My review of Andrés Reséndez’s The Other Slavery: The Uncovered Story of Indian Enslavement in America is up on JOTWELL: Equality. I highly recommend the book. It’s a dense and emotionally difficult read but well worth it for the knowledge you will gain. One of the things I was struck with was that the removal of Indian children from their homes by social services agencies has its roots in hundreds of years of stealing Indian children into slavery.
In a number of recent controversies, from sports teams’ use of Indian mascots to the federal government’s desecration of sacred sites, American Indians have lodged charges of “cultural appropriation” or the unauthorized use by members of one group the cultural expressions and resources of another. While these and other incidents are currently in the headlines, American Indians often experience these claims within an historical and continuing experience of dispossession. For hundreds of years, the U.S. legal system has sanctioned the taking and destruction of Indian lands and artifacts, bodies and religions, identities and beliefs, all toward the project of conquest and colonization. Indian resources have been devalued by the law and made available for non-Indians to use of their own purposes. Seeking redresses for the losses caused by these actions, tribes have brought claims under a variety of laws, from trademark and copyright, to the First Amendment and Fifth Amendment, and some have been more successful than others. As a matter of property law, courts have compensated – albeit incompletely – the taking of certain Indian lands and has also come to recognize tribal interests in human remains, gravesites, and associated artifacts. When it comes to intangible property, however, the situation is more complicated. It is difficult for legal decision-makers and scholars alike to understand why Indian tribes should be able to regulate the use of Indian names, symbols, and expressions. Indeed, non-Indians often claim interests, sounding in free speech and the public domain, in the very same resources. To advance understanding of this contested area of law, this Article situates intangible cultural property claims in a larger history of the legal dispossession of Indian property – a phenomenon we call “Indian appropriation.” It then evaluates these claims vis à vis prevailing legal doctrine, and offers a normative view of solutions, both legal and extralegal.
These revelations are sure to disturb any reader, but the point of Jacobs’s important article is not to expose adoption proponents as disingenuous or malevolent. It is to place an ongoing phenomenon—Indian children’s disproportionately high rate of separation from their families—in proper historical context. (P. 154.) “It is no coincidence,” Jacobs writes, “that the IAP arose during the era in which the federal government promoted termination [of tribal nations’ special status] and relocation policies for American Indians.” (P. 152.) Adoptions enabled the federal government to terminate its responsibilities, child by child, by shifting them to “the ultimate ‘private’ sector.” (P.154.) By extension, Jacobs argues, adoptive families also advanced the government’s long-term “effort to eliminate Indianness.” (P. 154.) This, Jacobs demonstrates, was the backdrop for the ICWA. When tribal leaders and advocacy organizations convinced Congress to enact the new law, it was a small victory in a long war. And when plaintiffs invoke the ICWA today, they raise a hard-won shield.
We agree that Margaret Jacobs “Remembering the ‘Forgotten Child’: The American Indian Child Welfare Crisis of the 1960s and 1970s” 37 American Indian Quarterly 136 (2013) is an excellent and important article.
Here is a review of a labor law article that has nothing to do with Indian tribes. It does, however, look at various public sector unions rather than private sector ones. The author researched two states with very different labor laws and how they affect the negotiations between the states and the public sector unions. While already we know the courts have already applied the NLRA to tribal businesses, there’s no reason a tribe can’t pass labor laws to make it look more like a public sector employee if it wanted to. Prof. Singel has already pointed out that revenues from tribal gaming and other economic operations go toward government operations, making the tribal businesses more like a public sector employee than a private one under the NLRA. I’ve been wondering for a while if it is even possible for tribes or tribal employees to be working with unions that understand the public sector (AFSCME, for example) rather than those accustomed to aggressive private sector negotiations (UAW, Teamsters). There are others who can answer this question, but I still think looking at articles like this might provide a useful way to think about solutions for tribes and unions.
ETA: A person might also look at Kaighn Smith’s book coming out next year, Labor and Employment Law in Indian Country. No spoilers, but he does discuss tribal public-sector labor relations law.
Aviva Orenstein, Propensity or Stereotype?: A Misguided Evidence Experiment in Indian Country, 19 Cornell J. Law & Pub. Pol. 173 (2009), available at SSRN.
An excerpt (or two):
Changing evidentiary policy to make it easier to convict rapists and child abusers has been high on the agenda of many feminists who have decried the difficulty of holding such perpetrators accountable, even when they commit serial crimes. In 1994, in a well documented trade, Congress adopted Federal Rules of Evidence 413-415 as the quid pro quo for securing the deciding vote necessary to pass the then pending Violent Crime Control Act. Rules 413-414 specifically permit propensity evidence in sexual assault and child molestation cases. Professor Aviva Orenstein investigates how these rules have been (mis)applied in federal court. Her thought-provoking essay decries the disproportionate use of the rules against Indian defendants, and suggests the repeated presence of negatively stereotyped Indian defendants may actually help perpetuate the myth that rapists are easily identified “others,” an attitude that makes acquaintance rapes incredibly difficult to prove. She also suggests that stereotyping reinforces the propensity evidence and may lead judges to more willingly accept character evidence beyond sex crimes.
What I particularly appreciated about the article was that Orenstein did not downplay that the victims in these cases are Indian women and children who are more likely to be raped or sexually assaulted than other females in the United States. She explains that Indian women also face stereotyping that can lead to discounting their testimony, and discusses their no-win dilemma that can result in their complaints further stereotyping their entire culture. Importantly, Orenstein suggests why propensity may harm victims. She cites reports implying prosecutors appear reluctant to bring charges in sexual assault cases arising on reservations, and argues that the propensity rules may furnish a convenient reason for prosecutors to refuse cases without evidence of prior sexual crimes.