Indian Law Scholarship in the Political and Legal Anthropology Review (PoLAR)

The most recent issue of the Political and Legal Anthropology Review (PoLAR) has a few articles of interest. First, Richard O. Clemmer’s paper, “Land Rights, Claims, and Western Shoshones: The Ideology of Loss and the Bureaucracy of Enforcement.” Here is the abstract:

This essay examines the shifting legal-political discourses surrounding the concepts “claim,””property,” and “rights” with regard to the Western Shoshone. It argues that an “ideology of loss” structured the Indian Claims Commission (ICC) proceedings. These proceedings parted Native Americans from their land, often despite existing treaties affirming land rights. Far from “settling” historical claims, the ICC proceedings actually produced and transformed Native and non-Native histories and added a new bureaucratic facet to the colonial encounter. The discussion suggests that the attempted conquest of Native Americans is not a single fact accomplished in the past but is rather an ongoing process that is driven by the American political economy. Reference to the works of contemporary scholars, as well as to those of ancestral scholars Henry Sumner Maine, Karl Marx, Max Weber, and Antonio Gramsci elucidates how a dominant legal philosophy was put into place. This philosophy permitted the wielding of legal power and undermined Native Americans’ contestation of that power. Nevertheless, indigenous peoples such as the Western Shoshones, and the lawyers working with them, have found ways to use law to exert agency in the face of this bureaucratic force—creating an at-times ambivalent or double-edged relationship with legal power.

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South Fork Band v. United States Cert Petition

This case concerns an attempt by the Western Shoshone bands to secure a remedy against to the United States denied in the U.S. v. Dann case.

Here is the brief — south-fork-band-v-us-cert-petition

And here are the Federal Circuit materials.

CERD Concluding Observations Address Discrimination Against Native Americans

The Committee for the Elimination of Racial Discrimination (CERD) included several recommendations focused on discrimination against Native Americans in its concluding observations on the latest periodic report submitted by the United States. It expressed particular concerns about persistent sexual violence against Native American women, the failure of the U.S. to consult with indigenous peoples before taking actions on lands of cultural and religious significance to them, and the lack of follow up on its earlier recommendations on the situation of Western Shoshone indigenous peoples and their lands. Its recommendations included:

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Newcombe: “Examing the Oral Arguments in Dann”

From Indian Country Today:

The Internet is amazing. I came across the audio (along with a written transcript) of the 1984 oral arguments in the case U.S. v. Dann. By listening to the audio recording, we are able to experience the arguments made 24 years ago before the Rehnquist Supreme Court regarding the issue of Western Shoshone land rights.

Robert McConnell, Assistant U.S. Attorney General, argued on behalf of the United States, which was suing Mary and Carrie Dann for allegedly trespassing on ”public lands” (Western Shoshone lands) by grazing their livestock without a permit from the Bureau of Land Management. McConnell opened by saying: ”Mr. Chief Justice, and may it please the Court, this case comes before this Court on writ of certiorari to the Ninth Circuit Court of Appeals. It concerns the finality effect of Section 22(a) of the Indian Claims Commission Act.”

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Western Shoshone Suit Against the US

The Western Shoshone National Council is attempting to reopen the land claims case resulting in United States v. Dann under Rule 60(b). The Court of Federal Claims dismissed the action (here is the opinion) and now it is before the Federal Circuit. Here are the briefs, including the parallel briefs of the groups known in the briefs as the South Fork Band:

Western Shoshone Opening Brief

South Fork Band Opening Brief

United States Response Brief

Western Shoshone Reply Brief

South Fork Band Reply Brief