A Tale of Two Narratives – The Issue of Evidence in Khan Sheikhoun

On Thursday April 6, 2017, two American naval vessels fired 59 cruise missiles towards the Al-Sharyat airbase in Syria targeting the facilities and airplanes stationed there. The official reason behind the strike was that it was in response to a government chemical weapons attack a few days earlier on April 4th at Khan Sheikhoun, Syria. Initial reports of the attack came from a Twitter video, and eventually images of those suffering the effects of chemical weapons, either Sarin or Chlorine, began appearing on the screens of American televisions. Most importantly these images, apparently shown to the President at the behest of his daughter Ivanka, stirred enough in Donald Trump to do something, as Fareed Zakaria described it, very presidential.

The president of the United States, regardless of what Donald Trump believes, does not have the power to attack a sovereign nation without cause. In order to conduct a strike like the one launched on April 6th, the president should have a level of confidence on the facts to justify the use of force. The crux of the issue in this latest Syrian attack is whether the facts presented are sufficiently supported by evidence. If it is, then the president can, under one international “norm,” respond with military force.

The Dubious Norm Behind the Missile Strikes

Under the international norm established in the late 1990s and early 2000s known as Responsibility to Protect (R2P) if there is proven use of chemical weapons in a widespread manner enough to qualify as a crime against humanity, then the UN or any state has the right to intervene militarily to stop the violence. The doctrine of R2P, as stipulated in the Outcome Document of the 2005 United Nations World Summit and formulated in the Secretary-General’s 2009 Report on Implementing the Responsibility to Protect is as follows:

The State carries the primary responsibility for protecting populations from genocide, war crimes, crimes against humanity and ethnic cleansing, and their incitement; the international community has a responsibility to encourage and assist States in fulfilling this responsibility, and; the international community has a responsibility to use appropriate diplomatic, humanitarian and other means to protect populations from these crimes. If a State is manifestly failing to protect its populations, the international community must be prepared to take collective action to protect populations, in accordance with the Charter of the United Nations.

As laudable as this norm sounds, one cannot ignore the very recent history of R2P and the distortion it provoked in Libya. The transition of a UNSC authorized R2P intervention to protect civilians in Benghazi turned very quickly into a robust air campaign aimed at regime change from the above. Given the position of the U.S. regarding Syria (“Assad Must Go”) there is every reason to believe that the invocation of R2P in Syria is in line with the standing U.S. policy of regime change. Though the end of the Assad regime is an understandably desired outcome (despite fears of who, or what power, would replace the regime), it is not the goal of R2P to remove sovereign leaders. As such, the official policy and historical tendency of the United States stands as a barrier to any legitimate use of R2P. Unlike Libya, the Syrian proxy war makes the prospect of mission creep to regime change that much more serious and dangerous. Add to that the position of Russia as a staunch ally of the Syrian government, and the potential for international war becomes more ascertainable.

Don Said, Vlad Said

Since the attack, two narratives have been pushed by the two sides of the conflict. First, the United States, Britain, Turkey, and its anti-Assad allies claim to have evidence, irrefutable evidence, that the attack came from the air and contained chemical agents deliberately delivered onto civilian targets. If indeed the case, the attack – when compiled with all the other attacks in Idlib, Aleppo, and elsewhere in Syria – make it clear that the regime of Bashir Al-Assad is responsible for innumerable war crimes, crimes against humanity, and potentially genocide.

However, the Syrian government categorically denies the use of chemical weapons as does the Russian government. “I stress to you once again: the Syrian army has not, did not, and will not use this kind of weapons – not just against our own people, but even against the terrorists that are targeting our civilians indiscriminately,” he said at a press conference in Damascus posted below.

The government claims that, as Sputnik reported Russian Defense Ministry spokesman Maj. Gen. Igor Konashenkov affirm, that Syrian aircraft conducted an airstrike in the eastern outskirts of Khan Shaykhun on “a large warehouse of ammunition of terrorists and the mass of military equipment.” Konashenkov said that this warehouse was storing, chemical weapons ammunition militants were preparing to deliver to Iraq. He added that there were workshops for manufacturing bombs, stuffed with poisonous substances, on the territory of this warehouse. He noted that these munitions with toxic substances were also used by militants in Aleppo in November of 2016.

So there are two narratives, and there is some overlap in them. Neither side denies the presence of a Syrian Su-22 fighter/bomber in the area. No one disputes an attack took place at Khan Sheikhoun. Neither side disputes that chemical agents were present and that the victims show signs of being exposed. The question is then: what happened, who can we believe?

In the western press the proposed Russian explanation is laughed off, mainly because it is Russian. The other method employed is to use the phrase “experts disagree with the Russian explanation,” while linking to another one of the outlets stories which does not contain any detail besides either unsupported claims that “rebels in Syria don’t have the capability” or “it isn’t a plausible explanation.” The New York Times even had the nerve to claim that the UN report on the 2013 Ghouta attacks been carried out by the Syrian government. The report specifically states that it did not find sufficient evidence to determine the responsible party, only that the attack occurred and gas was used. These media outlets are sure that few readers will doubt the official line being repeated and if they don’t, that frustration behind not finding the evidence will prompt the reader to give up and assume some deep state organization like the CIA has the requisite information. Of course, that must be kept secret from the American people.

In non-western, or pro-Russian press, the idea that Assad would use his chemical weapons against his own people is not only irrational, it defies the actions of the Syrian government in its attempts to rid itself of its chemical weapons stockpile after the 2013 Ghouta attacks and following UN resolution 2118. Indeed, given the use of gas by rebel forces in Syria previously, the notion that there could be a chemical weapons factory in rebel-held areas of Syria is more than believable. It also seems more than plausible in these media sources that a strike on the factory could release the agent. Additionally, these media sources rely on the same reader ignorance and susceptibility as do western outlets, assuming the reader will accept whatever is written. This goes a long way on both sides.

The Evidence

As always, if one wants to find out the truth, they must follow the evidence. However, it often isn’t clear what evidence is needed to do so. In order to prove one of the narratives about the Khan Sheikhoun attacks true, it is necessary to determine what evidence would prove one conclusively wrong. The major difference between the narratives is the method of delivery of the agent – either an strike carried out with ordinance containing agents delivered by air or an explosion which triggered the release of it from a factory or warehouse that had the agent stored inside- and the difference in dispersal area between an aerial and ground release.

First, does the Syrian military have the capability to deliver chemical weapons, namely sarin, via the air? This answer will be difficult, if not impossible to ascertain. First, as Foreign Policy notes:

“Shayrat was also one of at least seven Syrian air bases that had the capability to load sarin or its precursors into bombs before these sites were dismantled by the OPCW. According to French intelligence, Syria had a stockpile of aerial bombs designed to deliver 100-300 liters of sarin. These bombs were designed as binary chemical weapons that contain two separate nontoxic precursor chemicals that could be mixed within the bomb shortly before takeoff to produce sarin. Syria may have retained as many as 2,000 of these munitions after joining the CWC. The type of munition used in the attack on Khan Sheikhoun has not yet been determined.”

It should be noted that after the 2013 Ghouta attacks the U.S. and Russia formulated an agreement under which Syria agreed to allow international monitors to destroy its chemical-weapons stockpile by 2014. In its most recent report dated February 23, 2017, the Organization For The Prohibition Of Chemical Weapons(OPCW) stated that it has

“verified the destruction of 24 of the 27 chemical weapons production facilities (CWPFs) declared by the Syrian Arab Republic. The security situation still continues to preclude safe access both for the Syrian Arab Republic to destroy the remaining aircraft hangar, which stands ready to accept the explosive charges, and for the Secretariat to confirm the condition of the two stationary above-ground facilities.”

The UB-32 Rocket Pod under the wing of a SU-22 fighter/bomber used in the April 4th attacks.

Therefore, in order for the Syrian Airforce to have delivered sarin weapons it would have done so either by a sarin-filled bomb, or sarin-filled rockets. A bomb would contain several hundred liters of the compound and, if used, cover a significant area. None of the footage or eyewitness testimony corroborates this. According the Syrian media, “the Su-22’s bombs are unique and cannot be filled with any chemical substances, which is different than bombs dropped from attack helicopters.” Instead, the claim is that the Syrian plane used several small rockets. Indeed, images of small craters created by the rockets were used to show Syrian Air Force culpability.

Other photos showing the impact site from a different angle were published by news agencies such as Reuters.

If this were the case, the Syrian Su-22 fighter/bomber would have delivered them via an underwing rocket pod loaded with sarin rockets. In order to make this connection, evidence that the facility at Shayrat still had Sarin production or storage capability – something denied by the OPCW, would be necessary. Additionally corroborating evidence would come in the form of information about the size and movement of the gas after the strike. These rockets, according to a conversation with John Gilbert, a senior science fellow at the Center for Arms Control and Non-Proliferation, would contain a few liters of the sarin compound and after hitting would cover a area significantly smaller than a sarin bomb.

Gilbert also noted that weather conditions would play a significant role in the dispersal of the chemical agent as well. According to Meteoblue wind speeds in Khan Sheikhoun had been steady dropping from the day before which clocked 11 mph winds, to under about 7 mph by mid-day. Another factor mentioned by Gilbert would be the presence of a temperature inversion which traps warm air near the earths surface. Usually concerning when present over polluted cities, the presence of a temperature inversion would have increased the efficacy of the gas by keeping it towards the ground. Conditions on the 4th of April, 2017 show that it had precisely the opposite conditions for an inversion. Usually an inversion accompanies cooling temperatures, as the air will warmer than the ground as it radiates away. The temperature was rising on April 4th and the humidity was decreasing rapidly.

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Also, pictures from that day do not evidence an inversion.

Though some of the evidence does not support the claim of rocket-based use of sarin it is till possible. But how plausible is the claim that a strike on a factory containing sarin or other agents would cause it to be released? First, it is important to note that most of the nerve agents used are binary chemical warfare agents. The binary name derives from the fact that the agents are made by mixing from several different components within a few days of use. For example, binary Sarin is made by combining isopropyl alcohol with methylphosphonyl difluoride, among other additives for ease of use. Binary systems are used for two reasons, protection of logistics personnel and materiel as well as shelf life. Waiting to mix the chemical before use allows the binary compounds to be stored much longer, and therefore manufactured cheaper.

It is important to note that the claim made by Syria and Russia is that the building targeted was a rebel weapons production and/or storage facility. It is certainly plausible that given the security and time restrictions of the war, that rebels would not be keeping the substance in binary. However, as Belling Cat notes,

“if they were [storing them in binary], even assuming large quantities of both Sarin precursors were located in the same part of the same warehouse, an air-strike is not going to cause the production of large quantities of Sarin.  Dropping a bomb on the binary components does not actually provide the correct mechanism for making the nerve agent… One of the precursors is isopropyl alcohol.  It would go up in a ball of flame.  A very large one.  Which has not been in evidence.”

The lack of a fireball of igniting isopropyl alcohol suggests one of two things about the facility. Either it did not contain the binary agents, or the chemicals were not held in binary states. If the chemicals were not held in binary and simply kept already mixed in some form of container, the puncturing of those containers by concussions from nearby rocket hits or even a direct hit, could release the agent in the nearby area.

The last bit of evidence available is the picture of a crater near a warehouse with silos that is the supposed site of the attack. If this is the warehouse that the Syrians claim was destroyed and release the chemicals, then evidence should remain. A video showing a reporter outside the area shows that little, if anything, was inside the silos when they were hit. It is worth noting that the damage shown in the area already existed before the April 4 attack, as shown by TerraServer imagery from February 2017. However, the area of town in which the silos are located is at the northern edge, whereas Syrian and Russian reports claimed the rebel warehouse hit was on the eastern outskirts of Khan Sheikhoun.

Conclusion

With all these discrepancies, until the UN investigation team is able to access the site of the attacks, there is simply no way for anyone outside of those with more capable, but likely secret, means of procuring that information. The UN team would have to geo-locate the impact crates, gather evidence of the remains of the munition, locate all the victims and geo-locate their position at the time of the attack, and determine wind and temperature impacts on dispersal to make a case that would be enough to stand up in an American court of law, for instance.

But without making that information available for public scrutiny, any military action taken by any state is premature at best, and illegal at worst. While it is common practice in the war of hearts and minds to portray one’s adversary as having no merit in any claim made, in this instance, both claims are at least plausible and also full of holes. However, neither side is willing to give the public the information necessary to make informed and intelligent claims, much less have the confidence to back a military response. Yet we see media pundits and politicians alike line up behind Donald Trump’s attack and praise it.

While the victims of the attack bore the brunt of this tragedy, the effects will linger longer and spread wider than Khan Sheikhoun. This failure to mandate an evidence-based system that ensures that the government only makes decisions and takes military action (if not any action) after all the information is reviewed and analyzed by public and private organizations and groups makes us less safe and kills other people. No longer should be people be forced to choose between trusting one source without evidence or trusting another without evidence. This form of “trust us” media and government produces in the public the distrust of media that fuels the “fake news” phenomenon and general discontent and distrust the public has in media and government alike. In short, it is bad for civilized society.

As the world has learned many times, most recently in 2003 in Iraq and 2011 in Libya, things change when the most powerful military in the world begins to flex its military muscle. Surely, one cannot escape noting the hypocrisy of a government that claims it has no money for social programs but is willing to spend hundreds of millions of dollars in weapons without having ensured that the party punished is actually the party responsible. Even the hypocrisy of this situation aside, if a nation is going to claim that it has the right under R2P to attack a state that is committing serious international crimes, it has to buttress its claims with publicly available evidence, not a few pictures of victimized children which boils any human’s emotional blood.

In the case of the chemical weapons attack on April 8, 2017 in Khan Sheikhoun, no such evidence has been provided either before or after the attack, nor is any currently available. Therefore, in no uncertain terms, it was a premature and illegal action taken by the government of the United States under one of the founding principles of the entire United Nation project: non-aggression. Once again, the United States government has shown that it does not really believe in the principles of the United Nations, though lip service is often paid to the same principles.

In the Twitter language of the current American President:

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Sam Harris the Socialist

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In Sam Harris’ most recent appearance on Joe Rogan’s podcast they discussed the rise of automation and the responses that are necessary to it. Harris has been discussing this issue for quite a while, sounding the alarm for the potential danger, while not attempting to spread panic. At the same time, Harris recognizes that our current financialized-monopoly capitalist system simply cannot continue under this new regime. He rightly notes that automation will result in one of two things. Either we institute some form of wealth re-distribution, or we slide into an unjustifiably outrageous inequality of wealth were those who have it must barricade themselves behind razor wire to avoid the prongs of angry former-workers.

Harris is rather sanguine about this issue though. He notes that surely there is some level of inequality that is unsustainable. Though Harris sees this position as being reached somewhere in the future, it notes that it is surely a principled position. How unequal can we really get?

“But even in the ideal case, where obvious value has been created, how much wealth can one person be allowed to keep? A trillion dollars? Ten trillion? (Fifty trillion is the current GDP of Earth.) Granted, there will be some limit to how fully wealth can concentrate in any society, for the richest possible person must still spend money on something, thereby spreading wealth to others. But there is nothing to prevent the ultra rich from cooking all their meals at home, using vegetables grown in their own gardens, and investing the majority of their assets in China.”

He argues that to address the consequences of automation, that we will need to come up with a system, potentially a universal basic income, where the wealth generated from the rise of the machines can be socially, rather than privately, beneficially.

Listen to the section here.

Harris has written on this before. But what you wont find from this is any serious discussion of the background philosophy that gives animation and foundation to his notions. He never discusses how wealth is generated in the first place, and how automation is merely the latest advance in a system that is partially based on a notion of “creative destruction” that has significantly destructive tendencies for human beings at the low end of ladder.

What I mean, of course, is Marx, specifically the Grundrisse. While Sam is certainly on to something, and his intuitions are certainly correct, his lack of dealing with the necessary philosophical background that gives the ideas motion is disappointing to say the least. Indeed, Marx discussed the improvement of technology under capitalism, praised it for its ability to destroy old paradigm of resource scarcity, but also outlined how, given the dynamics of private ownership and control of the means of production, these technological advancements are retooled to assist the continuation of the system.

It has been brought up to Sam and to Joe Rogan that they need to have guest trained in Marxism on their respective podcasts. Given the wide, inquisitive, and intelligent audiences that both Rogan and Harris have, it seems imperative that they have a guest on – such as Richard Wolff – who can sift through the propaganda that both Harris and Rogan wish to avoid by not using terms associated with Marxism, socialism, or communism.

But let us not kid ourselves here. What Sam Harris is proposing is, if not what Marx did, something close to it. He sees the contradictions of capitalism in front of him. He isn’t blind. But he is blinded by an education and social situation which allows even brilliant people like Harris, to ignore an entire tradition in western thought. Lacking this understanding is a serious hurdle to Harris’s views, because they do not address some fundamental civilizational questions and leave him unable to give any guidance that may convince more people to seek out formerly taboo ides, the kind that Harris is already no stranger.

While we enter a new era in capitalism, with Trump at the helm of the executive branch of the American government and the continued progress towards massive automation, the ideas of Marx are never more important. People like Rogan and Harris have been elevated to positions that have actual effects in the world. If either had a Marxist economist on their podcasts it would do a great deal towards shattering the taboo that still exists. It would get them credit with the younger generation who enjoy both podcasts and socialism. It would help themselves to realize that some arguments, so common today and even ones they employ, are actually quite poor and ought to be contested and shown how poor they are in public and in real time.

At the end of the day Harris (and even Rogan) is already 9/10th a socialist, he just needs to get over that last hurdle. I think Richard Wolff can assist doing that. Who wouldn’t love seeing Sam and Dr. Wolff, or Joe and Dr. Wolff discussing Marxism for 3 hours? Sign me up!

The Necessity of Radicalism – Learning the Lesson of ‘17

The year 2017, like 1917, will go down in the annals of history as one marked by radical change. Though separated by a century, activists and revolutionaries of both times fight a similar struggle, against similar influences, and in similar ways. But times have also changed, and the lessons from the last bloody century must be learned if the United States, indeed the rest of the world, is to move past its momentary and unnecessary troubles. One of the most salient lessons is that of the necessity of radicalism. Usually spoken of in disparaging terms, the history of the last 100 years shows that radicalism is, like Obi-Wan Kenobi a long time ago and far away, our only hope.

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A hundred years ago, between February and November of 1917, Russia experienced not one, but two revolutions. The consequences of these revolutions, as well as the Great War that spurred them, reverberated through the next century. The war saw the entrance of the United States into Europe’s imperial competition on its own territory, something Washington famously warned against and a position that had become US policy under President James Monroe a hundred years prior. The Russian Revolution would, for the first time, present an ideological challenge to the growing hegemony of industrial capitalism. A hundred years later, this battle, albeit highly deformed by history, remains un-won despite claims to the end of history.

The destruction of Europe in the Great War, combined with the Russian Revolution, set the United States on a path that would alter its destiny and distort its promises. Inside the country, the ideological battle raged. Eugene V. Debs, the country’s most famous and beloved socialist, won almost a million votes in the presidential election of 1920 and it appeared that revolution would soon spread to Europe, and then to the United States confirmed by the swell in the ranks of the Socialist Party to over 100,000 members. Famous writers such as Upton Sinclair and Jack London and history making persons such as Helen Keller and Albert Einstein counted themselves among their ranks or as advocates. For these early twentieth century socialists, socialism was as American as apple pie.Image result for Helen keller socialist

The U.S. government did not agree, and Attorney General A. Mitchell Palmer’s Department of Justice began attacking the broader left, targeting socialists and anarchists, the majority of whom were immigrants from Europe. Through deportations, intimidation, beatings, arrests, and imprisonment (including Debs himself who received those million votes sitting in a prison cell for speaking out against the war) the government aimed to eradicate the ideas of Marx and the movements which pushed for revolutionary change. At the same time, a similar tactic of repression was instituted in Germany. The Communist revolution in 1919 (one not discussed in American high school or even college-level history classes) was drowned in blood by the German Social Democratic Party who ironically believed themselves to be the most advanced socialists in the world. Ironically, their failure in 1919 set the stage for the rise of Fascism in Europe.

At moment the Bolsheviks in Russia helped depose the Tsar in February of 1917 and came to power in October, the United States opposed them and assisted in efforts (including sending a contingent of troops to Russia) to depose the new regime. The United States stood opposite the new Soviet model and sought to establish itself as the representation of everything that is great about capitalism. This was not merely a show. While much of the wealth that America had generated in its first 150 years had been made from enslavement of other humans, wholly exploiting their labor power, what some (including the socialists) called its second revolution – the Civil War – ended that system of plantation slavery and replaced it with what the socialists would call “wage slavery.”

But those wages grew, and America had become a land of opportunity where large swaths of land, confiscated from native groups, presented possibilities that Europe could not. A new growth of industry, which created some of the greatest industrial empires known to man (such as Andrew Carnegie’s U.S. Steel or John D. Rockefeller’s Standard Oil) made America an industrial heartland able to outcompete Great Britain and Germany. This process was not without its trouble – development never is – and so the new industrialization of America created a new class as well, the American working class. Since capitalism is not necessarily stable, there were hiccups on this path to prosperity, and with each hiccup a new wave of industrial violence emerged (such as the Ludlow Massacre, Battle of Blair Mountain, and the Pullman Strike) until the system finally gave out on Black Tuesday in 1929.

The Great Depression would test America in a way nothing had before. Never before had the economy, riding a post-war bubble, burst so dramatically. By 1933, at the worst point in the Great Depression years, unemployment rates in the United States reached almost 25%, with more than 11 million people looking for work. It appeared to many workers that the gains made by multiple waves of immigrants to the United States that fueled its growth, had suddenly vanished. However, the ruling class of America, typified by President Herbert Hoover, had unending faith in the free market system. They had been hit hard, but were still on top and though a big shock to the system, capitalism would always recover. The tens of millions out of work disagreed, and though socialist and communist organizations had seen a dip in membership after the Palmer Raids and subsequent repression, tens of thousands joined several new parties that aimed for the next American revolution.

In 1933, Franklin D. Roosevelt was elected President. By no means a working class man, but a man of wealth from Hyde Park, New York, FDR proposed that the state must react to the depression. How exactly this would be accomplished remained a mystery. Given the rising power of the communist and socialist parties and organizations and their capture of many strong trade unions, FDR (along with many across the country) feared that the continuation of the Great Depression made communist revolution inevitable. Therefore, Roosevelt proposed the New Deal, which would make America into a modern welfare state – one that guaranteed more than just negative rights against interference, but positive rights of support such as unemployment compensation, social security, guaranteed healthcare, and massive public works programs. The New Deal system, and its international counterpart, the Bretton-Woods system, would create a period of economic stability and prosperity like never before. Granted, this system was sadly aided by the death and destruction of World War II. However, it did present America with a new system to compete with the rising power of the State-capitalist Soviet Union and its Gulag Archipelago.

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Though the New Deal was seen as a victory for the socialist and communist groups as it showed the power of their position, so too do did the U.S. Government, and it set out not to repeat this scenario. With the rising power of the FBI under J. Edgar Hoover, rooting out communists (no longer considered as American as apple pie but as the ideological agent of a foreign power, i.e. the Soviet Union) was a patriotic duty, and claiming affinity to Marx – even if rejecting the authoritarianism of Stalin – was tantamount to treason. Two new campaigns, the House Committee on Un-American Activities, led by infamous Senator McCarthy, and the secret COINTEL program which would run for nearly thirty years that infiltrated to “expose, disrupt, misdirect, discredit, or otherwise neutralize the activities” of left organizations from the Communist Party and Black Panthers, to the Civil Rights movement and KKK.  The success of these efforts, as well as the complicit role played by the government and media in instilling the narrative into the psychology of the country, would have made Mitchell Palmer smile.

Once the New Deal had been put in place, even conservatives agreed about its success. President Eisenhower, a republican, stated that “should any political party attempt to abolish social security unemployment insurance and eliminate labor laws and farm programs you would not hear of that party again in our political history.” However, this seemingly prophetic statement was nothing of the sort. By the end of the 1970s, President Nixon had abandoned the Bretton-Woods system and after four stagnant years under President Carter, a new ideology that favored just what Ike though impossible emerged, the Reagan Republican Party. For that party, the New Deal was a farce because, as President Reagan stated often, “the nine most terrifying words in the English language are: I’m from the government and I’m here to help.”

The Reagan Republicans ended what allegiance that party had to the New Deal and took advantage of the destruction of the radical left by the state to begin to dismantle the system it had been responsible for instituting. The growing financial industry and its new robber barons captured the Republican Party with large donations and assistance, both legal and illegal. What was illegal was soon targeted for rebuke legally, resulting in Citizens United. At the same time the distractive potential of new media, namely 24-hour television (prior to the 1980 TV stations actually turned off for the night), was able to push narratives with a such force and repetition that all other voices, formerly kept alive by party presses and local advertising, were effectively silenced, leading to what Noam Chomsky has called the manufacture of consent.

The success of this manufacturing of consent was so successful that the wealthy elite moved for more, using its wealth, power, and influence to remove the absolute allegiance to the New Deal by the Democratic Party in a few short election cycles. Ultimately, the Democratic Party, the supposed representative of labor and the working class itself pivoted to become “New Democrats” with a corporate ideology that, like their conservative cousins, serves the interest of the new financialized elite. Talks of privatizing social security and greatly removing welfare benefits has not caused the parties to be unheard from again, instead the ideas have growing support among a large cohort of propagandized Americans. Indeed, even the Democratic Party and its allies work against modern welfare state expansion such as a single payer healthcare system under this new paradigm.Image result for clinton welfare queen

Given this background, it seems that the battle is lost. After the fall of the Berlin Wall and the color revolutions in Europe and Central Asia in 1989 that led to the breakup of the Soviet Union in 1991, what value there was in socialism seemed lost. The Soviet Union was far from a workers’ paradise. Instead, what promise the October Revolution cast into the world had been sullied by violence and repression, handicapped by war, left to rust by stagnation and irrational elite behavior, kept paranoid by threats and useless wars, left without any moral compass by unnecessary decisions and elite hubris (though the same could be said for the Americans as well – the systems are more similar than either would surely admit). It had appeared that capitalism had won the larger war.

But that was thirty years ago, and while a generation of Americans and Russians saw each other, and the ideology the other represented, as the incarnate of evil, a new generation has been born after the end of the Cold War, where the propaganda of that time seems silly and without salience. While this generation has grown up in an environment that has seen the New Deal under attack, they have also seen the consequence of doing so – the Great Recession – the second worst crisis in modern capitalism after the crash of ’29. In the 1930s socialist and communist parties were large and well organized and therefore able to capitalize on the anger and resentment that comes from economic crisis. But when the people were forced to bailout large financial corporations because of their illegal and immoral behavior, the destruction of the left had been so complete they could not step into the ole they had 80 years before. As a result, the anger that inevitably came from the bailout was itself captured by elite interests in the form of the Tea Party movement. What little the left could muster in its resistance, Occupy Wall Street, was again subject to state violence through COINTEL-style infiltration such as mass arrests, evictions, intimidation, as well as media blackouts or disparaging misinformation stories. As a result of this continued and well organized repression, there was no Second New Deal under President Obama.

Image result for socialism popularityBut ideas do not die when the conditions do not change, and in many ways, things have not changed much from 1917. Though there are no large American socialist and communist parties, the general ideas of socialism – the promise of a better world for everyone – remains something worthy of exploration. Indeed, among those under 30 years old socialism is more popular than capitalism. With the rise of a man who claims to be a democratic-socialist, Bernie Sanders, who despite not winning the democratic primary in 2016 remains America’s most popular politician, combined with the election of Donald Trump, one of America’s least favored presidents, the possibility for a new rise in socialist agitation is not merely the prediction of a dreamer. Indeed, on May Day, the traditional International Labor Day, of 2017 there is expected to be a large general strike not seen in the United States since the 1930s.

American history has shown that when progressive radical elements are allowed to express the revolutionary discontent, whether they be patriots, anti-federalists, abolitionists, or communists, the country moves forward, not backwards. While in the post-9/11 world radicalism has different and much more sinister definition, it is what is sorely needed today. Students and activists are showing their discontent, whether it be on the streets of Berkeley or occupied city parks, but they are without the revolutionary history that the education system refuses to teach them for fear of growing that radicalization. However, if that history is reviewed it presents a clear lesson for us to combat the problems of our modern politics – the necessity of the next American Revolution.

Shame, Badness, and Socrates’ Theory of Punishment in Plato’s Gorgias

In the midst of battle in Shakespeare’s Henry V, Orleans tells Bourbon that his forces could overcome the English if order could be restored and Bourbon replies, “The devil take order now! I’ll to the throng. Let life be short, else shame will be too long.” His impatience for restoring the order necessary for victory came from a compelling feature of the human condition, even that which follows us post-mortem: shame. It is this same feature – the capacity for personal and social shame – that does the heavy lifting in Socrates’ famous argument with Polus in the Gorgias suggesting that it is better to suffer a harm than to inflict one, and in the case having committed a transgression, it is better to be punished than not to be punished. It is the force with which shame impacts us and shapes who we are in some base way that takes a common-sense notion that suffering a harm is worse that inflicting one if not for the sheer avoidance of pain, inconvenience, or some other consequence and turns it on its head. Once shame is introduced into the analysis, especially given our own histories and predilection to avoid dis-pleasurable things for which shame sits near the top of a long list, it quite quickly reverses the course of our natural inclinations and sends them back to the argument needed to justify such dispositions.

The Argument

The section of the Gorgias in which Socrates presents his position regarding the hierarchy of suffering or inflicting harm follows a discussion about whether or not those acts that make us happy are the good acts an should be followed. Polus, Socrates’ interlocutor on this issue, argues for a sort of hedonism – that which make us happy is beneficial and therefore the good. When on the subject of rulers, Polus suggests that the ruler should be envied for the ability to use their power to do as they wish but is shocked when Socrates brings in a notion of justice asking Polus, “…the one who puts someone to death unjustly is [miserable], my friend, and he’s to be pitied besides. But the one who does so justly isn’t to be envied” (469b). Polus is surprised by Socrates unwillingness to admit that he, like (assuming) everyone else, would surely love to have the power of a tyrant and to be free to take whatever action he so desired, including execution, excommunication, and expropriation of others.

After showing that anyone with the means to assert their own authority, usually by some weapon such as a dagger, could do so to decide that a random citizen is to be killed or thieved. Polus disagrees with this and says that is not what having great power is, rather it is using your sovereign authority in a manner that, though based on one’s will, is for the benefit the population, though it may include execution, excommunication, and expropriation. Socrates attempts to get Polus to make an argument as to when those things are good and when they are bad, Polus instead argues that Socrates is ignoring a truth evident to all, that even unjust tyrants are happy so long as they go unpunished.  Socrates infuriates Polus when he rejects this common wisdom, claiming that unless Socrates knows whether the tyrant knows justice, he cannot claim that the tyrant is happy, but if the tyrant is unjust (as was the example of Archelaus that Polus uses), he is necessarily unhappy. Polus simply cannot see why until Socrates gives him the philosophical one-two punch.

SOCRATES: So that you’ll know, answer me as though this were my first question to you. Which do you think is worse, Polus, doing what’s unjust or suffering it?
POLUS: I think suffering it is.
SOCRATES: You do? Which do you think is more shameful, doing what’s unjust or suffering it? Tell me.
POLUS: Doing it. (474c)

While Polus agrees that it is more shameful to commit an injustice he remains unconvinced that makes it worse.  However, Socrates strikes back, arguing that shame overcomes either badness or pain, or both.  Obviously the person who commits an injustice undergoes less pain than the person suffering one, committing an injustice cannot surpass in pain or both pain and badness. He makes this by analogy to admirability. “Whenever one of two admirable things is more admirable than the other, it is so because it surpasses the other either in one of these, pleasure or benefit, or in both,” (475b) and therefore, “…whenever one of two shameful things is more shameful than the other, it will be so because it surpasses the other either in pain or in badness” (Id).
Socrates then justifies his conclusion: causing harm does not cause more pain than the sufferer experiences, and since there is agreement that shame is worse than pain, that only leaves badness. Socrates does not provide a clear argument for why inflicting pain surpasses suffering it in badness. Instead, Socrates and Polus simply agree to this point:

SOCRATES: So, if [inflicting harm] doesn’t surpass it in pain, it couldn’t at this point surpass it in both.
POLUS: Apparently not.
SOCRATES: This leaves it surpassing it only in the other thing.
POLUS: Yes.
SOCRATES: In badness.
POLUS: Evidently.
SOCRATES: So, because it surpasses it in badness, doing what’s unjust
would be worse than suffering it.
POLUS: That’s clear. (475c)

Therefore, given the choice between the two, we should choose to suffer rather than commit an injustice.

After this agreement, and Polus’ apparent acceptance of this unjustified conclusion that inflicting pain does surpass suffering it in badness, Socrates uses a different form of argument to make his case that enduring punishment is preferable to going unpunished. Assuming that a punishment is justly enacted, thereby being a demand to make reparations for a committed transgression in the right way, suffering it is not even a bad, but a good. In just punishment, the sentence is not determined and demanded for mere retribution or isolation, but rather for rehabilitation or reparation. This is not a rehabilitation or reparation for society per se, but rather for the person who committed the transgression, though that will naturally affect the city. Doing an unjust act represents a corruption (or badness) of soul, something deeply ingrained and fundamental to the guilty person. It may be analogized to a disease demanding a cure. A just punishment is the cure. Punishment serves to realign the soul by making due with the badness it carries and if the punishment is taken in stride and accepted by the guilty. Only then will reparations to the soul bepossible: without it, in the person who escapes punishment, there is no chance for rehabilitation and so the soul remains corrupted.

Through this form of argument, we get tacit agreement between Socrates and Polus.

SOCRATES: Now wasn’t this the point in dispute between us, my friend? You considered Archelaus happy, a man who committed the gravest crimes without paying what was due, whereas I took the opposite view, that whoever avoids paying his due for his wrongdoing, whether he’s Archelaus or any other man, is and deserves to be miserable beyond all other men, and that one who does what’s unjust is always more miserable than the one who suffers it, and the one who avoids paying what’s due always more miserable than the one who does pay it. Weren’t these the things I said?
POLUS: Yes.
SOCRATES: Hasn’t it been proved that what was said is true?
POLUS: Apparently. (479e)

So while Polus does allow Socrates to feel as though he had convinced him, the answer “apparently” seems to indicate that Polus is more interested in following Socrates’ reasoning than actually agreeing with it. The question remains whether he has good reason to remain unconvinced.

The Issue of Greater Badness in Inflicting Harm

The disagreement embodied in the dialogue between Socrates and Polus is one that still rages today. In the age of post-modernist constructionism and moral relativism, the notion that actually submitting oneself for punishment seems simply illogical, and Polus’ position against Socrates reflects this seemingly natural conclusion. It seems obvious to those envisioning what harms punishment may include that suffering such punishment will surely be bad for the person who suffers it. It is rather straightforward that the pain, aguish, loneliness, and indeed shame that accompany almost any punishment make the desire to avoid those consequences as natural as any human tendency to avoid pain and seek pleasure.

The value of Socrates argument is to turn this common sense notion on its head. To do this, Socrates must contend with the commonplace notion of pain avoidance. To do this he adds in the relation that doing harm and suffering it have effects beyond merely the physicality of pain by its relationship to the virtuousness of one’s soul. Making the case that inflicting a harm as opposed to suffering just punishment detracts from the ability for ones soul to retain or even seek virtue is the mechanism that Socrates employs to all but bait and switches Polus into considering the effect of these acts not merely on our person, but on our being. However, there is a flaw in his attempt to make this argument lock tight.
The failure of Socrates’ argument, at least as it relates to inflicting harm compared to causing it, is the notion of “badness”. In making the analogy to admirability, Socrates posits that what is most shameful is what surpasses others in pain, or badness or both (475c). But since it is obvious to Socrates and Polus that causing harm does not produce in the person causing the harm more pain, that leave only badness. Yet, rather than asking whether inflicting harm surpasses suffering it in badness, and the discussion surrounding whether this claim is indeed valid, Socrates and Polus simply agree that causing it surpasses suffering it in badness. The natural question arises: why?

Indeed the assertion of this principle and the lack of explanation as to the justification of the conclusion leave more questions than answers. Presumably, Socrates means badness of the soul when he refers to badness that, unlike pain, is not an immediate sensation, but a manifestation of the action in the person. Therefore, Socrates may argue that causing harm, especially if we assume it is unjust harm (harm done for no good reason, in the wrong way, at the wrong time, etc.), has the converse effect on the soul as submitting to just punishment does – it all but disallows the perpetrator from being just or good.

Therefore, if doing the harm prohibits the person causing it from knowing and pursuing virtue, then it may reasonably be referred to as “bad”. Since suffering an unjust harm does not have a similar effect on the soul of the punished (in theory it should have no effect on the attainment and seeking of virtue) and causing it would have such an effect, and we call that effect “bad”, then doing acts which would constitute unjust infliction of harm would surpass suffering it in “badness.” Though one may pull this from the pages and somewhat between the lines, Socrates may still be correct, but fails to adequately make his point without extra work by the reader. Perhaps this is an example of Plato’s (and Socrates) insistence that philosophy cannot be written and instead comes from interaction – in this case, with the failure of Socrates to sufficiently lay out his position to Polus.

The Issue of Just Punishment

A second issue with Socrates argument that suffering (just) punishment is better than not doing so. This is a different form of argument than the comparative of inflicting or suffering harm, rather it explores the existential dichotomy of submitting to or avoiding (just) punishment. Introducing the idea, Socrates claims that submitting to (just) punishment is good as it acts as payment for the wrong committed, thereby allowing the person being punished to pay their just due. Crucial to this notion is the form and intent of the punishment, in order to evaluate whether such a form and intent is indeed just. While related to the argument, this is not the central issues between Polus and Socrates regarding punishment as both agree that the kind of punishment Socrates suggests is one that the guilty ought to submit to because it is just. But how would we know?

If we are to evaluate the justness of a form of punishment, especially the form of punishment in Ancient Athens, we must have some notion of what those punishments were. Unfortunately, Socrates and Polus give only a glimpse of the forms of punishment used in their time: put on the rack, castrated, and has his eyes burned out, subjected to a host of other abuses of all sorts, and then made to witness his wife and children undergo the same. Granted, these are punishments for the plotting tyrant, so may be some of the harshest based on the severity of the crime. The other punishments in Athens included limited loss of political rights, total disfranchisement, exile from the city (which could be amplified with the confiscation of property and/or the razing of the convict’s house), and death (which could be amplified with the confiscation of property and/or the razing of the convict’s house and/or a refusal of burial). In short, the punishments were rather harsh compared to the standards of the 21 century.

Indeed, under modern notion of human rights, set forth in international agreements and covenants, these punishments are categorically unjust, if not outrightly prohibited. The use of stocks would be humiliating and degrading treatment, loss of political rights can only happen in the most severe crimes, exile is considered cruel and unusual, destruction of property also violates international norms, and capital punishment is either outlawed or seldom used in a majority of nations around the globe. Clearly, the world has come to understand that the forms of punishment used in Ancient Greece, with Athens being the most lenient of the Greek City-States, are beyond the pale and therefore arguably unjust per se.

Modern theories of punishment, though, do incorporate the basic thrust of Socrates’ argument. At present, there are four main justifications of punishment – retribution, deterrence, rehabilitation, and incapacitation. Two of these theories, retribution and rehabilitation, appear to be in line with what Socrates proposes. Retribution is usually understood in the formulation from Exodus 21:24 as an “eye for an eye, or a tooth for tooth…”. Essentially, in order for a punishment to be fitting, it has to, in some way, match the crime. Socrates may not agree with the Mosaic notion of perfect equality (literally doing to the guilty what they had done) but that in order for the punishment to be considered just, and aid in repairing the soul corrupted by the commission of the act, it must have a relation or some comparative link to the crime; otherwise how could it be just if justice is understood in punishment to be that which is most calculated to repair the damaged soul?

Rehabilitation is the closest modern theory of punishment to Socrates’. The purpose of punishment under this theory, compared to adjusting the calculation of other would-be criminals (deterrence) or to ensure that the criminal is unable to commit the same act again (incapacitation), rehabilitation seeks to identify the underlying cause of the person’s transgression. This is almost exactly what Socrates argues, that the purpose of (just) punishment is to repair the soul. In modern parlance, this translates into healing the person’s physiological, psychological, economic, social, emotional, and indeed moral well-being. The main difference between Socrates notion and the modern notion of rehabilitative justice is simply what needs healing. A modern reader could understand, despite Socrates’ attempts elsewhere to make an argument for the existence of a soul, that what he means by that – at least for the purposes of justifying submitting to punishment – is simply the totality of the person’s personality, including both tangible biological brain states as well as their corresponding more ephemeral emotional responses.

Conclusion

Socrates’ discussion with Polus regarding the comparative righteousness of inflicting or suffering harm and whether or not to submit to punishment, is actually quite progressive, even in modern times. While it seems that, for a number of reasons, the notions of punishment either as a mere shaming of the perpetrator, or as a deterrent to others, or to protect society remain popular. Luckily, modern scientific inquiry into psychology, sociology, and medicine has yielded considerable work on the positive and adverse effects of certain forms of punishment. In this research, there is growing consensus that if the goal is to remove individuals from the cycle of criminality, imprisonment, and state intervention into their lives, then we must accept the basic premise of Socrates argument – doing something bad does indeed hurt us on some fundamental level and that submitting to rehabilitative punishment may be the key to the personal (though not the social) ills which lead individuals to commit crimes at all.

I Left My Heart at Standing Rock: Native American Vulnerability Status under International Human Rights Law

Introduction

Starting in August 2016, a growing movement of Native American tribes and allies have been engaged in daily protest. Their target: The Dakota Access Pipeline. The DAPL is an oil pipeline designed to transport oil as part of the larger Bakken pipeline project.[1] The Bakken project aims to connect newly accessed crude shale oil in the Bakken oil field located in North and South Dakota. The protest is at the heart of an intersectional struggle against the pipeline, bringing in activists and concerned citizens focused on environmental rights, corporate governance and social responsibility, and Native American rights. This diverse group believes that the Standing Rock Indian Reservation serves as the physical location of the intersection of these struggles. The protests have forced construction to slow or stop several times and remained an issue, albeit largely neglected, in the 2016 US presidential election. On December 4, 2016, the Army Corp of Engineers announced that it would not grant the easement that would allow the pipeline to traverse Standing Rock sacred land, causing great celebration at the protest site.[2]

In addition to fears of worsening environmental degradation, assisted greatly by the continued extraction and widespread use of CO2 emitting fluorocarbons, the Standing Rock protest has received attention in part related to the specific claims of the Native American tribe through whose land the pipeline was to run, namely that said land is considered sacred by the tribe.[3] Therefore they argue that the construction of the pipeline violates, at minimum, their human right to property ownership.[4] This latest action is considered by the tribe to fall in a long line of US government reneging on treaties made with the native people of North America.

This paper will attempt to navigate these claims and determine whether they are valid and/or justiciable. Central to this analysis will be the notion of vulnerability in international human rights law (IHRL) and whether the Standing Rock and other similarly situated Native tribes in the US fit the definition of a vulnerable group. To do so, Part II provides necessary background on the history of European settlement in the western hemisphere, the legal framework created for native tribes after independence from Britain, including most notably the 1830 Indian Removal Act, and finishing with the situation of native tribes today. Part III is an analysis of the present standing of indigenous rights in IHRL, the recognition of the marginalized nature of the history of Native Americans and the continuing effects of that history on the present population. Finally, comparisons with the Inter-American Court of Human Rights designation of the Saramaka people as a tribe deserving of indigenous rights and the European Court of Human Rights’ decisions regarding the Roma population will be drawn so as to further underscore a simple conclusion: Native American tribes and persons may be considered vulnerable groups under IHRL due to the historical and on-going depravation of land and cultural rights.

Part IV recommends that the justification for considering Native American tribes and persons a vulnerable group is more than legally valid, but actually useful in pursuing legal remedies. It further argues that the US government is obliged to acknowledge duties owed under respect and protecting populations from rights abuses by third parties. Additionally, the situation of Native American tribes today demands that concrete policy steps are necessary if the US is to address the specific needs and challenges of Native American groups. In the end, the paper concludes by coming back to the intersection of different struggles at Standing Rock and how the new US administration could, but likely will not, act to address those serious and ongoing issues.

Factual Background

  1. Brief History of European Settlement in Western Hemisphere

A popular poem-turned-children’s tune begins, “In 1492 Columbus Sailed the Ocean Blue.” This small fact marks the first impression most American schoolchildren form of European colonization of the Western hemisphere. From this tune children also learn about Columbus’ infamous mistake. “October 12 their dream came true, You never saw a happier crew! “Indians!  Indians! But “India” the land was not; It was the Bahamas, and it was hot.”  So too do they find out the real reward from Columbus’ “discovery” and the indelible mark made by the famous Italian explorer: “Columbus sailed on to find some gold, To bring back home, as he’d been told. He made the trip again and again, Trading gold to bring to Spain. The first American?  No, not quite. But Columbus was brave, and he was bright.”[5]

This version of European “discovery” of North America presented to children is understandably watered down. However, as James Loewen illustrates in his seminal work Lies My Teacher Told Me, this basic story of the intelligent and brave European who brought civilization to backward native populations remains the one presented to middle and high school children today.[6] Columbus remains an indelible figure in the history, or perhaps folklore, of America. So strong is his legacy that in 1937 the government of the United States saw fit to celebrate it and adopted “Columbus Day” as an official national holiday.[7] The irony of celebrating a man who never set foot on the mainland of North America notwithstanding, the continued public veneration of Columbus went largely unchallenged until recently.

In recent decades, the a-historical Columbus depicted in murals, statutes, and namesakes has not come without detractors and critics. In 2016, the state of Vermont and the cities of Denver and Phoenix joined at least 14 communities in the United States that have passed measures designating the second Monday in October “Indigenous Peoples Day” in order to flip the narrative on the public holiday.[8] This effort comes from a slew of new or re-discovered scholarship on the dark nature of the Columbus experience for the millions of Native groups who would come to suffer under the weight of European mercantile imperialism. They outline how Columbus initiated a multi-century campaign of what would now clearly be major international crimes against the local population including persecution, cruel and inhuman treatment, slavery, rape and other sexual crimes, as well as the most serious: genocide.[9]

The post-Columbus history of European and native interaction in North America retains similar attributes, as does Columbus himself. While children are taught moralizing and heartfelt stories of cooperative events between local native populations and early European settlers canonized in the American holiday of Thanksgiving, the less moral and more human events regarding the interaction of the groups is becoming a more competitive narrative. This narrative focuses on the reality of that history. It acknowledges that when Columbus arrived just before the 16th century there were nearly 10 million native people in North America and 400 years later that number had dropped to just 300,000.[10] It correctly describes the cause of this massive loss of life. Rather than mere acceptance of a European way of life, the native population of North America was destroyed either by disease introduced by European settlers, widespread armed conflict, and finally systematic governmental policy of removal and relocation.

Before the eventual independence of the United States from Britain, the relations between the European and Native people had already disintegrated. Indeed, even during relative peace, ‘redskins’ (scalps of Native Americans) were a common prize of encounters with native groups. This sorted history thrusts us back into the present, given the current name of the football team from the federal District, is still the Washington Redskins. Just before the Declaration of Independence was sent to King George he issued the 1775 Phips Proclamation in Massachusetts which called for “subjects to embrace all opportunities of pursuing, captivating, killing and destroying all and every of the [Penobscot] Indians.”[11] Indeed, colonists were even paid for each Penobscot Native they killed, so long as they had the redskin to prove it. They received fifty pounds for adult male scalps, twenty-five for adult female scalps, and twenty for scalps of boys and girls under age twelve.[12] These proclamations explicitly display the settlers’ “intent to kill,” a major indicator of genocidal acts. While the political links between Britain and the United States were eventually severed, these sorts of proclamations and legislation regarding persecution of native tribes very much continued.

2. Post-Independence Native American Legal Framework

Before the American Revolutionary War ended with the Treaty of Paris, the United States launched the Sullivan Expedition to root out loyalist and target pro-British native tribes, namely the strong and organized Iroquois Confederacy.[13] In a letter to the leader of the Expedition John Sullivan, General and future-president George Washington made his intention clear: destroy the native population.[14] After the Treaty of Paris, the new United States set out to establish itself as a nation-state like those in Europe. The leadership, including George Washington and Henry Knox, the man tasked with orienting a policy towards the native tribes, believed that the native population was not necessarily inferior unlike the widely held view of black Africans, but needed to be “civilized.”[15]

Hoping to civilize the native population, the United States government set forth a series of policies, with varying degrees of success. First, there was a distinction made among the many native groups into five civilized tribes (Cherokee, Chickasaw, Choctaw, Creek (Muscogee), and Seminole) leaving the rest to be freely and legally considered “uncivilized.”[16] The civilizing project focused on integrating tribes into European property relations such that they could participate in the commercial system of the former colonies. To facilitate this, Congress passed a series of statutes known as The Non-intercourse Act(s). Beginning in 1790 and then reaffirmed in 1790, 1793, 1796, 1799, 1802, and 1834,[17] these acts built upon the previous Royal Proclamation of 1763 in which the Crown had to approve all private native land sales and set limits to the ability to do so west of the Appalachian Mountains.[18]

Over the course of the next half century the U.S. government signed and ratified numerous treaties with several native groups, namely for the purposes of ceding land and establishing boundaries.[19] This resulted in a shrinking of land held by the tribes under “aboriginal title.” At the same time, Christian missions sought to usurp native religious doctrine with western Christianity and aimed to integrate native people into the larger European society via religion and religious guided education. Acts of Congress, such as the Civilization Fund Act of 1819, sought to assist private actors in performing this work and achieving the policy goals of the early American founders.[20]

There were varying degrees of success with the civilization program. While a large number of native people did indeed integrate into the European-dominant former colonies, others, especially those west of the Appalachian mountains and eventually the Mississippi river, sought to defend their property rather than agreeing to retain historic ownership of sacred land via European private property schemes.[21] This tension often erupted into violence. The U.S. government engaged in a number of wars with several native tribes, and was not always the victor. Though Washington had claimed in a speech to the Seneca Nation of New York that the Non-intercourse Act gave native groups “…the security for the remainder of your lands….The general government will never consent to your being defrauded. But it will protect you in all your just rights,”[22] that same federal government, under President Andrew Jackson changed course.

3. Indian Removal Act

After the purchase of the Louisiana territory from Napoleon in 1803 there was a movement to expand American landholding, settlement, and civilization to the newly acquired U.S. property. This possibility created the ideology of “Manifest Destiny” in which it was considered the destiny of the United States to be occupied by white, European settlers, thus spreading the new republic from the Atlantic Ocean to the Pacific.[23] However, several native tribes already occupied much of the land and, unlike their Eastern counterparts, were much less willing to engage in treaty-making or other attempts at what Washington and Knox would have called “civilization”. In the context of this new resistance and the growing suspicion of native tribes in the East who had seen their land holdings shrink to unsustainable levels, the U.S. Government sought to change its overall native policy.

The policy of removal of native tribes from their lands east of the Mississippi river had its origin in 1824. After requesting Congress to establish the Arkansas Territory in the Louisiana area, President James Monroe also petitioned for the creation of an “Indian Territory.”[24] This area, in the modern state of Oklahoma, would serve as the resettlement land for Eastern native tribes. Secretary of War John C. Calhoun drafted a bill that would voluntarily resettle native groups in the new territory. This effort proved futile and eventually forced the next President John Quincy Adams to make additional treaties with the Cherokee and Creek in Georgia, which only served to inflame the issue. Finally, as voters elected Andrew Jackson under the banner of the new Democratic Party, the voluntary removal and relocation of native people was tabled in favor of a more potent approach: forced relocation.

On May 28, 1830, Congress approved the Indian Removal Act and two days later, it became law upon President Jackson’s signature.[25] Though technically not changing the voluntary status of the removal and relocation, it was the position of the Jackson administration that the native tribes were not independent nations, but subject to state laws, and so if treaties accepting the removal were resisted, the monopoly of violence held by the state could be laid to bear upon the tribes. Georgia assisted this threat by extinguishing the national status of native tribes and their land in 1828.[26] Knowing that this meant certain and likely wholesale destruction, some of the tribes began to make relocation treaties, as the non-intercourse acts were still technically in effect, demanding federal approval of land sales.

By September of 1830, Choctaws in Mississippi ceded land east of the river in exchange for payment and land in the West.[27] The Treaty of New Echota, signed in 1835, resulted in the removal of the Cherokee from Georgia on what is now known as the Trail of Tears.[28] This forced march from Georgia to Oklahoma lead to thousands of lost lives due to horrid conditions and treatment along the way. Famed commentator on early America Alexis de Tocqueville, personally witnessed the Choctaw removals while in Tennessee and wrote in his famous work Democracy in America that “…the whole scene…was an air of ruin and destruction, something which betrayed a final and irrevocable adieu; one couldn’t watch without feeling one’s heart wrung. … We … watch the expulsion … of one of the most celebrated and ancient American peoples.”[29] In sum, over 100,000 native people where relocated as part of this scheme.[30]

In the rest of the United States west of the Mississippi, the policy regarding Indians was one of conquest. Wars against various tribes ebbed and flowed, but often ended with removal and resettlement treaties that confined tribes into specific geographic areas, known as reservations, where the tribe was then legally allowed to have sovereign control. Many of these treaties were amended (sometimes unilaterally) or simply ignored as natural resources were discovered on native land and therefore removed from their control to allow for European ownership and extraction.[31] This policy served to relegate the native population to land that was either not conducive to their traditional lifestyle, or of such poor quality that no sufficient agriculture or industry could develop.

4. Status of Reservations and Sovereignty and the Dakota Access Pipeline Controversy

By 1871, the principle of treaty making with native nations came to an end with a rider to the Indian Appropriations Act.[32] This was done to facilitate yet another governmental policy change. In the late 19th and early 20th centuries, US policy towards native tribes was integration into the United States, primarily by citizenship and western education in boarding schools, still usually religious in nature. Still, a significant number of Native Americans were not citizens of the country. Finally, on June 2, 1924 then U.S. President Calvin Coolidge signed the Indian Citizenship Act, which made all Native Americans born in the United States and its territories citizens of the United States.[33]

In the context of the Civil Rights Movement of the 1960s, native groups sought to entangle their history with that of African Americans and began to organize and engage in actions of civil disobedience. Like the Southern Christian Leadership Conference (SCLC) native groups formed the American Indian Movement (AIM) which sought, like the SCLC to engage in actions to raise awareness of on-going Native American related issues. One of the most famous is the non-violent occupation of Alcatraz Island in San Francisco[34] and the more violent Wounded Knee Incident in 1973.[35] The Wounded Knee Incident involved 200 Oglala Lakota and followers of AIM who seized and occupied the town of Wounded Knee, South Dakota, on the Pine Ridge Indian Reservation that resulted in a violent confrontation with U.S. Marshalls and the FBI. Continued tensions in the area also resulted in the capture and trial of Leonard Peltier, an AIM activist who in 1977 was convicted of murdering two FBI agents in what Amnesty International deemed an unfair trial[36] and whose supporters and Native American activists claim is an American political prisoner.

In 1975, the U.S. government passed the Indian Self-Determination and Education Assistance Act.[37] The act sought to give more local control to native tribes and allowed each to develop structures and organizations to administer their own social welfare and legal situations. However, given the federal government’s obligations under the 1968 Indian Civil Rights Act[38] to protect native populations from abuse or neglect, the notion of tribal self-determination has at times served to undercut these demanded protections. This is mostly because the Bureau of Indian Affairs, the federal department tasked with ensuring these obligations, tends to act more as a police force than as a civil rights protection department.[39]

Nearly 180 years after the passage of the Indian Removal Act, President Obama signed a 2004 Senate joint resolution[40] to “offer an apology to all Native Peoples on behalf of the United States” for past “ill-conceived policies” by the U.S. government regarding Indian Tribes. At the same time the political activism of the past had changed tactics and began pursuing legal remedies for past transgressions hoping for positive judgments in an Obama administration Justice Department.[41]

As of 2012, the statistics regarding the current state of Native Americans is dire. Indeed, over one-in-four (29.1%) Native Americans live in poverty, compared to the national percentage of around on in six (14%).[42] This factor alone, combined with high infant mortality rates, high rates of domestic violence, and a serious endemic issue of alcoholism makes Native Americans one of the most difficult and often neglected groups of people in the United States. At the same time, the issue is often ignored or deemed to be under the purview of Native tribes under the self-determination policy continued after the 1970s.

However, the issue of Native American cultural and property rights has reemerged in the protest movement surrounding the construction of a shale oil pipeline through the Standing Rock Reservation in North Dakota. The proposal of the path of that pipeline was rejected by the Standing Rock Nation, home to about 9,000 tribal members, yet construction began in September of 2016. Since then, thousands of Standing Rock Tribal members and allies have teamed up in actions of civil disobedience reminiscent of AIM actions in the 1960s and 1970s. Even with the announcement of the rejection of the easement for the construction, clashes continue at the site and serve as a lighting-rod to re-examine the progress, or lack thereof, regarding native populations and their rights, specifically at Standing Rock. Indeed, even with the victory at standing Rock, others remain given that the poverty rate at Standing Rock Reservation is 43.2%, or triple the national average.[43]

Analysis

1. Defining a Vulnerable Group

The entire International Human Rights scheme is aimed at identifying the fundamental freedoms and obligations that allow human beings to flourish regardless of geographic, political, cultural, or other variations in human groups. For centuries, forms of these rights and obligations have ebbed and flowed in number and in strength. Generally, under international instruments instituted after World War II, the basic proposition is that all human beings, simply by membership to the species, should be guaranteed certain rights and that states have the obligation to ensure that said rights are fulfilled and protected.[44] This basic notion is revolutionary and idealistic. History has shown that the universal promise of human rights often remains far from ubiquitous. The 20th century was witness to an explosion of these rights through instruments and institutions designed to ensure these rights are respected and the obligations fulfilled.[45] Indeed to fulfill this goal, the international community established a number of international bodies to legislate, arbitrate, or judge states that ratified human rights treaties. Yet, violations of rights persisted.

Out of this unfortunate situation came a recognition. While each person could, in principle, experience a deprivation of one liberty or another, other groups faced more systematic and long-lasting human rights abuses. With the rise of identity politics in the mid-1970s, the recognition of historically marginalized groups entered public and academic consciousness and became an invariable part of human rights vocabulary.[46] In comparing these groups to other, more privileged groups in society these historically marginalized groups became known as “vulnerable groups.” This label has had its supporters and detractors. Martha Fineman’s seminal piece on the subject attempts to describe this notion as a heuristic device that allows us to “examine hidden assumptions and biases folded into legal . . . practices.”[47] Others have argued that the notion of vulnerability is inherently relational in that a group can be identified as particularly disadvantaged only in comparison to other groups in the society.[48] Fineman disagrees with this relational approach, instead attempting to universalize the notion of vulnerability as a “universal, inevitable, enduring aspect of the human condition” and therefore able to deliver more substantive equal justice. This is possible because, rather than comparing one group to a so-called “normal” group, the universal approach serves to understand the individual by way of the institutions which produce universal vulnerability in the first place.[49]

While certainly a laudable goal, Fineman’s intent to move away from the relational into the universal will only serve to muddy waters rather than clear them. The notion of vulnerability is necessary to make a distinction in theory and law that is already apparent in social relations. There are, in society, comparative advantages and disadvantages for different groups. While Fineman is certainly correct in her attempt to make it clear that all persons can or may experience some form of vulnerability in their lives, if we assume that each person is vulnerable, whatever weight this label can provide simply disappears. Though it is quite true that the institutions in society are designed to divide and create hierarchies of different forms and purposes, in many situations there are groups who systematically or universally end up near or at the bottom of these hierarchies. If the term “vulnerability” is to have any use in theory or law, it must then be relational and generalizable to groups who do not have this experience so that we can make the same distinction in addressing social ills as is necessary to understand the causes of said ills. This can only be accomplished by a recognition of the universalizability of the notion of vulnerability, but also the relational character in which this vulnerability is always expressed.

Courts have attempted to bridge the gap between the universal and relational notions of vulnerability. As one Strasbourg judge said about the Court’s reasoning in cases involving vulnerable groups: “All applicants are vulnerable, but some are more vulnerable than others.”[50] Given this perspective, courts and other international human rights bodies have used a relational analysis to create a growing, though not exhaustive, list of the recognized vulnerable groups. They are: 1) women and girls; 2) children; 3) refugees; 4) internally displaced persons; 5) stateless persons; 6) national minorities; 7) indigenous peoples 8) migrant workers; 9) disabled persons; 10) elderly persons; 11) HIV positive persons and AIDS victims; 12) Roma/Gypsies/Sinti; and 13) lesbian, gay and transgender people.[51]

For the purposes of discussing the situation of Native Americans in North America, it will be useful to review how courts and other bodies have understood indigenous peoples’ rights and how the vulnerability label can be helpful not only to understand the current situation of these groups, but to better equip courts and bodies to address the groups’ unique needs. It is not surprising that the first use of the notion of vulnerability comes with regard to the Roma population in Europe.[52] The reasoning used by the European Court of Human Rights and others gives a guide for understanding the situation and potential vulnerability of Native American groups in the United States. We must also review the human rights instruments that specifically address the needs of indigenous people.

2. Vulnerability for Indigenous Groups in Treaties, Declarations, and Conventions

It is not difficult to fathom why indigenous groups are among the list of identified vulnerable groups. For instance, in 1991 the International Labor Organization passed ILO Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries.[53] The convention notes “that in many parts of the world these peoples are unable to enjoy their fundamental human rights to the same degree as the rest of the population of the States within which they live, and that their laws, values, customs and perspectives have often been eroded.”[54] In 2001, the Commission on Human Rights, noting ongoing issues in the fulfillment of rights and obligations of indigenous peoples, appointed a Special Rapporteur on the Rights of Indigenous Peoples as part of the system of thematic Special Procedures.[55] The special procedures system was envisioned to allow the OHCHR to address the wide variety of needs and to focus on those most at issue.

This already unique body was augmented in 2007 when the UN General Assembly passed the UN Declaration on the Rights of Indigenous Peoples.[56] The Declaration made the situation explicit by specifically recognizing “that indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests.”[57] To further assist in these efforts, the UN general Assembly in resolution 65/198 decided to organize a high-level plenary meeting of the General Assembly. This meeting, known as the World Conference on Indigenous Peoples, is intended to be a forum to share perspectives and best practices on the realization of the rights of indigenous peoples and pursuing the objectives of the UN Declaration on the Rights of Indigenous Peoples.[58]

3. Analogies to the Saramaka People v. Suriname and Roma in Human Rights Courts

In 2007 the Inter-American Court of Human Rights issued its ruling in the Saramaka People v. Suriname matter.[59] This case involved the Saramaka people, non-indigenous tribal people brought to Suriname and the government of Suriname in which the Saramaka alleged the state violated their property rights under the Inter-American Convention on Human Rights.[60] Echoing the pipeline issue in North Dakota, Suriname allowed logging and other extractive resource operations in areas traditionally claimed by the Saramaka people. In a significant decision, the Court decided that though the Saramaka people where not indigenous to the area, they shared many features of indigenous people, and therefore could claim tribal status and enjoy the rights of indigenous people under the convention.[61]  Echoing earlier decisions, the Court made it clear that “members of indigenous and tribal communities require special measures that guarantee the full exercise of their rights, particularly with regards to their enjoyment of property rights, in order to safeguard their physical and cultural survival.”[62]

In the existing human rights case law regarding vulnerable groups, the closest group to Native Americans is the Roma. For the Roma, the main determinant of their vulnerable status is historical discrimination and oppression. The European Court of Human Rights used this reasoning in 2007 in its judgment of D.H. and Others v. the Czech Republic. In this case, the Court held that the Roma people are a vulnerable minority as a result of their turbulent history and constant uprooting.[63] The European Court also noted three other factors: discrimination, marginalization, and segregation that must be present in the past and present.[64]

4. Context of US historical depravation of land and cultural rights produces vulnerability

The situation of Native Americans combines the situation of the Samaraka people and the Roma. As outlined above, the history of Native Americans upon contact with Europeans is one, like the Roma, marked by discrimination, marginalization and segregation. Though instituted to protect the rights of Native groups, the policy of the United States to consider Native American tribes as separate nations was, though understandable and seemingly justifiable, ultimately discriminatory both de jure and de facto. Laws that either created secondary systems for Native Americans or specifically targeted these groups for persecution and land confiscation in favor of European Americans are similarly discriminatory. When governmental policy changed under President Jackson to naked land confiscation, especially relocation to land specifically designed to be unincorporated territory (with no access to the sea), it was the first not the instance of marginalization but the most apparent. Further laws against acceptance of Native people as full citizens of the country, of relegating all power to disadvantaged reservations under the guise of self-determination, and the continued underfunding and lack of capacity of the Bureau of Indian Affairs only serve to continue this marginalization into the present. Finally, the entire structure of the reservation system is, de jure and de facto, segregation. Indeed, myriad schemes exist to either incorporate or isolate certain native tribes and reservations. In many cases this depends on a number of economic conditions such as natural resource locations, availability of otherwise illegal activities such as gambling or off-season hunting.

When a particular history of discrimination, marginalization, and segregation is combined with the general tendency, as recognized by the Inter-American Court of Human Rights, of indigenous and tribal groups’ need for special state protections given their unique tie to land and the continuous difficulty doing so after European encroachment, the case of Native Americans becomes rather straightforward. The systematic denial of Native American indigenous rights would violate all manner of international protections[65] and likely be a crime against humanity or genocide under the Rome Statutes of the International Criminal Court if it was in force when the US government instituted forced relocations.[66] Still, the continued action against native groups and protesters at Standing Rock reservation alone continues this discrimination, marginalization, and segregation of Native Americans in violation of the special protections demanded under international law. In addition, the denial of land rights by non-state actors still violates the obligation of the United States to protect its native population from third party violations of land usage and ownership rights under the Inter-American Convention on Human Rights in relation to the Dakota Access Pipeline issue.

Recommendations

1. Acknowledge duties owed and respect and protect populations from rights abuses

The history of Native American and European interaction in North America is one of the most tragic stories of modern humanity. Historic, religious, economic, and environmental factors all conspired to create a situa

ion in which one group of human beings would, both through ignorance and intention, nearly destroy another whole group. The modern word for such endeavors or situations is genocide. The effects of this brutal, disastrous, and heartbreaking history remain. The neglect of the Native American groups in the United States continues the historic marginalization. The uneven and inequitable application of laws, both tribal, local, state, and federal continues a discriminatory history that runs through this centuries-long crime against humanity. The relegation of native people into 19th century cantons, ghettos, and bantustans still outlines their segregation from the rest of their former country. This history is not one that demands merely feelings of regret or sympathy but a recognition of special obligations owed to this vulnerable group.

This necessity is complicated by specific legal decisions in the United States which render all non-self-executing treaties to be set in force only by congressional legislation. Thus far, legislation regarding ameliorating the condition of native groups has little hope of being proposed by the recently elected Republican-majority Congress. Indeed, president-elect Donald Trump has made no indication that Native American issues will be a priority of his incoming administration. Therefore, there is, unfortunately, every reason to believe that the current situation for Native Americans generally is unlikely to change, and the situation at Standing Rock specifically is likely to worsen. Though the administration or Congress may ignore the obligations under international human rights regarding the US native population, the United States is not absolved of its obligations. In the future, a different administration and Congress may accede to international treaties and implement those obligations under international law. The failures of the present may, by then, become crimes of the past. Therefore, the obligation to act now remains unchanged and no less a mandate under international law. Given that the DAPL protests involve both third party and state actors (in the form of militarized police action against the protesters) obligations of the state to ensure the rights guaranteed to the native population, but also protect them from third party land desecration rest at the heart of the matter.

2. Concrete policy steps for US to address specific needs and challenges of Native American groups

The difficult history of Native Americans and the neglect of their conditions by the US government has created serious and substantial issues for many Native communities. The two most dire are education and health. When only 67% of Native American students are graduating from primary school, compared to 80% of their non-native peers, the US government has an obligation to create or divert funds to be specifically funneled into specialized programs to address this failure.[67] To the benefit of the current Obama administration, after visiting Standing Rock in 2015, President Obama tasked several agencies with coming up with solutions to this educational deficit.[68] However, with the DAPL issue overtaking the educational deficits, the work of this taskforce may be insufficient to address the issue before the next administration begins and potentially changes course.

Another major issue for many Native American groups is alcoholism. While the exact reason, if there is only one, has yet to be identified, Native Americans and Alaskan Natives are five times more likely than other ethnicities in the United States to die of alcohol-related causes.[69] Though this issue is highly complicated, much serious work has been done reviewing and discussing different approaches and policy proposals to specifically target both genetic and behavioral factors that lead to alcoholism prevalence.[70]  However, like educational issues, much of the difficult and expensive work drafting and implementing these policy proposals has been left to underfunded or incapable state or local agencies or universities. Until this issue is the priority it ought to be, the vulnerable status of the Native American population and the scale of the problem means that little in the way of progress should be expected.

Another issue gripping many Native communities is domestic abuse and violence against women. The segregated nature of Indian Reservations makes even understanding the depth of the problem difficult.  American Indian women residing on Indian reservations suffer domestic violence and physical assault at rates far exceeding women of other ethnicities.[71] A 2004 Department of Justice report estimates these assault rates to be as much as 50% higher than the next most victimized demographic.[72] Further data gathered by the U.S. Department of Justice indicates that Native American and Alaskan Native women are more than 2.5 times more likely to be raped or sexually assaulted than women in the US in general (5 vs. 2per 1,000).[73] Additionally, 34%, or more than one in three Native women will be raped during their lifetime, whereas for women as a whole the risk is less than one in five.[74] Overall, this issue, like the others is multi-facet, inter-related, and complex. Though a Violence Against Women Toolkit is available and promoted by the Congress of American Indians, it seems to have had little effect on lowering the rate of violence in native communities.[75]

Conclusion

As the UN Declaration of the Rights of Indigenous Peoples notes, indigenous peoples around the world have a suffered from historic injustices. The Native Americans of North American are no different. They too have a history of “colonization and dispossession of their lands, territories and resources.”[76] These groups of human beings, cherished by those who recorded their admirable qualities and sometimes less-admirable qualities, even as they declined, have been subject to a long list of abuses. Echoing the language of the genocide convention, these groups were often attacked with an intent to destroy them, their culture, their way of life. There was a systematic and widespread campaign of cleaning territory of native groups. There was a plan and policy of relegating whole groups of people to areas of little use to that population in favor of other groups who claimed to know how to exploit the resources of that land “more productively”.

The irony of the current standoff at Standing Rock is that the land is not being used most productively, but destructively. The native population is now having to defend the small, otherwise useless, territory from further encroachment by those claiming to have same perceptive as did their ancestors. Just as it has happened before, the policy orientation of the United States oscillates between laissez-faire and ignorance, to heavy handed and oppressive. This only serves to exacerbate the problems in the native communities. It is this governmental vacillation that is in large part the expression of the ongoing marginalization, discrimination and segregation of tribal people protected under international human rights law; obligations ignored by the United States government to this day.

Footnotes:

[1] Dakota Access Pipeline Project, http://www.daplpipelinefacts.com/.

[2] National Public Radio, In Victory For Protesters, Army Halts Construction On Dakota Pipeline, December 4, 2016, http://www.npr.org/sections/thetwo-way/2016/12/04/504354503/army-corps-denies-easement-for-dakota-access-pipeline-says-tribal-organization.

[3] Jessica Ravitz, The sacred land at the center of the Dakota pipeline dispute, CNN, November 1, 2016, http://www.cnn.com/2016/11/01/us/standing-rock-sioux-sacred-land-dakota-pipeline/.

[4] See e.g. Art. 21, American Convention on Human Rights, http://www.oas.org/dil/treaties_B-32_American_Convention_on_Human_Rights.htm.

[5] Columbus Day Poem, available at http://www.scholastic.com/teachers/sites/default/files/columbus_day_poem_ns.pdf.

[6]James W. Loewen, Lies My Teacher Told Me: Everything Your American History Textbook Got Wrong, (2008).

[7] 36 U.S. Code § 107, (“The President is requested to issue each year a proclamation— (1) designating the second Monday in October as Columbus Day;(2) calling on United States Government officials to display the flag of the United States on all Government buildings on Columbus Day; and(3) inviting the people of the United States to observe Columbus Day, in schools and churches, or other suitable places, with appropriate ceremonies that express the public sentiment befitting the anniversary of the discovery of America.”).

[8] NPR, Indigenous Peoples’ Day Gains Momentum As A Replacement For Columbus Day, October 7, 2016, http://www.npr.org/sections/thetwo-way/2016/10/07/497046525/indigenous-peoples-day-gains-momentum-as-a-replacement-for-columbus-day.

[9] Eric Kasum, Columbus Day? True Legacy: Cruelty and Slavery, Huffington Post, October 11, 2010, http://www.huffingtonpost.com/eric-kasum/columbus-day-a-bad-idea_b_742708.html.

[10] Russel Thornton, American Indian holocaust and survival: a population history since 1492. 43 (1990).

[11] Penobscot Culture.com, Phips Proclamation, http://www.penobscotculture.com/?option=com_content&view=article&id=88&Itemid=72.

[12] Id.

[13] See Generally, Albert H. Wright, The Sullivan Expedition Of 1779 (2009).

[14] George Washington, From George Washington to Major General John Sullivan, 31 May 1779, Founders Online, National Archives. (“The Expedition you are appointed to command is to be directed against the hostile tribes of the Six Nations of Indians, with their associates and adherents. The immediate objects are the total destruction and devastation of their settlements, and the capture of as many prisoners of every age and sex as possible. It will be essential to ruin their crops now in the ground and prevent their planting more.”).

[15] Barbara Alice Mann, George Washington’s War on Native America 54 (2008).

[16] See Dawes Records, National Archives, https://www.archives.gov/research/native-americans/dawes

[17] For a discussion of “aboriginal title” and the Non-intercourse Acts in U.S. law see Oneida Indian Nation of N.Y. State v. Oneida Cnty. (1974)(“Oneida I”) and Oneida Cnty. v. Oneida Indian Nation of N.Y. State (1984) [“Oneida II”] (holding that tribes have a federal common law cause of action, not pre-empted by the Nonintercourse Act, for possessory land claims based upon aboriginal title; the court also rejected the following affirmative defenses: limitations, abatement, ratification or nonjusticiability).

[18] Indigenous Foundations, Royal Proclamation of 1763, http://indigenousfoundations.arts.ubc.ca/home/government-policy/royal-proclamation-1763.html.

[19] For a list of said treaties see Treaties Between the United States and Native Americans, The Avalon Project, http://avalon.law.yale.edu/subject_menus/ntreaty.asp.

[20] Francis Paul Prucha, Documents of United States Indian Policy, 33 (2000).

[21] See Generally Jane Fleischer, Tecumseh, Shawnee War Chief (1998).

[22] National Archives – Founders Online, From George Washington to the Seneca Chiefs, December 29 1790, http://founders.archives.gov/documents/Washington/05-07-02-0080.

[23] See Generally, Anders Stephanson, Manifest Destiny: American Expansion and the Empire of Right, (1996).

[24] Office of the US Historian, Indian Treaties and the Removal Act of 1830, https://history.state.gov/milestones/1830-1860/indian-treaties.

[25] Mark Stewart, The Indian Removal Act: Forced Relocation (2007).

[26] See b.g. Cherokee Nation v. Georgia, 30 U.S. 1 (1831) (Contesting Constitutionality of Georgia’s extinguishing legislation).

[27] Stewart supra note 25.

[28] Id.

[29] Alexis de Tocqueville, and Thomas Bender, Democracy in America (1981).

[30] Stewart supra note 25.

[31] See Generally, John R. Wunder, Native American Sovereignty 22 (1996); see also, U.S. Native Treaties, 25 USC 3.

[32] Jeffrey D. Schultz, Encyclopedia of Minorities in American Politics: Hispanic Americans and Native Americans (2000); Indian Appropriations Act of 1871 (“That hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty: Provided, further, that nothing herein contained shall be construed to invalidate or impair the obligation of any treaty heretofore lawfully made and ratified with any such Indian nation or tribe.”).

[33] Indian Freedom Citizenship Suffrage Act of 1924, 8 U.S.C. ch. 12, subch. III § 1401b.

[34] See Generally Margaret J. Goldstein, You Are Now on Indian Land: The American Indian Occupation of Alcatraz (2011).

[35] See Generally Stanley David Lyman, ‎Floyd A. O’Neil, ‎June K. Lyman, Wounded Knee 1973: A Personal Account (1993).

[36] Amnesty International USA, Annual Report: USA 2010, available at: http://www.amnestyusa.org/research/reports/annual-report-usa-2010?page=4; See Also James W. Messerschmidt, The Trial of Leonard Peltier (1983).

[37] Indian Educational Reform Act, 25 U.S.C. ch. 14, subch. II § 450 et seq.

[38] 25 U.S.C.§§ 1301-1304.

[39] See Wunder supra note 31.

[40] A joint resolution to acknowledge a long history of official depredations and ill-conceived policies by the United States Government regarding Indian Tribes and offer an apology to all Native Peoples on behalf of the United States, S.J.Res.37, 108th Congress, (2003-2004).

[41] See e.g. Cobell V. Salazar, 573 F.3d 808 (D.C. Cir. 2009) and Keepseagle v. Vilsack, No. 14-5223 (DC Cir. 2016).

 

[42] Pew Research Center, One-in-four Native Americans and Alaska Natives are living in poverty, http://www.pewresearch.org/fact-tank/2014/06/13/1-in-4-native-americans-and-alaska-natives-are-living-in-poverty/

[43] Id.

[44] See generally, Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (1999).

[45] For a list of the core human rights treaties see The Core International Human Rights Instruments and their monitoring bodies, OHCHR, http://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx.

[46] See e.g. OHCHR, Marginalized groups: UN human rights expert calls for an end to relegation, Press Release, http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=14690&LangID=E and David Weissbrodt (ed.), Vulnerable and Marginalised Groups and Human Rights, 1 Human Rights Law series 1 (2011).

[47] Martha A. Fineman, The Vulnerable Subject and the Responsive State, 60 Emory L.J. 251, 126 (2010).

[48] Florencia Luna, Elucidating the Concept of Vulnerability: Layers Not Labels, 2 International Journal of Feminist Approaches to Bioethics 121 (2009).

[49] Fineman, supra note 9 at 1.

[50]Lourdes Peroni and Alexandra Timmer, Vulnerable groups: The promise of an emerging concept in European Human Rights Convention law, Int J Constitutional Law (2013) 11 (4): 1056-1085.

[51] Icelandic Human Rights Centre, The Human Rights Protection of Vulnerable Groups, http://www.humanrights.is/en/human-rights-education-project/human-rights-concepts-ideas-and-fora/the-human-rights-protection-of-vulnerable-groups/

[52] See D.H. and Others supra note 61.

[53] International Labour Organization (ILO), Indigenous and Tribal Peoples Convention, C169, 27 June 1989, C169, available at: http://www.refworld.org/docid/3ddb6d514.html.

[54] Id.

[55] See generally, Special Rapporteur on the rights of indigenous peoples, OHCHR, http://www.ohchr.org/EN/Issues/IPeoples/SRIndigenousPeoples/Pages/SRIPeoplesIndex.aspx.

[56] Outcome Document of the High-level Meeting of the General Assembly: The World Conference on indigenous peoples 2014, OHCHR, http://www.un.org/en/ga/president/68/pdf/letters/9152014WCIP%20-%20CFs%20on%20Draft%20Outcome%20Document.pdf.

[57] United Nations Declaration on the Rights of Indigenous Peoples, A/RES/61/295, Resolution adopted by the General Assembly on 13 September 2007.

[58] OHCHR, World Conference on Indigenous Peoples, http://www.ohchr.org/EN/Issues/IPeoples/Pages/WorldConference.aspx.

[59] Case of the Saramaka People v Suriname, Saramaka People v Suriname, Interpretation of the judgment on preliminary objections, merits, reparations and costs, IACHR Series C No 185, IHRL 3058 (IACHR 2008), 12th August 2008, Inter-American Court of Human Rights [IACtHR].

[60] Id.

[61] Id.

[62] See also Case of The Mayagna (Sumo) Awas Tingni Community, Series C No. 79, paras. 148-149, and 151; Case of the Indigenous Community Sawhoyamaxa v.  Paraguay.  Merits, Reparations  and  Costs. Judgment of March 29, 2006. Series C No. 146, paras. 118-121, and 131, and Case of the Indigenous Community Yakye Axa v. Paraguay. Merits, Reparations and Costs. Judgment of June 17, 2005 Series C No. 125, paras. 124, 131, 135-137 and 154.

[63] ECtHR 13 November 2007, no. 57325/00 (D.H. and Othersv. the Czech Republic)(“The  Court  notes  that  as  a  result  of  their  turbulent  history  and  constant  uprooting  the  Roma  have become a specific type of disadvantaged and vulnerable minority (see also the general observations in the  Parliamentary  Assembly’s  Recommendation  No.  1203  (1993)  on  Gypsies  in  Europe,  cited  in paragraph  56  above,  and  point  4  of  its  Recommendation  no.  1557  (2002)  on  the  legal  situation  of Roma in Europe, cited in paragraph 58 above). As the Court has noted in previous cases, they therefore require special protection.”)

[64] See e.g. id, ECtHR [GC] 16 March 2010, no. 15766/03 (Oršuš and others v. Croatia); 122ECtHR 29 January 2013, no. 11146/11 (Horváth and Kiss v. Hungary)

[65] Art. 6 of the IACHR; ILO No. 169, E/CN.4/Sub.2/1986/7 and Adds. 1–4; UN Declaration on the Rights of Indigenous Peoples; Art. 1, 2 UN Universal Declaration of Human Rights; Art. 27 ICCPR; Art. 1 Convention on the Elimination of All Forms of Racial Discrimination; Art. 1-4 Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities.

[66] Art. 6 & 7, UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, available at: http://www.refworld.org/docid/3ae6b3a84.html.

[67] Lauren Camera, Native American Students Left Behind, U.S. News and World Report, Nov. 6, 2015, http://www.usnews.com/news/articles/2015/11/06/native-american-students-left-behind.

[68] Id.

[69] National Institute of Alcohol Abuse and Alcoholism, The Genetics Of Alcohol Metabolism: Role Of Alcohol Dehydrogenase And Aldehyde Dehydrogenase Variants, http://pubs.niaaa.nih.gov/publications/arh301/3-4.htm.

[70] Matthew D. Berman, Alcohol Control Policy and Native American Communities, (1999), http://www.falmouthinstitute.com/cdc-ihs-success/IHS/Day%203/A.%20Alcohol/Resource%20articles/Alcohol%20Policy%20resource2.pdf.

[71] Brief for National Network to End Domestic Violence et al. as Amici Curiae Supporting Respondents at 2,Plains Commerce Bank v. Long Family Land and Cattle Co., 128 S. Ct. 2709 (2008) (No. 07-411).

[72] Steven W Perry, American Indians and Crime- A BJS Statistical Profile 1992-2002, Bureau of Justice Statistics, US Department of Justice, Office of Justice Programs, December 2004.

[73] Id.

[74] Tjaden, P. & Thonennes. (2000). The Prevalence, Incidence, and Consequences of Violence Against Women: findings from the National Violence Survey Against Women. National Institute of Justice & the Centers for Disease Control & Prevention. http://www.ncjrs.gov/txtfiles1/nij/183781.txt.

[75] National Congress of American Indians, Statistics on Violence Against Native Women, http://www.ncai.org/resources/ncai_publications/policy-insights-brief-statistics-on-violence-against-native-women.

[76] United Nations Declaration on the Rights of Indigenous Peoples, supra Note 57.

Losing Sight of Civilian Protection in Kashmir

In the last days of September of 2016 the armed forces of India conducted what it called “surgical strikes” against claimed terrorist targets inside Pakistan. Though the term “surgical strike” conjures up images of relatively small, precise and limited air strikes or small special-ops missions like the one that killed Osama bin Laden, the term doesn’t have a precise definition. Indeed, Pakistani officials have stated that rather than pinpoint and limited strikes, India’s attacks amount to aggression in violation of one of the basic tenants of international law. To that end Pakistan has stated that an Indian soldier captured during fighting would be considered a prisoner of war, evidencing Pakistan’s belief that its engagement with India constitutes an international armed conflict under the Geneva Conventions. These strikes come in response to an attack by four heavily-armed militants against an Indian military installation in the area of Uri located in the troubled Kashmir border area between Indian and Pakistan.

The issue of Kashmir goes back to the independence and division era of India and Pakistan’s history. After gaining independence from the U.K., it was agreed that the new nation would then divide into Hindu-dominated India and Muslim-dominated Pakistan, though each country is home to a large number of the non-dominant religion. The area of Kashmir, rich in resources and natural beauty, became the focal point of Indian/Pakistani competition. Indeed, India and Pakistan have fought three wars over Kashmir, including the Indo-Pakistani Wars of 1947 and 1965, as well as the Kargil War in 1999. The area is still technically disputed territory, where India claims control over a significant portion of the territory and considers the rest “Pakistani Occupied Kashmir,” a claim that Pakistan roundly rejects.

Given this disputed status, and despite the rich resources and high tourist potential, Kashmir has slid into economic disarray – unemployment remains high, economic opportunities are difficult to cultivate, and continued clashes between militant groups and security forces disrupts normal economic flows. This tends to have a feedback loop effect, and only serves to create more dysfunction and periods of severe unrest which then leads to more militants and thereby exacerbates the continued pressure. Eventually this pressure builds to a point that cannot be contained and violence results. Civilians then bear the brunt of this violence.

This holds true for the recent events in Kashmir. After the 2014 victory of the Hindu nationalist BJP party, and a coalition government with the People’s Democratic Party in the Kashmir area, many in Pakistan felt that alternative political space had all but closed. As new rounds of protests began in early July, an operation by Indian Security Forces resulted in the death of Burhan Wani, a popular resistance leader in Kashmir. This only increased the number, intensity, and militancy of the protesters. Several prominent separatists (those seeking separation from India either to be incorporated by Pakistan or to remain independent) and other resistance leaders called for marches and strikes across the region.

According to several human rights organizations, including Human Rights Watch and Amnesty International, Indian security forces in the area responded to these marches and strikes with disproportionate force. Though the overwhelming number of those in attendance at these rallies are civilians armed with (usually) stones or bricks (though there have been reports of grenades being lobbed at security forces), Indian security forces have used of tear gas, and most notably, pellet guns to disperse crowds. These pellet guns, touted as non- or less-than-lethal alternatives to live rounds, pose significant risk to the eyes, and hundreds of civilians have been treated for eye related injuries as a result of being hit with pellet guns. Indeed, two civilians have even died from wounds received to the eyes from these pellet guns.

In September of 2016 four militants breached the perimeter of an Indian Security Forces base in Uri and attacked the area with incendiary rounds, setting ablaze the tents which made up the majority of the structures on the base. In the subsequent fighting 19 Indian soldiers were killed, escalating the already tense strain between India and Pakistan. Since then, allegations of complicity on both sides have been levied by Delhi and Islamabad against the other. In response to the attack India stepped up its actions against what it perceives as additional terrorists elements, even inside Pakistan. However, the attack reinforced Indian security force’s aggressive tactics in dealing with civilian protesters.

The toll of this fighting has left more than 70 people including 2 policemen dead. Besides those who have tragically lost their lives the numbers of those injured is staggering. Over 11,000 people including more than 7,000 civilians as well as 4,000 security personnel have been injured in the unrest in Kashmir in three mere months of unrest. Though credit is due to both Indian and Pakistani actors in their attempts to de-escalate the situation, the continued acts of provocation, both in rhetoric and kinetic actions, will only serve to leave more desperate civilians in the area in risk of continued harm.

What ISIS and Trumpists Have in Common

After the successful election of Donald Trump the liberal establishment is still trying to figure out what happened. While it is important to note that Hillary Clinton leads by over half a million votes in the popular vote, the 18th century institution of the Electoral College means Trump will be the next leader of the so-called “free world.”

For many liberal activists, commentators, and pundits there appears to be only one explanation: the white working class is as racist, sexist, homophobic, anti-immigrant, and authoritarian as the man they voted for. For these bewildered souls, the left had to hold its nose and vote for a candidate they may not have liked, but was the lesser evil; whereas those who voted for Trump did so because they fully support every policy proposal.

This notion has no merit. Though polls have shown themselves to be basically without much value or explanatory power, the exit polling shows that, along with fears of terrorism, immigration, and tax policy, economic hardship was one cross-cutting explanation. But how does economic hardship translate into voting for capitalism’s poster boy?

A similar debate rages among those trying to understand ISIS and those fighting for it in Iraq, Syria, Afghanistan, Libya, and elsewhere. The same fault line appears: while some want to deflect the influence of Islamic ideology, others lay the blame only with it. For the former, it is the lack of economic opportunity and war which serve as the catalyst for terrorism, where the latter claim that the teachings of Islam, 5th century as they are, can fully explain the root of modern terrorism.

When looking at Trump’s victory and the growth and spread of Islamic ideology both of these sides fail. This isn’t because either side lacks merit, but because both sides contain part of the truth. There are two constants at play which bring about Islamic and Trumpist ideologies: capitalist failure and false consciousness.

The first part of this equation, the failure of capitalism, is fairly obvious. While there has been a marked decrease in overall poverty due to industrialization in the Far East, the Middle East has become little more than a hinterland for imperial powers to seek out resources to extract and, where possible, exploit cheap pools of labor. In America, the neo-liberal push for globalization has meant that for the average American worker, little prospect for a job in their field, or going back to school with the inevitable five-to-seven figure debt without the guarantee of work at the end. For both groups, capitalism has simply failed them. But both sides don’t blame capitalism really, but rather seek to find some other explanation of their situation.

When looking for a cause to one’s suffering some explanation is better than none, and the easiest is usually preferred, as lengthy and complex arguments either bore or fail to speak truth to power in any effective way. Though Occam’s Razor would indicate that the simplest explanation tends to be the truth, political-economy is not physics, and the truth is usually nuanced and complex.

False Consciousness

That is why the false ideologies of ISIS and Trump have so much power. They are simple and play off divisions in society. For ISIS, the false consciousness comes both in its critique – western capitalism fails because it is impious, decadent, and leads to death, particularly of Muslims – and its solution – dismantle the western social order entirely and revert back to 5th century social and economic order. For Trumpists, it is also their critique – the government creates the conditions for “crony-capitalism” that hurts small and medium businesses and allows immigrants to take American jobs – and their solution – let the rich take more in taxes and kick out the immigrants.

This notion of false consciousness isn’t new. As Engles wrote, for ideologies like ISIS and Trumpists, the central notion of each depends on the:

appearance of an independent history of state constitutions, of systems of law, of ideological conceptions in every separate domain, which dazzles most people.

This bewilderment comes from the simplicity of the basic idea. Understanding the nature, social relations, and inevitable results of capitalist production takes time and careful study, and isn’t – by and large – taught in public or private schools. Rather, students in America are taught that it isn’t fundamental problems with capitalism that are at issue, but rather problems of public policy. For ISIS, America is a decadent superpower, hell bent on killing every last Muslim it can find.

These “justifications” are simple and do not contest the power that perpetuates them. In fact, it is power itself, held by the ruling classes in each society, which benefit from these “critiques” precisely because they don’t contest the basis of the ruling elite’s power. This how cultural hegemony, a theory outlined and explored by Italian Communist Antonio Gramsci, functions. Since the ruling class controls the means of information dissemination in the schools, media, church, political system, and other cultural institutions, it creates and perpetuates the memes in society. In short, the ruling class uses its dominance to continue its dominance. As Chomsky explored in “Manufacturing Consent” in relatively free societies, this is done primarily by propaganda. Anyone alive during and after the cold war saw this principle in action.

In less free societies, like those in the Middle East, it’s less about propaganda, which necessitates the need for hiding behind or inside “free and independent” institutions, and more about naked domination. The spread of Wahhabi schools and information dissemination outlets, namely by Saudi Arabia, has allowed the ISIS memes to perpetuate across the region. But it spreads this message for the same reason the ruling class in every society does, because it serves their interests.

The Hope

The great value of Marxism is that it focuses primarily on the material conditions of a society. It presupposes that when conditions are ripe, socialist organizations can be created and push for, ultimately, revolution against the capitalist system. This has led some to consider the transition from capitalism to socialism to be an inevitability, that when the conditions are right, the working class will, on its own, organize and revolt.

However, the 20th century proved this thesis incorrect. Rather, as Gramsci noted, in situations of cultural hegemony, you also have to present a counter narrative to that of the prevailing and elite-serving narrative ubiquitous in elite-dominated societies.

Today, this process is daunting. Not only is the working class at a low point in labor organization, but the elite have a nearly unchecked ability to perpetuate whatever memes it wishes. The internet, though, like so much else that capitalism creates, provides new ground to make alternative narratives more abundant. However, the decentralized nature of social media and the blogosphere serve to make difficult a united message to deliver to an alienated and angry working class.

Still, unlike the prognostication of the liberal elite that “the deplorables” are beyond the pale. But the anger and resentment of the working class, sometimes expressed and understood through the prism of xenophobia or racism, makes them ripe for a new message. History has shown that when presented with a left alternative, like in the 1930s, the working class turns in that direction.

Why? Because Marxists have an advantage in their messaging. While the ruling class has to rely on falsehoods and misrepresentation, it produces “facts” only by repetition and the destruction or discrediting of other voices, we are able to use the truth, an understanding of the issue based on material conditions and actual relations of production. Though difficult in necessitating a deconstruction of the false consciousness produced by the cultural hegemony, the truth can act as a battering ram that, in a short while and with some effort, can smash the false notions carried by workers from Mosul to Montgomery and arm them with the means to smash the state.

Writing, Poetry, Music and Photos from Kevin Gustafson