 1808. Jefferson said: ''The fool has as great a right to express his opinion by vote as the wise, because he is equally free and equally master of himself.”
The other day I heard repeated the words of Nazi Admiral Doenitz, as he faced his judges at the conclusion of the Nuremberg Trial. The principle of expert leadership, he said, had proved itself in the armed forces as a principle of efficiency. It seemed to him that the same principle would prove itself in the field of government, but the results showed that the leadership principle in government had brought in its train only ghastly destruction.
Let us hope that we will not have to wait and see, as Admiral Doenitz saw, what happens when self-government and minority rights are subordinated to expert government and the leadership principle. Let us be thankful that in this country we have, in laboratory proportions before us, in proportions so small that the individual effort of half a dozen of us can make a real difference, this perennial conflict between democratic self-government and the various modem forms of aristocracy, or government by experts. The issue we face is not the issue merely of whether Indians will regain their independence of spirit. Our interest in Indian self-government today is not the interest of sentimentalists or antiquarians. We have a vital concern with Indian self-government because the Indian is to America what the Jew was to the Russian Czars and Hitler's Germany. For us, the Indian tribe is the miners' canary and when it flutters and droops we know that the poison gasses of intolerance threaten all other minorities in our land. And who of us is not a member of some minority?
The issue is not only an issue of Indian rights; it is the much larger one of whether American liberty can be preserved. If we fight only for our own liberty because it is our own, are we any better than the dog who fights for his bone? We must believe in liberty itself to defend it effectively. What is my own divides me from my fellow man. Liberty, which is the other side of the shield of tolerance, is a social affair that' unites me with my fellow man. If we fight for civil liberties for our side, we show that we believe not in civil liberties but in our side. But when those of us who never were Indians and never expect to be Indians fight for the cause of Indian self-government, we are fighting for something that is not limited by the accidents of race and creed and birth, we are fighting for what de las Casas and Vitoria and Pope Paul III called the integrity or salvation of our own souls. We are fighting for what Jefferson called the basic rights of man. We are fighting for the last best hope of earth. And these are causes that should carry us through many defeats.
For us, the Indian tribe is the miners' canary and when it flutters and droops we know that the poison gasses of intolerance threaten all other minorities in our land. And who of us is not a member of some minority? The issue is not only an issue of Indian rights; it is the much larger one of whether American liberty can be preserved. If we fight only for our own liberty because it is our own, are we any better than the dog who fights for his bone? We must believe in liberty itself to defend it effectively.
Editor’s Note
This article was originally a paper contributed to the Institute on American Indian Self-Government held in New York in April 1949 by the Association on American Indian Affairs. Subsequently, the article was published by the Association in its 1949 issues of The American Indian: Volume 2, Number 2. At the time of writing, Felix S. Cohen was legal counsel of the Association on American Indian Affairs, visiting Professor of Legal Philosophy at College of the City of New York and Yale University, and a practicing lawyer specializing in Indian and other minority problems. Before joining the Association on American Indian Affairs, Felix Cohen was the Associate Solicitor of the Department of the Interior, a voluminous writer in the field of law and legal philosophy, and author of the standard Handbook of Federal Indian Law. Some minor edits were made in this republication to modernize the article.
This article was originally a paper contributed to the Institute on American Indian Self-Government held in New York in April 1949 by the Association on American Indian Affairs. Subsequently, the article was published by the Association in its 1949 issues of The American Indian: Volume 2, Number 2. At the time of writing, Felix S. Cohen was legal counsel of the Association on American Indian Affairs, visiting Professor of Legal Philosophy at College of the City of New York and Yale University, and a practicing lawyer specializing in Indian and other minority problems. Before joining the Association on American Indian Affairs, Felix Cohen was the Associate Solicitor of the Department of the Interior, a voluminous writer in the field of law and legal philosophy, and author of the standard Handbook of Federal Indian Law. Some minor edits were made in this republication to modernize the article.
Felix Cohen with his wife and former Association on American Indian Affairs Board Member, Lucy Cohen.
