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Genocide, Collective Guilt, and Reparations (Claudia Card & Armen Marsoobian, eds. 2006)
B. Murder
The precise number of victims evades quantification. Estimates of the pre-Columbian
population in what later became the U.S. range from five to ninety-four million,16 yet by 1880
disease,17 slaughter, slavery,18 and aggressive wars had reduced their number to 300,000—and
declining.19
Initially, a legislative approach effected the physical removal of Indians from ancestral
lands; ultimately, the U.S. turned to forcible relocation. The removal of the Cherokee Nation
from the Eastern Woodlands is perhaps the most infamous. With a federal statute explicitly
overruling a contrary Supreme Court opinion, the entire Cherokee Nation was forced, in the dead
of winter, on a 1000–mile “Trail of Tears” trek to Oklahoma. More than 4000 Cherokee died of
exposure and starvation.20 Taking a cue from the federal government, several States adopted
Indian genocide as their official policy;21 even the private sector joined in, with contractors hired
to induce deliberate starvation by destroying the buffalo.22
In the aftermath of the Civil War, the might of the U.S. Army was directed toward Indian
eradication, and one by one, the tribes were pursued, cornered, and murdered.23 A series of
“massacres” were written in Indian blood on the pages of American history: Blue River (1854), Bear
River (1863), Sand Creek (1864), Washita River (1868), Sappa Creek (1875), Camp Robinson (1878),
Wounded Knee (1890), and over forty others. Gruesome exterminations of defenseless women and
children were perfectly legal exercises of State and federal authority as the law then stood.24 By the
conclusion of the “Indian Wars,” the Indian population had been reduced as much 98%.25 The
fraction that survived was corralled on reservations infested with vermin and disease and lacking in
adequate shelter and food.
16

See James P. Sterba, Understanding Evil: American Slavery, the Holocaust, and the Conquest of the American Indian, 106 ETHICS 424,
424–25, 438, 440. (1996) (estimating that up to 94 million Indians died during conquest of the Americas).
17
See generally JARED DIAMOND, GUNS, GERMS, AND STEEL: THE FATES OF HUMAN SOCIETIES (1999) (describing introduction of European
diseases against which Indians had no immunities); RUSSELL THORNTON, AMERICAN INDIAN HOLOCAUST AND SURVIVAL (1992) (providing
demographic data on destruction by disease of Indian populations).
18
In the aftermath of conquest, corporate slavers created bounties between tribes, facilitating a divide and conquer strategy that
provided free Indian slave labor to developing economies. WHEN SORRY ISN’T ENOUGH: THE CONTROVERSY OVER APOLOGIES AND
REPARATIONS FOR HUMAN INJUSTICE 242 (Roy L. Brooks ed., 1999). As late as the early 20th century, California Indians were raided
by slave-hunters looking for laborers in the mines and the brothels, and those who resisted were exterminated. L.R. BAILEY,
INDIAN SLAVE TRADE IN THE SOUTHWEST: A STUDY OF SLAVE-TAKING AND THE TRAFFIC IN INDIAN CAPTIVES (1966).
19
Lenore A. Stiffarm & Phil Lane, Jr., The Demography of Native North America: A Question of American Indian Survival, in THE STATE
OF NATIVE AMERICA: GENOCIDE, COLONIZATION, AND RESISTANCE 23, 26, 36 (M. Annette Jaimes ed., 1992).
20
FERGUS M. BOREWICH, KILLING THE WHITE MAN’S INDIAN 47 (1996).
21
See Rennard Strickland, Genocide-at-Law: An Historic and Contemporary View of the Native American Experience, 34 U. KAN. L. REV.
713, 718 (1986) (listing passages by state legislatures of resolutions legalizing murder of Indians).
22
See Steven J. Prince, The Political Economics of Articulation: Federal Policy and the Native American/Euroamerican Modes of
Production 186 (1993) (noting by the 1870s many thousands starved due to deliberate buffalo eradication programs).
23
See Mathew Atkinson, Red Tape: How American Laws Ensnare Native American Lands, Resources, and People, 23 OKLA. CITY U. L.
REV. 379, 389 (1998).
24
See generally Carol Chomsky, The United States-Dakota War Trials: A Study in Military Injustice, 43 STAN. L. REV. 13 (1990)
(describing collusion of law and force producing one such massacre-by-law).
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