To the question, “Why and in what ways does the Indian Appropriations Act (IAA) of 1871 matter in the present?” I add, “and how might it be made to matter in the present?” I begin with the fact that the IAA’s most notable clause—“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”—is located in a rider.Footnote ¹ The initial function of the 1871 bill was not to end U.S. treaty-making with Indigenous nations. However, a clause of the bill further marginalized and threatened the safety of Indigenous nations who found themselves in the middle of a power struggle within the U.S. Congress and in the way of the ambitions of a reunified post-Civil War U.S. settler state and society. As a result, over time a seemingly routine funding bill assumed a lasting legacy due to the House of Representative’s effort to reduce the power of the Senate in U.S. Indian policy. I say “over time” because, as I argued in my earlier work, the rider’s impact on demarcating 1871 as the year in U.S. political time when the status of Indigenous nations fundamentally shifted was more of a retroactive than an immediate change.Footnote ² Indigenous nations and the U.S. government made bilateral agreements and other arrangements with “treaty language” in the years after 1871.Footnote ³ It was in retrospect that U.S. federal institutions defined the act in stricter terms. In particular, Supreme Court decisions in United States v. Kagama (1886) and Lone Wolf v. Hitchcock (1903) legitimated the “plenary power” of the U.S. federal government over Indigenous peoples by constructing the IAA’s language as signaling that 1871 was the year that the status of Indigenous nations as independent political entities seriously diminished in the eyes of the U.S. state.

This retroactive dynamic raises an important theoretical distinction when we ask whether events of the past such as the IAA of 1871 “matter in the present.” The distinction is between the notion of political time and basic chronological time. Political time is neither necessarily chronological nor stable, for it is a product of a struggle over the relationship of the past to the present, in which political actors, institutions, and movements mobilize the past—be it history, memories, and myths—to attempt to give shape to, legitimate, or challenge power relations in the present. In this spirit, when thinking about what the 1871 IAA might mean in the present, I want to put it in the context of the definitive U.S. policy regime of its time, that being Reconstruction, and relate it to the demands of contemporary social movements—such as the Moral Mondays movement led by Reverend William J. Barber—for a Third Reconstruction to address inequality and injustice.Footnote ⁴ It may seem incongruous to discuss Indigenous peoples in relation to the Reconstruction Era, as this era is most associated with the effort to generate substantial freedom for Black people, many of whom were newly freed, and freed themselves, from enslavement. The downfall of Reconstruction was due to the failure of the United States to bring to material and political life the promise of freedom for Black Americans after the Civil War, as white supremacy rose up to rule again through the racial terrorism of the Ku Klux Klan and the herrenvolk policies of the Jim Crow Era. As W.E.B. Du Bois put it, Reconstruction was a period in which millions of Black people “went free; stood a brief moment in the sun; then moved back again toward slavery.”Footnote ⁵ DuBois’s words capture the hope and tragedy of this period. It is no diminishment of the political memory of this period, and in fact might add needed perspective, to observe that Reconstruction policies of this era did not seek to enhance the freedom of Indigenous peoples and nations. It is no coincidence that the IAA of 1871 was passed during the Reconstruction Era, for a reconstituted United States eagerly looked to expand westward, with the Morrill Land Grant and Homestead Acts of 1862 and Southern Homestead Act of 1866 being a few of the earlier legislative acts that helped pave the way for the rapid movement of white settlers into the territories of Indigenous nations.

As social movements in our time call forth the lost opportunity of Reconstruction to imagine a better world, how might we recast political time to redeploy the 1871 IAA for the sake of a potential Third Reconstruction that would affirm the freedom and sovereignty of Indigenous nations, instead of undermining it as occurred with the First Reconstruction? Here I take a moment to note the U.S. Supreme Court’s opinion in the McGirt v. Oklahoma case decided on July 9, 2020, in which the issue at hand was whether the Creek Nation by right of treaty maintained legal jurisdiction over its territory in Oklahoma. In deciding for the plaintiff, McGirt, and thereby for the Creek Nation’s jurisdiction, Associate Justice Neil Gorsuch in the majority (5-4) opinion wrote the following: “Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.”Footnote ⁶ In so doing, Gorsuch provided a five-word bumper sticker slogan for what many Indigenous nations would likely demand in a Third Reconstruction—“the land these treaties promised.” To this end, I recall and deploy for political memory the second clause of the rider—“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. …” Just as late nineteenth and early twentieth-century U.S. Supreme Court decisions reconstructed the meaning of the 1871 IAA to legitimate the political time of U.S. plenary power over the sovereignty of Indigenous nations, the deployment of the latter part of the rider about the U.S. obligation to live up to the treaties offers a way to recast the meaning of the IAA to affirm and support Indigenous sovereignty and claims to territory. In this regard, consider the 1868 Treaty of Fort Laramie between the Great Sioux and Arapaho Nations and the United States, ratified during the period of Reconstruction. Among other things, this treaty “reserved the area West of the Missouri River and east of the Rockies for the ‘absolute and undisturbed use’ of the Sioux,” and “recognized the Bozeman Trail area as ‘unceded Indian territory’ where whites would not be allowed to settle and within which there would be no military posts.”Footnote ⁷ While a 1980 court decision led to the Oceti Sakowin (Sioux Nation) being awarded monetary compensation for the illegal U.S. seizure of the Black Hills, the Sioux have refused it, demanding their land back, or in other words, the land these treaties promised.Footnote ⁸

A Third Reconstruction that seeks to evoke the lost opportunity and promise of the First Reconstruction to imagine a better world in our time could call forth the second part of the 1871 IAA rider as a basis to demand that the United States live up to its own promise not to invalidate its treaty obligations to Indigenous nations. I pose this idea for how to make the IAA matter in the present not in a naively optimistic way, as white supremacist settler colonial institutions do not cede power voluntarily nor through argument alone. They must be compelled to do so. In the summer of 2020, we are witnessing a social and political movement do just that: compel meaningful changes in how city and state budgets allocate their funds, refuse the representations of Indigenous people as sports mascots, and challenge the public memory of the likes of Confederate generals and Christopher Columbus. We are in the midst of a viable movement to reconstruct the political time of these lands, in which we can see that the meaning of the past for the present is not set in stone. In fact, many such stones in the form of statues are being toppled to open up space for a politics of memory that places a public commitment to anti-racism and anti-colonialism over and against the celebration of the history of oppression, colonialism, and racism. This then is the time to flip the past on its head, take a new look at tired old Acts, and their riders, to see what might be salvaged and repurposed as ammunition for the radical movements of our time.