The Principles of Indian Law Inspired the Nazis
By Steve Melendez, Paiute
American Indian Genocide Museum
In 1933 Heinrich Krieger was a German exchange student studying at the University of Arkansas. In March of 1935, The George Washington Law Review published Heinrich’s dissertation called, Principles of the Indian Law and the Act of June 18,1934.
The Wheeler-Howard Act of 1934 was also known as the Indian Reorganization Act. Heinrich wrote, “The Act differs from the original Wheeler-Howard Bill in several respects, especially in the omission of provisions, ‘to promote the more effective administration of justice in matters affecting Indian tribes and communities by establishing a federal court of Indian affairs.’”
The last thing the federal government wanted was to give the Indians the opportunity to bring their broken treaties into a court of law. The more he studied the Act the more he saw how Indians were, through the law, made second-class citizens. Instead of a court, they were given “guardianship”.
When Heinrich returned to Germany, his dissertation became the book, Race Law in the United States and was used in the formulation of the Nuremberg Laws. On September 15, 1935, the Reichstag passed both The Reich Citizenship Law and The Law for the Protection of German Blood and German Honor. These laws stripped the Jews first of their citizenship and then their right to own property. Jewish homes and businesses were confiscated and they were “compensated” with government bonds which they could not sell but could only use the interest to live on.
Concerning the U.S. Constitution he wrote, “The Federal Constitution contains only two references to the Indians, each of comparatively small importance … The legal status of the Indian, however, must be considered not as originating in the Constitution, but as having its roots in international law … In the case of Johnson v. McIntosh, Chief Justice Marshall stated, after a full examination of the historical facts in the light of international law, that the tribal title of the Indians was the ‘right of occupancy’.”
In this, America’s grand law of dispossession, the Nazis found justification for Hitler’s Lebensraum, “living space”. In a speech, Hitler envisioned Nazi expansion as in the American West where they, “gunned down the millions of Redskins to a few hundred thousand”. On the first page of his autobiography, Mein Kamph, wrote, “German-Austria must be restored to the great German Motherland…only then can the moral right arise, from the need of the people, to acquire foreign territory. The plow is then the sword, and the tears of war will produce the daily bread for the generations to come”.
Heinrich realized that when the Americans took the legal position that the Indian right to the land was not a right of ownership but only the “right of occupancy”, the Indians were then labeled landless “wards of the nation”. The Nazi lawyer/exchange student wrote, “The leading decision regarding the sources of the guardianship over the Indians was handed down by (in 1886) the Supreme Court in United States v. Kagama:
‘These Indians are wards of the nation. They are communities dependent on the United States. Dependent largely on their daily food. Dependent on their political rights. They owe no allegiance to the states and receive from them no protection. Because of the local ill feeling, the people of the states are often found to be their deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of the federal government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recognized by the Executive and by Congress, and by this court, whenever the question has arisen...’”
When Kagama, alias Pactah Billy, an Indian, murdered Lyouse, alias, Ike, another Indian, on the Hoopa Valley reservation, the Supreme Court was asked to determine whether jurisdiction fell to state or federal court. In answering this question, it also showed how landowners suddenly became paupers, “wards of the nation”. The Court said, “But, after an experience of a hundred years of the treaty-making system of government, congress has determined upon a new departure,--to govern them by acts of congress”.
Heinrich concluded, “Indian law is essentially of personal, not territorial application…The Indian law goes with the Indians, not with United States territories…the Indian law is exactly what the name indicates: a racial law; and there is no way out of the extra-constitutional situation…”
The 1823 Supreme Court Case of Johnson v. McIntosh codified race law in the United States. Seven years later, President Andrew Jackson signed into law the Indian Removal Act of 1830. Fifty-seven years later the General Allotment Act (Dawes Act) in 1887 took 138 million acres of tribal land leaving the Indians with 48 million acres, much of it interspersed in checkerboard fashion among white-owned parcels distributed by lottery tickets. The “departure” from “treaty-making” to “treaty-breaking” was based on the premise that Indians, as a race, do not own land. A Dawes Act proponent, Congressman Isaac C. Parker wrote in 1872, “…but we are equally clear that the exercise of such power would involve the repeal or violation of all the treaties made with these Indians”. The legal definition of a reservation today is, “A part of the public domain…under the superintendence of the government which retains title to the land”.
In Montgomery, Alabama, The National Memorial for Peace and Justice honors the more than 4,000 men, women, and children who were the victims of racial terror lynchings. More than 800 steel coffin-like monoliths hang from the ceilings and cover the ground beside the pathway. Cut into the metal are the locations of the lynchings, the names of the victims, and the dates they were murdered.
Studying in the Jim Crow South, Heinrich Krieger was aware of the terror lynchings of blacks that took place after the Civil War with the abolishment of slavery and referred to the victims as “race defilers”. Abraham Lincoln ordered the largest mass hanging in American history of 38 Santee Sioux in 1862. What Krieger admired most about Lincoln was his plan to remove all blacks to an island in the Caribbean. Removing blacks and Indians was also the idea of Thomas Jefferson.
In his dissertation Krieger wrote, “Following a proposal of Thomas Jefferson, the Five Civilized Tribes had been induced during the first decades of the last century, to remove from certain Atlantic States to the Southern Middlewest”. Because of their similar plans of removing certain races from society, these men were lionized by the Nazis. Indeed, Jefferson’s 1824 letter to Jared Sparks reveals his racist attitude.
He wanted to leave the slave children with their mothers, “…until their services are worth their maintenance, and then putting them to industrious occupations, until a proper age for deportation (to St. Domingo)…the old stock would die off in the ordinary course of nature…until its final disappearance…The separation of infants from their mothers, too, would produce some scruples of humanity. But this would be straining at a gnat, and swallowing a camel”.
The Nazis took land and property from the Jews in much the same way the U. S. government took land property from the Indians. Only persons of German blood could be a citizen. In one fell swoop, the Jews were not allowed to be judges, lawyers, professors, doctors, dentists, journalists, or civil servants, to be employed by a German or even own land. They were forced out of German society.
In America, The Supreme Court declared the Indians landless wards of the nation because European explorers like Columbus “discovered” America. They were forced onto reservations. When the Dawes Act grabbed 2/3 of the reservations for white settlement, Chief Lone Wolf protested all the way to the Supreme Court. He was told, “The power has always been deemed a political one, not subject to be controlled by the judicial department of the government”. In other words, he was being told not to talk to the Court; to talk to your self-appointed guardian.
The legal framework that dispossessed the Indians was so interesting to Krieger that he not only quoted from the Lone Wolf v. Hitchcock decision but also from the Cherokee case, Cherokee Nation v. Hitchcock:
“We are not concerned in this case, with the question whether the Act of June 28, 1898…is or is not wise, and calculated to operate beneficially to the interest of the Cherokees. The power existed in Congress to administer upon and guard the tribal property, and the power being political and administrative in its nature, the manner of its exercise is a question within the province of the legislative branch to determine and is not one for the courts.”
Jim Sackett gave this account of the September 12 1865 massacre of the Paiutes at Thacker Pass, Nevada: “Daylight was just breaking when we came in sight of the Indian camp. All were asleep. We unslung our carbines, loosened our six-shooters, and started into that camp of savages at a gallop, shooting through their wickiups as we came. In a second, sleepy-eyed squaws and bucks and little children were darting about, dazed with the sudden onslaught, but they were shot down before they came to their waking senses.”
Today at Thacker Pass the Paiutes are protesting the digging of a one-and-a-half trillion dollar lithium bonanza on their ancestral land from which they receive no royalties.
In a transcribed after-dinner conversation on the 17th of October 1941, Hitler said, “The immense spaces of the Eastern Front will have been the field of the greatest battles in history. We’ll give this country a past…As for the natives, we’ll have to screen them carefully. The Jew, that destroyer, we shall drive out … There is only one duty; to Germanize this country by the immigration of Germans, and to look upon the natives as Redskins … In this business, I shall go straight ahead, cold-bloodedly. What they may think about me, at this juncture, is to me a matter of complete indifference. I don’t see why a German who eats a piece of bread should torment himself with the idea that the soil that produces that bread has been won by the sword. When we eat wheat from Canada, we do not think about the despoiled Indians”.
Steve Melendez, Paiute
President, American Indian Genocide Museum