Legal claims are inherently disruptive. Plaintiffs’ suits invariably seek to unsettle the status quo. On occasion, the remedies to legal claims can be so disruptive-that is, impossible to enforce or implement in a fair and equitable manner-that courts simply will not issue them. In the area of federal Indian law, American Indian tribal claims not only disrupt the status quo but may even disrupt so-called settled expectations of those affected by the claims. The U.S. Court of Appeals for the Second Circuit has dismissed a round of Indian land claims at the pleading stage, including Onondaga Nation v. New York, because it considered the claims so disruptive.
We agree that Indian legal claims are inherently disruptive and may implicate the centuries-old settled expectations of state and local governments and non-Indians. It is empirically and categorically false, however, that the remedies tribal interests seek are impossible to enforce or implement in a fair or equitable manner. Every year in cases against state governments and their political subdivisions, Indian tribes settle long-standing claims that at their outset, often appear intractable, if not downright impossible, to remedy. The recent settlements of claims by the Oneida Indian Nation of New York, the Saginaw Chippewa Indian Tribe, and five Michigan Anishinaabe tribes demonstrate the falsehood of the idea that Indian claims are too disruptive to be remedied. These negotiated settlements powerfully illustrate that the disruption produced by Indian claims has an important function: forcing federal, state, and tribal governments to creatively seek solutions to difficult governance issues in Indian country.
Part I of this Essay describes recent common law, which dismisses Indian claims on the grounds that they are too disruptive. Part II briefly surveys the history of the relationship between Indians and the United States. Part III describes recent settlements between tribal and local governments. Part IV presents our theory of tribal disruption based on notions of ecological disturbance, studied in ecology and related fields. We argue that ecological disturbance in linked social-ecological systems offers a useful analog to the disruptive nature of Indian claims. These claims can be compared to disturbances in rivers, forests, or other ecosystems. Floods, forest fires, and windstorms break down existing structures, allowing space for reorganization, diversification, and new growth. Tribal claims similarly clear out a legal space for creative and improved governance institutions.
Coastal First Peoples are currently gathered in Washington DC to discuss climate change impacts and response strategies. Symposium details, including live streaming video of presentations, can be found here.
The New York Times has covered the State of Wisconsin’s proposal to introduce a wolf hunting season here and here. These articles bring tribal concerns over the proposed hunt to center stage. After Scott Walker approves this bill, it will be interesting to track the response that follows. In this instance, can tribal moral objections be addressed and reverse this vote via legal argumentation/legal channels? Time will likely reveal the answer to that question.
(As a side note, GLIFWC is misidentified as GLIFGC in both articles.)
Related to Matthew’s Dec 13 post on tribal objections to proposed Wisconsin mining legislation, see this post here outlining tribal comments at a recent public hearing. Representatives from several Wisconsin tribes pointed out the failure to consult with tribes about legislation that could negatively impact their treaty rights, tribal lands/waters and culturally significant resources.
As reported in the September 2nd issue of Win Awenen Nisitotung, Sault Tribe Inland Conservation Committee elected not to support a moose hunting season in Michigan. Provisions in the 2007 Inland Consent Decree require tribal (and state) approval of moose hunting. This outcome may frustrate people interested in moving forward with a moose hunt in Michigan; but for Sault Tribe officials, the precautionary route was prudent given the small number of moose that currently reside in the Upper Peninsula and the uncertainty over their population dynamics.
Although it originally aired on PBS in November 2009, you may have missed the documentary Power Paths http://www.pbs.org/independentlens/power-paths/film.html about tribal efforts to establish “green” economies and clean energy on reservations. The program can be seen on PBS again this November (2010) or purchased on DVD at http://www.powerpaths.tv/
From PBS: “POWER PATHS offers a unique glimpse into the global energy crisis from the perspective of a culture pledged to protect the planet, historically exploited by corporate interests and neglected by public policy makers.
The film follows an intertribal coalition as they fight to transform their local economies by replacing coal mines and smog-belching power plants with renewable energy technologies. This transition would honor their heritage and support future generations by protecting their sacred land, providing electricity to their homes and creating jobs for their communities.”
New York Times Article on Navajo Nation and environmental news here:
By MIREYA NAVARRO
Published: October 25, 2010
BLUE GAP, Ariz. — For decades, coal has been an economic lifeline for the Navajos, even as mining and power plant emissions dulled the blue skies and sullied the waters of their sprawling reservation.
But today there are stirrings of rebellion. Seeking to reverse years of environmental degradation and return to their traditional values, many Navajos are calling for a future built instead on solar farms, ecotourism and microbusinesses.
“At some point we have to wean ourselves,” Earl Tulley, a Navajo housing official, said of coal as he sat on the dirt floor of his family’s hogan, a traditional circular dwelling.
Mr. Tulley, who is running for vice president of the Navajo Nation in the Nov. 2 election, represents a growing movement among Navajos that embraces environmental healing and greater reliance on the sun and wind, abundant resources on a 17 million-acre reservation spanning Arizona, New Mexico and Utah.
“We need to look at the bigger picture of sustainable development,” said Mr. Tulley, the first environmentalist to run on a Navajo presidential ticket.
Margaret Wente’s 10-24-08 column in the Globe and Mail espouses that aboriginal American contributions to contemporary society are generally overstated and that there was a vast developmental chasm separating Indian and European cultures at the time of first contact. She seems enamoured with Frances Widdowson and Albert Howard’s forthcoming text that apparently “knocks the stuffing out of the prevailing mythology that surrounds the history of first peoples.”
That line has stuck with me for the last several days. As an Ojibwe raised in the U.S., I’ve always felt that the Anishinaabek and other first peoples were ignored or at least de-emphasized by the vast majority of North American history texts, especially those most influential in K-12 education. I suppose, for me, the concept of a North American historical mythology congers up a totally different set of ideas that it does for Margaret. I do like the idea of knocking the stuffing out of an historical mythology. I think that is what William Cronon attempted to do with the publication of “Changes in the Land” and Ojibwe historian George Cornell has worked at throughout his career, as with his contribution to “People of the Three Fires”; like Lakota-Ojibwe scholar Patrick Labeau attempts with “Rethinking Michigan Indian History”; and Richard White with “The Middle Ground”.
I haven’t yet read Widdowson and Howard’s book that Wente is so impressed with, but I have a feeling my people are in their piñata. I hope when the piñata busts, there is an outpouring of Aboriginal and non-aboriginal response that sounds nothing like the prose of Margaret Wente. However, I am way ahead of myself; I’ll reserve judgement of the new book until it is published and I can give it a careful read.
I have read Hayden King’s response article to the Wente column. King provides an important counter to the misinformation strewn throughout the original column.
In a recent column in Canada’s Globe and Mail titled, “What Dick Pound said was really dumb – and also true”, Margaret Wente submits a high profile critisism of Aboriginal socio-cultural systems, first nations politics and aboriginal knowledge systems. With this article, Wente dives 1000 leagues below the “savage” comments made by Dick Pound. Her conclusions are poorly founded, contradictory, and backward-ic. Yet, if you read the online discussion at the Globe and Mail that has followed her column, you’ll see (not surprisingly) there are many people who agree with her views. The column is an example of poorly researched provocateur journalism; yet, as has occurred with similar publications in the past, we can expect it to have a long shelf life and misinform scores of people.
I recently had two conversations with fellow Natives about the 2008 presidential election that I thought were noteworthy. First, while on a trip to Washington, D.C. I connected with Yup’ik and Haida friends and we discussed Alaska Governor Sarah Palin. Their perspective was quite clear. They feel that 1) Palin has worked against the interests of Alaska Natives throughout her career and 2) her representation of the “First Dude” Todd Palin as an Alaska Native during the GOP National Convention was troubling. On this later point, they shared that Todd Palin’s connections to Native peoples is paper thin and that, tellingly, Governor Palin had never discussed her husband’s Native ancestry publicly prior to the GOP National Convention. Previously, she had merely referenced that her “children’s grandmother is part Yup’ik” which is quite different than saying “my children are Yup’ik” or “my husband is “Yup’ik”.
The second conversation was with a friend who shared that she has noticed a lot of members of the Indian Tribe on the reservation where she lives are supporting the McCain-Palin campaign because McCain is a veteran and Palin’s husband is “Native”. I find this rationale for American Indian voter support troubling. To be sure, Native people are extremely supportive of their veterans and veterans of all nations. However, to think that a politician is going to support tribes and Indian issues simply because they are a decorated veteran is naïve. Furthermore, because McCain is a long-time Arizona policy maker and AZ is a state with many tribal nations inside and straddling its borders, voters do not have to look hard to track down McCain’s record on American Indian policy. McCain and his chosen running mate both represent states heavily populated by Native people, yet neither has proven themselves supporters of Indian Country during their time in office.
I ask two things of anyone who may read this blog. First, please vote in the 2008 presidential election and encourage/help others to do the same. Second, before making your decisions about the upcoming election, look into the voting records and public comments of the candidates. There are plenty of places to find policy statements and voting records, including:
If you are Indian or supportive of Indian people, you can also look to see how various candidates are referencing and interacting with tribes during their campaigns to get a sense for how supportive they will be to Indians if elected. I’ve been tracking how McCain’s work impacts Indians since the mid 1990’s and in the last month have studied up on Palin’s record with Alaska Natives. I saw a bumper sticker recently that referred to the McCain-Palin ticket as a “bridge to nowhere”. One thing is for certain in my mind; McCain and Palin will not help to build a “bridge to sovereignty” or a “bridge to prosperity” in Indian Country. However, they could likely build a time portal that takes American Indian policy back to the 19th Century.