Exclusion Series: Can Social Exclusion Benefit a Group? The Native Lands question
By Noah Truesdale* and Nils Junge
We are constantly reminded of the boundaries which divide us – men from women, young from old, white from black. The growing response to the death of George Floyd, the increased partisan divide in our communities, and even the coronavirus all seem to highlight our differences, even as a movement to overcome them gathers pace. As social justice enters the mainstream, many are fighting to for the scales of society to balance more evenly. Inclusion is the word on the street.
However, there are instances in which exclusion is the moral option. Take the recent ruling by the United States Supreme Court in the case of McGirt v. Oklahoma, which has virtually reshaped the map of Oklahoma overnight.
Predicating a decision in a criminal justice case on the legitimacy of 19th-Century treaties between Congress and the Muscogee (Creek) Nation, the Supreme Court ruled that the majority of land in the eastern part of Oklahoma must be restored as definitionally protected Native lands. The surprising 5-4 decision, penned by Trump appointee Neil Gorsuch, affirmed that over three million acres of land in Eastern Oklahoma be excluded from the state government’s jurisdiction and re-designated as a Native reservation. The opinion, which began with a blistering indictment of the United States legacy of mistreatment and violence against Native populations during the Trail of Tears — when 60,000 Cherokee, Muscogee, Seminole, Chickasaw and Choctaw Native Americans were forced to leave their homelands by President Andrew Jackson’s Indian removal policy — is being widely celebrated by groups advocating for increased Native autonomy and power.
The Supreme Court’s ruling in McGirt is thus seen as a step in correcting a long history of forced assimilation, violence, and manipulation. The case addressed the question of the state’s power over autonomous groups. However, more broadly, it raises interesting questions about when the exclusion of others — generally a negative stance from the liberal perspective — is morally justified.
What’s Included in Inclusion?
On the surface, inclusion seems universally preferable to exclusion. Who likes to be excluded? Studies have shown that being excluded harms one’s mental and physical health, as well as financial wellbeing. The concept of inclusion, or inclusiveness, conjures images of a society populated by diverse members, all respectfully engaging with, and supporting one another. Exclusion, on the other hand — as the recent George Floyd protests have reminded us — is associated with discrimination, social stigmatization, income disparity, poor health and education outcomes.
From a social justice perspective, inclusion should be the norm. Society is better when all its members are free and able to voice opinions, participate in democracy, and engage fully in society. Naturally, even in societies that grow more tolerant and inclusive, there will always be subgroups who enjoy greater privileges and power than others. That power may translate into normalizing the values, preferences, and cultural practices of the privileged at the expense of the marginalized. Because that normalization can have lasting and dramatic consequences on all others, there are circumstances in which ensuring marginalized groups have the ability to self-determine the limits of their inclusion and exclusion from broader society is to the benefit of all.
When talking about inclusion and exclusion in the social sphere it is important to note that the terms are context specific. For example, both geographic and temporal conditions have defined the who, how, when, and why people are in or out. The term social inclusion, coined by René Lenoir in 1974, originally referred to those on the margins of society — the physically and mentally disabled, the socially maladjusted, and the poor.
As sociology became a larger factor in policy analysis, other institutions found the term more useful than general anti-poverty language: In the 1990’s, social insurance was seen as a means of achieving social inclusion in the EU. Across the Atlantic Ocean, US policymakers used the term to frame discussions about wealth disparity. For programs and policymakers today, social inclusion is used to discuss the manner and opportunity by which marginalized and disadvantaged groups are able to meaningfully interact and take part in society. As students of inclusion and exclusion expand the concepts beyond just economic conditions, measures of social inclusion have come to incorporate access to services (utilities, health, education) and more abstract considerations like cultural, physical, and political participation.
There are programs and policies today that are working towards a more inclusive society. The UN has dedicated task forces committed to achieving gender parity, international protections for ethnic minorities and refugees, increased political participation of disenfranchised groups, and many other boundaries of exclusion. Outside of formal institutions, many donor groups and activist organizations bring attention to disparities between privileged and excluded populations and seek to rectify them.
However, without requisite ethnographic considerations, programs and policies can be unintentionally pernicious. Even more troubling, in some instances programs which claim to foster social inclusion may actually mask sinister and insidious agendas.
A Question of Jurisdiction
On the surface, McGirt v. Oklahoma was a question of jurisdictional politics. Jimcy McGirt, a member of the Seminole Nation, was arrested, tried, and found guilty on several charges of sexual assault by the Oklahoma government. Citing the specific language of the Major Crimes Act, which dealt with jurisdiction over crimes committed on reservations, McGirt argued post-conviction that both his Native status, as well as the location of crimes, should have prevented the Oklahoma state government from trying his case. His guilt wasn’t a question for the Supreme Court to decide, but rather which criminal system was responsible for finding him guilty in the first place — Oklahoma’s or the federal government’s. Ultimately, for the Supreme Court to rule on which institution held jurisdictional power, the court needed to resolve a long-standing question of the legitimacy of Muscogee (Creek) Nation treaties with Congress.
As noted by both Gorsuch in his majority opinion and by lawyers for the state of Oklahoma, there has been a long history of attempts by the federal government to diminish both the size and nature of the Muscogee reservation. In fact, lawyers for Oklahoma went as far as to argue that since the state and federal government have rarely, if ever, acknowledged or honored the treaties and negotiations with the Muscogee (Creek) Nation, those agreements shouldn’t be enforced. The language of that argument sets the tone for a conversation about forced inclusion and benevolent exclusion — how useful or beneficial is inclusion when it comes about because of betrayal by dominant in-groups?
Treaties in America
While the original 1830 treaty between Congress and the Muscogee Nation defined the size of the reserved land and guaranteed the tribe ownership in perpetuity, by 1866 Congress had already drafted an updated treaty which forcibly purchased Muscogee protected land for cents on the dollar. In the 1880’s, a time period known as the “allotment era,” the Muscogee, like other tribes, suffered from the Dawes Act and other legislation which sought to weaken tribal sovereignty and foster a “class of assimilated, landowning agrarian Native Americans” by requiring reservation land to be divided among members instead of being owned by the community at large. As requirements for ownership relaxed, much of the parceled land on Muscogee land found its way into non-native hands and what land remained for tribal groups was linked to requirements for assimilation. Land ownership was often contingent on speaking English and refusing to engage in traditional practices.
The Muscogee are not alone in suffering broken treaties by the federal government. Most famous among broken promises, the Treaty of Fort Laramie cut reservation boundaries for Dakota, Lakota, and Nakota tribes when gold was discovered within tribal lands. (A consequence of this treaty, nearly a hundred years later, was the designation of Alcatraz Island as a National Park to prevent Native groups in California from capitalizing on the language of the treaty regarding deserted federal lands). There are numerous similar examples — as Matthew Fletcher, director of the Indigenous Law and Policy Center at Michigan State University puts it, “the rule of thumb is every treaty’s been broken.” While the violation of treaties has been catastrophic for Native groups, the implementation and design of the treaty system in the first place was equally disastrous.
Inclusion or Assimilation?
As treaties, boundaries, the establishment of reservations and politicking mitigated actual bloodshed between the United States Army and tribal groups, Native populations found themselves facing a new threat from a modernizing and spreading Euro-American society — “death by red tape.” This had enormous repercussions: nomadic groups, newly bound to specific land, lost a sense of heritage and mobility, agricultural groups had to change both the manner and type of food grown, traditional medicinal practices had to be updated to account for changes in flora availability, and conflict between newly relocated tribes and existing ones destabilized conditions in the West which led to bloodshed and conflict. As settlers moved past the Mississippi, Native Americans faced further challenges as Euro-American society switched between extreme manners of inclusion and exclusion.
The violation of established borders and boundaries, either by new settler populations or abrogation by Congress in the interest of those settlers, cut out agriculturally and economically beneficial land from Native groups, creating a forced dependence on American institutions and societies for resources, while further eroding already threatened cultural practices.
The growing Euro-American settler group supplanted a diverse set of values regarding gender, property, discipline, etc., with the values that they saw as successful, i.e. their own — private property, self-directed occupations, divisions between women and men. Even those settlers acting in good faith “generally believed the only acceptable future was full assimilation into Anglo-American society as sedentary agriculturalists and Christians.” For these settlers, measures of prosperity and success were predicated on practices and traditions often in conflict with existing Native cultures, and attempts at assimilation and forced inclusion inherently meant turmoil and tension.
At the federal level, assimilation was attempted through legislation. For Native Americans living in Euro-American cities, the Indian Offenses Act punished manifestations of tribal culture, like clothing and hairstyles, the open practice of religion, and other traditional customs.
While Native populations saw their culture and practices challenged through compromising and forced interaction with Euro-American societies, many among the newer generations were denied the opportunity to experience that culture in the first place. Native children were taken, in some cases voluntarily, but often through coercion or kidnapping, to brutal assimilating schools with curricula built around Euro-American values and practices. The intent of these schools was to, in effect, “Kill the Indian and save the Man”. Children had their hair cut, were taught the norms and customs of Euro-American society, were denied access to families for years, and many died from disease, abuse, and neglect. Upon returning home, an entire generation of Native Americans found themselves socially displaced. The Euro-American society which had forcibly assimilated these children did not truly accept them as equals, and assimilated children often found little refuge and comfort in returning to the communities from which they were pulled.
Indigenous sovereignty was destroyed intentionally and intergenerationally in the interest of a homogenized society. In fact, many of the difficulties facing tribal communities today can be directly attributed to the forced social inclusion programs of the 19th and 20th century.
Benevolent Exclusion?
In the face of that history of neglect and reneging on treaty terms (or in many cases Congress never ratifying treaties that were agreed), the Court, in deciding McGirt v. Oklahoma did something that many find remarkable — it compelled the United States government to honor its promises and enforce agreements made to tribal groups in the 19th-century. In effect, the decision instantly excluded the Muscogee (Creek) Nation from the influence of Oklahoma authority and restored some sovereign power. The decision did not confer absolute autonomy to the Muscogee Nation, as tribal spokesmen are reassuring citizens of eastern Oklahoma and critics of the decision, but it was a promising step in correcting a tragic, dehumanizing, and often deadly legacy of the United States flip-flopping on the inclusion or exclusion of Native Americans.
The history of Native American interaction with the United States government is an example of how social exclusion can be benevolent. That is, a threatened, minority group can draw a boundary around itself to keep a threatening majority group out. The creeping and pervasive influence of Euro-American values, lifestyles, and culture both by intentionally malicious actors and passive forces has been devastating for tribes (even today, the increased urban mobilization of Native populations and consumption of Euro-American media is threatening cultural practices and language stability). But when excluded groups get to decide the terms of their inclusion and the limits of outside influences, there can be positive outcomes.
*Noah Truesdale, currently studying for a Master’s degree in political science at NYU, is a research intern with Nils Junge Consulting