"Nazi Germany and American Indians," by Dr. Robert J. Miller

Yesterday, I showed my students the video, "Our Spirits Don't Speak English," which documents the inhumanity against children subjected to the American Indian Boarding school experience in our country. In the process of learning about this poignant documentary, I came across this piece by Shawnee Tribe member and Arizona State University Professor Robert J. Miller.

In the context of providing commentary on James Q. Whitman's well-researched and documented text titled, Hitler’s American Model:The United States and the Making of Nazi Race Law, Miller underscores a key finding on how Nazis made use of U.S. laws, including American Indian law, in the formulation of anti-Jewish policy. I've read and was repulsed by Whitman's book—and have posted on it to this blog previously.

This should serve as a sobering reminder of the politics of knowledge—about which we continue to struggle—and how this has historically been policed by policies, textbook adoption processes, conservative school boards and state boards of education, and white supremacist ideology, in general. It's shameful to consider that we are only now learning about this specific connection between U.S. and Nazi jurisprudence, but can also see why those in power, presumably in both the U.S. and Germany, have been reluctant to expose these horrific chapters of history.

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-Angela Valenzuela

AUG 14, 2019

Nazi Germany and American Indians

It is intriguing, yet profoundly disturbing, that American Indian law played a role in the Nazi formulation of Jewish policies and laws says Robert J. Miller

Photo: robERT J. MILLER

Most Americans would probably be shocked to learn that in the early 1930s Nazi scholars, lawyers, and officials were heavily influenced by United States law when they were developing policies and laws concerning Jewish people. Most Americans would also no doubt be surprised to discover that when Nazis were turning their racist ideas into legislative proposals and laws they were carefully studying federal Indian laws and American state laws that discriminated against American Indians.

A 2017 book by a Yale law professor, James Q. Whitman, Hitler’s American Model:
The United States and the Making of Nazi Race Law lays out a convincing argument that Nazis studied in minute detail American federal and state laws that discriminated against African-American, Chinese, Japanese, Filipino, Puerto Rican, and other racial groups in the United States. Whitman, however, only mentions Native Americans on eleven pages in his book according to the book’s index.

In this article, I am undertaking the first step of what I anticipate will be a much larger study on how, and how extensively, federal and state laws and policies regarding American Indians influenced Nazi scholars, lawyers, and officials in formulating and enacting Nazi laws.

According to Professor Whitman, the Nazi laws that best exemplify its racist goals and tactics versus Jews were the Nuremberg Laws that were enacted and announced in September 1935. These laws established two important principles. First, the Reich Citizenship Law created a distinction between Reich citizens and mere German nationals. Under this law, Jewish people became nationals with restricted political rights and were not German citizens. Second, the Blood Law criminalized marriage and sexual relations between Jews and Germans. 

Whitman proves that for years building up to the 1935 Nuremberg Laws that Nazi lawyers, jurists, scholars, and officials were studying and writing research materials, articles, and books on United States immigration laws from the very first one in 1790, through the 1870s, 1880s, 1917, 1921, and 1924. Nazis also studied U.S. state and federal laws that allowed racial discrimination and limits on the citizenship rights of minorities. The Nazis were especially interested in American anti-miscegenation laws (bans on inter-racial marriage). Such bans existed in North America as early as 1664 in Maryland, in 1691 in Virginia, and right up to the early 1930s when the Nazis were studying them. In fact, Nazi scholars expressly cited the statutes of thirty American states that banned inter-racial marriages in the early 1930s, as well as many other aspects of U.S. race law: Heinrich Krieger, Das Rassenrecht in den Vereigten Staaten, in Verwaltungsarchiv (1934); Heinrich Krieger, Das Rassenrecht in den Vereigten Staaten (Race Law in the United States) (1936); Johann von Leers, Blut und Rasse in der Gesetzgebung. Ein Gang durch die Volkergeschichte (Blood and Race: A Tour through the History of Peoples) (1936); and Herbert Kier, Volk, Rasse und Staat, in Nationalsozialistisches Handbuch fur Recht und Gesetzgebung (1935).  

Nazis and Indians

The Nazis’ interest in the United States policies and laws regarding American Indians originated with Adolf Hitler himself. In his book Mein Kampf, Hitler discussed U.S. laws and policies and noted that the United States was a racial model for Europe and that it was “the one state” in the world that was creating the kind of racist society that the Nazi regime wanted to establish. In a 1928 speech, Hitler stated that Americans had “gunned down the millions of Redskins to a few hundred thousand, and now keep the modest remnant under observation in a cage ...” Other scholars agree that for “generations of German imperialists, and for Hitler himself, the exemplary land empire was the United States of America.” 

Interestingly, the German word lebensraum (living space) became a Nazi rallying cry that demanded more land in Eastern Europe for German expansion and Germany’s growing population. This Nazi policy clearly evokes the American motto of Manifest Destiny that led to military actions, massacres, and official federal policies and laws to remove Indians from the path of American expansion. American Manifest Destiny led to attempted extermination of Indians, to Indian nations and Indians being confined to reservations, and to federal policies to allot and confiscate many of those reservations, and to terminate Indian nations political status.

Following Hitler’s lead, Nazi scholars, officials, jurists, and lawyers also delved deeply into United States Indian law when developing the 1935 Nuremberg Laws. The most important meeting in the process of drafting and enacting those Laws was held on June 5, 1934. At this meeting, the seventeen attendees reviewed extensive research materials that analyzed United States law and American states’ laws. Along with other Nazi scholarship, the materials presented at this meeting specifically highlighted and cited the laws of thirty U.S. states that criminalized or civilly nullified inter-racial marriages. Significantly, seven of those thirty state statutes also expressly outlawed white Americans from marrying Indians. 

Other Nazi scholarly research also highlighted U.S. and state laws that treated Indians differently than other American citizens. The Nazis were very interested in how the United States had gotten away with discriminating against Indians for several centuries based on race and bloodlines. Consequently, it appears irrefutable that Nazi officials, jurists, and lawyers were influenced when developing the Nuremberg Laws, at least partially, by American Indian laws and policies.

Heinrich Krieger

“Heinrich Krieger … was the single most important figure in the Nazi assimilation of American race law …” James Q. Whitman, Hitler’s American Model: The United States and the Making of Nazi Race Law.

A review of Heinrich Krieger’s career adds significantly to the thesis that Nazi scholars and officials were heavily influenced by United States Indian law.

Krieger was a crucial actor in the process of Nazis studying and adopting American racial policies and Indian laws. Krieger researched and drafted the most important materials that German officials, jurists, attorneys, and scholars used to debate and formalize the legislative proposals and strategies for the Nuremberg Laws. For example, Krieger’s research, written materials, and conclusions were no doubt incorporated into the conference materials distributed to the seventeen attendees, and discussed at length, at the crucial June 5, 1934 meeting. The attendees of this meeting were provided with Krieger’s and other scholars research on American laws that discriminated against minorities and Indians. In fact, Krieger published his research and findings on American racial laws contemporaneously with the June 1934 Nuremberg Laws meeting in his 1934 article, Race Law in the United States. He later developed and expanded his arguments further in his 1936 book of the same name. 

Most importantly for my argument, Krieger was intimately familiar with American Indian Law. He published a twenty-nine page law review article on Indian law in March 1935, Principles of Indian Law and the Act of June 18, 1934. He researched and wrote this article during 1933–34 when he was an exchange student at the University of Arkansas Law School and while he was also conducting research at the Library of Congress to publish his dissertation on “American Racial Law.” It is beyond belief that he would not have included his findings on Indian law in the materials he provided to Nazi officials for the June 1934 meeting when they discussed and planned what became the Nuremberg Laws.

In his law review article, Krieger discussed a wide array of issues regarding American Indians’ U.S. citizenship and their rights, the discriminatory treatment of Indians and Indian nations by the United States, and myriad federal Indian laws and policies. After all this research and analysis, he concluded that United States Indian law was racial law, and that the United States discriminated against and treated Indians and Indian nations differently from other American citizens based on their alleged racial differences from white Americans. (“the Indian law is exactly what its name indicates: a racial law; and there is no way out of the extra-constitutional situation …” Emphasis in original.) Krieger also concluded: “The proper nature of the tribal Indians’ status is that of a racial group placed under a special police power of the United States.” It appears certain that what Krieger learned from his intensive study of federal Indian law and the state laws that discriminated against Indians, and what he emphasized to Nazi officials, was that the United States discriminated against its Indian citizens because of their race and had always done so. Thus, he concluded that Nazi Germany should be justified in doing the same against German Jews.

How intriguing, yet at the same time how profoundly disturbing, that American Indian law played a role in the Nazi formulation of Jewish policies and laws. Further research will hopefully reveal just how large a role United States Indian laws and policies played in that disturbing chapter of world history.

Robert J. Miller, Eastern Shawnee Tribe of Oklahoma, is Professor Sandra Day O’Connor College of Law at Arizona State University.

An American Reichstag Fire? by Peter Schrag

As unpleasant as it feels and sounds, one can't help but wonder what our country's "Reichstag Fire” might be.  Check out this brief but important history in Germany for what became Hitler's pretext to his seizure of consummate power.  And note what author Peter Schrag observes:

“Trump's security policies,” he said,  “are creating greater insecurity and likelihood of terrorist attack, which in turn strengthens his hold on power. It's a vicious circle, similar to how Eastern European autocrats have used the refugee crisis to strengthen their hands.”

If and when a contrived or convenient "threat to security" happens that justifies a meteoric rise to power by Donald Trump and his followers based on a manufactured crisis of peril and doom, we must all be astute enough to catch this in the moment and protest.  

I agree with Schrag that though ironic, Angela Merkel and Germany at this moment are indeed "the most hopeful and stable outposts of Western democracy."  

If we are to preserve our democracy, my friends, we must learn from this history about Nazi Germany and remain ever vigilant of such machinations even as we preserve and continue to extend individual, civil, and human rights. 

Thanks to my dedicated blog readers from Germany, by the way, for keeping hope alive!  We are all in this together!

Peace,

Angela Valenzuela

c/s

 An American Reichstag Fire?

Peter Schrag | February 24, 2017| THE AMERICAN PROSPECT

February 27 is the anniversary of the fire that destroyed the Reichstag and gave Hitler a pretext to seize total power. How strong are America's firebreaks?

AP Photo

The tribunes of Berlin's Reichstag, the German parliament, lie in ruins February 28, 1933, one day after a fire destroyed the building.

Just cannot believe a judge would put our country in such peril. If something happens blame him and the court system. 
                                  —Donald Trump, tweet, February 5

On the night of February 27, 1933, less than a month after Adolf Hitler became chancellor of Germany, fire gutted the central chamber of the Reichstag in Berlin, the nation’s parliament building. To this day, historians are still debating whether it was the work of a lone arsonist, the Dutch communist Marinus van der Lubbe, who was caught at the scene and soon confessed, or as journalist William L. Shirer later asserted in his classic Rise and Fall of the Third Reich, that there was “enough evidence to establish beyond a reasonable doubt that it was the Nazis who planned the arson and carried it out for their own political ends.”

But of one thing there was no doubt.

Within hours of the fire, hundreds of people were arrested and put in “protective custody” or sent to concentration camps, and the next morning (in the words of the Cambridge University historian Richard Evans), “the cabinet, which still had a non-Nazi majority, met to draw up an emergency decree that abrogated civil liberties across Germany. Signed by President Hindenburg the same day, it abolished freedom of speech, freedom of assembly and association, and freedom of the press, suspended the autonomy of federated states, such as Baden and Bavaria, and legalized phone-tapping, the interception of correspondence, and other intrusions.”

The decree was the first of two major measures that eliminated all institutional checks and gave Hitler absolute dictatorial powers. The second, passed a month later by the Reichstag, gave Hitler plenary power—the power to enact laws without any action by the parliament whatever. Quoting Evans again,

The Nazis used them to bludgeon their opponents into submission and their allies into compliance. By the summer of 1933 all opposition had been crushed, more than a hundred thousand Communists, Social Democrats, and other opponents of the Nazis had been sent to concentration camps, all independent political parties had been forced to dissolve themselves, and the Nazi dictatorship had been firmly established.

Could it happen here, as the historian Robert S. McElvaine of Millsaps College recently warned in the Huffington Post?  

The odds are that it could not—not in the same way and certainly not to the same extent, despite Donald Trump’s megalomaniacal rhetoric and the radicals in his entourage. Trump has no global agenda, clings fanatically to no ideology, has no Weltanschauung, as Hitler had; his highest priority appears to be himself.

Nor is America in 2017 like Germany in 1933. The two cultures are vastly different and the technology that enabled Trump to gain political power is just as accessible to his opposition. It’s also likely, judging by his appellate court opinions, that Neil Gorsuch, Trump’s nominee to fill Antonin Scalia’s seat on the Supreme Court, will, despite his conservative leanings on issues like abortion, be faithful to the Constitution’s protections of the press and free speech; he will not eviscerate them. 
Moreover, in the view of CUNY historian Benjamin Hett, whose 2014 book Burning the Reichstag: An Investigation Into The Third Reich’s Enduring Mystery makes a strong case that the fire was a Nazi plot,

The media environment of today [he wrote me in an email]—with 24-hour cable news, the internet, Twitter, Facebook, etc., etc.—is so much more intrusive than in 1933 (and the federal government is so full of people who would be happy to leak incriminating information, not least in the intelligence services) that the Trump administration would have no chance of getting away with a deliberate terrorist attack as a pretext for a coup d’état. … The other important difference is that Trump is dramatically less popular than Hitler was in 1933 and there is significantly more pushback from the population to the things he is trying to do. Not that I wouldn’t put it past Trump and [Stephen] Bannon to be thinking about this kind of thing.

But as a refugee from Hitler (Class of ’41), I’m too much aware of the extent to which the Nazis were underestimated as low-class clowns and thugs until it was too late. Similarly, in the past election, the media, the pollsters, the Democrats and millions of other Americans, and not just the left, also underestimated Trump. In that context, I’m reminded of Hannah Arendt’s post-war observation that “in 1933, indifference was no longer possible. It was no longer possible even before that.”

Again there are troubling signs: the willingness of the Republican leadership in Congress to excuse or disregard Trump’s arrogant contempt for conflict of interest law and ethical standards and, worse, its spineless refusal to call for an independent investigation of the links between Trump and his people with the Kremlin; the administration’s draft memo on activation of “members of the state National Guard … in the apprehension, investigation and detention of aliens in the United States;” Trump’s call for “extreme vetting” of Muslim immigrants and the ill-disguised vilification of all Muslims as terrorists; the attacks on Mexican immigrants as criminals and rapists; the vastly broadened deportation criteria allowing the removal of virtually any undocumented immigrant, excepting only the “Dreamers” who were brought here as young children; the “America First” mantra, a favorite of isolationists, anti-Semites, and Nazi sympathizers in the years before Pearl Harbor; the invocation of “alternative facts” and other lapses into Orwellian Newspeak by Kellyanne Conway and the president’s other Trumpets; Trump’s attacks on the courts and “so-called” judges and on the media as the “enemy of the people.”

‘‘When you look at history,” warned John McCain, hardly a left-wing radical, “the first thing dictators do is shut down the press.” But maybe none of those things are as troubling or as apposite to Hitler’s Germany as the racism of some of the people around Trump and the instability, egomania, and psychological insecurity of Trump himself.

We’ve had periods of repression in the past, some supported by large segments of the population: the great Red Scare, accompanied by the Palmer Raids, the trial and execution of the anarchists Sacco and Vanzetti, and the rise of the second KKK, which at one time had between three and six million members, in the years immediately following the first World War; the McCarthyite witch hunts and the blacklists of the 1950s and 1960s; the enactment of the Patriot Act with its vastly broadened powers for government wire-tappers and other official snoopery after the September 11 attacks; the unconstitutional detention and internment of Japanese-Americans in the years immediately following Pearl Harbor. In the days after Trump’s election, one of his backers even cited the Korematsu decision upholding the interment, one of the most repugnant Supreme Court rulings in American history, as a possible legal precedent for registering all Muslims.

Even the extremists around Trump can’t organize anything like the Reichstag fire. But a shrewd terrorist group could well bomb some sensitive place in the United States—an attack on one or two of his hotels or golf clubs would probably drive Trump even beyond the fragile restraints of his already belligerently egocentric personality—and thereby provoke the larger war that extremists on both sides could well be itching for. Such a war—starting, say, with a retaliatory U.S. aerial attack on Tehran, or possibly a U.S. sanctioned Israeli attack on an Iranian facility—would quickly divert public attention from any of the administration’s scandals and open the doors to unprecedented repression of civil liberties. Could anyone count on Paul Ryan or Mitch McConnell or Jason Chaffetz to stand up to that? 

Eric Larson, author of the highly regarded In the Garden of Beasts, about Berlin in the first years of the Hitler regime, has similar concerns, though he’s slightly more optimistic about Congress. Trump, he told me in answer to my emailed questions,

might try to use a terrorist event to pressure Congress into passing something akin to Hitler’s Enabling Act. Let’s hope that no such event occurs, and that if something does happen, that the GOP will at last stand up and say, “enough.” Republican senators and representatives are not idiots. They have to know this president is an authoritarian lunatic.

But would they have the political courage to act on that? Would the courts resist, as they resisted Trump’s travel ban, in a time of real national hysteria?

On those questions our most thoughtful civil libertarians are hardly reassuring. “In the past,” said Erwin Chemerinsky, the dean of the law school at the University of California Supreme at Irvine, wrote in an email, “the Supreme Court generally has done a poor job of standing up to the government’s restrictions of liberties during times of crisis.” Ira Glasser, executive director of the American Civil Liberties Union from 1978 to 2001, recited the “legion of examples,” from Dred Scott and Korematsu to the decisions upholding the anti-communist Smith Act, in which the Court found no violations of the right to free speech and association:

James Madison [Glasser said] predicted much of this unhappy history back in the 18th century, when he expressed skepticism that a Bill of Rights would work when it was most needed, calling it a “parchment barrier” during moments of fear and hysteria. Jefferson argued with him, saying that an independent court system would enforce constitutional limits, but although that has been true over extended periods of time, Madison had much the better argument during moments of madness and fear.

In his reductio ad absurdum response to my question, Richard Evans, the Cambridge historian, provided an ironic and hardly reassuring thought. “Fortunately the terrible terrorist attacks in Sweden and at Bowling Green,” he said, “did not prompt the president into assuming emergency powers.” But the international legal scholar John Shattuck, who’s been both a diplomat and university president in Central Europe, may have summarized the threat most succinctly. “Trump's security policies,” he said,  “are creating greater insecurity and likelihood of terrorist attack, which in turn strengthens his hold on power. It's a vicious circle, similar to how Eastern European autocrats have used the refugee crisis to strengthen their hands.”

At bottom, there also remains this additional question: Not withstanding the obsessive lying, the Newspeak, and the malevolence and belligerence of people like Bannon and the Old South racism of men like Attorney General Jeff Sessions, is Trump focused or serious enough, and is his administration competent and organized enough, to consistently pursue any strategy? Still, it’s more than ironic that more than 80 years after the Reichstag Fire, some of us Hitler refugees, who could not have imagined such a thing even five years ago, are now looking to Angela Merkel and Germany as the most hopeful and stable outposts of Western democracy.

Op-Ed. When the Nazis wrote the Nuremberg laws, they looked to racist American statutes

This piece in today's Los Angeles Times written by James Q. Whitman is illuminating.  Whitman is a Yale Law School professor of comparative and foreign law and author of “Hitler’s American Model: The United States and the Making of Nazi Race Law.”  

Super interesting.

-Angela Valenzuela


Op-Ed.  When the Nazis wrote the Nuremberg laws, they looked to racist American statutes

James Q. Whitman / February 22, 2017 / Los Angeles Times

The European far right sees much to admire in the United States, with political leaders such as Marine le Pen of France and Geert Wilders of the Netherlands celebrating events — such as the recent presidential election — that seem to bode well for their brand of ethno-nationalism. Is this cross-Atlantic bond unprecedented? A sharp break with the past? If it seems so, that’s only because we rarely acknowledge America’s place in the extremist vanguard — its history as a model, even, for the very worst European excesses.

In the late 1920s, Adolf Hitler declared in “Mein Kampf” that America was the "one state" making progress toward the creation of a healthy race-based order. He had in mind U.S. immigration law, which featured a quota system designed , as Nazi lawyers observed, to preserve the dominance of "Nordic" blood in the United States. 

The American commitment to putting race at the center of immigration policy reached back to the Naturalization Act of 1790, which opened citizenship to "any alien, being a free white person."  But immigration was only part of what made the U.S. a world leader in racist law in the age of Hitler. 

Then as now, the U.S. was the home of a uniquely bold and creative legal culture, and it was harnessed in the service of white supremacy. Legislators crafted anti-miscegenation statutes in 30 states, some of which threatened severe criminal punishment for interracial marriage.  And they developed American racial classifications, some of which deemed any person with even "one drop" of black blood to belong to the disfavored race. Widely denied the right to vote through clever devices like literacy tests, blacks were de facto second-class citizens. American lawyers also invented new forms of de jure second-class citizenship for Filipinos, Puerto Ricans and more. 

The ugly irony is that when the Nazis rejected American law, it was often because they found it too harsh.

European racists followed these toxic innovations with keen interest. Of course they were well aware that America had strong egalitarian traditions, and many of them predicted that American race law would prove inadequate to stem the rising tide of race-mixing. Hitler, however, was cautiously hopeful about America's future as a white supremacist state, and after he took power in 1933 his Nazi Party displayed the same attitude. 

This is the background to a disturbing story: the story of the American influence on the Nuremberg Laws, the notorious anti-Jewish legislation proclaimed amid the pageantry of the Nazi Party Rally at Nuremberg in September of 1935.

At a crucial 1934 planning meeting for the Nuremberg system, the Minister of Justice presented a memorandum on American law.  According to a transcript, he led a detailed discussion of miscegenation statutes from all over the United States. Moreover it is clear that the most radical Nazis were the most eager advocates of American practices. Roland Freisler, who would become president of the Nazi People's Court, declared that American jurisprudence "would suit us perfectly."

And the ugly irony is that when the Nazis rejected American law, it was often because they found it too harsh.  For example, Nazi observers shuddered at the "human hardness" of the “one drop” rule, which classified people "of predominantly white appearance" as blacks.  To them, American racism was sometimes simply too inhumane.

That may sound implausible — too awful to believe — but in their early years in power, the Nazis were not yet contemplating the "final solution.” At first, they had a different fate in mind for the German Jewry:  Jews were to be reduced to second-class citizenship and punished criminally if they sought to marry or engage in sexual contact with "Aryans."  The ultimate goal  was to terrify Germany's Jews into emigrating.

And for that program, America offered the obvious model — even if, as one Nazi lawyer put it in 1936, the Americans had "so far" not persecuted their Jews.  Of course the Nazis did not simply do a cut-and-paste job, in part because much of American law avoided open racism. (Laws intended to keep blacks from the polls did not explicitly name their target.) But American antimiscegenation law was frankly racist, and the Nazi criminalization of intermarriage followed the American lead.

In a sense, this ugly tale about the history of American racism is also about American innovation gone awry. Today, we’re leaders in the creation of corporate law; back then, it was race law. Other countries, such as Australia, put legislative obstacles in the way of mixed marriages, but the United States went so far as to threaten long prison terms.

And we must not forget how tenaciously the racist rulebook that the Nazis admired held on in the United States. Antimiscegenation laws were only struck down at the tail end of the civil rights era, in 1967. Race-based immigration policies did not fully end until 1968 — long after the Greatest Generation stormed the beaches of Normandy and liberated Nazi death camps. 

James Q. Whitman is a professor of comparative and foreign law at Yale Law School. He is the author of “Hitler’s American Model: The United States and the Making of Nazi Race Law.”