Mi’kmaq father and son, Nova Scotia 1871

 

Canada has celebrated Treaty Day on October 1st since 1986. However, for the first time in Canadian history Truth and Reconciliation Day was inaugurated on September 30th, 2021. These commemorative dates along with the recent Indigenous People’s Day bring the Canadian government’s treatment of the Mi’kmaq First Nations into sharp focus. Slogans such as “Honor the Treaties” and “Every Child Matters” printed on orange shirts and chanted by protestors bring attention to these historical events. The so-called Peace and Friendship Treaties are a collection of documents granted to the Mi’kmaq First Nations in the Atlantic Maritimes in the 18th and 19th centuries. According to the Union of Nova Scotia Mi’kmaq, Treaty Day has “confirmed the unique relationship which exists between the Mi’kmaq and the Crown, an agreement which is further maintained within the Covenant Chain, a series of interconnected treaties of mutual consent.” Due to their lack of implementation, consistent misrepresentation, and government-biased interpretation of their contents, they have unfortunately brought neither peace nor friendship.

 

Beyond the new yearly celebrations, the dark legacy that underlies these treaties is bound up in the government’s refusal to honor a fundamental principle: commoning systems. You will not find the words commons, commons systems, or enclosure in the Peace and Friendship Treaties. However, environmental historians would be quick to point out that most agreements between indigenous peoples or marginalized communities in settler colonial contexts address the issues of resources, access to land, and usage of any resources found within the area in question. These treaty agreements are often ways of limiting or explaining the boundaries of commons and the activities involved with, in, or on these commons.

 

As abstract as it sounds, commoning is old, traditional, and practiced by all humans on every continent. The problems arise when these commons systems are enclosed or privatized, and restrictions are placed on communities such as the Mi’kmaq. For example, in October 2020, non-native fishermen committed violence against the Mi’kmaq due to that First Nations’ government-sanctioned fishing rights in the Eastern Canadian Maritime region and recently again the Department of Fisheries and Oceans have denied Mi’kmaq fishers the rights to fish whenever the need arises for a moderate livelihood.

 

The language in Peace and Friendship Treaties remains clear. There were provisions for indigenous land, resource usage, and a strict code regarding treatment of the Mi’kmaq in the Canadian Maritimes. One example is the 1763 Proclamation by King George III, in which he clearly stated the colonial position in its dealings with the Mi’kmaq in British North America. After outlining the significant geographical area covered, the King blatantly declared that colonial Europeans were not to grant lands or pass patents upon any lands to others which had not been ceded or purchased previously—this meant a control on encroachment and an admission by the Crown that there were large tracts of land in the Canadian Maritimes stretching into the east coast of the present United States that were protected by the laws of the British king. The Proclamation also included that those lands which had not been ceded or purchased to be left to the First Nations as their own hunting grounds–a protection of the hunting commons and those traditions associated with it. This royal proclamation was an instruction to the non-native British officials to respect the indigenous people and their land rights or in other words, the Mi’kmaw commoning systems.  

 

The Mi’kmaq were in no doubt about where they had territory and to what resources they had access. Mi’kmaw maps showed the place names connected to precious raw materials and who resided in those areas such as places on the map named Wild Potato Area and Skin Dressers Territory. As far back as the 17th century, Europeans were exploring, encroaching, claiming, and renaming these Mi’kmaq areas for their own use. These lands contained the provisions necessary for Mi’kmaq survival. The Mi’kmaq have lived, hunted, and gathered in the Atlantic Maritime region for millennia using their own commoning systems. Research has shown the importance of commons access as an insurance against natural catastrophes and famine. 

 

Once these commons were enclosed the Mi’kmaq were confined on reserves and many of their cultural commons lost including their unique language. Enclosure or denial of the commoning systems contributed to the plight of the Mi’kmaq and rendered them refugees of commons enclosure. This is not a new phenomenon in environmental history. It has occurred over several centuries in Europe with the rise of surveying, private property laws, and forest laws. Other Canadian refugees of commons enclosure due to settler colonialism include the expulsion of the Acadians and the arrival of Scottish immigrants from the Highland Clearances. 

 

Two landmark cases tested the courts’ interpretation of the Peace and Friendship Treaty language associated with Mi’kmaw commons rights: The King v. Gabriel  Sylliboy in 1928 and R v. Marshall in 1999. Woven into those treaties is the tacit right of First Nation’s cultural commons because language and tradition are finely tuned to commons systems and ways of commoning. Unfortunately, Sylliboy lost his case in 1928 with the judge ruling that the King’s original proclamation was not meant to cover later events such as those brought by Sylliboy. Sylliboy’s case did, however, show the First Nation’s right to their land and community resources. The rights included those on unsurrendered lands and extended to gathering and harvesting even on land previously surrendered. The case put the questions of unceded land fully in the Confederation’s spotlight. The amount of unceded territory incorporates huge areas such as the entirety of Prince Edward Island. The areas now set aside for reserves are minute in comparison to their original territories. 

 

In 1999 the courts upheld Marshall’s right to fishing and hunting commons. The court’s decision to finally interpret the original commoning system rights laid out in the Peace and Friendship Treaties showed that the Mi’kmaq retained jurisdiction within the Confederation. However, critics believe those rights to commoning do not extend to many activities associated with moderate livelihood or are seen as unsporting. Some of these include fishing outside of seasons set by the DFO or hunting with spotlights. The battle continues.

 

Recent news and discovery of burials has brought to light to mistreatment of indigenous children in government supported residential schools including the enforcement of a government-sanctioned program to send Mi’kmaq children to residential schools which equated to an erasure of the Mi’kmaq cultural commons.  For the Mi’kmaq it brought back memories of the egregious acts set forth in Cornwallis’ proclamation which promoted the scalping of the Mi’kmaq in the 18th century. One equated to an eradication of the Mi’kmaq people and the other was an erasure of Mi’kmaw memory and traditions.  

 

The long arm of history continues to reach into the present. Mi’kmaq fishers are targets of violence in the form of arrests and property damage, their lands remain unceded without commoning rights, and the Mi’kmaq are trying to reclaim their cultural commons through traditional events and public awareness campaigns such as those seen with last week’s inaugural Truth and Reconciliation Day and the continued celebration of Treaty Day.

 

The Mi’kmaq have become refugees of commons enclosure and the treaties of Peace and Friendship have not been upheld to protect their commoning rights. Enclosure of commons-the denial of land and sea resources along with those rights laid out in the treaties will continue until the treaties are honored, and the Mi’kmaq are no longer displaced and denied their commoning rights in their own unceded territory. Honoring the history of the treaties is not just about the past but also about the present and future of indigenous Canadians.  

Map of Virginia, 1861, showing the proportion of enslaved persons among the population of each county.

 

In previous 21st century elections, candidates defined themselves on issues like taxes, health care, gay marriage, and America’s role in policing terrorism. Increasingly, democracy itself is the issue. How much power should the majority coalition possess? How much power should the opposition possess? Senator Mike Lee of Utah has warned that “democracy isn’t the objective” of American government, but rather “liberty, peace, and prosperity,” which might be overrun by “rank democracy.” The Democratic party is fiercely debating whether they should abolish the filibuster while they hold a slim Senate majority. Intended to promote harmony, the filibuster has become a polarizing and paralyzing force on American democracy. It is a custom of the United States Senate that allows a minority coalition (as small as 41 senators) to block a bill supported by the majority. History offers several deleterious examples of giving a legislative minority the ability to suppress the majority. One such example can be found in antebellum Virginia, where an Eastern slaveholding elite feared losing their majority to politicians from the rapidly growing, mostly non-slaveholding population of Western Virginia. To prevent this, Easterners concocted rules that allowed slaveholders (and thus, Easterners) extra power in the legislature. This sense of political oppression by an elite minority generated immense antipathy in Western Virginia, eventually leading to the rupture of the state during the American Civil War. The filibuster is today generating similar charges of anti-democratic minority rule. More ominously, the filibuster, like slaveholders’ grip on the Virginia legislature, has a long history of being used to maintain racial supremacy. American democracy has continually evolved past such elite-driven checks on the majority. Reforming or abolishing the filibuster would be a proactive measure to form a more perfect Union.

 

For three decades before the Civil War, Eastern Virginia’s leaders resisted calls for democratic reform from the Western portion of the state (modern day West Virginia). Antebellum Virginia was one of the least democratic states in the Union. Of course, no state was a true democracy in the early 19th century, as all women and men of color were denied citizenship. But even under this more limited conception, Virginia’s government proved demonstrably more oligarchic than other states. Westerners advocated for a raft of egalitarian measures, such as a tax code that ended significant loopholes for slaveholders; eliminating wealth requirements for White male suffrage; popular election of the governor (rather than legislative); public schooling; a secret ballot; and a more responsive local government. But their most animating issue, by far, was ending the “mixed basis” of Virginia’s legislature, which rewarded slaveholders with additional representation by counting their enslaved human property in the population tallies that apportioned political seats. Easterners argued that those who possessed the most property in the state deserved more say in its affairs. Westerners proposed the “White basis,” which would apportion the state legislature solely by the White population. They believed that wealth should have no bearing on a citizen’s voting power.

 

The mixed basis was a local version of the infamous national 3/5ths compromise that gave slaveholders additional representation in the U.S. House of Representatives. Virginia’s 1830 constitution borrowed the 3/5ths formula exactly: it took the total number of enslaved people, multiplied that number by 3/5ths, and then added the new number to the White population total when drawing legislative districts. To be clear, this formula was not designed to give enslaved people a voice in government—quite the opposite—it was designed to shore up Virginia’s racial regime by giving slaveholders a firewall in the state Senate. The 1851 constitution adopted a formula that used the White population to apportion the House of Delegates, and factored both White population and property into the Virginia Senate tallies.

 

Theoretically, this new “mixed” basis blunted the power of slaveholders. But because enslaved property represented the largest source of wealth in the state, the outcome was functionally the same as the 3/5ths compromise: rich slaveholders were able to pack the legislature. Their wealth was literally represented in the state Senate. And nearly all enslaved Virginians were held in Eastern Virginia. By 1860, there 472,000 African Americans enslaved in the east, compared to 18,000 people enslaved in Western Virginia. This vast discrepancy meant that Eastern Virginia’s wealthy slaveholding elite would always be able to control the legislature. This was no secret. Abel P. Upshur, an Eastern politician, explicitly argued that “Our [enslaved] property imperiously demands that kind of protection which flows from the possession of power.” Put simply, the Eastern elite believed that it was too dangerous to even allow the possibility that non-slaveholders could win control of the legislature. Westerners derisively referred to the Eastern elite as the Richmond Junto. They were particularly incensed because the Eastern White population outnumbered the Western, roughly 747,000 to 358,000. Under the White basis proposed by the west, the east would still command a majority, but it would be a fair majority earned by the will of citizens—not a majority empowered by enslaved wealth.

 

The unhappiness with Virginia’s anti-democratic governance led to calls to again rewrite the state’s constitution, just twenty years after the 1830 convention. Western reformers won some important concessions at the 1850-51 Virginia Constitutional Convention. This was a victory, but a limited one. The Senate remained artificially packed with representatives from slaveholding districts, blocking Westerners from ever hoping to control it. One Western delegate, William Smith of Greenbrier County, complained that the mixed basis violated “the great principle of political equality so essential to a representative republican government; that it is aristocratic in all its features.” In other words, Smith argued that the defining feature of American democracy was that there were no legal distinctions between citizens. Some citizens would be rich, and some would be poor, but if the law granted a class of citizens more voting power than others, than the promise of the American Revolution was unfulfilled. Eastern delegates also protected their slaveholding interests by creating an enormous tax shelter for enslaved property in the state’s tax code. Westerners managed to win the vote for poor White men, something that nearly every other state had implemented in the 1820s. They also prevailed in demanding that the electorate, rather than the state legislature, select the governor. Reformers saw the 1851 constitution as an embarrassingly overdue first step in democratizing Virginia.

 

How did Virginia become so sectionally divided? The state, known as the “The Old Dominion” was the oldest surviving English settlement in North America, tracing its origins to the founding of Jamestown in 1607. Powerful slaveholders had long since assembled massive tracts of Eastern land upon which they reaped wealth from enslaved labor. Even as Eastern Virginia began to diversify its economy in the 1850s, it remained a slave society to its core. No state enslaved more people. Across large swaths of Eastern Virginia, enslaved people outnumbered White people, sometimes representing more than 70% of a county’s population. But land was plentiful and cheap (for White men) across the Appalachian Mountains in the Western portion of the state—it was only around the time of the American Revolution that Anglo-American settlers forced out Native inhabitants. Moreover, the rugged ecology of Western Virginia could not support plantation agriculture, but it could support small farms, grazing, logging, as well as salt and iron mining. Slavery, by and large, was not profitable at scale in the west. This was of no conciliation to the African Americans who were enslaved there, but it remains a critical distinction for understanding antebellum Virginia’s politics of east vs. west.

 

By 1830, Western Virginia was no longer the domain of frontiersman and backcountry farmers. Particularly around the regional capital of Wheeling, Western Virginia was growing more populous, more educated, and richer. The Ohio River, the National Road, and later, the B&O Railroad were becoming vital avenues of trade for the booming United States, and they all ran through Western Virginia. Westerners were also more swept up in the Second Great Awakening than their Eastern neighbors, which stoked their desire for social reform. Revival preachers and temperance speakers drew large crowds. Westerners founded religious-affiliated colleges and seminaries. Frustrated by Eastern Virginia’s refusal to create a state-wide public school system, Wheeling instituted its own city-wide public schooling in 1849. In short, this new Western Virginian culture embraced a strain of White egalitarianism largely absent in Eastern Virginia’s staid planter society. Other states had regional cultures that influenced their politics, but only Virginia’s so cleanly correlated to the growing national conflict between slave societies and White free labor societies.

 

There was no public, organized abolitionist sentiment among White people in Western Virginia, although there was a local Underground Railroad maintained by a small number of free Black residents. It is critical to remember that Western reformers were only opposed to Eastern slaveholders’ grip on government, not to slavery or racial supremacy. In fact, many of the Western politicians who fought for White egalitarian reform owned enslaved servants. Their opposition to slaveholders was an opposition to an elite class who had created structural advantages for themselves in Virginia’s government. But the west was overwhelmingly White, and enslaved labor was not the primary work force as it was in the east. Western reformers wanted to make citizenship universal and equal among White men, not attack slavery where it existed.

 

Eastern and Western Virginia were in bitter disagreement on whether slavery should structure their shared society and politics. When the secession crisis began in 1860, Virginia held a convention to determine whether it should join the Confederate rebellion. For the third time in thirty years, Virginia’s political class gathered in Richmond to discuss momentous changes to the state’s government. Easterners sympathized with the slaveholders’ rebellion but hoped for reconciliation on pro-slavery terms. Unsurprisingly, Westerners tended to be strongly opposed to the Confederacy. They had not found Eastern Virginia’s slaveholding elite to be committed partners in building Virginia’s democracy. In the Confederacy, they feared a national government that would similarly espouse democratic rhetoric without embracing the full principle. At the secession convention, Westerners cited the tax code that set a cap on taxing enslaved property at the value of $300, even though enslaved people were routinely sold for $1,000 or more. Enslaved children (who also performed labor) were exempt from taxation entirely. Between the mixed basis that gave large slaveholders control of the Senate, and a tax code that sheltered enslaved wealth, Westerners argued that the Eastern elite had warped Virginia’s government for their own interests. They would not join the Confederacy, which they understood as a slaveholders’ oligarchy masquerading as a defender of White democracy.

 

In April of 1861, South Carolina attacked federal forces at Fort Sumter, crossing Lincoln’s red line during negotiations for reconciliation. The president announced that the federal government would take military action against the rebellion, forcing Eastern Virginians to take a side. They chose the Confederacy. In an 88-55 vote, split on east/west lines respectively, the convention recommended secession to Virginia’s voters. But rather than await the results of the legally mandated statewide referendum, Governor John Letcher placed the state militia under Confederate control. For Westerners, this was one final confirmation that Eastern Virginia’s elite could not be inconvenienced by democracy.

 

Westerners appealed for federal military protection, and once secured, they began renegotiating their place in the Union as West Virginia. The new state was not just a way to remain loyal to the United States. West Virginia was intended as a remedy to the anti-democratic rule of Eastern Virginia. The state’s founders had the chance to draft an original constitution; a chance to build a government from scratch. As Waitman T. Willey, one of the state’s most important founders, argued: “wealth and popular education, and material and moral progress and development, and political equality, and prosperity in every department of political economy, so long withheld from us, are all within our grasp.” The Westerners seized their chance.

 

West Virginia’s 1863 constitution differed radically from old Virginia’s structure. Its fundamental principle, established in a host of measures, was ensuring equality between citizens. Their first concern was establishing majority rule in the legislature. Article I of the West Virginia Constitution guaranteed that “Every citizen shall be entitled to equal representation in the Government, and in all apportionments of representation, equality of numbers” would be upheld. No longer would wealthy citizens get more voting power in the legislature than average citizens. Remembering the massive tax shelter that slaveholders had created in antebellum Virginia, they mandated that taxation “shall be equal and uniform throughout the State, and all property, both real and personal, shall be taxed in proportion to its value.” The West Virginians also did away with Virginia’s county clerk system, which had placed nearly all local power in the hands of one magistrate. Instead, they established a New England-style township system that distributed power among several elected officials and a board of supervisors. This measure was designed to make local government more responsive and accountable to its community. They also established a secret ballot, rejecting Virginia’s system of viva voce voting in which a citizen had to proclaim his preferences. West Virginians felt that public voting had pressured poorer citizens to vote in lockstep with their wealthier neighbors, from whom they might earn wages, rent land, or draw loans. Finally, the West Virginia constitution established the South’s first state-wide public school system. Education had been an expensive privilege in old Virginia. West Virginia’s founders believed that every citizen had a right to education, but also that democracy could not function without educated voters.

 

Westerners were divided on whether the new state should abolish slavery outright. At first, they settled on a measure to ban importation of enslaved people into the state (as well as free Black people from moving in). This measure perfectly encapsulates their anti-slavery, anti-Black outlook. This proposal was unacceptable to Congress and Lincoln, who would have to approve a bill admitting West Virginia to the Union. Under a compromise proposed by Waitman T. Willey, the West Virginians adopted a gradual emancipation policy for their new state. Lincoln signed the statehood bill on December 31, 1862. The Willey Amendment was slower than abolitionists and enslaved West Virginians would have hoped for, but it was significant that this slaveholding region voluntarily and permanently renounced slavery. The 13th amendment that abolished slavery throughout the Union would not arrive until 1865, and it was far from a foregone conclusion in 1862. Lincoln applauded the new state as the first step in the South’s redemption. West Virginia entered the Union as the thirty-fifth state in the summer of 1863.

 

 Concerns over a minority veto against the majority’s legislative ability predate even the constitution of the United States. In The Federalist Papers, Alexander Hamilton argued that “what at first sight may seem a remedy, is, in reality a poison. To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser.” Hamilton explained that the natural outcome of empowering a legislative minority would be to paralyze the government, thereby souring public discourse and weakening American democracy. His prediction has proved prescient.

 

Slaveholders have been the most powerful political minority in United States history. Unsurprisingly, they exploited any opportunity to safeguard their interest in slavery from the non-slaveholding majority. The 3/5ths compromise in the U.S. House of Representatives generated stiff Northern resentment against the slaveholding minority, which they deemed “the slave power conspiracy.” The Northern majority eventually grew so large that they won the House of Representatives anyway, so the pro-slavery minority shifted their attention to the Senate. As a result, the filibuster gained new importance as a tool for Southern senators. They also insisted that the rapidly growing nation admit new states only in pairs of free and slaveholding states—thus preserving the ratio of pro-slavery to free state senators. Admitting states in pairs also protected slaveholders’ power in the electoral college. Northern resentment of “the slave power conspiracy” helped spark the rise of the first major political party with an anti-slavery platform in American history, the Republican party. Their first successful candidate was Abraham Lincoln. The slaveholding minority could not abide by the nation’s democratically elected president and launched the Confederate rebellion.

 

The mixed basis in Virginia similarly fueled Western resentment at Eastern Virginia’s powerful slaveholding elite. The Eastern argument that wealth, primarily wealth in enslaved people, deserved legislative representation was attacked by Western politicians on both constitutional and emotional grounds. Constitutionally, they argued that it rejected the core principle of the American project: political equality between citizens. But more powerfully, they appealed to their constituents’ pride. At the 1830 Constitutional Convention, an Easterner named Benjamin Watkins Leigh had spoken in defense of the wealth requirement to vote (later eliminated in 1851). He argued that “the peasantry of the west” were not suited to participate “in affairs of State.” Leigh’s “peasantry of the west” became a broader rallying cry for Western politicians demanding political equality, and later, for West Virginia statehood. The quote inflamed Westerners, stoking their resentment that they were being disrespected by an elite minority. Leigh’s quote even hinted that Easterners’ defense of the mixed basis was not about protecting their pro-slavery interests, but rather just an unwillingness to share power with the second-class citizens of Western Virginia.

 

The long-simmering antipathy of this conflict ripped Virginia in two during Civil War. During the 1860 election, Westerners loathed Lincoln only slightly less than Eastern Virginians did. Both sections of Virginia complained that the Republican party was a bunch of dangerously misguided abolitionists itching to tell White Southerners how to live. Yet for all their grumbling about Republicans, the West Virginians never wavered in rejecting the Confederacy. They were alarmed by how quickly secessionists had cast aside the United States, but three decades of hollow democracy under Eastern Virginia’s elite had primed them to expect such disregard for the majority from slaveholders. Just as the national 3/5ths compromise helped fuel the destruction of the Union, the mixed basis helped fuel the destruction of old Virginia. As Hamilton predicted, the suppression of the majority provoked a reckoning where the rule of an elite minority was swept away.

 

The filibuster is a relic of elites’ concern about majority rule, akin to the mixed basis or the national 3/5ths compromise. Whereas the mixed basis used enslaved wealth to create an artificial majority, the filibuster simply empowers the minority to control the legislature. Although the strategy of delay has been employed since the first session of the U.S. Senate, the filibuster took shape in the 1830s—though its use remained somewhat rare. The word itself was borrowed from the infamous “filibusters” of that age: independent American military adventurers who wreaked havoc in Central America. Not surprisingly, as the antebellum conflict over slavery reached new heights in the 1850s, the use of the filibuster by pro-slavery senators increased. But the filibuster has a much more recent history of racial superiority. During the Civil Rights movement of the 1960s—within living memory—the filibuster was a favorite tactic of senators hoping to preserve the Jim Crow regime. Segregationists filibustered a variety of bills, from anti-lynching measures to voting rights legislation. It is telling that the most famous filibuster in history remains Senator Strom Thurmond’s twenty-four-hour attack on the Civil Rights Act of 1957.

 

But the filibuster has not only endured. It has grown stronger. It used to be considered an extreme measure deployed as a last resort. In the last twenty years, the use of the filibuster has skyrocketed. It has transformed into a de-facto requirement for a 60-vote supermajority on every bill the Senate considers. It also no longer requires the minority to actually delay the bill through debate, merely signal their intent to do so. Like the mixed basis, it is a polarizing tool for suppressing the majority. When a party has sustained a winning coalition across the multiple election cycles needed to capture the House, the Senate, and the executive office, it has earned the right to make laws. This winning coalition should not be stymied by a minority in the Senate. Gridlock may be acceptable, or even desirable, when the nation votes to split power between parties in the executive and legislative branches. But the filibuster creates gridlock where it should not exist. Additionally, the Senate’s construction inherently checks the majority by giving each state, regardless of population, equal representation. Tiny states like Vermont or Wyoming, each with less than 700,000 people, receive the same representation as Texas, with nearly 30 million people. Adding the filibuster atop the Senate’s structure is a recipe for perpetual paralysis of government.

 

Reforming the filibuster means granting both Republicans and Democrats more power to govern when they win. The sense that nothing gets done in Washington, even when a party is in control of both branches, breeds disillusionment and extremism, and dampens voter turnout. It is said that a system is perfectly designed for whatever outcome it produces. Our current system teaches voters that their vote does not matter. This is not a healthy feedback loop for American democracy. Filibuster reform may even increase bipartisanship. A 50-vote Senate majority would need to peel off 10 senators from the minority party to end a filibuster—that necessitates wooing a significant chunk of a rival party to break ranks. But without the filibuster, a slim Senate majority has a real incentive to pass legislation that two or three minority party senators can support (or vice versa). Senator Mitt Romney of Utah has proposed the Family Security Act which aims to reduce childhood poverty. It is the rare bill which enjoys support from across the aisle. But this ad-hoc bipartisan coalition of say, 51 or even 59 votes, could still be outvoted by a smaller group of senators via the filibuster. The filibuster forces every bill to break along strict partisan lines, strangling out temporary majorities which would otherwise coalesce in support of bills like the Family Security Act.

The rights of the political minority are of grave importance, but there must be a distinction between the minority’s civil rights and their “right” to influence legislation. The former is protected by the Bill of Rights and the Judiciary. The latter is not a right, but a privilege gained upon winning elections. The filibuster, as currently constructed, violates what West Virginia founder Waitman Willey described as “the great fundamental political right of the majority to rule.” His credibility on this point is enhanced by the fact that Western Virginians were themselves the minority coalition in antebellum Virginia. Their calls for majoritarian governance, if granted by Eastern Virginia, would have kept Eastern Virginia in power. It would have merely allowed Westerners the fair chance at one day winning control of the state Senate. The filibuster is a procedural custom of the Senate, not a constitutional requirement. If not eliminated entirely, it should at least be weakened so that the minority coalition cannot dictate legislative priorities. There are many potential reforms, but one straightforward proposal calls for a return to the talking filibuster, in which opponents to a bill must continuously expound against it—rather the current filibuster, in which 41 senators can simply kill a bill supported by 59. Eastern Virginia’s leaders pointed to their enslaved property as a reason why their Senate could not function on a majoritarian basis. The filibuster, particularly with its sordid history of racial supremacy, is likewise a flimsy reason for thwarting the majority in the United States Senate. West Virginia’s quest to improve their democracy offers lessons on how to heal our own.

 

 

 

How do societies respond when all of their assumptions about their safety disappear in a flash? Today some Americans have responded by accusing their political adversaries of either intentionally or unintentionally creating the COVID-19 virus, blaming immigrants for the deadly virus’s spread, and turning their anger on Asian-Americans. In 1940 many Americans also looked inward to assign blame for the insecurity they felt after the shocking fall of France.

 

No American security professional had thought it necessary to plan for the fall of France. All American military planning had begun from the flawed assumption that the French Army and British Navy would more than suffice to keep the latest European crisis far from American shores. As in 1914-1917, they assumed, the United States would have time and choices. But the fall of France rendered all of that thinking terrifyingly obsolete in the span of about six weeks. American military leaders bluntly warned President Roosevelt that if the Germans gained control over the French fleet or the French bases in Senegal and Martinique, they could not guarantee the safety of the American homeland. If, as widely expected, Britain fell next, then the United States would sit completely unprepared to meet a wide variety of new and horrifying military scenarios.

 

Many of those close to Roosevelt assumed that France could never have fallen so quickly or so completely without the Germans having had inside help. Media reports circulated that, just as in Norway, fifth columnists in France had undermined public will and given the Germans critical military intelligence. Ambassador William Bullitt, in Paris at the time of its fall, told Roosevelt that communists in the French Army had disobeyed orders to fight the oncoming Germans and that other communists had actively helped France’s enemies. “Please, for the sake of the future,” he wrote to Roosevelt from France, “nail every communist or communist sympathizer in our Army, Navy, and Air Force.”

 

Bullitt was far from alone in panicking. Newspapers reported the fears of government officials (speaking off the record) that there were hundreds, maybe thousands, of German agents in the United States acting as what we might today call sleeper cells, waiting to do Hitler’s bidding. They were living in American communities as smiling elevator operators, helpful butchers, and hard-working office clerks. Thousands more Germans were supposedly operating in Latin America, planning to overthrow pro-American governments in the region. New pro-Nazi client states would then act as bases for German warships and airplanes, the latter possessing enough range to bomb completely undefended southern cities like Miami, Mobile, and New Orleans. Edward G. Robinson’s Confessions of a Nazi Spy, which had flopped at the box office when first released, got a second life amid the new national mood, selling out movie houses and garnering critical praise for shedding light on a critical topic of national security.

 

As early as May 26, while the French Army was still fighting for its life, Attorney General Robert Jackson warned a cabinet meeting that American vigilantism was already beginning to spiral out of control. The governor of Georgia had announced a sweep for aliens in his state and a bill in Congress proposed banning all non-citizens from work in defense plants. First Lady Eleanor Roosevelt wrote a newspaper column asking, “are we going to be swept away from our traditional attitude toward civil liberties by hysteria about ‘fifth columnists?’” Secretary of the Interior Harold Ickes, who shared her fears, wrote in his diary, “America isn’t going to be any too comfortable a place to live in during the immediate future, and some of us are going to be ashamed at the excesses that will be committed against innocent people.”

 

Although the president sympathized with Ickes and the First Lady, he was not immune to the fears. In a fireside chat, he warned Americans about fifth columnists, calling them “undiluted poison” and warning that they sought to weaken America “at its very roots.” On May 21, he signed a secret presidential order directing the Justice Department to ignore the Supreme Court’s ban on the use of wiretaps. The case provoking the ban had involved revenue fraud; Roosevelt argued that the Court could not have foreseen the national security need for the wiretaps, thus the ruling should not impede his government’s efforts in the current crisis. He therefore told the Justice Department to “secure information by listening devices direct to the conversation or other communications of persons suspected of subversive activities against the Government of the United States.” He hoped that the department would only use its new authority against aliens, but he did not ban its use against American citizens.

 

We know now where this paranoia led. After Pearl Harbor, with the threat to the United States more real and the fear much greater than after the fall of France, the government began to target Japanese-Americans. Supreme Court Justice Owen Roberts even alleged (with no evidence to sustain the charge) that Japanese-Americans had helped to guide enemy forces to their targets in Hawaii. In February 1942, Roosevelt signed Executive Order 9066 which began the shameful process of removing Japanese-Americans, including American citizens, from their homes and into internment camps.

 

Today, Asian-Americans worry that the anger and fear over the spread of the COVID-19 virus had led (and will continue to lead) to discrimination and violence against members of their community. The deadly shooting of six Asian-Americans in Atlanta in March 2021 has made those fears real. In a recent Pew Research study, eight in ten Asian-Americans reported that violence against them is increasing in the United States and one in three fear for their own safety.

 

We must learn from the past and guard against such paranoia in order to protect the members of our community made vulnerable by unexpected crises. As Ickes noted in his diary in 1940, “some of our superpatriots are simply going crazy.” Ickes hoped that local and national leaders would take action to curb those superpatriots, but Roosevelt’s Executive Order 9066 and the actions of many local leaders, only encouraged them. Seventy years later, the problem remains.

 

 

 

 

The arrival of European settlers on the shores of the eastern seaboard of what would later become the United States proved a tragic occurrence for the indigenous people who had lived on the land for generations.  History, we are told ad nauseam, is written by the winners, and in this tale, the Native-Americans were decidedly the losers. Thus, much of their history has been lost, stolen, or neglected.  The primary cause of their distress has been the policies of the federal government of the United States, and the political institution most responsible for their plight is the Presidency. Over the past 235 years, it has been primarily US presidents who made Indian policy. Some went to great lengths to respect the interests and histories of the indigenous tribes or nations they met; others viewed these native people as sub-human, and attempted to eradicate the indigenous populations.

In US Presidents and the Destruction of the Native American Nations (Palgrave Macmillan, 2021), co-author Alysa Landry of Dine College on the Navajo reservation, and I conducted a longitudinal analysis of how the US presidents from George Washington to Donald Trump understood, and addressed relations between the government and the native nations.  The story is often harsh, brutal, and ugly. But there are also shining lights who tried to treat the Native Americans with dignity and respect.

Prior to the founding of the United States, relations between the European settlers and the native populations can be characterized by exploitation and a sense that perhaps the Indians could be used to serve colonizers’ purposes, especially in wars between rival European powers in the new world. Thus, fragile and shifting alliances between the French and the British, and the various tribes of the region usually followed the following script: one European power would promise a native nation that if they threw their support (and their warriors) behind their cause, after victory, they would be well-treated and their lands protected. It almost goes without saying that such promises were worthless. This engendered a distinct distrust on the part of the native peoples towards the European interlopers. It was the beginning of a sad pattern that would repeat itself throughout history.

After the American Revolution, the status of the Native Americans posed a particularly vexing problem to the new government:  were they sovereign “nations” which would have required they be dealt with through diplomacy and treaties; were they “citizens” (no); or were they some undetermined category of “residents” to be dealt with through state and federal laws?

Of course, the first president to deal with the Native Americans was George Washington, who served from 1789 to 1797 (Washington was named Conotocarious, or “destroyer of villages,” for his pre-Revolutionary war reputation for brutally fighting Native tribes). Washington spent a tremendous amount of time and energy struggling with the Indian problem. Washington, aware that everything he did was liable to set a lasting precedent, knew that what he did would likely continue to  be done for decades to come. What he set in motion would matter. In political science, we sometimes employ a “path dependency” model of political change wherein at certain times, a leader or situation leads to significant change. This change becomes established and for a time is the path that others who follow must either travel down or make minor alterations to. Washington knew that he was establishing a path.

Washington was under tremendous pressure from white settlers who coveted the land then occupied by native nations. Washington, himself a land speculator and believer in developing the western territories (for both commercial and security reasons), also faced many state governments who wanted to remove the native populations and make way for European settlers. And always, attitudes regarding race and imperialism loomed large. The colonial rebels wanted to become colonial masters, and the pressure on Washington was too much to bear.

President Washington hoped to have his cake and eat it too by promoting westward expansion while also respecting Indian rights, and in his two terms, he met frequently with Native American tribal leaders.  But having it both ways was a square expansionist peg that just would not fit into the sovereign Indian round hole. It was either/or. The pressure to open western land was just too great, and the die was cast. Washington did indeed set precedents. Much to the regret of the Native American people.

After Washington, the next president to dramatically shift Indian policy was Andrew Jackson (1829-1837). One could argue that for Native Americans, Jackson was the worst president in US history. His attitude towards Native Americans was one of hostility, hatred, and racism. His solution to the “Indian problem” was removal. Simply remove them and let the white settlers have their land. Jackson’s policies led to the “Trail of Tears”, a forced march of over 60,000 native Americans from their ancestral lands in Georgia, Tennessee, Alabama, North Carolina, and Florida, to land in Oklahoma and elsewhere west. It is estimated that 10,000 Native-Americans died making this trek. It was one of the sorriest stories in American history.

The next notable President in his dealings with Native Americans was Teddy Roosevelt (1901-1909). TR. like Andrew Jackson before him, harbored a deep hatred for Native Americans that was as legendry as it was destructive. He is famous for the saying, “The only good Indian is a dead Indian,” and if that was his attitude, his policies reflected his distaste for native people. This list of notables leads us to what can be called the “Hall of Shame” of Presidents in their relations with Native Americans. This hall highlights those presidents who were particularly harsh in their treatment of Native Americans.

 

                                                                        PRESIDENTIAL HALL OF SHAME

                                                        ____________________________________

                                                                                   Thomas Jefferson

                                                                                    Andrew Jackson

                                                                                    Martin Van Buren

                                                                                    Andrew Johnson

                                                                                    James Garfield

                                                                                     Theodore Roosevelt

                                                                                     Donald Trump

Over time, our sensibilities shifted and our sensitivity to the often sub-human treatment of native nations led to both changes in attitudes and changes in policy. The great leap forward came with the early 1900s (1923-1953) and Civil Rights era (1960-1976). President Calvin Coolidge was one of the first truly progressive thinkers regarding the native peoples.  Much the same could be said of his successor, Herbert Hoover. Franklin D. Roosevelt attempted to establish an Indian New Deal, and his successor, Harry Truman carried on this effort.  During the civil rights era beginning in the 1960s, while presidents did not focus a great deal of attention on problems of native peoples, several (perhaps surprisingly, Richard Nixon) did make serious efforts to deal with Native Americans on a more positive footing. This “golden age” of federal government/Native-American relations was a period in which presidents played “small ball” regarding policy, but made some movements in the direction of respect and inclusion for Native Nations. And this leads us to our presidential “Hall of Fame” in dealings with Native Americans:

 

                                                                         PRESIDENTIAL HALL OF FAME

                                                         ___________________________________

                                                                                  John Quincy Adams

                                                                                  Calvin Coolidge

                                                                                  Herbert Hoover

                                                                                  Franklin D. Roosevelt

                                                                                  Harry S Truman

                                                                                  Lyndon B. Johnson

                                                                                  Richard M. Nixon

                                                                                  Gerald R. Ford

                                                                                  Bill Clinton

                                                                                  Barack Obama

 

If several recent presidents began to deal more forthrightly with the Native American nations, this should not obscure the fact that for most of American history, Native peoples were treated with violence, disrespect, and paternalism.  Their land was stolen, they were force marched out of their ancestral lands, their rights were ignored or abridged, and their interests exploited.

Brown Beret women, 1970

 

Hispanic Heritage Month officially ended on October 15, after a month of events commemorating the contributions of people from this demographic. It all started in June of 1968, when Southern California congressman George E. Brown nobly spearheaded a resolution to right the omission of the contributions of a significant part of his constituency, ethnic Mexicans. The decree garnered 19 western cosponsors for a week-long acknowledgment. Subsequently, the administrations of presidents from Lyndon Johnson to Ronald Reagan extended this fête to a month-long tribute as the electoral power of Spanish-surnamed citizens swelled in our nation’s politics.

 

The yearly launch of this homage aligns with the anniversaries of independence from the Spanish empire for Guatemala, Honduras, El Salvador, Mexico, Nicaragua, and Costa Rica in 1821.

 

But I don’t pay much attention to Hispanic Heritage Month, even though I stand in solidarity with the people of continental America who continue a 500-year struggle against new forms of settler colonialism.

 

Why?

 

Because I and most ethnic Mexicans in my circle do not identify with Spain’s legacy of violence and exploitation in the Americas. Oh sure, I have known people, family even, who exalt their Iberian lineage at the expense of their indigenous ancestry. Not me.

 

Ethnic Mexicans (citizens and migrants, the documented and undocumented) are people with a long history in America. In addition, self-identified Chicana/os like me are conscious of our culture being historically rooted in sexual violence that encompasses many ethnicities and races: indigenous first Americans of the Western Hemisphere, Iberians (a good number expelled Sephardic Jews), Africans, Asians, and a range of European nationalities.

 

The early twentieth-century Mexican philosopher-politician Jose Vasconcelos conferred upon his people the cognomen La Raza Cosmica. Many outsiders to my culture gauchely translate raza to mean race. Most Chicana/os don’t, as it suggests instead a yeasty, cross-cultural community of working-class people.

 

Other ethnic Mexicans adopt the Chicano epithet similarly. I recall how my politically moderate dad referenced with a gentle pride feisty ethnic Mexican crowds at Oxnard’s placita as la chicanada, the hoi polloi of which we belonged, as they enjoyed Cinco de Mayo and Mexican Independence fiestas or the city’s Salsa Festival.

 

As legendary journalist Ruben Salazar rhetorically asked in a February 6, 1970, Los Angeles Times op-ed titled, “Who Is a Chicano? And What Is It the Chicanos Want?,” I aver that I am a Mexican American, with a “non-Anglo image…who resents being told  Columbus ‘discovered’ America when…Mayans and the Aztecs, founded highly sophisticated civilizations centuries before Spain financed the Italian explorer’s trip to the ‘New World.’”

 

Conscious of the cultural labyrinth of ethnic Mexicans, I also reject the “Hispanic” label, fabricated by strangers, as it eradicates the historical presence of my people in the Southwest.

 

The attorney-turned-historian Carey McWilliams aptly characterized fairy-tale functions like Hispanic Heritage Month as a fantasy heritage by which early twentieth century Anglo-American boosters glorified the Iberian as a hegemonic ploy. Santa Barbara Fiesta Days, the Ramona Pageant, and Columbus Day supported real estate promotions such as the multimillion-dollar development of Spanish Hills in the Ventura County city of Camarillo, when it was the Mexicans that settled California. Branding exclusive neighborhoods in historical fact did not promise retailers the attainment of their California dream of hand-over-fist profits; they understood that a Mexican Hills designation would not appeal to prospective deep-pockets buyers.

 

McWilliams also recognized the Spanish fantasy heritage as a lie that erased the reality that ethnic Mexicans in the U.S. were here before the Anglos. Hence, they are not foreigners. When he published North From Mexico: The Spanish-Speaking People in the United States in 1948, ostensibly the first Chicano studies book, he argued that our nation’s European origin was first conceived in the Spanish colony of New Spain in 1598, not the English Jamestown nine years later.

 

So, when ethnic Mexicans trek north from Mexico today, they follow a centuries-long migrant stream predating the Treaty of Guadalupe Hidalgo of 1848 that concluded a war instigated by the U.S. to acquire what are now the states of Texas, New Mexico, Arizona, Colorado, Nevada, and California.

 

And from different parts of Latin America and Haiti, refugees often flee repressive authoritarian regimes backed by our government to cross a synthetic U.S.-Mexico border born in nativism and brutality secured by guards on horseback, respectively, in the Johnson-Reed Immigration Act of 1924 and the Texas Rangers before the creation of the border patrol. Historian Monica Muñoz Martinez magisterially documents these truths in The Injustice Never Leaves You: Anti-Mexican Violence in Texas (2018).

 

During the Chicano Movement in Ventura County, intrepid activists such as Yvonne De Los Santos, Rachel Murguia Wong, and Roberto Flores teamed up with allies and peers in Los Angeles and Santa Barbara to insist that an inclusive curriculum that centered the history and culture of people of color be adopted in schools to make such a heritage month unnecessary. To publicize this demand along with others to redress the exploitation of farmworkers, challenge police brutality, dismantle school segregation, and end the war in Vietnam which Mexican American military troops experienced a casualty rate disproportionate to their numbers in the Southwest, Chicana/os embarked upon the La Marcha de la Reconquista in the spring of 1971 from Calexico to Sacramento.

 

With self-determination, they marched northward six hundred miles from town to town not as Hispanics but as Chicanas and Chicanos. And that I honor.