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Duthu, N Bruce --- "Book Review - Contemporary Native American Political Issues" [2002] IndigLawB 37; (2002) 5(17) Indigenous Law Bulletin 25

Book Review

Contemporary Native American Political Issues

Edited by Troy R Johnson
AltiMira Press 1999
324p
RRP US $24.95

Reviewed by N Bruce Duthu

Everyone laughed at the impossibility of it, but also the truth. Because who would believe the fantastic and terrible story of all of our survival - those who were never meant to survive.

Joy Harjo, Creek poet[1]

The articles collected and edited in Troy R Johnson’s Contemporary Native American Political Issues are in essence stories of survival, adaptation and negotiation among America’s Native tribal communities in pursuit of some measure of political self-determination. Along with its companion text, Contemporary Native American Cultural Issues, [2] Johnson’s anthology draws upon the rich reserves of contemporary scholarship which examines the legal and political experiences of Native Americans through the lens of multi-disciplinary and comparative studies. Readers will undoubtedly grasp the importance of studying modern-day tribal struggles towards self-determination in the historical context of ever-changing relations between Native and Euro-American cultures. At the same time, however, some readers, particularly legal scholars and law practitioners, may find surprising the reviewed text’s lack of coverage of both jurisprudential and legal institutional forces which conspire to thwart or confound tribal efforts towards self-determination.

Johnson’s text is noteworthy for a number of reasons, three of which are highlighted below. First, the articulation of a Native voice is a prominent feature of several articles. Arif Dirlik’s ‘The Past as Legacy and Project: Postcolonial Criticism in the Perspective of Indigenous Historicism’, demonstrates how notions of cultural identity and a society’s remembered past must take into account the residual force of power imbalances extant among cultures. Accounting for the past has serious implications for tribal communities who often view tribal sovereignty as an integral part of the project of maintaining tribal life-ways, traditions and values. The existence of tribal status, the factors which qualify a person for membership in a tribe, and the scope and legitimacy of tribal governmental powers all require inquiry into and reconciliation of contested histories and the underlying meanings assigned to various historical encounters between societies. Two other articles, Fae L Korsmo’s ‘Claiming Memory in British Columbia: Aboriginal Rights and The State’ and Ronald L Trosper’s ‘Traditional American Indian Economic Policy’, similarly advance the view that no substantial progress can be made on inter-cultural relations and economic development among Native peoples without a careful consideration of Native histories, values and traditions. In short, these articles help demonstrate the value and importance of engaging Indigenous discourses, ways of seeing, knowing and valuing the world, in any meaningful efforts towards building self-governing tribal communities.

Secondly, several articles in Johnson’s text demonstrate the importance of unmasking assumptions underlying legal doctrine, policies and institutions which reify relations built on coercion, subordination, and disrespect for tribal values and traditions. Ward Churchill’s ‘The Tragedy and the Travesty: The Subversion of Indigenous Sovereignty in North America’, demonstrates the ongoing colonising impact of several foundational tenets of federal Indian law, notably the ‘discovery doctrine’, the trust doctrine, federal plenary power in Indian affairs and limited tribal sovereignty in the form of ‘domestic dependent nation status’. Donald E Green’s essay, ‘The Contextual Nature of American Indian Criminality’, suggests that criminality among American Indians must be understood in the context of the radical social re-engineering programs of the federal government. An example of this is the termination and urban relocation programs of the 1950's and 1960's, and their attendant effects on Indian social (dis)organisation. Carole Goldberg’s excellent piece, ‘Public Law 280 and the Problem of Lawlessness in California Indian Country’, unmasks how federal policy-makers effectively constructed a rationale both to justify the withdrawal of federal responsibility to tribes in various states and impose a regime of state-sponsored legal controls in Indian country. Employing three case studies, Professor Goldberg demonstrates how Public Law 280 actually exacerbates the problem of ‘lawlessness’ in Indian Country instead of ameliorating it.

Finally, the articles in Johnson’s text offer a glimpse into the complexity surrounding the legal and political experiences of Native Americans and tribal communities. The legal and political arena are sites in which formative legal and moral concepts, for example, ‘property’, ‘religion’, ‘sovereignty’, ‘rights’ and ‘justice’ are still contested and negotiated. Carole Goldberg’s essay, ‘Acknowledging the Repatriation Claims of Unacknowledged California Tribes’, offers insights into the curious legal and political status of ‘unacknowledged tribes’, an often overlooked group of Indian communities who lack formal acknowledgment of their ‘tribal status’ by the federal government. Without such formal federal imprimatur, tribes cannot exercise the panoply of governmental rights accorded to ‘recognised’ tribes and are effectively shut out of seeking federal protection for an assortment of other interests, including land rights and protection for burial remains.

Indeed, there are instances where readers may desire greater articulation of the complexities surrounding particular matters. For instance, in Gary C Anders’ piece, ‘Indian Gaming: Financial and Regulatory Issues’, the author notes that the prospects of high revenues generated by tribally-run casinos often risks undermining ‘the cultural integrity of Indian communities’. The one example cited by the author relates to competing claims of eligibility for tribal membership. Given the multi-disciplinary flavour of many of the other articles, this is one area where the editor may have asked the writer to elaborate on the processes and terms by which Indian tribes try to reckon with such claims. In addition, one could envision situating the gaming issues within the broader discourse of development, tribal governance systems, group and individual identity, and the morality of various modes of wealth creation.

Given the breadth and depth of the articles in Johnson’s book, it may seem unreasonable to expect or demand more inclusive treatment of other related subjects or issues. Still, for a text that purports to emphasise the tenor of contemporary legal and political discourse relating to Native Americans and tribes, there are a few notable omissions. First, the book largely omits reference to the substantial scholarly literature dedicated to the modern Supreme Court’s Indian law jurisprudence. This literature exposes the prevailing tension that exists between the Congress’ overarching policy favouring tribal self-determination and the Court’s contemporary Indian Law jurisprudence that has effectively and severely constricted the scope of tribal powers.[3] Beyond unmasking the complex institutional forces that dictate national policy in Indian affairs, this scholarship provides an effective platform from which to examine notions of democracy, cultural pluralism and the legacy of colonialism.

Secondly, Johnson’s book omits substantial commentary on the tremendously important role that tribal courts and tribal governments play in mediating questions of power, rights and justice in Indian Country. One of the distinguishing features of contemporary American politics is the increasing, though sometimes still begrudging, engagement between the political institutions of the dominant society and Indian tribes. On issues of natural resource regulation, economic development and the protection of civil rights, there is an inevitable collision of interests when these matters involve tribal communities. The fact that many of these issues are resolved across tribal and non-tribal institutions serves as further testimony to the resolve and success of Native Americans in advancing visions for legal and political co-existence.

Notwithstanding these criticisms, Johnson’s book is an important publication which makes a significant contribution towards our understanding of how and why different societies can construct enduring political and legal arrangements through which shared values, histories and aspirations may be articulated and reconciled.

N Bruce Duthu is a member of the Houma Tribe in southeastern Louisiana. He is a Professor of Law at Vermont Law School where he specialises in legal and political issues relating to Indigenous peoples’ rights. In 1999 he was a visiting Professor of Law at the University of Wollongong, NSW.

[1] Joy Harjo Anchorage, reprinted in Joseph Bruchac, Survival this way: interviews with American Indian poets (1987) 89-90.

[2] Duane Champagne (ed), Contemporary Native American Cultural Issues (1999).

[3] Sarah Krakoff, ‘Undoing Indian law one case at a time: judicial minimalism and tribal sovereignty’ (2001) 50 American University Law Review 1177; David H Getches, ‘Beyond Indian law: the Rehnquist Court’s pursuit of states’ rights, colour-blind justice and mainstream values’ (2001) 86 Minnesota Law Review 267.


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