Among the more interesting pieces of popular culture to appear in the last decade I would count the TV series Longmire, which originally aired on A&E before the network cancelled it and sold the rights to Netflix. Based on a series of novels, the program tells the story of a Walt Longmire, sheriff of the fictional Absaroka County in Wyoming. Among the many problems the good sheriff has to deal with, few create the same kind of tension as the county’s complex relationship with the nearby Cheyenne Indian reservation, who as Native Americans live under federal jurisdiction. One episode in particular revolves around a murder connected to a change in the “blood quantum” requirement governing who may enroll as a member of the Cheyenne tribe. Near the end of the episode, a local Cheyenne cynically remarks to Longmire that the US government measures only three things by blood: dogs, horses, and Indians.
This scene occurred to me recently in light of the Supreme Court’s recent holding in McGirt v. Oklahoma in which a five justice majority led by Justice Gorsuch concluded that for purposes of the Major Crimes Act, the area where the defendant allegedly committed the crime was, in fact, Indian country. As a member of one of the tribes, any trial he might be party to would have to take place in a federal court, the state of Oklahoma lacking jurisdiction. By virtue of a man’s ancestry, and not any circumstance of justice or territorial jurisdiction, a trial moved from one venue to another. I have no desire to weigh in on whether the high court reached the right ruling, but it does bring to mind something I have long thought: for an avowedly liberal society, the Indian reservation system is perhaps the most deeply reactionary means by which we govern this country.
The Indian tribes have always presented something of an ugly problem for American nationhood. Although we inhabit a nation in which all men are, at least nominally, created equal, the ways in which we govern the native peoples stand out as exceptionally imperial. You might think we lived in the Habsburg Empire and not in a liberal republic. The Indian tribes present the most clear-cut sense in which the United States government distinguishes citizens based on ethnicity and culture. While few would envy the living conditions on some of the reservations – just Google Pine Ridge – the fact remains that in virtually no other context are Americans permitted forms of self-rule that inhere in the person and not in a given place.
I can think of no other context in which such a state of affairs would be permitted to persist. The Mormons do not get their own self-governing republic, the Pennsylvania Dutch their own communes, or the Gullah people their own kind of self-rule. There exist here no latter-day millets in which Roman Catholics live under one law, Lutherans another, and Jews yet another. For a nation built on equality, this would appear to stick out like a sore thumb. Perhaps this made more sense when the United States government took the discovery doctrine very seriously, but ever since the federal government extended citizenship to tribal members, we seem to be reenacting the frameworks of the some of the late Roman provinces in which Romans lived under one law, and barbarians another despite living in near proximity.
The law, then, is indeed a respecter of persons, and it respects persons in very specific ways. Criminal law in many places respects the priest-penitent privilege even in cases involving child abuse that would ordinarily require a responsible adult to make a report to CPS or other responsible authorities. Meant to facilitate pastoral care and protect the seal of sacramental confession in traditions that practice it, there is no quarter for teachers or other mandated reporters who fail to comply with this obligation. It is one of the strange ways in which, despite the First Amendment, our legal system protects a kind of established religion. We have no First Estate, and yet we recognize this privilege under law, though this has come under greater scrutiny in recent years. For better or for worse, the laws have set the clergy apart for specific exemptions in ways not afforded to men of other vocations.
It would seem then that the American commitment to equality under the law goes only so far. If we took these ideas as seriously as we claim to, the tribes would be dissolved, their members absorbed into the American nation state, unique legal jurisdictions would end, and Roman Catholic priests would be clapped in irons for not reporting abusers. But if we do not live in such a world, it is because we do not actually wish to see the liberal promise fulfilled to its greatest extent. Trying to legally compromise the integrity of a sacramental practice far older than America herself would have ramifications I dare not countenance, and erasing the identity of Indian communities and nations that have existed in some cases for centuries seems unnecessarily cruel even if their very existence gives the lie to the idea that our government does not care where you came from.
We tolerate this state of affairs, I think, because what we really want is not equality, but what we think of as the best of both worlds, or different worlds at least. The liberal individualist promise in the Anglo-American world, for all of the innovation it has fostered, and for all of the improvement it has brought, has at its heart a certain cruel disregard for history. As pernicious as toxic group identities can be, an individualism that reduces us to little utility maximizers worth only as much as our labor and purchasing power is an individualism that cuts us off from, heritage, tradition, and the other cultural resources that connect us with the past and help us construct meaning. So in the interest of mitigating the costs of liberalism, we permit certain reactionary customs and modes to persist. This compromise is not perfect – nothing is – but it helps us keep our world stitched together tenuously as it is. Could we do things better? Probably, but anybody familiar with the history of slavery and Jim Crow knows we have also done things far, far worse than we do now. It may not be for the best the United States government measures the blood quantum of dogs, horses, and Indians. Hopefully, that list will not grow longer.