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Waziyatawin, Ph.D., Colonial Calibrations: The Expendability of Minnesota's Original People , 39 William Mitchell Law Review 450 (2013) (127 Footnotes Omitted)

“If we get in your way, will you kill us again?”These were the words written in magic marker on signs carried by two of my children, Autumn and Talon, on May 10, 2008, as we blockaded the route of a wagon train arriving at the Replica Fort Snelling. Minnesota was celebrating 150 years of statehood, and the wagon train, led by white Minnesotans dressed in nineteenth-century pioneer garb, had traced its way from Cannon Falls, Minnesota, on a trek intended to bring wagons and riders to the state capitol in St. Paul for the sesquicentennial kick-off festivities. My children, experienced protestors despite their youth, had participated in the previous day's protest on the Mendota Bridge to raise awareness about Dakota objections to the state's celebration. But, to challenge the wagon train, they decided they needed their own special signs for the occasion, signs that reflected the sense of expendability they were feeling, but had not yet articulated. They decided they would each carry a portion of a joint message: “If we get in your way,” said one sign, “will you kill us again?” said the other.

The experience raised many troubling issues. Though not reflecting a historical past, the wagon train may be seen more accurately as a symbol of Minnesotans' investment in the Manifest Destiny narrative. It did not matter that white settlers typically arrived in Dakota homeland via boat rather than covered wagon; the participants in this colonial drama were re-enacting the iconic American story of courageous westward expansion and the settlement of a savage wilderness. These Minnesotans did not care what their families' settlement meant for Indigenous people. Nor was this something they had to consider in their day-to-day lives. For a few hours on that day at the fort, however, they had to confront Indigenous opposition to their celebration of settlement, and the response left us with a palpable sense of not just indifference, but callousness. While we spoke of genocide, mass hangings, bounties, broken treaties, land theft, concentration camps, and ethnic cleansing, they chuckled and chatted with one another. When seven of us, including my two children, were arrested and hauled off to squad cars, they checked their cell phones and their watches. And, of course, the armed and mounted police were there to defend the wagon train against Indian attack, though we were unarmed and peaceful protestors. It was clear that if we posed any real obstacle to their enjoyment of freedom within our homeland, at least some white Minnesotans would not hesitate to use lethal force to eradicate the Indian problem once again. The answer to the question, “If we get in your way, will you kill us again?” was an unmistakable yes.

This article, written in the sesquicentennial year since the U.S.-Dakota War of 1862, will investigate this issue of Indigenous expendability by exploring not just the historic examples of genocide within the framework of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide, but also the meaning of this in light of the 2007 United Nations Declaration on the Rights of Indigenous Peoples. While other scholars have provided detailed accounts of the war--its causes, its battles, its aftermath-- this article will draw on specific aspects of the war to make the case for genocide and other major crimes worthy of redress or reparations according to the 2007 U.N. Declaration. Because Minnesotans and the U.S. government have never offered redress for its genocidal policies perpetrated against Dakota people, I argue that Dakota people remain expendable in the eyes of Americans who still benefit from our dispossession, yet refuse to work toward justice. Dakota people remain in the dark shadow of the 1862 War.

Indigenous scholarship in the last few decades has increasingly shifted parochial discussions of Indian wars, uprisings, and Indian-white relations to broader frameworks of analysis that consider issues of empire, imperialism, colonialism, patriarchy, and capitalism. Events are not viewed in a vacuum, but as part of larger historical processes. Furthermore, Indigenous scholarship has recognized the similarities amongst Indigenous peoples globally who have faced displacement, land theft, and the horrors of settler occupation. For example, Susan A. Smith and James Riding In, in their edited collection Native Historians Write Back: Decolonizing American Indian History, discuss six principles found in Indigenous thought that present a “discursive challenge to academic hegemony.” They are worth repeating here in order to distinguish Indigenous, decolonizing historical analysis from what we might call the colonizers' analysis. As the editors explain:

First, Indian sovereignty derives from inherent powers that predate the US Constitution. Second, the lands and resources in what now constitutes the United States passed from Indian to non-Indian hands through serial acts of duplicity, violence, deceit, and coercion. Third, European claims to lands belonging to others by virtue of discovery are rooted in racially based assumptions and articulated in a language that characterizes Indians as inferior, savages who lack fundamental rights accorded to “civilized” peoples. Fourth, the invaders used this language of racism to rationalize their aggression against unoffending Indians. Fifth, those nineteenth-century discourses of colonialism are entrenched in contemporary academic and legal thought. Sixth, colonialism must be seen for what it is: a crime against humanity.

These principles warrant consideration in the context of the 1862 War as they explain a fundamental difference in the way this historical event has been interpreted between Indigenous people (or our non-Indigenous allies) writing on the subject, and non-Indigenous people, particularly white Minnesotans, who refuse to examine the war in anything but the most constrained terms. In limiting the scope of their analysis, they can pretend that settler claims to Dakota homeland are on equal par with Dakota claims. This difference creates a deep tension in which mutual respect is virtually impossible to attain. As Ward Churchill has written:

We hear only of “Indian wars,” never of “settlers' wars.” It is as if the natives, always “warlike” and “aggressive,” had invaded and laid waste to London or Castile rather than engaging in desperate and always futile efforts to repel the hordes of “pioneers” and “peaceful settlers” overrunning their homelands--often quite illegally, even in their own terms--from sea to shining sea.

Those who view the war within a narrow historical scope often do not recognize colonial processes at work or may even deny the United States as a colonial power, and those who view colonial processes as essential to understanding this historical event inevitably view narrow interpretations as a way to maintain colonial hegemony.

This article begins from the premise that Dakota people experienced a colonial invasion of our homeland. That invasion came in the form of deceitful treaties and treaty-making processes by the U.S. government that reveal it never intended to deal fairly with Dakota people; traders who sought their wealth by encouraging the exploitation of our homeland and the indebtedness of our people; missionaries whose religious imperialism sought to destroy Dakota spirituality and culture; soldiers who sought to establish military dominance in Dakota homeland; and settlers who flooded into Dakota lands with their belief in Manifest Destiny. In the context of this colonial narrative, the Dakota were expendable human beings. After too many wrongs, warriors among our people decided it was time to start fighting back. From this vantage point, the war may be interpreted as a defensive war, a war for Indigenous land and Indigenous life. It may be interpreted as a story of a patriotic armed stand by resistors to white invasion and conquest.

This war over interpretation is not the only challenge, however. Even if we understand that the United States is a colonial power and colonialism is a crime against humanity, justice for Indigenous people seems an implausible prospect within the U.S. legal framework. In fact, any population living under colonial occupation is unlikely to find justice within their occupier's legal system. Thus, the United Nations continues to provide an avenue for Indigenous populations seeking justice, albeit with some serious limitations. For example, even assuming the United States offered unconditional support for U.N. conventions and declarations and agreed to be held to U.N. standards, what country or countries would enforce sanctions or punishments against the most powerful nation in the world in defense of Indigenous interests? Still, internationally agreed upon standards provide Indigenous people with the externally-defined criteria to help raise international support for our struggles, even if it is only the support of other disempowered nations and Indigenous people living under colonial occupation. Perhaps more importantly, they allow Indigenous people to escape the parochial and colonial interpretations of our history that place blame squarely on us for our past and present suffering so that we will recognize a need for justice today.

Certainly, this has been the case in the Dakota context. Our entire nation was brutally punished for our decision to go to war against the U.S. government and its citizens. The United States unilaterally abrogated our treaties, stole our Minnesota homeland, imprisoned our people in concentration camps, force-marched our women and children, mass-lynched our warriors, mass-incarcerated our able-bodied men, ethnically-cleansed us from Minnesota, and then instituted further policies of genocide, including a bounty system on Dakota scalps. The United States crushed our resistance so thoroughly that our people began to believe we were to blame for this chain of events. Rather than viewing the United States as perpetrators of crimes in a colonial context in which the ultimate goal was to acquire our lands and resources, many of our people began to blame the very people who attempted to protect our people, our culture, and our homeland from harm by going to war against the invaders. In this sad context, using international criteria to assess the events of 1862 provides some much needed clarity.

The U.N. Convention details agreed-upon international standards for determining what constitutes genocide in Article II, which states:

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

Any one of these criteria met singly constitutes genocide. In the nineteenth and twentieth centuries, the U.S. government and its citizens violated all of these criteria in multiple ways. As I will explain below, whites in Minnesota also perpetrated these crimes against Dakota people in multiple ways and there has yet to be any accountability or redress for them.

Among the whites, a sense of superiority and anti-Indian sentiments were the norm in nineteenth-century Dakota homeland. White sentiments rooted in this sense of superiority are foundational to the ideology of Indigenous expendability, which might be considered a prerequisite to the perpetration of genocide. Lieutenant Timothy Sheehan, for example, who would help defend Fort Ridgely against Dakota attack during the war, summed up this view when he said: “Went out to see the country along the Minnesota River. A beautiful country--too good for Indians to inhabit.” His comment is classic Manifest Destiny speak--it exemplifies that American belief in the necessity of dispossessing and displacing Indians based on white supremacy.

Sheehan's comment, however, is also illustrative of colonial ambition. The one “resource” that all Indigenous peoples in North America possessed and that was coveted by first Europeans, and then Americans, was land. The U.S. government owes its existence to Indigenous lands and, in the nineteenth century, its expansion was absolutely dependent on acquiring additional Indigenous lands. Every corps of discovery, every fort, every land-cession treaty, and every new wave of white settlement was carried out with the ultimate goal of subjugating Indigenous life and establishing U.S. dominance in a region. In the case of Dakota homeland, few whites could claim ignorance about who held the original land title. What nineteenth century American, or recent immigrant, had not heard of Indians and did not understand that Indians occupied the continent? Indeed, efforts to recruit white settlers often centered on discussions of subduing the “Indian threat” or eliminating Indian land possession.

For example, historian Mary Lethert Wingerd describes how early Minnesota territorial and state residents advertised Minnesota's suitability for white settlement by hiring immigration agents, publishing recruitment pamphlets, and creating an “immigrant aid bureau” in New York to lure European immigrants fresh off the boats to Minnesota. Ignatius Donnelly, who would become Minnesota's Lieutenant Governor in 1859, even encouraged settlement on reservation lands. In 1857, he wrote in the Emigrant Aid Journal, “ [T] here are very populous towns that have been built on some of these reservations, as they are called, and the districts around have been thickly settled, long before any title, save that of the squatter's can be had for the land.” Whites arriving in Minnesota did not question their superior right to Dakota lands, and our eventual displacement was considered a given. Hundreds of thousands of other Indigenous people in the eastern United States had already faced land theft and ethnic cleansing, and by the mid-nineteenth century, an increasing number of Americans turned their covetous eyes upon Dakota lands. Our population was already considered expendable within the U.S. expansionist project.

The righteousness of white settlement of Indigenous lands was assumed, and calls for extermination and Dakota expulsion erupted in the wake of conflict. For example, in 1857 when Inkpaduta retaliated against white settlers for the murder and rape of his family members, killing thirty-two people in what became known as the Spirit Lake Massacre, settlers began calling for extermination. This mutual distrust and dislike became progressively worse leading up to 1862, and the war unleashed unparalleled vitriol.

Even in the rare case that our physical expendability was not the objective-- as among Christian missionaries and Indian agents, for example--Dakota cultural and spiritual annihilation was still the end-goal. For example, Episcopal Bishop Henry Whipple, while trying to temper white thirst for Dakota extermination after the war, wrote:

As a Christian I take issue with anyone who claims that God has created any human being who is incapable of civilization or who cannot receive the gospel of Jesus Christ. . . . The North American Indian is a savage and like all other heathen men fierce, vindictive cruel and his animal passions are unrestrained by civilization & Christianity.

He was not opposed to the killing of those he considered guilty believing, to use his words, “that the savages who committed these deeds of violence must meet their doom,” but he believed mass extermination was unjust. He wanted the rest of the population alive so that he could pursue his own imperialistic path by converting heathen souls to Christianity. This was aligned with the government's civilizing mission designed for the eradication of Indigenous cultural practices. For example, the Commissioner of Indian Affairs in 1862, William P. Dole, described his philosophy regarding the “advance [s] made by them in civilization,” writing:

Another year has but served to strengthen my conviction that the policy, recently adopted, of confining the Indians to reservations, and, from time to time, as they are gradually taught and become accustomed to the idea of individual property, allotting to them lands to be held in severalty, is the best method yet devised for their reclamation and advancement in civilization.

From the perspective of the “savages,” this cultural extermination is simply the other side of the genocidal coin.