Why is it that They Carry Their Lives on Their Fingernails? Acknowledging and Rectifying the Genocide of American Indians

Abstract

That the millions dragged from their homes, brutalized, caged, and murdered during World War II solely for their membership in human collectivities organized around a common religion, ethnicity, race, and history should not have died in vain, Rafael Lemkin coined the term genocide. Although the victorious Allies did not include it within the jurisdiction of the Nuremburg Tribunal, choosing instead to prosecute such acts as crimes against humanity, genocide - in effect, the first hate crime - rapidly assumed the status of the ultimate transgression. The phrase Never again! - spoken in the steely conviction that the world would never again stand idly by - became the unofficial motto of the State of Israel, while the Genocide Convention (1948) rendered the legal judgment of the international community that a parade of horribles - murder, serious physical or psychological harm, forced contraception, and abduction of children - when committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such - was so far beyond the moral pale that the duty to prevent and punish their commission was incumbent upon all states. Sadly, the promise of Never again! has been broken seriatim. A train of genocides in Timor, Cambodia, Iraq, Bosnia, Rwanda, Congo, and now the Darfur region of Sudan is written in blood upon the pages of post-World War II history. Why, sixty years after the liberation of Auschwitz, does genocide remain too much with us? Anthropologists conclude that mankind is atavistic, and that genocide will bedevil us for so long as resources are finite upon earth and contending human collectives battle over them. Lawyers advise that enforcement of the prohibition of genocide requires effective rules and institutions, and that above all perpetrators must be apprehended and brought to justice. Political scientists explain inactivity in the face of genocide as a rational response to an absence of actionable interests: simply put, what happens to peoples in far-flung corners of the Earth is inconsequential so long as it does not threaten the physical security or economic well-being of the West. Perhaps all or none are correct; at any rate, Kuwait is spared, but Bosnia is bled white before it is rescued, and Rwanda and the Sudan are left to burn. Never again! is at best a bromide quaffed to assuage the consciences of those made uncomfortable, but not too uncomfortable, by the reprise of mass murder motivated by hatred of a targeted group. Lemkin's contribution to the lexicon of law and moral philosophy is a bust. Can we do better? Is it possible to reinvigorate our commitment to eradicating the ultimate crime or, at the very least, to punishing and, better still, deterring would-be perpetrators? If the lessons of Nuremburg have been smothered under a mountain of Srebrenicas - a village in Bosnia where, in 1995, Bosnian Serb forces machine-gunned 8000 Muslim men and boys for the crime of being Muslim - what reason is there to repose our hopes in the International Criminal Court, a permanent tribunal with the jurisdiction to punish the authors of genocide? Unless we can awaken the moral indignation that encouraged the Allies to hang the architects of the Holocaust by the necks until they were dead, how will we inspire the contemporary community of states to commit their blood and treasure to defending the objects of genocidal instinct from their attackers? If genocide is simply an immutable aspect of the human condition because mankind is inherently evil or resource scarcity is so profound that we are doomed to fight and only the strong are to survive, then our work is done. We are observers of, not active participants in, our own futures. But if genocide is not inevitable, we must summon the will to intervene. To do this is largely a prospective challenge: we cannot change what has gone before, much as we wish to do so; we can only devise a future in which genocide is deterred, and when it cannot be deterred it is checked, and when it is not checked in time it is sanctioned, and its practitioners punished. If we are to rise to this challenge, we must recognize that the integrity of the moral norm at the core of the legal prohibition against genocide is, to some degree, a function of the seriousness with which we respond to its violation. Each genocide tolerated makes the counter-argument against its prohibition: isn't killing the enemy what war is all about, and isn't genocide the most effective way of winning wars (and preventing the possibility of future wars, at least with the eliminated groups)? In other words, a genocide-free future demands vigilance and the willingness to put force in service to the vow, Never again! Yet even this expression of commitment may be inadequate. So long as the present consequences of past genocides go unrecognized and unremedied, their ghosts will haunt our present. Worse, as a review of the recent histories of the Balkans, the Middle East, and Africa makes clear, nothing is more likely to motivate the descendants of yesterday's victims to become tomorrow's perpetrators than a stubborn refusal to acknowledge and repair the damage. The risk extends to the spectator class as well: with each successive genocide that slips by with little notice, less intervention, and all but no justice, we become more experienced at living with genocide. The attendant moral hazards require, in short, that we think not merely prospectively but retrospectively if we wish to avoid them, do justice, and bring about the end of history, at least insofar as genocide is concerned. Where do we begin? Many genocidal episodes stain the sands of time: the Nazi butchery of European Jews, the Japanese Rape of Nanking, the Ottoman murder of Armenians, the Mongol devastations of Central Asia, the Roman eradication of Carthage, and the Hebrew destruction of the Canaanites, to name but a few. The unique experience of American Indians presents a logical heuristic whereby to assess more broadly the requirements of justice following genocide. The brutal reality of invasion, murder, slavery, land theft, ethnocide, and sterilization has not percolated deeply into contemporary understandings of U.S-Indian history. The role of the U.S. in the deliberate destruction of Indian populations, property rights, and cultural patrimonies is for most Americans a hidden history. Because the genocide of American Indians is neither broadly acknowledged nor deeply understood, Part I will provide historical foundation. Part II will present and evaluate several theories of justice with respect to the Indian claim for redress. Part III will counter these theories with an indigenist theory intended to accord the full measure of relief to Indian claimants consistent with the requirements of justice for all peoples.

Keywords: Genocide, American Indians, moral philosophy, theory of justice