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Book Announcement: Fred Hoxie’s “This Indian Country”
Dr. Frederick E. Hoxie will publish his new book “This Indian Country: American Indian Activists and the Place They Made” on October 29, 2012 with Penguin Group as part of the Penguin History of American Life series.
Here is the book blurb (taken from the Powell’s website):
Synopsis:
A history of Indian political activism told through the inspiring stories of the men and women who defined and defended American Indian political identityIn the newest volume of the award-winning Penguin History of American Life series, Frederick E. Hoxie forms a bold counternarrative to the typical understanding of Native American history. This is not a tale of bloody and doomed battles with settlers and the U.S. Army, which casts Native Americans as mere victims of U.S. expansionism. Instead, This Indian Country describes how, for more than two hundred years, Native American political activists have petitioned courts and campaigned for public opinion, seeking redress and change from the American government.
Hoxie focuses each of his chapters on people who advanced this struggle in important ways. These figures—some famous, many unknown— hoped to bridge the distance between indigenous cultures and the republican democracy of the United States through legal and political debates. Many of these figures wielded no political power in their own time, but the cumulative product of their efforts has profoundly shaped the modern political landscape. They defined a new language of “Indian rights” and created a vision of American Indian identity. In the process, they entered into a dialogue with other activist movements, from African American civil rights movements to women’s rights and other progressive organizations.
Hoxie weaves a compelling narrative that connects the individual to the tribe, the tribe to the nation, and the nation to broader historical processes. He asks readers to think deeply about how a country based on the republican values of liberty and equality managed to adapt to the complex cultural and political demands of people who refused to be ignored. As we grapple with contemporary challenges to national institutions, from inside and outside our borders, and as we reflect on the array of shifting national and cultural identities across the globe, This Indian Country provides a context and a language for understanding our present dilemmas.
I found this book to be an engaging read but really very, very sad. The second chapter, which is about the first Indian lawyer James McDonald, a Choctaw Indian, ends in McDonald’s suicide. The fourth chapter, about Sarah Winnemucca, ended with her irrelevant and forgotten (and probably blacklisted by men, both white and Indian). The sixth chapter, on Thomas Sloane, an Omaha Indian and according to Hoxie the first American Indian to argue before the Supreme Court (Sloan v United States), won his first case but seemingly lost every one after that. Being an Indian activist didn’t seem to pay.
Many people, I imagine, will purchase this book because of the final chapter, the one on Vine Deloria, Jr. As I read the chapter, I thought Vine’s inclusion here is a little bit strange. He is well known as an Indian activist, but I imagine him more as an Indian author and intellectual. Yes, he worked for NCAI in the 1960s and then went to law school. From Dr. Hoxie’s description, Vine spent the rest of his life as an academic (although Dr. Hoxie makes a great deal of hay spelling out Vine’s criticism of Indian lawyers and academics). I know Vine did a whole lot of activist-type work (for example, he worked to get the Michigan Ottawa tribes recognized by Congress), but that work isn’t obvious here. Dr. Hoxie also pointed out Vine’s dissatisfaction with the red power movement — those guys were activists, but Hoxie makes clear Vine wasn’t with them for the most part. The chapter on Vine made me ask — what exactly is an Indian activist? Am I an activist because I write on Indian affairs? Or maybe Vine was because a bunch of non-Indians read his stuff and liked it, perhaps leading to changes to Indian policy? Reading between Dr. Hoxie’s lines, I get the sense Vine’s true activist years were the six years before the University of Arizona hired Vine in the late 1970s, when he was a “freelance writer, researcher, and consultant.” Once he joined U of A’s faculty, he enjoyed “an atmosphere of economic and political security.” Are Indian activists the ones who fail?
I really enjoyed this book. But I came away wanting to not be an Indian activist. I say that somewhat facetiously. I’m teasing but there were some pretty successful activists — those people that got Nixon to give Blue Lake back to the Taos Pueblo for one for example. The people who run PLSI for another. When’s that book coming out?
Student Article Recommending Applying UNDRIP to Indian Tribes
The Virginia Law Review has published “Closing the Accountability Gap for Indian and Alaska Native Tribes.”
Here is the abstract:
The recognition of the right of Indian tribes to self-determination in federal and international law generates strong protections for tribal autonomy, allowing tribes to exercise extensive governmental powers. But federal and international law also combine to create an accountability gap for tribal human rights violations—that is, a space in which victims lack access to a remedy and tribes are able to act with impunity. Just as U.S. states and municipalities can use their governmental powers to both protect and violate human rights, so too can tribes. But when a tribe fails to provide a remedy for its violation, a victim may be unable to access a remedy under federal law due to federal deference to tribal sovereignty. A victim has no recourse directly against the tribe under international law, and tribal self-determination limits the ability of a victim to bring a complaint against the U.S under international law.
This Note proposes filling the accountability gap by recognizing that the right of Indian tribes to self-determination under international law contains a duty to respect, protect, and fulfill human rights. Rather than looking to the United States to provide recourse, which would infringe on tribal self-determination, this proposal recognizes that when a tribe violates a human right, the tribe is breaching international law and owes the victim a remedy. This Note argues that recognition of such a duty would benefit tribes by legitimizing tribal self-determination and governance and closes by discussing how the duty would be implemented in practice.
Ann Tweedy’s “Unjustifiable Expectations” Published by Seattle U. Law Review
Ann E. Tweedy (Hamline Law) has published her paper “Unjustifiable Expectations: Laying to Rest the Ghosts of Allotment-Era Settlers” in the Seattle University Law Review.
Here is the abstract:
During the allotment era, the federal government took land from tribes and parceled some of it out to individual tribal members, while, in most cases, selling off the remainder to non-Indian settlers. Those actions, which are properly understood as unconstitutional takings, have been reinforced through decades of Supreme Court precedent. Specifically, the Court has used the now repudiated federal allotment policy, which contemplated eventual abolition of tribal governments, to justify contemporary incursions on tribal jurisdictional authority as well as other limitations on tribal sovereign rights. In this way, the Court builds new injustices upon old ones. This Article responds to this Supreme Court precedent with two main points. First, it shows that non-Indians at the time had notice that the allotment policy was unfair to tribes (and that they sometimes directly advocated for its injustices). From this information, I argue that non-Indian purchasers of tribal lands—and subsequent purchasers from them—should not be understood to have had justifiable expectations that the reservations would disappear and that they therefore could not be subject to tribal jurisdiction in the future. Second, I argue that the Supreme Court should stop using the troubled history of allotment, which it construes based on incomplete information and without taking account of tribal interests and perspectives, to justify further restrictions on tribal sovereignty. My purpose in this Article is to question both the substance of these presumed expectations and their justifiability. I begin this questioning with a thorough analysis of previously unexamined historical newspaper articles concerning non-Indian settlement of Indian reservations during the allotment era. I then argue that, as reflected by the above quote from Superintendent King, most non-Indians during the allotment period cared little about whether Indians were treated justly. Furthermore, I argue that many non-Indians had notice that tribes were being unjustly deprived of their lands through the allotment process, and that some non-Indians even advocated for this very injustice to occur. Both notice of injustice and complicity in the government’s unjust actions precluded non-Indian purchasers from forming justifiable expectations. This rigorous, context- specific look at non-Indian expectations suggests that, in sharp contrast to current Supreme Court practice, tribal jurisdiction over nonmembers should generally be upheld and Indian reservations should not generally be held to have been diminished or disestablished as a result of allotment.
“American Indian Legal Scholarship and the Courts” Now Available with Appendices
My new paper, “American Indian Legal Scholarship and the Courts,” is now available. I previously posted the appendices, and they are available here.
Here is the abstract:
Is legal scholarship influential on the courts? More particularly, is American Indian legal scholarship influential on the courts? In the 1960s, 1970s, and 1980s, tribal interests enjoyed historic success in the courts. While they didn’t win every case, tribal interests prevailed far more than they ever had prior to these few decades. Since the advent of the Rehnquist and Roberts Courts, however, those successes have once again become few and far between.
American Indian legal scholarship, which rose from virtual nonexistence in the 1950s to significance in the late 1960s and 1970s, appears to have been very influential on the courts during the period of success. Every decade since the 1960s has seen a dramatic increase in the number of law review articles on the subject of American Indian law. Courts cited to an incredible percentage of the Indian law articles published in the 1960s, 1970s, and early 1980s, but that citation pattern has leveled off since the 1980s. The lower courts continue to cite American Indian legal scholarship, but in a more limited manner. In the Supreme Court, Indian law scholarship has all but disappeared.
This short paper, prepared for the Henderson Center’s Fall 2012 Symposium, “Heeding Frickey’s Call: Doing Justice in Indian Country,” presents the data on the citation patterns of American Indian legal scholarship and reviews Professor Frickey’s call as a means of introducing the conference.
Fletcher Study on American Indian Legal Scholarship and the Courts
I have posted the data so far in chart form for my ongoing study on the impact of American Indian legal scholarship on the judiciary. The draft paper, which will be available on a limited basis at the Berkeley conference on Phil Frickey’s legacy, is called “American Indian Legal Scholarship and the Courts.” The data is available on SSRN here.
Here is the abstract for the appendices:
“American Indian Legal Scholarship and the Courts” is a forthcoming article that includes charts representing data on the citation patters of federal, state, and tribal courts to American Indian legal scholarship (defined as law review and similar publications focused on American Indian law). This paper includes three appendices in the form of simple charts that organize that data. Appendix 1 is a chart of Supreme Court opinions dating back to 1959 that include citations to Indian law review articles. Appendix 2 is a chart of law review articles cited in lower federal, state, and tribal courts since 1959, organized by article. Appendix 3 is the same chart reversed, with the chart organized by case first.
Kenneth Casebeer on Subaltern Voices of the Cherokee Nation’s Trail of Tears
Kenneth Casebeer has posted his paper, “Subaltern Voices in the Trail of Tears: Cognition and Resistance of the Cherokee Nation to Removal in Building American Empire,” on SSRN.
Here is the abstract:
Empire, since publication of the book by the same name, by Michael Hardt and Antonio Negri has generated almost an obsession for revisionist social theorists. In this literature, the idea and history of empire is structurally dialectical – the ongoing interaction between imperialist colonizers and subordinated indigenous or subaltern populations and cultures connected with the colonized space. Included in this literature are two recent works that present a curious view of American Empire, and its relatively early and key history of removal of Eastern Native nations to west of the Mississippi. The curiosity in the book by Sean Wilentz, and an article more focused on law by Paul Frymer , is that the exceptional histories of removal they report includes the voice of none of the removed populations, the subalterns by which the imperialists are in part constructed. In this review the record is simply being documented as necessary to recover the subalterns assumed by the histories because they were there, and had to be there, in the history of subordination. Contrasting the stunted reasoning of the federal government with Cherokee resistance and subsequent dénouement links removal’s significant contribution to the legitimation campaign supporting slavery and Dred Scott, and in material terms, contributed to the inevitability of the secession and the Civil War.
New Scholarship on Foreign Direct Investment and Indigenous Peoples
George K. Foster has published “Foreign Investment and Indigenous Peoples: Options for Promoting Equilibrium Between Economic Development and Indigenous Rights” in the Michigan Journal of International Law.
New Scholarship on Tribal Criminal Jurisdiction
Lindsey Trainor Golden (a former student of mine) has published “Embracing Tribal Sovereignty to Eliminate Criminal Jurisdiction Chaos” in the University of Michigan Journal of Law Reform.
From the article:
This Note argues that the current federal laws regarding tribal criminal jurisdiction are contrary to existing policies that recognize inherent tribal sovereignty, and that to fully restore tribal sover- eignty and reduce reservation crime rates, Congress should revise the MCA and the TLOA to comprehensively address the legal bar- riers that adversely affect tribes’ ability to prosecute crimes committed within their geographic borders.
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