Nits Make Lice

The Emergence of the North American Model of Wildlife Conservation

“It cannot be too often insisted that they did not own the land,” wrote President Theodore Roosevelt of Native title. “To recognize the Indian ownership of the limitless prairies and forests of this continent - that is, to consider the dozen squalid savages who hunted at long intervals over a territory of 1,000 square miles as owning it outright – necessarily implies a similar recognition of the claims of every white hunter, squatter, horse thief, or wandering cattleman.” At his most temperate, Roosevelt considered Native peoples to be “the weaker race” but he more commonly denounced them as “savages” and was fervent in advancing “the absurdity of asserting that the land really belonged to the Indians.” Roosevelt is hailed as a paragon of the North American Model of Wildlife Conservation and Public Trust Doctrine, but in his attitude toward the original inhabitants of the land can be found the road that has and continues to enable adherents to his ideology at the exclusion of all others. The harangue essentially paraphrased the Supreme Court ruling that was central to the development of the North American Model of Wildlife Conservation.

The Winning of the West was Roosevelt’s canon, where he roamed from James Fenimore Cooper and Mayne Reid to Colonel Richard I. Dodge. As his literary frontier was driven West, the line between fact and fiction or time and place was rendered irrelevant, as facts have always been incidental to such excursions. “The most ultimately righteous of all wars is a war with savages,” he asserted, and as he stormed through the pages of his history, there was scarcely a blow struck against the Natives that gave him pause or a massacre he did not endorse. Roosevelt more than embraced the violence, he reveled in it, and to the reader is disclosed the impression that this was in some sense a right of passage for an adolescent nation, a charge generations hence were bound to keep.

“Well, I long to be wading in gore,” would not be incongruous in TR’s The Winning of the West, where figuratively at least he was. The quote is not his: it has been ascribed to Colonel John Milton Chivington, who uttered it as he leaned back in his chair after an evening meal, contemplating the attack he was soon to launch on a camp of Cheyenne civil leaders and their families. There was nothing figurative about Chivington’s comment – it was prophetic. On November 29 and 30, 1864, Chivington got his wish at Sand Creek. “On the whole,” began Theodore Roosevelt when he reflected upon the Sand Creek Massacre, it was “as righteous and beneficial a deed as ever took place on the frontier.” One of the rights of passage, perhaps. “At the time the 3rd Colorado regiment was raised, the idea was very general that a war of extermination should be waged; that neither sex nor age should be spared,” explained Sergeant Morse Coffin, as he rationalized that at Sand Creek he and his fellow “officers and soldiers but carried out the general sentiment of the country.” More succinctly, the expression “nits make lice” was used on the frontier as a metaphor for extermination in what Roosevelt deemed the most “righteous of all wars.”

“I heard Colonel Chivington in a public speech announce that his policy was to ‘kill and scalp all, little and big; that nits made lice,’” swore Sam E. Browne, the U.S. Attorney for Colorado Territory, in a deposition submitted to the Joint Committee on the Conduct of the War in the aftermath of Sand Creek. Both before and after Sand Creek, Chivington made statements consistent with “nits make lice” and the phrase will forever be used to define the man and his place in that time, though he did not coin the phrase or have a monopoly on its usage. “Did kill the Nitts, that they might not growe Lice,” wrote Lieutenant Colonel William Mercer in one of his esoteric verses drawn from Cromwell’s conquest of Ireland. Unsurprisingly, Teddy Roosevelt charted the descent of “the kernel of the distinctive and intensely American stock who were the pioneers” from Cromwell’s Protestant forces.

Incitement to genocide requires dehumanization so that the human beings targeted for extermination can be reduced to vermin, an infestation to be cleansed by eradication. Of all the enablers of colonialism, “nits make lice” is the most pervasive incarnation of the mythic. The colonial body is host to the parasitic tribes who feed off it and drain from it all manner of goodness. Ignorance being an impediment to sight, the body politic of the colonial host does not acknowledge that by the nature of colonization the roles have to be reversed.

The underlying premise of “nits make lice” can be found in federal law as it pertains to Indian nations. When Chief Justice John Marshall configured de Vitoria’s framework from the Doctrine of Discovery to define the federal government’s relationship to Indian tribes, he essentially articulated the host-dependent paradigm. In Johnson v. McIntosh (1823), a seminal case in U.S. jurisprudence and Indian affairs, Chief Justice Marshall established “a landlord-tenant relationship between the government and Indian tribes.” Through colonial expansion Marshall argued that the immigrants acquired ownership and title to Indian lands and relegated Indians to a right of occupancy, which, though providing a residue of title to Indians, rendered that status at best precarious. The federal government in tandem with its appointees in territorial and then state administrations now had a clear precedent by which to quiet title through the Court; and both venue and verbiage were foreign to tribal leaders. “The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new by bestowing on them civilization and Christianity,” wrote Marshall, who defined tribal people as “heathens.”

Treaty negotiations demonstrate that tribal leaders focused on matters of political autonomy and the exercise of those powers on their lands, not the theoretic title by discovery as defined by Marshall. “Their rights to complete sovereignty as independent nations were necessarily diminished, and their power to dispose of the soil at their own will to whomsoever they pleased was denied by the original fundamental principle that discovery gave exclusive title to those who made it,” the Chief Justice continued. Marshall’s opinion provided tribes with the recognition of limited sovereign status as political entities existent before colonization, and protected American claims to Indian lands and Indian occupancy rights against interference by competing colonial interests. At its center, Marshall’s opinion established that the federal government as landlord could evict the Indian tenants and render them subservient to the federal government as they lost control of their most crucial economic and cultural resource, and thus the federal government would assume responsibility for the Indians’ affairs. The colonizer was the host; and to survive, the colonized would have to feed from the host – solely at the host’s behest. They would be the nits that would make lice, and in due time require eradicating.

In the subsequent Cherokee Nation Cases, the opinions of the Supreme Court justices were divergent, but through the dissent what emerged was Marshall’s view that Indian tribes were “domestic dependent nations” and as such lacked sufficient sovereign status to be independent of the United States, but possessed enough sovereignty to shield them from the interference of states. From Johnson v. McIntosh and the establishment of the U.S. as landlord and the Indian as tenant, the Cherokee Nations Cases reinforced and advanced the theory that the federal government was the guardian and the tribes were the government’s wards, and therefore would be dependent on the federal government.

These cases are at the foundation of the United States relationship with the Indian nations and the precedent continues to dominate. “The tribes of Indians inhabiting this country were fierce savages whose occupation was war and whose subsistence was drawn chiefly from the forest,” Marshall proclaimed for the Court. “To leave them in possession of their country was to leave the country a wilderness.” In one of the Cherokee Nation Cases Marshall attempted to reinterpret elements from his Johnson v. McIntosh opinion, when in Worcester v. Georgia (1832) he sought to dilute the potency of the Doctrine of Discovery argument, but in the intervening nine years the Supreme Court had become the domicile of President Andrew Jackson’s appointees, and their intent was to buttress the 1830 Indian Removal Act, not to provide any avenue by which it might be weakened. Marshall’s successor, Chief Justice Roger Taney, ensured that the Jacksonian creed prevailed; and as a consequence, the Taney Court enabled the North American Model of Wildlife Conservation to emerge.

Between 1836 and 1842, Taney presided over five Supreme Court decisions reaffirming Marshall’s opinion from Johnson v. McIntosh that the Doctrine of Discovery granted title to all lands to the colonial power and relegated Indian land rights to that of occupancy only. The last of these cases, Martin v. Waddell (1842), was a dispute between William C. H. Waddell and Merrit Martin over who had the rights to a hundred acres of oyster bed beneath Raritan Bay in Perth Amboy, New Jersey. Waddell contended that title rested with him, which he traced back to a colonial land charter from King Charles II to his brother James, Duke of York, in 1664, which James later conveyed to two-dozen colonists known as the Proprietors of East New Jersey, who were required to establish a colony there. Martin countered that the rights to the oyster bed rested with him since in 1824 the State of New Jersey had issued him a grant for the same area.

In 1702, the so-called Proprietors had surrendered to the Crown all rights to the acreage in question, but retained their rights of private property. Taney, therefore, sought to determine the construction of the grant from the Duke of York and its later surrender by the Proprietors, and “the character of the right claimed by the British Crown” in the Americas. Key to the Court’s deliberation was “the principles upon which” the King’s charter to the Duke of York “was parceled out and granted.” Taney’s starting point was Marshall’s opinion from Johnson v. McIntosh, based upon the discovery doctrine:

The English possessions in America were not claimed by right of conquest, but by right of discovery. For according to the principles of international law as understood by the then civilized powers of Europe, the Indian tribes in the new world were regarded as mere temporary occupants of the soil, and the absolute rights of property and dominion were held to belong to the European nation by which any particular portion of the country was first discovered. Whatever forbearance may have been sometimes practiced towards the unfortunate aborigines, either from humanity or policy, yet the territory they occupied was disposed of by the governments of Europe at their pleasure, as if it had been found without inhabitants.

In a tortuous exploration of his own, Taney regressed to the Magna Carta to discern the principle and intent he sought, which he considered to be “the foundation of American and British liberty.” Under the Magna Carta, the British sovereign retained all “wild game” in “sacred trust” for the people. Taney found that the principle of the King holding lands and resources “as a public trust” for, as he described, “the benefit and advantage of the whole community,” applied to the charter the King granted to the Duke of York, which was then passed on to the New Jersey colonists. These principles, and the land rights granted by the Doctrine of Discovery, in Taney’s opinion passed to the State of New Jersey.

As a consequence, responsibility for wildlife was to be vested in the states under public trust status for future generations, and no individual could make claims of ownership to game and fish. Taney’s opinion on behalf of the Supreme Court led to the establishment of the North American Model of Wildlife Conservation, and the situation that exists today. In founding the Boone and Crockett Club, Roosevelt and George Bird Grinnell molded the North American Model of Wildlife Conservation to become an articulation of their idea of conservation, which revolved around “big game hunting.” The Christian soldiers of Manifest Destiny eulogized by Roosevelt in his writings had denuded the earth and decimated most everything that walked, crawled or flew in the course of invasion. Along with Grinnell, Roosevelt feared that soon there would be nothing left for them and their blue-blooded frat brothers to kill on expeditions West. If they did not champion the Public Trust Doctrine and influence the public perception of conservation by promoting “rules of proper use” for land and wildlife when hunting, there would be no trophies to haul back from the last vestiges of the frontier, and no reward to tales they could regale in high society and relive the adventure through.

For their Boone and Crockett Club, the founding precept of conservation and wildlife management was to preserve and encourage hunting, “especially big game, and its habitat.” It was a priority for them that “the manliest and healthiest features of the sport” be associated with the concept of conservation. Justice Edward White followed Taney’s lead in Greer v. Connecticut (1896), and in the majority opinion for the Court he restated that state control of wildlife “from the common ownership” was to be exercised “as a trust for the benefit of all people.” White stipulated that no advantage was to be afforded the state government over the people, and no favor granted “for the benefit of private individuals as distinguished from the public.” Clearly, the latter has not been consistently applied as the Rooseveltian tenet is still followed by the tri-states of Greater Yellowstone where big game hunters, particularly trophy hunters, are routinely prioritized over all other recreationists.

The Supreme Court’s ruling on Greer came as Roosevelt completed The Winning of the West. His terminology in the latter two volumes again echoed Marshall’s of seven decades prior, and his grounds were still precisely aligned. “All men of sane and wholesome thought must dismiss with impatient contempt the plea that these continents should be reserved for the use of scattered savage tribes,” he insisted, “whose life was but a few degrees less meaningless, squalid, and ferocious than that of the wild beasts with whom they held joint ownership.” The invective is quintessential to colonial domination and superiority, which both Marshall and Taney delivered into law. Roosevelt took Taney’s statement on the land, “as if it had been found without inhabitants,” and simply rephrased it, degrading Native people to the category of “wild beasts” to emphasize that Indians had no more rights to land title than something he might shoot and mount on his study wall.

Adapted from the forthcoming book, Adrift on Yellowstone Island.