I’d like to offer an unconventional response.
First off, I recognize the immense complexity of the legal and historical issues. There were indeed vast injustices done to the Native Americans, and there are many apparent contradictions in the welter of laws, treaties, and administrative actions. I therefore have no opinion on the legal aspects of this problem. Let the Supreme Court decide; I’ll respect whatever decision they make in this matter.
The two unique points I can offer are both contrary to the Native American cause. First, let’s all admit that this is money-grabbing scheme. It seeks to transfer stupendous amounts of money into the treasuries of the tribal organizations. It could be argued that this is restorative justice, but my understanding is that, in the case of Oklahoma, the lands were not stolen from Native Americans; their ownerships were forcibly passed from Native American tribes to individual Native Americans, who then alienated their property to people who were not Native Americans. To the extent that those secondary alienations were legal and proper, they should be respected. If, as the author suggests, some of those alienations were illegal, then they should be revisited separately. In principle, the secondary land transfers were entirely proper.
My second point is that it would be best for all parties for us to dissolve the entire legal system surrounding Native American reservations. Again, I fully recognize that this is not legally proper at this time; it would be an outright violation of many treaties. My argument is instead that it would result in a better and happier situation for almost everybody.
There would be losers: the leadership of the Native American tribes. They would lose their power and the wealth that they control. But it would be immensely better for the Native American children. They are brought up in a social context that forces poverty and a short life span upon them. They would be much better off if they had the same opportunities as any other child in this country. But they are treated as the chattel of the Native American adults, who keep them locked in their ghetto. With great effort, such a child can break loose from the system — I know one such person — but it’s not easy.
The defense used by Native Americans is that the children must be forced to preserve the Stone Age cultural heritage they inherited, because the preservation of that cultural heritage is of overriding importance. I reject this argument. My counterargument is a twist of John Rawls’ ethical analysis. Suppose that you were able to choose, before you were born, the family into which you would prefer to be born. Yeah, sure, you’d prefer to be born into an obscenely wealthy family. But let’s apply it comparatively. Would you rather be born the child of a Native American family living on the reservation, or the child of a middle-class electrician living in Indiana? I think that most of us would prefer the latter, recognizing that it offers a wider range of life opportunities.
So if you would prefer not to be born into a Native American cultural context, why would you support the forcing of that cultural context upon a newborn infant?
I acknowledge that these arguments will upset some people, but I hope that we can discuss them calmly. I believe that the arguments have substance, but I’d be happy to reject them if somebody can come up with some solid counterarguments.