“Can you find the wolves in this picture?” Ernest Burkhart asks, with the faltering pace of a child, from his home within the Osage Nation — lands only recently annexed by the United States to form Oklahoma. Ernest is seemingly reading both to himself and the audience of Martin Scorsese’s monumental “Killers of the Flower Moon,” which was nominated on Tuesday for 10 Academy Awards, including Best Picture. The film offers more than three hours of violent detail from a period in Native American history during the 1920s that newspapers called the “Reign of Terror” — a period that included the slaughter of dozens, possibly hundreds, of the Osage Nation’s citizens by non-Native people.
These non-Native people, we learn throughout the movie, are the wolves in Mr. Scorsese’s “picture” and they are hidden everywhere in plain sight. Some have become intimate with the Osage people, and others, like Mr. Burkhart, played by Leonardo DiCaprio, have married into Osage families and even fathered Osage children.
“Killers of the Flower Moon” is rare in that its filmmakers worked closely with Osage citizens to portray this gruesome, oft-forgotten slice of American history. Despite this collaboration, the film has been criticized for centering on the unsophisticated Ernest Burkhart and for failing to cede precious screen and script time to the Osage protagonist, Mollie Burkhart, played brilliantly by Lily Gladstone (Blackfeet) — a performance that made history by garnering Ms. Gladstone the first Best Actress Oscar nomination for a Native American actor. Of course, centering primarily white and male perspectives in Hollywood is nothing new and is a valid critique of nearly every film about Indian Country.
But there are lessons offered by “Killers” that have been overlooked, unexpected lessons about empathy, the soul of the American public and how a reckoning with American colonialism must begin.
As Mr. Scorsese seems to have learned through decades of exploring the darkest and most violent aspects of human nature, encountering the pain and weakness of Mollie Burkhart may not generate the empathy and reckoning with colonialism that Mr. Scorsese seeks to provoke with the film. Pain and weakness may only make the wolves more hungry, more determined.
Mr. Scorsese takes a different tack. Rather than aim for moral development of the audience through empathy for Osage suffering, he focuses on Ernest Burkhart. Ernest is the paradigmatic wolf, just as Mr. DiCaprio has played other wolves throughout his career, on Wall Street and elsewhere. Mr. Burkhart acts on simple, underdeveloped moral principles — and often not exactly out of malice, but self-interest. Even in the intimate context of his own family, he is unable to see the “other” in his wife and her people. He is unable to move from wolf to human because he drowns in self-interest and delusion. Mr. Burkhart is driven by base desires — financial gain and other perquisites of power — toward horrific acts against his own family. “Killers” is a painful film to watch.
Mr. Scorsese’s approach might feel counterintuitive, even discomforting, because it is in tension with the prevailing scholarly wisdom about empathy — Hobbes and Machiavelli notwithstanding. The fields of political and moral philosophy often presume that humans are inherently predisposed toward empathy. Hannah Arendt wrote of the necessity of a public sphere in which citizens could meet one another face to face because that face-to-face meeting was fundamental and necessary to developing the shared dignity and equality of democracy. Emmanuel Levinas envisioned human morality as developed in full only when an individual sees and relates to the “other.” It is in this moment of encounter with those wholly different from us in worldview that we experience empathy and reach the full capacity of our moral potential. It is empathy that moves us from animal, or wolf, to human.
Scholars of Native American history and law, myself included, have often attempted to provoke a public reckoning with American colonialism by highlighting the pain and suffering of Native people at the hands of the United States government and its citizens. We assumed that simply forcing the public, the legal academy and lawmakers to face Native and other colonized peoples, to see their humanity and feel their suffering, would be enough to begin the moral reckoning envisioned by Arendt and Levinas.
But this approach has not been successful. In U.S. constitutional law and history, the place of colonized peoples, like Mollie Burkhart and the Osage Nation of Oklahoma, still flickers in and out of focus. Important at select moments, Indians and islanders from colonized nations like Puerto Rico, Hawaii, Guam and American Samoa make “cameo” appearances, as the Native political theorist Vine Deloria, Jr. (Dakota) once put it. They appear episodically, if at all, and are largely pushed aside to preserve our simple myths of individual liberty, rights and freedom without any real sense of what colonization has done under the cover of those myths and ideals, and ultimately to the larger American society.
As I wrote in a recently published foreword to the Harvard Law Review, “The Constitution of American Colonialism,” last June’s Supreme Court opinion in Haaland v. Brackeen put the real-world implications of failing to reckon with American colonialism on full display. The law challenged in Brackeen — the Indian Child Welfare Act of 1978 — aimed to end decades of state and federal malfeasance over the removal and placement of approximately 100,000 Indian children into state and private adoption program and foster institutions in the 1950s and 1960s.
During that period, one out of every four American Indian children was removed and placed into a non-Indian family or institutional setting. Abuse was rampant. Certainly, Congress can pass laws to shield the most vulnerable members of tribal communities — children — against the longstanding violence of American colonialism. After all, our Constitution gives Congress the power to colonize Native peoples entirely. Shouldn’t Congress also have the power to colonize them less violently?
While the Indian Child Welfare Act was upheld against its challengers, the Supreme Court declined to reach the thornie*st constitutional issue. It left for another day the question of whether the laws that regulate American colonialism violate equal protection. Thus, the inability to name, let alone comprehend, the suffering of Native peoples by the United States government clouds the statute’s — and much of Indian law’s — future.
In Brackeen, even as a 7-to-2 Supreme Court ruling upheld the statute, the justices failed to see the suffering of Native children, because they ignored the logic of colonialism animating this long history. Adoption followed nearly a century of federal oversight of Indian boarding schools, which similarly removed Indian children — a boarding school model that was implemented not just in Indian Country, but replicated in the Philippines, Hawaii and other sites of American colonization. Breaking up families is an easily recognizable tool of colonization. As I wrote in the foreword, “Colonized nations cease to exist when stripped of their citizens.”
Like Ernest Burkhart, our Supreme Court suffers from an underdeveloped moral universe. But also like Ernest, this underdeveloped moral universe is not caused by lack of encounter with American colonialism. Eight of our nine justices were educated at only two law schools — Harvard and Yale. Historically speaking, the faculties of these law schools are the wolves in Mr. Scorsese’s picture. They helped build the constitutional doctrines of American colonialism — the legal justifications upon which the United States claimed lands and peoples from the Caribbean to the Philippines.
Most prominently among them, Christopher Columbus Langdell, the first dean of Harvard Law School, argued for the power to colonize and against constitutional limits on that power. Buildings and rooms at Harvard Law School still carry the names of many of these men, including the famed Langdell Hall. To give another example, after serving as the first territorial governor of the Philippines and recreating Indian boarding school policy there, President William Howard Taft went on to a professorship in constitutional law at Yale Law School; he was later appointed chief justice of the United States.
Despite these encounters, law students at Harvard and Yale are rarely taught the moral and constitutional issues raised by American colonialism — some may never learn of “Indians” or “the Territories,” as titles 25 and 48 of the U.S. Code are known. Today, the governing members of the faculty of these two law schools often erase American colonialism to preserve their simple American myths and histories. For more than two decades, for example, Harvard Law School has failed to fill an endowed chair in federal Indian law. Yale Law School has never tenured a faculty member who specializes in federal Indian law.
Viewed in its most generous light, Mr. Scorsese’s centering of Ernest is an attempt to bring the American public, and hopefully its justices and other legal elites, to “find the wolves in this picture” by seeing the complicity in their own naïve simplicity — the danger in their own underdeveloped moral universe. In studying the reign of terror against the Osage and its intimate forms of violence, Mr. Scorsese may have learned for himself that the optimism of Arendt and Levinas was too optimistic. He may have understood that encounter with Native people is rarely enough. His only choice may have been to bring the public closer to reckoning with American colonialism, not through empathy but through shame.
We can all remain simple, childlike Ernest Burkharts or we can begin to see the American colonial project we have wrought — the project we help perpetuate through our own willful ignorance, self-delusion and self-interest.
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