As I begin to write this my tribal election season is at hand. As usual, all the candidates claim to be traditional. This is claim easy to make and hard to disprove. What is traditional? We are now over half Christian, and more of us speak English than speak Cherokee. Many of the accoutrements of contemporary identity have roots in recent times: frybread, ribbon shirts, jingle dresses, powwows. On the other hand, some items of earlier provenance, such as blowguns and turbans, surprise some modern Cherokees. We date our first written laws from 1808. We have lived under series of written constitutions, the longest lasting those of 1839 and 1975. Is written law traditional? More to the point of this article, is the current Cherokee law of citizenship, race-based law like that of most American Indian tribes, traditional? I hope to show that the idea of is, in Partha Chatterjee's phrase describing nationalism, a derivative discourse. It is not only derived from European colonial discourse, but it has done and continues to do harm to Indian nations on scale similar to that of smallpox and measles. Pathogens are typically ranked by body count, and so my task here will be to demonstrate that race theory is an Old World pathogen that diminishes the numbers of American Indians on scale that invites comparison to guns, germs, and steel. It is perhaps instructive to read Chatterjee's words and substitute for nationalism:
'Adjustment' in health refers to both processes and outcomes. Its measurement and conceptualisation in African cultures is limited. In total, 263 people living with HIV and receiving anti-retroviral therapy in clinics in Uganda completed a translated Mental Adjustment to HIV Scale, depression items from the Hopkins checklist and demographic questions. Factor analysis revealed four Mental Adjustment to HIV factors of active coping, cognitive-social adjustment, hopelessness and denial/avoidance. Correlations with depression supported the Mental Adjustment to HIV's validity and the importance of active adjustment, while the role of cognitive adjustment was unclear. Factors were process or outcome focussed, suggesting a need for theory-based measures in general.
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Guatemala City, Guatemala. The police officers stand by the black truck with machine guns slung over their shoulders, casually glancing up and down the street, chewing gum and looking indifferent. The police escort, we’re assured, is just a routine precaution for any medical
One-Sided Interest Convergence:Indian Sovereignty in Organizing and Litigation Steve Russell (bio) and Terri Miles (bio) Introduction: Interest Convergence and Coalition Politics Civil Rights and Tribal Rights There is not much of consequence to contemporary Indians that does not begin with Vine Deloria Jr., and we might claim that the great man kicked off this discussion with his observations of how the aims of Indians differ radically from those of the mainstream civil rights movement.1 Writing in 1969, and sensitive to the role African American resistance to Jim Crow played in the rise of Indian resistance to our own indignities, Deloria nonetheless reminded us that framing U.S. race relations as a black and white issue would still leave Indians invisible.2 "Separate but equal," anathema to African Americans, with good reason, would please us greatly. Of course, we do not mean "separate but equal" in the Fourteenth Amendment sense and we have no more interest in sitting in the back of streetcars than African Americans do.3 Formal equality in the dominant culture is our right since we were involuntarily made U.S. citizens in 1924,4 and that includes sitting where we please, voting where we live, living where we wish, and holding down any job we can do—exactly the rights that concern African Americans. But the Fourteenth [End Page 7] Amendment is irrelevant to tribal Indians when they are not in contact with the dominant culture. Indians were only mentioned twice in the Constitution, once in the commerce clause and once to exclude "Indians not taxed" (unassimilated tribal Indians) from census counts for legislative apportionment purposes. Did this change with the Fourteenth Amendment? No, it did not. The "Indians not taxed" exclusion for apportionment purposes is continued in the language of the Fourteenth Amendment. To the extent that the U.S. Constitution represents a social contract,5 Indians are not parties. When Indians declare themselves separate but equal—meaning outside the dominant culture—they enter a political discourse that is contested from all directions. The U.S. government, or at least the judicial branch of it, has unilaterally declared Indian governments to represent "domestic, dependent nations,"6 a description at odds with equality. Even more important for our current status, "separate" means, if anything, that Indians can enjoy whatever privileges pertain to tribal citizenship to the exclusion of noncitizens. This is at odds with the ideal of the melting pot, assimilation in a color-blind society, and with the modern legal trend of using the equal protection clause of the Fourteenth Amendment as a sword to hack away at any advantage nonwhites have gained in law or policy. That our goals differ from those of African Americans and that the basis for our claims differ does not mean we can learn nothing from them about tactics or strategy. On the tactical level the occupation of Alcatraz "signaled a new era of Indigenous political mobilization"7 and is often cited as a bookmark for a modern generation of Indian activism.8 Recognizing the difference between taking over a lunch counter or an office versus an entire island, that tactic still can be traced directly to the mainstream civil rights movement. On the strategic level, Indians have yet to match the decades-long litigation assault on Plessy v. Ferguson,9 even though Indians have no shortage of worthy targets.10 African Americans have learned a lot we can use, and we would do well to pay special attention to Derrick Bell's theory of "interest convergence."11 Bell argues essentially that segregation's political death warrant was not really signed until white people, or at least a critical mass of white people, saw their interest in ending de jure segregation.12 A similar interest convergence was harder to generate around de facto segregation because policies to attack customs rather than laws had more personal impact on white people, and in that personal impact the civil rights movement bogged down. Formal equality for African Americans was politically cheap compared to busing for racial balance and affirmative action, where real white people might confront real sacrifice. The problem for African Americans became the same as it is for...
Sovereign Decisions:A Plan for Defeating Federal Review of Tribal Law Applications Judge Steve Russell (bio) Congress, Indian lawyers quickly learn, can do pretty much as it pleases with or to Indian nations, starting with unilateral treaty abrogation1 and continuing to the classification of Indians for legal purposes in a manner that would not pass equal protection scrutiny if applied to other minorities.2 Indians' unique status for equal protection purposes can be used to help Indians3 or to hurt them,4 and it flows from their status as the original political entities owning the dirt on which the United States rests. Without the sovereign status of Indian nations, and their ability to make land cession treaties, every land title on the continent would rest on nothing more than the willingness of colonists to remove the aboriginal inhabitants with fire and steel and the willingness of the current occupiers to claim the benefit of that savagery.5 So far, at least, the courts cling to the legal fig leaves woven by Chief Justice John Marshall6 that necessitate some recognition of Indian sovereignty. The average American citizen is ignorant of Indian history and the legal house of cards that Indian sovereignty supports. Sovereignty itself is an obscure concept in American education that most often draws notice in the form of sovereign immunity, an ancient legal doctrine that flows from the maxim "the king can do no wrong." The doctrine has survived kings in the rule that keeps citizens from suing the government without its permission. In the United States, three entities have sovereign immunity: the federal government, state governments, and federally recognized tribal governments. [End Page 65] Everybody hates sovereign immunity when it is brought to his or her attention, and therefore most nontribal governments routinely allow lawsuits over contracts they have entered and garden-variety tort claims such as auto accidents. If they did not, public outrage would probably have killed off the doctrine by now. The Magna Carta, after all, recognized that the king can in fact do wrong, and the American Revolution brought kings into further disrepute in the United States, where legitimate government is firmly believed in this day to derive from the consent of the governed rather than from God. Sovereign immunity on the federal and state levels is a legal anachronism that has survived by making itself invisible in daily life. Everybody hates sovereign immunity of tribal governments even more, because it is misunderstood as racially based and because tribes have handled it less well than states. C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of Oklahoma7 is a case from the 2000–2001 term of the Supreme Court that exemplifies tribal mishandling of sovereign immunity. The Potawatomi entered into a contract. After signing the contract but before work got started, the tribe came across additional information that made the contract appear to be unwise. A nongovernmental entity in that position would have to either go through with the unwise deal or "buy it out"—negotiate a settlement with the other party to get released. Since being a sovereign government means never having to say you are sorry, the Potawatomi simply broke the contract and told C & L Enterprises they were out of luck. When the vendor sued, the tribe claimed sovereign immunity. C & L Enterprises took the position that the arbitration clause in the contract bound the tribe to arbitrate the claim and bound the Oklahoma courts to enter a judgment based upon the arbitration award, because the agreement to arbitration was an implied waiver of sovereign immunity. This position put the Potawatomi in the crosshairs of two lines of recent Supreme Court law, one tending to uphold arbitration agreements and one tending to uphold state authority when it comes into contact with tribal (and often even federal) authority—the modern iteration of "states' rights." The Potawatomi originally could have gotten the product they wanted (rather than the one for which they contracted) from C & L Enterprises for $79,000. The tribe chose to break the contract and go with another contractor for $56,784. To save $22,216, the tribe decided to litigate. The original arbitration award...
Popular culture has presented a series of what Harlan Ellison might call dangerous visions wherein man's creations become his master. This trope is as old as speculative fiction, but The Matrix adds a new twist in that machines are able to project an alternate reality that hides the role reversal between the creators and the created. The marketocracy, government by transnational corporations, has projected just such an alternate reality, rendering the power of nation-states and the people they represent illusory. The problems become whether individuals and nation-states need to take the red pill and what that would mean for criminal justice policy.
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