The WILLIAMS COLLEGE LAW JOURNAL is an interdisciplinary undergraduate publication comprised of student essays that is devoted to the scholarly discussion of legal subjects. The mission of this publication is to provide a place where undergraduate students can discuss and examine the law, its role, the effects of law and policy, and the relationships of law and justice, as well as their experiences preparing for law school, a legal education, or their involvement in a legal field.
We accept submissions covering a wide range of topics related to law, from any current undergraduate student around the nation, regardless of academic division, major, minor or year. If you are an alum, professor, or lawyer, you can also submit a short piece that is aimed at educating undergraduate students about careers, educations, or experiences in the legal field.
Essays can be submitted via email or our website http://williamscollegelawsociety.com/lawjournal/submit/
The Law Journal Committee would like to graciously acknowledge the following organizations for their generous support. Williams College Law Society Williams College Council Williams College Deanâ€™s Office Williams College Law Society Law Journal Committee c/o Office of Student Life 39 Chapin Hall Drive Williamstown, MA 01267 WilliamsCollegeLawJournal@gmail.com www.WilliamsCollegeLawSociety.com/lawjournal
COVER: Design by Gloria Joo
WILLIAMS COLLEGE LAW JOURNAL Volume II Issue I Fall 2012 Table of Contents Letter from the Editor---------------------------------------------------------------------iii Restorative Justice: An Ethical Argument for Reparations Melissa Fussell----------------------------------------------------------------------------------1 Interview with Carmen Ortiz: U.S. Attorney for the District of Massachusetts Becky Tseytkin---------------------------------------------------------------------------------7 Reclaiming Rights: Indigenous Peoples and State Sovereignty Kate Fetrow-----------------------------------------------------------------------------------12
LETTER FROM THE EDITOR Dear Reader,
Law Journal Editorial Board Editor-in-Chief Corbin Chu Managing Editors Becky Tseytkin Yogeeta Chatoredussy Associate Editors Caroline Kaufman Binh Duong Dayoung Lee Gloria Joo Williams College Law Society Executive Board PRESIDENT Emanuel McMiller VICE PRESIDENT Narah Moon SECRETARY Yogeeta Chatoredussy
It is my pleasure to introduce you to our fifth issue of the Williams College Law Journal. As the Journal receives more submissions, the challenge of deciding which articles can be included is an increasingly challenging process for the Editorial Board. We are nonetheless honored to have such a privilege to read the rich variety of legal topics undergraduate students from across the nation are thinking about. The Editorial Board also strives to streamline the Journal’s layout for increased readability for our audience to appreciate. In this way, we are able to focus our creative energies not only in adding to the legal discourse, but also in rethinking and redesigning our Journal. Our board, too, has evolved accordingly and we look forward to embarking on this creative journey together. I am also excited to highlight this issue’s interview with US Attorney for the District of Massachusetts, Carmen Ortiz (who was gracious enough to receive the interview before a long day of speaking and being in company with many in the Williamstown community). So, the Law Journal most definitely appreciates the Law Society’s growing, extensive campus programming that has increased our content’s flourishment. As we look forward to future issues, I hope the Journal may continue to provide fascinating, insightful content that piques readers’ engagement with the world and law. And with that, I welcome you to our current issue. I hope we will see your article in our next issue. All my best, Corbin Chu ‘15 EditorinChief
TREASURER Benjamin Stone PUBLIC RELATIONS Gloria Joo EVENTS Shanice Scantlebury EDITOR-in-CHIEF Corbin Chu LAW TEAMS Yazmine Nichols LEGAL EDUCATION Nick Dyja
The Williams College Law Journal is published at least twice a year. Previous editions of the Law Journal can be found online on our website. The contents of this volume represent the opinions of the authors and not necessarily those of the editors, the Journal, the Williams College Law Society, or Williams College.
FRESHMAN REP John Martin
All rights reserved. No parts of this publication may be reproduced or transmitted without the Law Society’s written consent.
Restorative Justice An Ethical Argument for Reparations By Melissa Fussell Rollins College
Abstract The idea of making reparations to the AfricanAmerican community is a controversial one. Reparations often refer exclusively to repairing harms suffered by Black Americans during slavery, but I argue that the Black Community should receive reparations for harms that continued through the Jim Crow era, as well as those that endure to this day. Reparations are not meant to be a punishment for European-Americans, as is so often claimed by those who oppose them. Rather, they are intended to work toward justice through the rehabilitation of the Black Community, which has suffered through slavery, virtual apartheid, subjugation, and disenfranchisement over the course of their presence in the United States. It is ethically incumbent upon us, as we claim to be a society that promotes justice and equality, to attempt to restore justice where it has been compromised. Indeed, we have made historical attempts at restorative justice. As a nation, we made reparations for victims of Japanese Internment Camps and the Rosewood Massacre in Florida. The idea of making reparations goes back to Hammurabi’s Code and Sumerian Law; it has been an enduring theme in common law and ethical codes. Reparations positively impact Black Americans in two major ways: through acknowledging that they have been made victims of horrible crimes, and through compensating them for the harms that have resulted from those crimes. “Whoever is content with the world, and who profits from its lack of justice, does not want to change it.” —Friedrich Durrenmat Let me begin by explaining that I am fully aware my position makes me a radical. It is unpopular, it
is taboo, and by many people in the United States today, its realization is feared. It will not soon be part of a keynote speech at a popular, mainstream conference; nor will it be the goal of a club or organization at your average college or university. It is an incredibly divisive issue. I do not write this essay under any delusion that the topic at hand is polite dinner conversation, or that there is any kind of consensus among the American people regarding whether or not this course of action should be carried out. I write it because it is so often that the most important ethical issues go unmentioned, precisely because they are difficult. I write this because it is an ethical issue that was difficult for me, and one that I now find so compelling that I feel it is ethically incumbent upon me to argue in favor of it.
“The decision to repair what has been broken is not an admission of guilt.” I am referring to the issue of reparations for African-Americans: not only for slavery, but for the decades of government facilitated injustice and Jim Crow segregation that followed it. It is true that many people alive today had nothing to do with the terrible crimes committed against the African-American community. However, after years of struggling with this issue, I have come to my own ethical conclusion: the decision to repair what has been broken is not an admission of guilt. The relationship between African-Americans and European-Americans has been marred by centuries of atrocities for which I am not culpable. Still, I now argue that all of us, as members of one society, are ethically responsible for rehabilitating that which needs restoration. I believe that, after decades of enslavement, virtual apartheid, disenfranchisement, and subjugation, the African-American community is in need of restoration, for the good of both
Issue II, Volume II
Restorative Justice European-Americans and African-Americans. In order to be ethically consistent, we as a nation must pursue justice for all peoples. Our Constitution, creed, and consciousness require it. This includes justice for African-Americans, upon whom our country has inflicted unspeakable harms and to whom we are greatly indebted. Reparations are, of course, a means of repairing that which has been damaged. They are a way of accomplishing restorative justice. The crux of restorative justice is the idea that a when a wrong is committed, there exists an ethical duty to right the wrong. The perpetrator, the victim, and their community must work together to right the wrong through “repair, reconciliation, and reassurance.” Restorative justice considers not only the initial crime, but also the long term impacts of the wrongdoing. Restorative justice is a particularly good aspiration for the situation at hand, as it satisfies both substantive and procedural justice; that is, it satisfies both moral and legal standards of fairness. The satisfaction of both of these is very important when dealing with reparations for African-Americans, because their treatment shows that the law itself does not always deal justly or ethically. Indeed, the United States Constitution itself condoned slavery in Article I, Section IX, where it promised the buying and selling of slaves would be permitted at least until 1808, and that the taxation on these persons would not be heavy. Worse still, perhaps, are the Black Codes, also known as Jim Crow laws, which were designed specifically to disenfranchise and intimidate Black freedmen while still satisfying procedural justice. Procedural justice, therefore, although it satisfies the law, cannot be depended upon to ensure the fair treatment of all peoples. Indeed, those who seek to satisfy procedural justice alone may well end up compromising substantive justice. Take, for example, those who worked in the Underground Railroad as aids to runaway slaves: their actions served substantive justice, but if they had focused only on procedural justice, they would have returned their slaves to their owners, compromising their ethics for legality. 1
This makes it necessary to move beyond mere procedural justice to the more universal, ethicsfocused substantive justice. Insofar as restorative justice satisfies both, it provides a good basis for determining how we should work on repairing the harm that has been done to the African-American community.
“Restorative justice is a partcularly good aspiration for the situation at hand, as it satisfies both substantive and procedural justice.” Of course, restorative justice is not a new idea. It has been employed since the time of Sumerian law and Hammurabi’s code, based upon the idea that attempting to repair harms is a better means of serving justice than is attempting to punish. A victim of theft, for example, is more positively impacted by receiving restitution from the perpetrator than they would be if the offender paid for a crime to the state. The United States itself has a strong history of practicing restorative justice, with examples ranging from systematic applications with First Peoples and victims of Japanese Internment Camps during World War II (who received monetary compensation from the government) to individual applications with personal law suits regarding civil matters. Although opponents of reparations argue that statutes of limitations prevent payment of reparations for African-Americans, U.S. courts have waived them when dealing with such cases as Florida’s Rosewood Massacre, granting $7,000,00 to the victims and their descendants, in order that restorative justice be served. Indeed, President George Bush himself, in 2003, called slavery “one of the greatest crimes in history,” and declared that its legacy continues: that it “did not end with slavery or segregation,” and that we need to “confront that legacy.”1 This statement was so influential that the House of Representatives cited it in their own Apology for Slavery, which also states outright that the negative impacts of slavery
Apology for Slavery.” Poverty and Race17.5 (2008). Proquest. Web. 30 Nov. 2012.
Williams College Law Journal
Melissa Fussell and the Jim Crow south continue today. The intention declared for the Apology was not to “erase the past” but to take “the first step in the process of racial reconciliation.”2 Reconciliation, of course, is an essential element of restorative justice, and the House’s Apology even goes on to express their desire to “rectify” the problems that exist today as symptoms of past crimes, and adds that it “seeks justice for all citizens.”3 These political positions are consistent with the direction in which the international community is moving. The General Assembly of the United Nations aspires to a more thorough implementation of restorative justice, as is seen in Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. This document is of particular importance here: it recognizes the right of victims to benefit from reparations. In its preamble, it discusses the importance of rehabilitation and compensation for those who have been victims of Gross Violations of International Human Rights Law, which include slavery and systematic discriminatory laws like the Black Codes. Since opponents of reparations so frequently argue that because the statute of limitations is expired, the court has no power to grant reparations, it is noteworthy that, in Article Four, it states statutes of limitations should not apply to cases in which international law is violated, because of the egregious nature of collective human rights violations. The Basic Principles and Guidelines also provide criteria, in Article Five, for who qualifies as a victim of a gross violation of international human rights law: “…victims are persons who individually or collectively suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that constitute
gross violations of international human rights law, or serious violations of international humanitarian law.”4 Certainly, all of these harms have been caused by centuries of systematic discrimination against the African-American people. The Universal Declaration of Human Rights categorizes enslavement of a people, in its fourth article, as a serious violation of international humanitarian law. The Charter of the Nuremberg Tribunal established both slavery and legalized racial discrimination as crimes against humanity on an international scale regardless of domestic legality. Both the Rome Statute of the International Criminal Court and the U.N. Declaration on the Elimination of All Forms of Racial Discrimination establish segregation as a crime against humanity.
“Both domestic law and international law that we as a nation are party to support... restorative justice.” It is safe, then, to assert that slavery and the systematic discrimination that followed it were egregious violations of human rights, that both domestic law and international law that we as a nation are a party to support this argument, and that restorative justice is an appropriate means of remedying such situations. There is not much disagreement about this. Surprisingly, though, when reparations, the natural ethical and logical conclusion of the aforementioned ideas, are brought up, the people dissent. If the purpose of justice is to give each his due, then certainly justice is best served by giving the African-American community their due. It seems, then, that so many Americans decide to break from their ethical code when it comes to taking ethical action, not when it comes to making
Ibid. Ibid. 4 “Basic Principles and Guidelines on the Right to a Remedy and Reparation.” Office of the High Commissioner for Human Rights / OHCHR Welcome page . N.p., n.d. Web. 30 Nov. 2011. <http://www.ohchr.org/EN/Pages/WelcomePage.aspx>id/29764460/ns/ business-sports_biz/t/how-nfl-became-americas-game. 2 3
Issue II, Volume II
Restorative Justice theoretical ethical determinations. The vast majority seems to think slavery and Black Codes were terrible tragedies; still, a large number draw the line at trying to repair the damage.
“When we repair harm through restorative Justice, we fulfill the code of ethics we already claim to espouse.” I could fill pages and pages with horrifying examples of ways in which African-Americans have been mistreated and abused in the United States. I could write dozens of tear jerking tales of how they have been disenfranchised. I could tell sob stories about how they need a helping hand. All of these actions would miss the point, however, which is not to victimize the African-American community with an ill-thought out cash payment and a half-hearted apology, but, rather, to focus on rehabilitating the African-American community, on reconciling the African-Americans and European-Americans, and on restoring a relationship of an egalitarian nature to those two ethnicities which God created equal. The goals of restorative justice are not to guilt, shame, or punish the offender. Instead, the goal is to work with the community to acknowledge a wrongful act and try to repair its damage. It is true that the slaveholders of the nineteenth century are no longer alive to pay for their actions; I am not suggesting that anyone be punished for ancient wrongs. I only say that the ethical choice is always, has always been, and will always be the choice that serves justice. This, in the case of African-Americans, will require effort on the part of all European-Americans, but it will also benefit them in the same way it will benefit AfricanAmericans. Certainly, as a democratic people who stand for freedom, equality, and fairness, we should recognize that the enfranchisement and protection of all peoples is vital to our societal progress. When we repair harm through restorative justice, we fulfill the code of ethics we already claim to espouse. When the House of Representatives voted unanimously to apologize for slavery and the Black Codes that followed it in July of 2008,
the nation officially recognized the fact that the United States did harm to the African-American community on a massive scale. So, do we cry over the spilt milk? Or, do we attempt to clean it up? The ethical choice is clear. If we really believe the things we say domestically and internationally, we must act in accordance with these ethical codes we have outlined. This action is not always easy, but action that works towards justice is ethical and imperative. If we are honest with ourselves, we are aware of the tremendous harm that slavery and the Black Codes caused. We know that the African-American community has been subjected to centuries of either non-existent or inadequate education. We know that Jim Crow’s vagrancy and property ownership laws in the Southern United States prevented accumulation of wealth among African-Americans and established financial dependence between them and the European-Americans for whom they were forced to work or sharecrop. These are stories we have heard before. We have established holidays and memorials to quell our national guilt. We have signed documents of international law to prevent such an atrocity from occurring again. We have altered our domestic law to remove the legal stains made by the Jim Crow South. We have done these things, perhaps, as penance—but penance is not the ethical imperative. Restorative justice is. If we truly believe these things were wrong, we should try to fix them—not try to pretend their harms no longer exist by declaring ourselves colorblind, a melting pot, or diverse. The solution to the problem cannot be found in simply ceasing to commit crimes against African-Americans, nor can it be found in saying those crimes were wrong. These things are good, but they cannot be the whole story. Until we rehabilitate the African-American community, justice will not have been served. So, how then do reparations rehabilitate the African-American community? The answer is twofold: through acknowledgment and compensation. Cash compensation is undesirable today, as it has the danger of causing further victimization; this is why Dr. Martin Luther King, Jr., said the compensation for the damage to the African-American community should come in the form of a “Bill of Rights for the Disadvantaged” that would establish programs
Williams College Law Journal
Melissa Fussell for advancement, much like the GI Bill did. Of course, as Dr. King points out, this is much lower in cost than paying hundreds of years of wages (with accrued interest) for slave labor that occurred in the United States. Although they did so in a forced way, African-Americans contributed to the growth of American society through their unpaid labor. Their ancestors should be compensated for their labor contributions and the harms they suffered, in the same way the descendants of someone who died a wrongful death can legally demand compensation for the harms suffered by the victim, their relative. African-American slaves were owed a debt that was never paid. This debt is still owed to their heirs— they have a right to their ancestors’ entitlements. It is not convenient, but it is ethical.
“This debt is still owed to their heirs—they have a right to their ancestors’ entitlements. It is not convenient, but it is ethical.” We do not like to think that companies like AIG, J.P. Morgan Chase, or Aetna made their initial profits on the backs of slaves. Neither do we want to know that Harvard, Princeton, Yale, and University of Virginia may have gained some measure of affluence from the enslavement of the AfricanAmerican Race. However, the undesirability of this information does not negate its truth or the obligations that accompany it. They are our ethical responsibility. Brown University agrees—they started a committee to determine what reparations should be made for their historical links with the slave trade.5 The fact is that a great many EuropeanAmericans and their companies made money off of slavery, and this money was in effect stolen via the kidnapped and unpaid African-Americans bought and sold during the Transatlantic Slave Trade. The fact that this money was stolen long ago does not make it any less a crime. Time has not made the thievery of yesterday any more ethical. We can tell
by the very fact that these things disturb us that they are wrong, and we must remedy the wrongs instead of ignoring them. The emphasis should be on rehabilitation and not cash payments, but if there were to be cash payments, estimates in damages range to $777 trillion by groups like The African World Reparations and Reparation Truth Commission. Although these numbers may be accurate estimates, we must focus on what is most ethical, what is most beneficial, and what will best reconcile EuropeanAmericans and African-Americans: programs that will rehabilitate the African-American community instead of victimizing them through cash payments, which will only put a band aid on a gunshot wound. The rehabilitation of African-Americans will improve the lot of all Americans; it will improve our society and fulfill the ethical aspirations that we ourselves claim. To rehabilitate African-Americans, we must compensate them for their contributions and suffering, but also, we must acknowledge their contributions and suffering. We must acknowledge that not only were African-Americans enslaved, but after they were “freed,” they were left illiterate with no money, no land, no home—they were set up for failure. We must recognize that for close to one hundred years after the slaves were freed, laws existed to prevent them from accumulating wealth or assets, such as regulations blocking them from obtaining mortgages. Acknowledging the problems that exist and recognizing their roots in slavery and its aftermath will prevent Americans from making judgments that have prevailed in the past, such as saying negative things (like living only for the present or not pursuing higher education) are “part of Black culture” when they really are part of a “slave culture” that European-Americans— not African-Americans—created. The proper programs, designed to enfranchise, educate, and rehabilitate, will provide both acknowledgment and compensation, thus achieving restorative justice through reparations. Undeniably, the decisions regarding how reparations should be paid out will be difficult
Foster, Andrea L., and Alyson Klein. “Brown U. To Explore Slavery, Reparations.” The Chronicle of Higher Education 50.29 (2004): A.30. Proquest. Web. 30 Nov. 2012. 5
Issue II, Volume II
Restorative Justice ones. There are numerous schools of thought on the subject and cogent arguments exist for most of them. These, however, are pragmatic issuesâ€”ones that almost cannot be thought of until the ethical issue of slavery reparations has been addressed. Acknowledgment, I believe, shares a great deal of weight with compensation when it comes to restorative justice. By agreeing that reparations are necessary, we legitimize the battles that generations of African-Americans have fought in hopes of finding justice. It is senseless to say that because we do not know the best way to provide reparations, we should not provide them at all. Unfortunately, this is the sort of talk that has prevailed. Those arguments given against reparations are almost always those of a practical nature. Rarely do we hear that the AfricanAmerican community has been treated justly, or
that their past suffering and toiling do not merit compensation; instead, we hear about technicalities or practical problems that might arise. These issues cannot be ignored, but we must give precedence to the ethical over the convenient. As the people that set out to form a more perfect union, to establish justice, to ensure domestic tranquility, we must see that prioritizing the practical over the ethical is to lose who we are. Restorative justice is not only about rehabilitating the victim, it is also about repairing the relationship between victim and offender and providing the chance for the offender and victim to redefine themselves. We need not be oppressor and oppressed, nor criminal and victim. Through making reparations, we have the opportunity to be, instead, restorers of justice who live up to the ethical code we have claimed for so long.
â€œBy agreeing that reparations are necessary, we legitimize the battles that generations of African-Americans have fought in hopes of finding justice. â€?
Williams College Law Journal
Interview with Carmen Ortiz U.S. Attorney for the District of Massachusetts By Becky Tseytkin Williams College
What first made you interested in becoming a lawyer? I thought it was a profession in which I could help people solve their problems. I was interested in being a litigator and presenting cases to a jury. There’s a little bit of performing in a courtroom, and I thought that the legal issues that I would be able to engage in would be challenging and interesting. I was in high school when I first became interested in becoming a lawyer. I think it was from movies and TV shows, where I saw attorneys presenting cases, trying to figure out what has happened under a particular set of circumstances. I thought it was really interesting and something that I could be good at. Were there any particular movies or TV shows that inspired you? I watched Perry Mason a bit, although I haven’t had too many Perry Mason moments in the courtroom, where there were complete debacles on the stand. What is your role as the US Attorney for Massachusetts? I’m the chief federal law enforcement officer for Massachusetts, so I oversee the investigation and prosecution of violations of federal criminal laws. I also represent the government in terms of bringing civil lawsuits on behalf of the United States, where there’ve been violations of certain statutes that provide individuals with rights—for example, we enforce the Americans with Disabilities Act, and we prosecute cases involving discrimination in
housing or lending, just to name a few. We have three offices in the state; our main office is in Boston, and we have branch offices in Springfield and Worcester. I also oversee the federal agencies that I work closely with—the heads of the FBI, ATF, DEA, and the Secret Service. I coordinate with our federal agencies and we work closely with our local and state law enforcement partners. What have been some of your priorities that have been specific to the district of Massachusetts? Some of our priorities are not only specific to the District of Massachusetts but are promoted and headed by the Department of Justice. Our number one priority is national security: combating terrorism and making sure that we’re working together with our local and state partners to follow leads that could potentially lead to any kind of terrorist activities. We work with our AntiTerrorism Advisory Council, which is involved with all the heads of law enforcement federal agencies, as well as state and local departments. We meet together, and we meet with private industry and private organizations and businesses, as well as hospitals, to try to figure out ways in which we can ensure our national security, so we know what steps we should be taking should a crisis occur. We also work with our joint terrorism task force. Enforcing civil rights is another top priority. We set up the Criminal Civil Rights Enforcement Team once I became the US Attorney. In our office, we have both civil and criminal Assistant United States Attorneys prosecuting and investigating civil rights violations. Public corruption is a top priority, as is enforcement in the financial fraud arena, involving investor fraud, securities fraud, and healthcare fraud. We also work closely with local and state partners to prevent gun and gang violence.
Issue II, Volume II
Interview with Carmen Ortiz What kinds of specific community outreach programs is your office involved in? One of the programs we’re involved in is Bridges, which is a monthly engagement group. We have representatives from various communities, including Muslim, Arab, Asian, Hispanic, and African American communities. Our purpose is to engage in a dialogue, to listen to what issues are of concern to these communities; we want to better inform and to give access to government representatives. When something happens, people may be afraid to report it to law enforcement; this outreach program is a way to communicate and provide access to government officials. We also participate in different task forces, such as the human trafficking task force, led by the Boston Police Department. We also try to do outreach through training programs—in civil rights, in securities fraud—just to educate law enforcement and members of different communities. I do a lot of outreach with youth, and I speak at a variety of different schools. You mentioned both national security and civil rights. I know that it’s a delicate balancing act to find a medium between those two. How do you weigh national security and civil liberties and figure out what that balance is? Both are critically important, and you need to educate the community about what our focus is in national security and engage them so they can be helpful to you. But you want to make sure that in the steps you take to ensure national security, you observe peoples’ rights. It’s very important to promote diversity and acceptance, so people don’t just jump to conclusions when certain acts of violence occur. Educating and informing the public is important; as is engaging in dialogue so we can understand each community’s concerns if they’re being intimidated or their civil liberties are being violated. I’ve spoken to members of the Anti-Defamation League at various gatherings about our efforts in the civil rights arena, and we’ve been open to listening to their views. Every person
in this state, regardless of ethnic background or nationality, should be engaged, because they all have an interest in making sure we’re all safe. Are there any particularly memorable cases that have taught you the most about law and that you would recommend to aspiring lawyers? One case that I personally handled involved three individuals, two of whom were Cambodian, targeted the Cambodian community to defraud. There were hundreds of Cambodians throughout the country who were victimized by this crime, many of whom were from Massachusetts, New York, and Washington D.C. A number of them lost their homes, their retirement benefits, and their businesses. This case showed me the devastating impact that financial crimes could have on individuals, on families, and on businesses. It also showed me how we were able to use federal law through the mail and wire fraud statutes to address this scheme to defraud and to prosecute the defendants. What has been the most difficult aspect of your job? The most difficult aspect is making decisions where we grant immunity to certain individuals in exchange for their cooperation in a criminal investigation and in the prosecution of a case. It is always very difficult to give someone a pass if they’ve engaged in wrongful conduct. And yet you need to make the deal in order to get more wrongdoers and to find out exactly what happened in a situation. The other difficult aspect of my job is the restriction that we have on our own speech. We can’t explain fully what may have happened in the case and all the factors that went into our decisions. We can’t provide that information during an investigation, or while the case is pending, and sometimes we can’t address what occurred until after the case is over. This could be several years later, and during this time, there may be misinformation, misreporting, and misunderstanding on behalf of the public.
Williams College Law Journal
Becky Tseytkin How does your office address that when there’s this misunderstanding on the public’s part? Sometimes, we have to stay quiet and let matters play out, and hopefully later we’ll have the opportunity to address the full record. There are certain steps we can’t discuss because doing so could affect future investigative tactics. In certain situations, we need to protect defendants and witnesses, and the Court may suppress information to protect a defendant’s rights. We have to accept that that’s how the criminal justice system works. What’s the most difficult choice you’ve had to make as a US attorney? There are many difficult choices that I can’t speak about, but one of the hardest choices is walking away from wrongful conduct when there’s sufficient evidence that someone has committed a crime. But if there’s not sufficient evidence to prove the case beyond a reasonable doubt, we cannot bring charges. You only need probable cause to charge an individual, but you need proof beyond a reasonable doubt to convict. How do you decide whether to do further investigation to get sufficient evidence or walk away from a case? We do as thorough of an investigation as possible, and I oversee the work of over 120 lawyers in my office, so I rely on them to develop an investigation and a case. We meet and discuss what evidence has been obtained, what evidence we should pursue, what leads we should follow, and if lawyers come to me and say they’ve done everything they can, we then determine if we have sufficient evidence to bring the case. We have a lot of resources, but there are times when we have to walk away from charges. If a matter has been written about, the public has a certain expectation, and then we may be subject to criticism. But in every case, we just need to follow the evidence where it takes us.
Over the years, have you seen any major changes in the types of crimes committed during your career as US Attorney? We’ve seen criminal conduct escalating in the child pornography arena. In those cases, the conduct has become much more egregious. The children that are being victimized are much younger and have been subjected to more violence. The internet has allowed for greater ease in committing this crime; people feel they can conceal their identity and feel comfort by chatting with others who commit this crime. They feel there’s a degree of solidarity in this group of individuals who are interested in child pornography. That’s one area where I’m seeing more cases, and we’re spending more resources prosecuting them. Last year, a hate crime was committed on the Williams campus. How would you define a hate crime and how do you think they should be handled? A hate crime under federal law is very specific. In the Matthew Shepard and James Byrd Act, a hate crime is defined as willfully causing bodily injury or attempting to do so with a weapon because of race, color, religion, or national origin. That definition was then expanded to victims of bodily injury and attempts to commit bodily injury with a weapon on the basis of sexual orientation, transgender, and other criteria. And there’s also a lot of speech that’s discriminatory, negative, and derogative toward a particular group, but we need to distinguish what conduct is covered by freedom of speech. Threats, violent acts, and intimidation are not freedom of speech, and so they are covered by other federal statutes. You need to look at what the conduct is, whether it’s covered by freedom of speech, and then see what motivated it. Hate crimes are motivated by bias against a certain group.
Issue II, Volume II
Interview with Carmen Ortiz When hate crimes happen on a college campus, how should a college administration handle it? The students should know to immediately report it, and the local police department should immediately investigate it. Depending on the conduct, there have been prior incidents where the local police contacted the FBI to determine if the conduct is a hate crime, and if it is, whether it should be prosecuted by the District Attorney’s office or whether it rises to the level of federal jurisdiction. My key point is that when something happens on a campus, the students should feel comfortable enough to report it right away, there shouldn’t be any hesitation, and the authorities should immediately address it. I would anticipate that universities would also then inform the students; there should be accountability and transparency in the steps that the administration takes. The students should know that the school takes this seriously and that there’s no tolerance for that kind of behavior. While you were pursuing your career, what kinds of adversity did you face and is there any advice you would give minority students who are also facing adversity? Minority students need to realize that in different arenas, there will be individuals who have certain perceptions of them—certain stereotypes. I’ve experienced that, not only because I am Latina but also because I am a woman. People have perceptions of what our capabilities are, what our work ethic is, and how ambitious and driven we are. And you cannot allow those perceptions to define you or limit you. You have to work very, very hard to overcome stereotypes and to make your mark, but at the end of the day it is through your work, and the kind of person you are—your ability to be a team player and to be engaged—that’ll define who you are. When you first get hired, they might see an African American or a Latina. When I was sworn in as US Attorney, it was a big deal that I was the first woman and the first Hispanic United States Attorney, but I said in my swearing in ceremony:
I’m not going to be defined by that. At the end of the day, I will be defined by the work this office does, pursuant to my leadership. What do you think is the greatest obstacle you’ve had to overcome to get to where you are? It was a personal obstacle, not a professional one. Twenty years ago, when I was an Assistant District Attorney, I thought that I had it all. I was trying homicide cases, I was married, I’d just had my second daughter, I lived in a beautiful home. I had achieved the success that I thought I had wanted. And then my husband became very ill, and he battled cancer for eight years, and then he passed away twelve years ago. That situation was the most challenging that I’ve faced in my life, and I had to raise my daughters on my own. I wasn’t sure what direction my career would take, but with support and a lot of love, I raised my daughters, and here I am in this position and doing work that I really love. What kind of advice do you have for students who are interested in law? When you’re in school, talk to lawyers, work with lawyers, engage with them to learn as much about law as you can. There’s criminal law, civil litigation, commercial litigation, real estate practice—a lot of different things you can do as a lawyer, and not just as a litigator. You can do transactional work, you can teach, you can become a judge. Find out as much as you can about the legal profession and get as much experience as you can. Find out if it’s something you enjoy doing, and if it’s something that’ll challenge, motivate, and inspire you. And work hard, regardless of what you’re majoring in now. I also tell students not to just work hard and make an impression, but to make connections, forge relationships, and nurture those relationships. Stay in touch with the people that you meet along the way; they can become referrals and recommendations, and more importantly, they can become your friends, and help you during tough times, and in good times as well.
Williams College Law Journal
Becky Tseytkin And I have a final question. I know this is a sensitive and difficult issue to talk about, but how is your office dealing with the public’s response to the Aaron Swartz case? This is a very difficult time, for myself and for the office as well, and especially for the prosecutors who handled the Swartz case. It’s terrible that this tragedy occurred, and there has been some misinformation about a number of different factors in the case that I really can’t get into. But I also think that we did handle it appropriately and reasonably based on all the information that we had along the way. But my heart goes out to his family and the people who were close to him.
Issue II, Volume II
Reclaiming Rights Indigenous Peoples and State Sovereignty By Kate Fetrow Bates College
Abstract Indigenous peoples have long faced oppression by western liberal democracies which are ostentatiously committed to self-determination and human rights. Yet indigenous rights pose a fundamental challenge to the sovereignty of these states. When and why, therefore, do states cede sovereignty to indigenous peoples? There are two approaches to answering this question in the existing literature: normative and strategic. The normative approach holds that states are motivated by the rightness of a claim, while the strategic approach holds that states cede sovereignty when pressured to do so by NGO networks and the international community. Through a case study of the United States from the 1970s onward, I evaluate these approaches, arguing that neither approach explains why states cede sovereignty to indigenous peoples. In doing so, I propose a new model for understanding indigenous sovereignty claims’ successes or failures: states cede sovereignty to indigenous peoples when doing so advances broader governmental aims. It is by pursuing a strategy of alignment, therefore, that indigenous peoples are most likely to be successful in their sovereignty goals. Who and Why: Terms and Approaches There are two approaches in the field of human rights and state power to answering when and why states cede sovereignty to indigenous peoples: a normative approach and a strategic approach. Before evaluating the approaches, I will briefly explain two central terms: indigenous peoples and sovereignty.
The diversity of indigenous peoples makes a blanket statement about the probability of indigenous success in rights and autonomy extremely difficult. An attempt to do so, therefore, must be broad enough to account for the differences of the groups that we consider ‘indigenous’. Ronald Niezen compellingly argues that indigenism “refers to a primordial identity, to people with primary attachments to land and culture, ‘traditional’ people with lasting connections to a way of life that have survived ‘from time immemorial.’”1 Perry further emphasizes a lasting connection to bygone eras, arguing that “the term ‘indigenous peoples’ refers… to local populations that existed in place before a state system incorporated them.”2 Another key aspect is the fullness and completeness of the way of life. Will Kymlicka refers to this quality as societal culture. A societal culture is a culture “whose practices and institutions cover the full range of human activities, encompassing both public and private life.”3 This definition, he argues, covers indigenous groups, but would exclude immigrant groups and other ethnic groups, as discussed below.4 Indigenous, therefore, signifies a long-standing way of life, complete in its breadth, and continuous for many generations. Additionally, indigenous peoples must themselves identify as such: “[Indigenism] is not only a legal category and an analytical concept but also an expression of identity, a badge worn with pride, revealing something significant and personal about its wearer’s collective attachments.”5 In order for a group to be indigenous, the members of that group must identify as indigenous, and in doing so, establish themselves as a distinct people with a distinct societal culture.
Niezen, Ronald. The Origins of Indigenism: Human Rights and the Politics of Identity. (Berkeley: University of California Press, 2003), 3. Perry, Richard J. …From Time Immemorial (Texas: University of Texas Press, 1996), 8. 3 Kymlicka, William. Multicultural Citizenship. (Oxford: Oxford University Press, 1995), 75. 4 Ibid 101. 5 Niezen, 3. 1 2
Williams College Law Journal
Kate Fetrow The final key aspect of indigeneity is that indigenous peoples should be conceptualized in the context of these historical injustices, and their implications on the current situations of indigenous peoples must be evaluated. This history of oppression manifests itself such that even today “indigenous groups still typically constitute economically disadvantageous numerical minorities… This condition is one of political vulnerability.”6 Thus, in understanding and evaluating indigenous struggles in light of the sovereignty of the state, it must be understand that this relationship is not one of equals, but of a disadvantaged and historically oppressed minority challenging the more powerful state actor. Of course, ‘indigenous’ must be a comparative term. Indigenous peoples, in order to be understood and analyzed as a separate and unique entity, must be meaningfully different than other ethnic groups. It is an easy and common mistake to group indigenous peoples with other ethnic minorities, recategorizing (and miscategorizing) indigenous peoples as merely another ethnic group. Indigenous peoples are different than ethnic groups principally in that they have different values and goals. Ethnic groups traditionally desire equality of treatment and social equity, “to integrate into the larger society, and be accepted as full members of it.”7 As societies recognize and respond to these demands, ethnic groups are treated more equally. Paradigmatic of this type of ethnic inclusion is the case of AfricanAmericans in the United States as represented by the case of Brown v. Board of Education (1954). For African-Americans, separate public schooling facilities were inherently unequal, because they treated like people in unlike ways. The laudable results of Brown were inclusion, social equality, and cohesion, rather than separation: “The natural extension of this case, therefore, was to remove
the separate status of minority cultures, and encourage their equal participation in mainstream society.”8 However, while ethnic minorities want equal treatment and inclusion, indigenous groups typically value separation and cultural autonomy, even sometimes seeking “to become a separate and
“When societies attempt to reduce indigenous peoples to ethnic groups like any other, they perpetuate a belief that indigenouse culture is inferior and unworthy of protection.” self-governing nation alongside the larger society.”9 Considering indigenous peoples functionally equivalent to any other ethnic group perpetuates historical injustices, because “Indians have often been pressured to become ‘just another ethnic group’, but they have resisted that pressure and fought to protect their distinct status…Indians are indeed subject to racism, but the racism they are most concerned with is the racist denials that they are distinct peoples with their own cultures and communities.”10 While ethnic groups suffer racism insofar as they are treated as not worthy of equal treatment and equal participation in society, the root of racism against indigenous peoples is not that they are seen as unworthy of assimilation, but rather that their culture is ‘inferior’, ‘savage’, or ‘primitive’, and therefore they must be assimilated into mainstream Anglophone culture.11 When societies attempt to reduce indigenous peoples to ethnic groups like any other, they perpetuate a belief that indigenous culture is inferior and unworthy of protection. Thus, while ethnic groups often value inclusion and equal treatment, indigenous groups value autonomy. Indigenous peoples “assert
Anaya, S. James. Indigenous Peoples in International Law, Second Edition. (Oxford: Oxford University Press, Oxford 2003), 152. Kymlicka,10-11. 8 Ibid., 59. 9 Ibid., 11. 10 Ibid., 65. 11 Niezen.117. 6 7
Issue 2, Volume 2
Reclaiming Rights rights to self-government and self-determination [that] makes their legal and political goals distinct from those of other minorities.”12 I therefore take the term ‘indigenous’ to refer to an insular societal culture that with historical roots whose interests are fundamentally of culture preservation not integration.
“When indigenous groups claim self-governments or territorial rights, they indirectly challenge state sovereignty.” Further, in order to understand why a state would choose to voluntarily cede sovereignty to a minority indigenous group, what is meant by sovereignty must be clarified. There are two fundamental understandings: that it is zero-sum and that it is win-win. If it is win-win, then there is no reason to suppose that states would not grant rights to indigenous peoples when indigenous peoples ask for them. However, if sovereignty is rather zero-sum—that is, when one actor gains sovereignty, it necessarily at the cost of a loss of sovereignty for another actor—then states may have the motivation to prevent indigenous sovereignty claims in order to preserve their sovereignty. When I refer to sovereignty, I refer not to the power of a state to prevent other states from interfering in internal issues, but rather the ability of governments to control and regulate activity within their own borders or in their jurisdiction.13 In order for a state to be legitimate, that is, have a right to exist and be a valid institution to make and enforce laws, the state must retain sovereignty.
Seen in this light, then, domestic sovereignty must be understood as zero-sum insofar as when one group gains the ability to make binding decisions and control the actions of others, others lose that ability. As Benedict Anderson argues, “sovereignty is fully, flatly, and evenly operative over each square centimeter of a legally demarcated territory.”14 When indigenous groups claim selfgovernments or territorial rights, thus, they directly challenge state sovereignty. If the state’s sovereignty is demarcated by control over the entirety of the area within its borders, then sovereignty is zerosum. In other words, in order for the state to have control over an area, another group cannot. Thus, “the modern state claims totalized territorial sovereignty, not jurisdictional rule.”15 Conversely, when another group gains sovereignty claims to an area, or over a population living within a state’s borders, the state’s sovereignty is eroded. Moreover, the territorial nature of indigenous claims challenges the state. The primary aims of most indigenous movements are land rights, self-determination and recognition.16 For many indigenous groups, “indigenous identity is closely tied to place.”17 Because indigenous claims often involve particular areas of land, the state stands to directly lose control over a territory, and territorial control is essential to state sovereignty.18 Therefore, “the apparent decoupling of law from territorial state suggests to many that the latter has lost legal as well as political sovereignty.”19 Since indigenous peoples’ claims encourage and even necessitate such decoupling, they result in loss of state sovereignty, a result that states would rather avoid. Thus, indigenous peoples face a steep uphill battle in having their claims recognized.
Blackburn, Carole. “Differentiating indigenous citizenship: Seeking multiplicity of rights, identity, and sovereignty in Canada.” American Ethnologist 36(2009): 66-78, 75. 13 Ibid., 231. 14 Anderson, Benedict. Imagined Communities: Reflections on the Origin and Spread of Nationalism. Rev. Edition. (London: Verso. 19, 1991 ). 15 Biolsi, Thomas. Imagined geographies: Sovereignty, indigenous space, and American Indian Struggle. American Ethnologist 32. (2005):239259. 240. 16 Pieck, Sonja K. “Opportunities for transnational indigenous eco-politics: the changing landscape in the new millennium.” Global Networks (2006): 309-329. 322; Hodgson, Dorothy L. Being. 17 Pieck, 322. 18 Blackburn; Biolsi. 19 Cohen, Jean L. “Whose Sovereignty? Empire Versus International Law”. Ethics and International Affairs 18 (2004): 1. 12
Williams College Law Journal
Kate Fetrow With these terms in mind, we may ask: when do states yield sovereignty to indigenous groups when it comes at the expense of the sovereignty and long-term goals of the state? This question, while not specifically answered by the existing literature, transects literature from several different topics. I will answer this question in light of two different approaches that underlie the relevant literature: a normative approach and a strategic approach. The normative approach, advocated by Seyla Benhabib, Ronald Niezen, Will Kymlicka, and S. James Anaya, argues that liberal governments acquiesce to indigenous rights claims because of the inherent justice and morality of the claim. The basis for this claim is the idea that democratic governments are based on ideals of self-government and self-actualization that, in the case of indigenous peoples, require certain types of limitations of government involvement. Thus, even though granting the right to self-government and autonomy for indigenous peoples weakens the institutions, the ends of a democratic state are better realized. Will Kymlicka contends that “a liberal democracy’s most basic commitment is to the freedom and equality of its citizens.”20 For Kymlicka, and others in the normative school, the question of why a state would cede sovereignty to indigenous groups that have legitimate claims (in a conception of individual or minority rights) to self-determination, is that is the normatively right thing to do. In fact, most scholars who take the normative approach assume this morality calculus by the state, and devote more time to understanding when, how, or why a claim may be legitimate, rather than asking why legitimate claims may be recognized in the first place.21 Kymlicka argues that indigenous rights, which he conceives of as a type of minority rights, are legitimate, and therefore “unavoidable.”22 Thus, he argues that because something is right, it will happen. Governments are thus to be understood as motivated to preserve indigenous rights, and grant
claims even when they clash with state sovereignty precisely because the claims have legitimate moral merit. Thought normative scholars are not blind to other political factors—Ronald Niezen accepts the process of sovereignty shifts as “uncomfortable”— maintains that normative claims hold more weight, and are ultimately the deciding factor for a government’s action regarding indigenous peoples.23 The normative answer to why states cede sovereignty to indigenous groups is thus: because it is the right thing to do, because it is just, and because it ought be done.
“When indigenous groups claim self-governments or territorial rights, they indirectly challenge state sovereignty.” The strategic approach, on the other hand, argues that states yield to indigenous demands not because of the intrinsically compelling nature of the demands, or because of lofty notions of what a liberal democracy ought to do, but rather because of pressure exerted upon them by international actors. These international movements exert pressure through power over institutions or by influencing popular opinion, and force the hand of the government, rather than compelling the government through the correctness and intrinsic justice of the idea. The core assumption in the strategic approach is that “democratic governments respond to what they think the constituency want, so the only way to effect any lasting change is to change peoples’ minds on the street.”24 Unlike a normative approach, the strategic approach rejects the idea that governments can be swayed by rights claims alone. Thus, indigenous peoples’ “goal is to change the behavior of states and international organizations…they ‘frame’ issues to make them
Kymlicka, 34. See Kymlicka 1995; Benhabib, Seyla. The Rights of Others: Aliens, Residents, Citizens. (Cambridge: Cambridge University Press: 2004). 22 Kymlicka, 6. 23 Niezen, 116. 24 Venkateswar, Sita. The Politics of Indigeneity: Dialogues and Reflections on Indigenous Activism. (London: Zed, 2001), 200. 20 21
Issue 2, Volume 2
Reclaiming Rights comprehensible to target audiences, to attract attention and encourage action, and to ‘fit’ with favorable institutional venues.”25
“...governments are inherently unmoved by indigenous rights claims, preferring an overall policy of ethnic assimilation, rather than maintaining diversity.” Moreover, the strategic model posits that governments are inherently unmoved by indigenous rights claims, preferring an overall policy of ethnic assimilation, rather than maintaining diversity, and are only swayed from this course when public pressure demands changes.26 To accommodate these motivational barriers, the strategic model holds that indigenous activists should participate in advocacy networks in order “to generate and use information” that can be focused at populations, rather than at the government directly.27 By voicing their claims to people, instead of just to government agencies, thus, indigenous peoples are more likely to achieve their national goals. Therefore, advocacy networks and NGOs are useful for indigenous peoples to achieve their desired social changes is through international mobilization. This branch of the strategic approach contends that by reaching out to other advocates abroad, indigenous groups can create a ‘boomerang’ effect which amplifies their voice and power in achieving their policy aims. This creates pressure
on international bodies, through which indigenous groups can influence national governments. Thus, by allying with other groups, a group can expand its voice by joining its resources and knowledge with others, benefiting both parties.28 These approaches can be applied and tested in the particular case of the contiguous United States. The United States is a compelling example because it is a liberal democracy with a legacy of indigenous oppression and a population of indigenous peoples that makes sovereignty demands emphasize sovereignty rights and self-determination. In chapter 3, I analyze different branches to provide a nuanced and complete picture of state motivation and incentives regarding indigenous sovereignty rights. Our Land; Their Land: A Case Study of Indian Sovereignty in the United States The US Census Bureau calculates that while there are over 314 million people living in the United States, only 1.9 million of them are indigenous, just 0.06% of the population.29 Despite their electoral weakness, American Indian tribes have, since the 1970s, changed position in legal discourse from subjects, annoyances to governmental agendas who could be easily shunted aside or removed, to actors with rights to self-determination and autonomy.30 This means that indigenous peoples in the United States have sometimes been held to different legal standards with different legal rights than other citizens, seemingly contradicting the deeply held idea of equality under the law that permeates American legal discourse. Understanding this paradox requires analysis of legislative and judicial action.31 While
Keck, Maragaret E, Cathryn Sikkink. Activists Beyond Borders: Advocacy Networks in International Politics. (Cornell: Cornell University Press: 1998), 3. 26 Maybury-Lewis, David. “Indigenous Peoples, Ethnic Groups, and the States”. (Boston: Pearson Education Group, 2002). 27 Keck and Sikkink., 147. 28 Ibid., 36. 29 “US & World Population Clock.” Census Bureau. December 3 2012. http://www.census.gov/main /www/popclock.html; “Indian Affairs | Who We Are.” Indian Affairs | Home. http://www.bia.gov/WhoWeAre/index.htm. 30 Robert N Clinton. “Isolated in Their Own Country: A Defense of Federal Protection of Indian Autonomy and Self-Government”. Stanford Law Review 33(1981): 979-1068, 982. 31 I set aside the issue of Executive action, in order to focus on the legislative and judicial because in understanding ‘government’ actions, looking at only judicial and legislative allows contrast between the most directly elected branch (the legislative) and the least directly elected (the legislature). In so doing, I can achieve a more nuanced understanding of both actors within the scope of this project. I set aside the motivations and actions of the executive, therefore, as beyond my scope, except when directly relevant to the actions of the judiciary or legislature. 25
Williams College Law Journal
Kate Fetrow the legislature responds nominally to claims of injustice, they fail to act in any meaningful sense to strengthen indigenous sovereignty claims. The judiciary is even more extreme, dealing with Indian cases only when they are useful conduits for other issues that are important to the Justices. When there are no external justifications for judicial involvement in Indian cases, the Justices are generally actively hostile. Thus, the United States cedes sovereignty to Native Americans incidentally, only when larger goals require it, rather than as an intentional end.
“When there are no external justifications for judicial involvement in Indian cases, the Justices are generally actively hostile.” Legislative Motivation Congressional motivation comes from both electoral and institutional pressures.32 The first and most persuasive motivation is the desire for reelection. In fact, David Mayhew has argued that “virtually every facet of congressional organization can be understood in terms of members’ shared reelection goals.”33 Thus, in evaluating congressional action for congressional motivation, we must look at the electoral interests at play. If Congress is motivated in issues of Native Americans the same way it is motivated around other causes, there should be a tendency for Native American policy to be most championed by representatives from states with larger indigenous populations. As I demonstrate below, this is the case. Thus, Congress is motivated by strategic electoral concerns in the
case of indigenous policy. The other unified motivating factor for congressional decision-making “consists of broad, institutional interests that also may unite all members: bolstering the capacity, power, and prestige of their chamber or of Congress as a whole.”34 In creating Indian policy, therefore, members of Congress are motivated to preserve their own power by retaining their plenary power at the expense of Indian sovereignty. Indian sovereignty is a threat to the scope of Congressional reach, and thus to congressional sovereignty. Thus, Congress is dis-incentivized to promote indigenous rights. Consider the case of the Native American Housing Assistance and Self-Determination Reauthorization Act (NAHASDA). In 2002, the Senate voted to pass NAHASDA, which “strengthen[ed] federal housing assistance for tribal communities” by providing “block grants to Indian tribes…for affordable housing activities … and homeless programs.”35 During the floor discussion, the Democratic Senator from South Dakota Tim Johnson used normative rhetoric to promote the bill, arguing that NAHASDA “helps to meet the goal of self-determination for Indian tribes.”36 Yet, despite the lofty rhetoric of his introductory statements, the main thrust of his argumentation for the bill’s reauthorization is rather in his statistical depiction of the poverty of the Indians, rather than self-determination rights.37 By focusing on poverty alleviation, Johnson indicates that the fact that these actions would represent a step forward in indigenous self-determination and sovereignty is peripheral. However, Johnson’s website asserts that “each of the tribes in South Dakota entered treaties with the federal government guaranteeing certain rights and responsibilities.”38 Here, unlike in his
I use unified here to exclude discussions of motivations that divide Congress such as parties or policy-based interests. For the purpose of my discussion, I refer to Congress as a unified actor. See: Eric Schickler. Disjointed Pluralism: Institutional Innovation and the Development of the U.S. Congress. (Princeton: Princeton University Press, 2001). 33 Shickler, 5. (See also: Mayhew, David R. Congress: The Electoral Connection. New Haven: Yale University Press, 1974). 34 Ibid., 5. 35 “Congressional Record, Volume 148 Issue 129 (Friday, October 4, 2002).” U.S. Government Printing Office Home Page. <http://www. gpo.gov/fdsys/pkg/CREC-2002-10-04/html/CREC-2002-10-04-pt1-PgS9997.htm>. 36 Ibid. 37 Ibid. 38 Johnson, Tim. “American Indian Affairs - Issue Statements - U.S. Senator Tim Johnson.” U.S. Senator Tim Johnson. 31 Oct. 2012. http://www.johnson.senate.gov/public/index. cfm?p=AmericanIndianAffairs. 32
Issue 2, Volume 2
Reclaiming Rights speech, self-determination rights for indigenous people are prominent. There are two possible motivations for this rhetoric: that it is an honest representation of Senator Johnson’s motivations around issues of indigenous autonomy, and that it is a rhetorically persuasive face for a different agenda. If his motivations are different from the rhetoric of self-determination he uses, then he is reacting to what he believes his constituents will find appealing. This explanation makes sense in light of census data for South Dakota. In 2000, just two years before Johnson passed NAHASDA, the Indian population in South Dakota was 8.3% of the general population, over one hundred and thirty eight times the ratio of Indians to non-Indians in the entire United States.39 Electoral pressures, then, provide a partial explanation of why Congress acts in favor of indigenous sovereignty at times. However, this picture is incomplete. While it is understandable that Johnson would be moved by electoral pressures in his home state to enact proindigenous sovereignty legislation, it does not fully explain his use of the rhetoric of sovereignty. Take, as an example, the discussion of Indian sovereign immunity that occurred in the Senate in 1996 during a discussion of tribal immunity, the inability of Native American Tribes to be sued: [Senator Daniel K.] Inouye asked: Mr. [Robert T.] Anderson, would you agree that an integral part of the Federal Government’s trust responsibility to the tribes is to protect their sovereignty…? Anderson replied: Yes; I would, Mr. Chairman…it’s critical that tribal immunity be preserved.40 This direct exchange indicates that there is at least some measure of true belief in the justice or rightness of Indian sovereignty. Thus, these members
of Congress demonstrate that there is at least some level of normative and strategic motivation in the preservation and perpetuation of Indian sovereignty rights.
“Congressional action around indigenous rights claims focuses on Indian rights that do not link to sovereignty rights.” Yet Congress’s willingness to yield to electoral and executive pressures and normative moral obligations stands in interesting contrast to their unique plenary power, which grants Congress the position as ultimate arbiter of how much sovereignty and self-determination indigenous peoples have. Plenary power is “exclusive, preemptive, absolute, and unlimited power…over tribes, their resources, and the field of Indian affairs.”41 It is also “the exclusive power of Congress.”42 As Thurman Less Hester puts it, “the power of Indian nations is neither supreme nor absolute if Congress has plenary power.”43 In fact, many scholars describe this plenary power as absolute.44 Congress has been unwilling, historically, to limit its own plenary power, even when they are faced with scholarly and political opposition to it.45 Thus, a pattern begins to emerge: Congressional action around indigenous rights claims focuses on Indian rights that do not link to sovereignty rights. In this way, Congress can placate the electorate and act in the way viewed as morally correct, without actually limiting its own power as result. Thus, beginning in the 1970s, Congress passed a series of acts aimed at recognizing the equal status of Indians, and easing the economic burdens on Native Americans, without
“American FactFinder - Results.”American FactFinder. <http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?src=bkmk>. 40 Quoted in Wilkins, David E., and K. Tsianina Lomawaima. Uneven ground: American Indian sovereignty and federal law. [Okla.: University of Oklahoma Press, 2001), 232-233. 41 Ibid., 99. 42 Ibid., 99. 43 Hester, Thurman Lee. Political Principles & Indian Sovereignty. (London: New York ; 2001), 94. 44 Wilkins and Lomawaima, 100. 45 Ibid, 112. 39
Williams College Law Journal
Kate Fetrow extending self-determination and self-government rights.46 Thus, we see acts such as the American Indian Religious Freedom Act, which “protected and preserved the right of American Indians to believe, express and exercise the traditional religions of the American Indian, the 1990 Native American Graves Protection and Repatriation Act and, most recently, NAHASDA.47 These acts, while advancing Indian rights, do not limit congressional plenary power, nor do they strengthen indigenous self-determination rights. In fact, “there has not been any truly antiIndian legislation enacted since 1994.”48 The actions of Congress clearly indicate that, though it is motivated by indigenous rights via strategic and normative claims, it is not so motivated that is willing to weaken its own power to do so. Therefore, Congress is moved by both strategic and normative claims, but ultimately fails to act in a meaningful sense to strengthen indigenous sovereignty rights, due to a congressional incentive structure which prioritizes congressional power over other motivations. Judicial Motivation In 1997, David Wilkins argued that while “Congress was at least attempting to address and resolve certain issues of importance to the…the Supreme Court seemed to focus on battering the constitutional rights of American citizenship to which American Indian individuals are entitled.”49 Indian policy, though often on the docket of the Supreme Court, is not seen as intrinsically valuable by that court. The Supreme Court is often indifferent, if not outright hostile, towards Indian claims, especially sovereignty claims, because these claims threaten the sovereign reach of the Court.
Justices on the Supreme Court can be motivated by a variety of factors. For the most part, modern political science rejects the traditional model of legal formalism, which holds that they are motivated purely by the text, arguing that Justices are people, and thus have personal and policy preferences that can influence and even dictate their decisions.50 This is especially true in regards to Indian law, because “since Indian law is not as grounded in the Constitution as other questions, it is more malleable; prone to inconsistencies and unpredictability.”51 Justices, who lack electoral concerns, are freer to act according to their own preferences. A more attitudinal model, therefore, is necessary to understand judicial motivations. The attitudinal model holds that “judges legal decisions are often motivated by [personal] policy concerns.”52 Thus, in understanding why Justices take Indian cases on their docket, and why they decide them in the way they do, we must bear in mind the policy goals and outcome preferences of the justices. Thus the Court does not assist Congress in furthering Indian rights.53 Rather than take Congress’s actions around Indian policy generously, “the more tribal interests affect states’ rights, mainstream values, or colorblind justice, the more explicit such tribal interests or rights will have to be delineated in congressional legislation.”54 This is exemplified by the state jurisdiction cases.55 For example, in Nevada v. Hicks  the court found unanimously that Indian tribes do not have jurisdiction over non-Indians on Indian Territory unless specifically delegated by Congress.56 Similarly, in the case of William Strate v. A-1 Contractors and Lyle Stockert , the Court
“Laws Reflect Changing Status of American Indians in U.S. History: http://iipdigital.usembassy.gov/st/english/article/2006/11/20061106163901bpuh0.5341455.html. 47 Ibid. 48 Skibine, 793. 49 David W. Wilkins. American Indian Sovereignty and the U.S. Supreme Court. (Austin: University of Texas Press: 1997), 238. 50 Holmes, Oliver Wendell. “The Theory of Legal Interpretation”. Harvard Law Review 12 (1899), 417-420. 51 Fletcher, Matthew L.M. “The Supreme Court’s Indian Problem.” Hastings Law Journal 59 (2008): 579-642, 580. 52 Geyh, Charles Gardner. What’s Law Got to Do with It?: What Judges Do, Why They Do It, and What’s at Stake. (Stanford: Stanford University Press: 2011), 26. 53 Wilkins and Lomawaima, 10. 54 Alex Tallchief Skibine, “Teaching Indian Law in an Anti-Tribal Era,” North Dakota Law Review, 82, no. 777 (2006): 776-794,787. 55 Ibid., 787. 56 Nevada v. Hicks. 533 U.S. 353, 121 S. Ct. 2304 (2001). 46
Issue 2, Volume 2
Reclaiming Rights held that “absent a statute or treaty authorizing the tribe to govern the conduct of nonmembers driving on the State’s highway, tribal courts may not exercise jurisdiction [over public highways].”57 In such cases, “it seems that the Court will not support tribal authority unless such authority has been…endorsed or at least acknowledged by Congress.”58 The Court, thus, narrowly interprets Congress’s actions to minimize Indian rights. Requiring an increasing amount of explicitness from Congress indicates that the Court is adverse to using federal common law in order to protect tribal interests.”59 This hostility is not a new phenomenon. Alex Skibine argues that “the anti-Indian majority [on the Supreme Court] on Indian issues [began] to gel in 1988, the year Justice Kennedy replaced Justice Powell.”60 Before 1988, the Court was not nearly as hostile towards Indian rights. “From 1968 to 1987, there were a total of seventyfive Indian cases decided by the Court …Tribal interest won forty-two of those cases, while losing twenty-eight.”61 Pre-1988, thus, indigenous causes won 56% of the cases they presented. However, “only forty-eight cases were decided in the next nineteen years…a substantial reduction…from the previous period. Of these most recent cases, tribal interests lost thirty-three while winning only eleven.”62 The decrease of number of Indian cases—a 64% decrease—on the Supreme Court docket indicates that Indian policy is less important to Justices, signifying a decreased concern for Indian rights more generally. Significantly, this means that Indian concerns won a paltry 22% of Indian law cases argued before the Court. More importantly, “of the thirty-three cases decided against the tribal position, it is significant that…the tribes lost all
the cases involving assertion of state jurisdiction inside Indian Country. The tribes also lost their attempts to sue states or countries, either because of state sovereignty immunity, or because they were not a person under federal statutes waiving such immunity.”63 Thus, while the Court reacts in a generally negative manner towards Indian rights, they are even more disinclined to accept claims of Indian sovereignty. Why, then, do Courts take on Indian cases, if the justices appear indifferent to Indian rights claims? One possibility is that the Supreme Court takes Indian cases into its docket because “the Court identifies an important constitutional concern embedded in a run-of-the-mill Indian law certiorari petition…and then applies its decision making discretion to decide the ‘important’ constitutional concern. Once that portion of Indian law case is decided, the Court decides any remaining federal Indian law questions in order to reach a result consistent with its decision on the important constitutional concern.”64 The Supreme Court, thus, views Indian law not as having merit in its own right, but rather as a conduit through which to address other issues of personal or policy importance to the justices. The result is that “tribal interests are…being subrogated to many other interests than just an interest in protecting states rights, mainstream values, and colorblind justice.”65 This is especially true in cases of tribal sovereignty, because Justices are concerned about their sphere of influence and jurisdiction. Justices seek power for their branch of government. This much is clear from the existence and utilization of judicial review. By exercising judicial review over the statutes of the other branches and of the states, the Court demonstrates its desire to maintain its
William Strate v. A1 Contractors and Lyle Stockert. 520 U.S. 438117 S.Ct. 1404137 L.Ed.2d 661 2012. Skibine, 787. 59 Ibid., 788. 60 Ibid., 779. 61 Ibid 780. 62 Four cases—Lincoln v. Vigil , Wyoming v. United States , California v. United States  and Oregon v. Smith — Skibine classifies as neutral, for either remanding the case to a state court, or not releasing a decision. 63 Skibine, 781. 64 Fletcher, 850. 65 Skibine, 787. 57 58
Williams College Law Journal
Kate Fetrow sphere of influence.66 Indian sovereignty threatens this sphere of influence, as it has the potential to limit the cases over which the Court has jurisdiction. In other words, when a tribe gains sovereignty over an area of law or land, the Court accordingly loses control. In these cases, the Court is actively hostile towards Indian causes.67
“With Congress and the Court unwilling to accept Indian sovereignty claims, why and how do Indian tribes gain sovereignty.” Consider, for example, the case of City of Sherrill v. Oneida Indian Nation of New York . The case dealt with “whether or not the Oneida nation had sovereignty over reacquired land within its historic reservation.”68 In Sherrill, the Oneida nation argued that “the nation’s inherent and treatysecured sovereignty over this land had never been disestablished by the federal government. Therefore, from the Oneida perspective…purchased….land …automatically came under the purview of the [Oneida] nation’s inherent sovereignty.”69 While the Circuit Court agreed with this argument, the Supreme Court found 8-1 that repurchase of traditionally tribal lands did not extend tribal sovereignty to those lands.70 They reached this decision “on the ground that the Oneida’s inherent sovereignty was stuck in what amounted to colonial time, and as its contemporary expression …was a threat to…good governance principles of America. As a consequence, the Oneida were deemed to be invading American political space, going beyond
delimited spatial boundaries in the construction and expression of their identity.”71 In essence, the Oneida were attempting to “rekindle embers of sovereignty that long ago grew cold.”72 This reasoning outraged the Oneida, and Indian scholars more generally because “the Oneida could not have acquired such property until the 1990s because, as victims of colonial rule, [they were] without resources to do so…Therefore, the Oneida’s deprivation from the imposition of American colonial rule was held against them when they sought to resist and recover from this very imposition…73 The Court was unwilling to rule in favor of the Oneida because it was unwilling to acknowledge that Indian sovereignty exists in a meaningful sense. Moreover, their equation of Indian sovereignty to a threat to ‘good governance principles in America’ implies that the Court offered better and more legitimate governance than the tribes. This indicates both their disdain for Indian rights as well as their concern for their own jurisdiction and scope. Sherrill v. Oneida demonstrates that the Court is unwilling to Supreme accept and support Indian sovereignty claims. Indian rights are far removed from the realm of issues that “arouse judicial libido,”74 and thus do not attract much attention from modern justices. When the Court does hear cases involving Indian rights, it usually finds against Indian interests, placing their policy preferences, personal priorities, and scope of judicial power first. U.S. Indian sovereignty, thus, is not attained through direct use of the Courts. With Congress and the Court unwilling to accept Indian sovereignty claims, why and how do Indian tribes gain sovereignty? When the government does cede sovereignty rights to indigenous groups, however, it is usually a byproduct of some larger
Waldron, Jeremy. “The Core of the Case Against Judicial Review.” Yale Law Journal 115 (2005-2006). Skibine, 785. 68 Bruyneel, Kevin. The Third Space of Sovereignty: The Post-Colonial Politics of U.S.-Indigenous Relations. (Minneapolis: University of Minnesota Press, 2007), 173. 69 Ibid., 207. 70 City of Sherrill v. Oneida Indian Nation of N.Y. (03-855) 544 U.S. 197 (2005). 71 Bruyneel, 208. Emphasis added. 72 City of Sherrill v. Oneida Indian Nation of New York , quoted in Bruyneel, 209. 73 Bruyneel, 209-210, quoting Robert Porter, quoted in “Supreme Court: Oneidas Too Late; Sherrill Declares Victory, Wants Taxes,” The Syracuse (New York) Post-Standard March 30, 2005, A1. 74 Fletcher, 579. 66 67
Issue 2, Volume 2
Reclaiming Rights goal, rather than through the intention of increasing Indian sovereignty. Through broader legislation, Indian tribes can incidentally gain sovereignty and control over territorial lands. Because of these subtle mechanisms, “tribal political power is perhaps stronger than ever.”75 This dynamic is exemplified through by the case of poverty in the 1970s, the environment in the 2000s. Poverty Historically, Indians in the United States have lived in astounding poverty. In 1950, the average income for an Indian household was a mere $6,755, compared with $9,010 for white households.76 In 1973, the life expectancy of an Indian living in the United States was almost ten years less than that of a white American.77 Native Americans have been able to use poverty legislation, most notably Lyndon Johnson’s “poverty in America,”78 which began in 1964, to both increase their socioeconomic status and the amount of sovereignty that the tribes possess. Johnson’s War of Poverty led to greater selfdetermination rights for Native Americans in the United States. In fact, “the self-determination era in Indian policy really began not as an independent policy initiative related to American Indians, but as a component of a much broader national initiative.”79 In 1964, Johnson began large-scale, sweeping social initiatives to reduce poverty in the United States, even creating the Office of Economic Opportunity (OEO), to further this end.80 A
fundamental premise of this initiative was that local groups were better equipped to understand and deal with the poverty in their specific area. This culminated in the Community Action Program (CAP), “which Congress charged with insuring that action programs be developed at the local level with public or nonprofit ‘community action’ agencies that were to be operated ‘with the maximum feasible participation of residents of the areas and members of the groups served.’”81 Indian tribes, though not the primary targets of the act, saw opportunity in this emphasis on local leadership. They “actively lobbied Congress…seeking to be included in the anti-poverty provisions.”82 Next, the tribes framed themselves as community action groups, so that the Bureau would allow them to gain control over the funds and programs in their areas, deeming them “better suited than the local governments to assist these impoverished areas.”83 The tribes went so far as to “downplay… their governmental authority and [present] themselves as community organizations so that they could meet the enlistment qualifications.”84 Indian tribes were able to increase the size of their grants from $3.6 million in 1965 to $20.1 million in 1967.85 This enabled them to gain autonomy from state and local governments both in terms of policy and fiscal control. In order for the continued functioning of the OEO, thus, tribes were elevated to the “equivalent of state or local governments.”86 This set the precedent for when, three years later, “tribes needed to be considered legitimate governments to
Washburn, Kevin. “Tribal Self-Determination at the Crossroads”. University of Minnesota Law School Legal Studies Research Paper Series 05-52 (2005), 5. 76 “The Socioeconomic Status of Native Americas: A Special Policy Problem.” University of Wisconsin-Madison Institute for Research on Poverty. 77 “Lone Pine Paiute leader: ‘health care advances yet to reach American Indians’ - Timeline - Native Voices.” National Library of Medicine - National Institutes of Health. http://www.nlm.nih.gov/nativevoices/timeline/623.html. 78 Johnson, Lyndon B. Annual Message to the Congress of the United States (Jan. 8, 1964). 79 Washburn, 11. 80 Ibid. 81 Ibid., 12 quoting Economic Opportunity Act of 1964 §202(b), Pub. L. No. 88-452, 78 Strat. 508 (1964). 82 Ibid. 83 Ibid., 13. 84 Ibid., 17. 85 Ibid., 13. 86 Ibid., 14. 75
Williams College Law Journal
Kate Fetrow retain direct access to OEO grants, Congress was willing to treat them as such.”87 The OEO helped Indians successfully claim sovereignty in other ways, as well. For example, “with OEO support, tribes became more politically organized, more sophisticated, and better able to demand that the BIA [Bureau of Indian Affairs] find ways to adopt self-determination policies…as a result of these early actions, tribes eventually obtained 638 contracts and self-governance compacts.”88 Through strategic use of the OEO and CAP, Indian tribes were able to increase their sovereignty, enabling “Indian tribes to become governments in a much more meaningful sense than before.89
“Congress accepted Indian sovereignty claims not because of electoral pressures, normative claims, or political pressure, but rather as an incidental byproduct of the larger institutional goal of alleviating poverty.” Indian self-determination did not develop as an intentional policy aim of the federal government. Instead, “the birth of tribal self determination lies in the fact that, as Indian policy, this policy developed incidentally and in spite of official federal Indian policy.”90 Congress accepted Indian sovereignty claims not because of electoral pressures, normative claims, or political pressure, but rather as an incidental byproduct of the larger institutional goal of alleviating poverty. It was through strategic usage of existing laws, thus, than Indians were able
to gain both fiscal power and, more importantly, sovereignty. This strategic mechanism, established by the War on Poverty and the creation of the OEO in the 1970s, was continued with the Clean Air Act reauthorization in 1990. Environment The Clean Air Act (CAA), originally passed in 1970, represented an important step forward in improving air quality in the United States.91 For Native Americans, though, the CAA did not have sovereignty implications until 1990, after they had built up their institutional, economic, and governmental capacity as a result of the OEO and the CAP that Indian tribes were able to use the environmental regulation statutes to gain sovereignty. When the CAA was originally passed in 1970, Indian tribes were not participants. There was “a noticeable absence of formal environmental regulation by Indian tribal governments for several reasons.”92 The most prevalent reason was that “when the issue of controlling pollution on Indian reservation arises, native nations, the federal government, and individual states all assert governing interests.”93 Because Indian tribes, by far the weakest actor in the power play among the federal government, states, and tribes, had no authority to assert their legitimacy as sovereign actors, they were overlooked in the 1970 act. Moreover, it was initially believed that “complex holdings of trust, fee, and government lands on Indian reservations [made] it difficult for states and tribes to agree on a uniform system for administration,” and thus Indians did not merit even partial authority over air regulations.94 Thirdly, due to historical congressional policy, which alternated “between the policies of
Ibid. Ibid., 16. 89 Ibid., 15. 90 Ibid. 91 “40th Anniversary | Clean Air Act | US EPA.” US Environmental Protection Agency. http://www.epa.gov/air/caa/40th.html>. 92 Smith, Patrick and Guenther, Jerry D. “Environmental Law: Protecting Clean Air: The Authority of Indian Governments to Regulate Airsheds.” American Indian Law Review 9 (1981): 83-119, 84. 93 Reding, Julie. “Controlling Blue Skies in Indian Country: Who Is the Air Quality Posse: Tribes or States? The Applicability of the Clean Air Act in Indian Country and on Oklahoma Tribal Lands.” American Indian Law Review 18 (1993): 161-190. 161. 94 Ibid., 24. 87 88
Issue 2, Volume 2
Reclaiming Rights assimilation/termination and self-determination,” tribal governments were “cautious about enacting environmental regulations.”95 Tribes, thus, were initially excluded from governance around environmental air protection issues. As tribes gained economic, organizational, and governmental strength as a result of the OEO and CAP, however, policy makers began to see them as a potentially useful tool in regulating air pollution, as they were in poverty alleviation programs. Thus, tribes became a useful mechanism to help Congress achieve its environmental goals. If tribes were to be given the ability to enforce the CAA and create air pollution limitations, however, they would need to be given more authority. Thus, in 1990, Congress passed an Amendment to the CAA that specified that “tribes … shall be treated in the same manner as States with respect to all provisions of the Clean Air Act and implementing regulations.”96 The Senate justified the amendments as “necessary to ensure that tribes will be allowed to fully participate in programs established by the Act as they take affirmative measures to manage, regulate, and protect air quality.”97 In essence, tribes needed this additional authority in order to make sure that air quality was protected and improved.98 In order to grant tribes this authority, however, Congress was obliged to give them the same status as state and local governments, making them sovereign governments in the same sense. As a result “the state [did] not have regulatory authority over tribal entities” over air quality concerns. “The 1990 Amendments direct[ed] the EPA to treat Indian tribes as states,”99 thereby giving tribes the same sovereignty as states. Thus, Congress’s decision to increase the amount of sovereignty that Indian tribes have was an incidental outcome of their larger goal of protecting air quality. Because of the organizational skills and sovereignty they gained
because of the OEO initiatives that tribes looked stronger, more governmentally legitimate, and thus more appealing to Congress as actors for protecting air quality. The ultimate result was an indirect and incidental increase in tribal sovereignty. Because tribes were seen as useful tools for a further goal— air protections—they were established as “generally the appropriate non-federal authority for setting standards and protecting the environment and public health in Indian country.”100 By building on the strength they took from strategic use of the OEO, thus, Indians were able appear as useful actors to Congress, and thus gain sovereignty because it was useful for Congress in furthering the larger congressional goal of improving air quality.
“Tribes became a useful mechanism to help Congress achieve its environmental goals.” Implications and Results The case study of the United States fits neatly with neither the strategic nor normative frameworks for understanding indigenous sovereignty rights. Instead of appealing to normative rightness to directly lobbying for change, Indian tribal leaders used laws already in place and framed their aims to fit or align with that law. In other words, they presented themselves as community groups in the case of the Community Action Program and the Office of Economic Opportunity, or as strong governmental regulatory bodies capable of enacting regulations, in the case of the Clean Air Act. These actions demonstrate that, instead of acting to force the government to recognize their voice, rights, and inherent sovereignty, tribes modified their behavior
Ibid., 84. “40 CFR 49.3 - General Tribal Clean Air Act authority.” Legal Information Institute. www.law.cornell.edu/cfr/text/40/49.3. 97 Reding,166. 98 “Clean Air Act enforced on tribal lands - The Western Front: News.” The Western Front: Get it first and get it right. http://www.westernfrontonline.net/news/article_a9fcfed3-83dc-5629-8282-d47c4e9deee8.html. 99 Reding, 168. 100 “Working Effectively With Tribal Governments.” US Environmental Protection Agency. http://www.epa.gov/Indian/wetg/training/ EPA/common/data/text-only/Old/epa01c.htm. 95 96
Williams College Law Journal
Kate Fetrow to fit with the preexisting aims and actions of the state. While these results cannot be taken as proof positive that the normative and strategic models do not apply in every context, they do indicate that neither model fully accounts for government motivation in the arena of Indian sovereignty rights claims. In short, neither answers the question of why liberal governments cede sovereignty to indigenous peoples. A more complete understanding must take into account the role of incidental results in explaining when and why indigenous peoples are successful in achieving their sovereignty aims. The main flaw with normative model, given the analysis I have provided, is that by framing their arguments around the normative claim of what a state ought do, normative scholars ignore the empirical realities of what states actually do. For example, Kymlicka argues that “the state must treat its citizens with equal respect.”101 Yet this claim does nothing to demonstrate how such a claim would have power over a government. A claim of ‘ought’ may compel academics and scholars, but not, as I have demonstrated, legislators and judges, who are concerned for their institutional strength and their own interests. Similarly, the strategic model fails to capture the real landscape of indigenous sovereignty claims’ successes or failures. While the strategic model correctly identifies that states are moved to action by political pressure, it errs in its understanding of the implications of this. Strategic theorists correctly contend that, “democratic governments respond to what they think the constituency want, so the only way to effect any lasting change is to change peoples’ minds on the street.”102 However, they are incorrect that this has extended to indigenous sovereignty rights, because there has not been a popular electoral push towards indigenous autonomy and self-determination. While other indigenous rights such as poverty alleviation or religious freedom may be supported at the ballot box, and thus
receive direct legislative solutions like the American Indian Religious Freedom Act, sovereignty has not occurred by popular demand, nor because of international pressure. The strategic model is thus rendered incorrect, or at least incomplete. The model that I have proposed here, that governments react strategically to preserve institutional strength, suggests a new and more useful way of answering the question of why liberal states cede sovereignty to indigenous peoples. These results have four primary implications. First, indigenous rights advocates must understand the distinctions between different institutions in government. As the case study demonstrates, government institutions react to different motivating factors. The U.S. Congress reacts to electoral and executive pressures around policy that directly affects indigenous policy. However, of greater importance to indigenous sovereignty are other, broader acts of legislation that may only incidentally increase the sovereignty of indigenous tribes. Second, my findings demonstrate that the United States Supreme Court cannot be used effectively by indigenous activists to advance indigenous sovereignty claims. As I have argued, the U.S. Court takes on Indian sovereignty cases to promote its own institutional interests. While courts have often been viewed as the protectors of minority rights, this is not the case for indigenous rights.103 Therefore, indigenous activists must carefully consider how their claims are perceived by the governmental institutions to which they are petitioning, not merely the normative rightness of their claims. In doing so, indigenous peoples are more likely to create successful strategies that will allow them to successfully promote their goals. Third, advocates must understand the importance of appealing to the public, rather than directly to the government. Because the government is responsive to electoral concerns, appealing directly to the government, especially the
Kymlicka, 116. Venkateswar,200. 103 See: Dahl, Robert A. “Decision-Making in a Democracy: The Supreme Court as a National Decision-Maker,” Emory Law Journal 50 (2001). 563-582; Klarman, Michael J. From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality. (Oxford: Oxford University Press: 2004). 101 102
Issue 2, Volume 2
Reclaiming Rights courts, is less likely to be effective than the indirect method of appealing to the public. As the example of NAHASDA demonstrates, politicians are more likely to propose pro-indigenous legislation when doing so will garner constituent support. In the case of NAHASDA, this was most likely because a larger proportion of South Dakota residents are of Indian descent, thus creating incentives for their representatives to advocate their claims in Congress. However, more broadly understood, if indigenous advocates could change the focus of the rhetoric of the normative literature to emphasize changing public opinion, rather than directly targeting the government, they may be able to use the power of electoral influence to create pro-indigenous policy. Fourth, there is a distinction between indigenous sovereignty rights and other types of indigenous rights such as socioeconomic or environmental rights. Liberal governments, exemplified by the United States, seem concerned with preserving and protecting non-sovereignty rights of indigenous peoples. When the rights at issue are civil or socioeconomic, the government seems much more likely to act directly to promote these rights. When pursuing non-sovereignty claims, thus, indigenous peoples may be more successful in harnessing the techniques advocated by the strategic modelâ€” NGO coalitions, public information campaigns, and direct lobbying to the government.104 On the other hand, when indigenous goals are those affiliated with self-determination, these strategies appear to be ineffective. More effective are strategies that align indigenous peoples with the goals of Congressional activity and governmental agencies.
However, it would be unwise to draw my conclusions with too broad a brush. The contiguous United States may be a unique case. However, if other liberal states react similarly, the lessons drawn from the United States may be able to be extrapolated to other liberal states. In order to test the theory that I advance here, I would identify Australia and Canada as similar types of cases.105 Given these similarities with the United States case, testing of the theory that I provide here that states cede sovereignty to indigenous people incidentally when it achieves a larger goal would be possible in both the Australian and Canadian contexts. Indigenous peoples have many goals for the upcoming decades. However, with regards to sovereignty rights, these strides cannot be made without first understanding governmental incentive structures. Indigenous activists, political scholars, and governmental policy makers can all draw upon my conclusions presented here to inform their scholarship, activism, and decision-making. My analysis, which demonstrates that sovereignty claims, unlike other types of rights claims, are achieved incidentally, informs such scholarship, activism, and policy decision-making. Indigenous sovereignty claims, arguably necessary to achieve indigenous cultural preservation and autonomy, are best achievable through alignment with existing goals. Using this strategy of alignment, indigenous groups are more likely to be successful in achieving their ends of autonomy and self-determination.
Anaya. Blackburn, 75; Havemann, Paul. Indigenous Peoplesâ€™ Rights in Australia, Canada, & New Zealand. (Oxford: Oxford University Press: 1999). 104 105
Williams College Law Journal