Lara Sucks
The following commentary on US v Lara was sent to Triballaw today with the following remark:
At last, somebody agrees with me...
Enjoy.
"Another Such Victory and We are Undone: A Call to an American Indian Declaration of Independence", Tulsa Law Journal, Vol. 40, 2005
BY: William C. Bradford, Indiana University School of Law
Document: Available from the SSRN Electronic Paper Collection:
http://papers.ssrn.com/paper.taf?abstract_id=589401
ABSTRACT:
U.S. v. Lara, hailed as a rare victory by proponents of Indian self-determination, is, under closer scrutiny, a Pyrrhic victory. Although the opinion upheld the essential power of Indian tribes to exercise criminal jurisdiction over non-member Indians, in so doing it granted opportunities and ammunition to opponents of the centuries-long struggle to defend what remains of Indian sovereignty against colonialism. Read with a jaundiced eye, Lara simply reaffirms contemporary judicial understandings of the doctrine of plenary power, long since remolded to connote not merely immunity from judicial review but rather absolute authority over Indian tribes, while telegraphing a message reminding readers that the radical readjustment of the metes and bounds of tribal sovereignty, to include the legislative disappearance of each and every Indian tribe and the abrogation of all four hundred plus Indian treaties, requires only that Congress choose to wield its unbridled legislative authority. If the right to make and enforce law is the most fundamental constituent of sovereignty, the sovereignty of Indian tribes, even post-Lara, survives at the sufferance of Congress, and history suggests that its future is grim.
Non-Indians, contemplating the political and legal enormity of the task of doing justice by the subjects of their policies of conquest, genocide, expropriation, legal assaults on tribal land and sovereignty, and forced political and economic dependency, have long bemoaned their Indian problem. At least it is a problem of their own making: Indians, by contrast, have been saddled with a Euro-American problem created, maintained, and, as Lara reveals, as yet unacknowledged by the political and legal system imposed and preserved by the might of the conqueror. Federal Indian law, not just willfully blind to crucial questions of agency and responsibility for past wrongs but often overtly racist, is the current instrument-of-choice whereby a non-Indian majority thwarts the assertion of sovereign tribal rights to engage in economic development projects resulting in the transborder movement of goods and persons, the production of significant wealth, or the expression of religious or cultural difference. Simply put, Lara, albeit a win for the good guys, offers nothing to contradict the lesson of more than two centuries of practice: federal Indian law, and in particular the doctrines of plenary power and stare decisis, is the thinnest of veneers for de facto rule over both tribes and individual Indians without restraint and across all manner of human affairs.
Even if federal Indian law was not already structurally incompatible with the self-determination of Indian nations and ready-made for exploitation by foes of sovereign governments within the external borders of the U.S., its interpretation, guided by the dominant philosophies of Western liberal jurisprudence and modern international legal positivism - the former distrustful of the Indian normative universe and thus bent upon remaking tribes to comport with a secular, individualist model of governance; the latter unwilling to recognize tribes as subjects of law and as bearers of natural legal rights actionable in domestic and international courts - would prove hostile, and perhaps fatal, to territorially-based Indian sovereignty. Even under the moderating influence of the most sympathetic members of the non-political branch, judicial review of questions of federal Indian law, on balance, has been an engine of the destruction of tribal self-determination since the founding of the United States. Plenary power and Indian sovereignty are mutually exclusive, and Lara only partially and temporarily obscures the existential reality that, for Indians, federal Indian law is an evil legal system. Rather than celebrate Lara, Indians should probe deeper and ask themselves how long before Congress fixes it and divests tribes of non-member Indian criminal jurisdiction, whether they intend to mount an effective defense against the last vestiges of their judicial sovereignty, what instruments of power - legal, political, and moral - they can marshal in support of this mission, and whether their right to self-determine can be meaningfully exercised in continued association with the United
States.
Part I of this Article briefly sketches the ongoing historical process whereby tribal sovereignty, once accorded great deference by the international community, has been incrementally denatured and corroded by federal Indian law. Part II situates Lara within this history and reframes the decision as a Pyrrhic victory for Indian tribal sovereignty. Part III defends the premise that federal Indian law and its interpretation and application in courts of the United States is an irremediably evil legal system utterly inconsistent with contemporary understandings of the natural right to self-determination. Part IV propounds an alternative legal theory, rooted in natural law and partly reflected in the international indigenous rights regime, that substantiates the right of Indian tribes to a quantum of self-determination incompatible with continued political association with the United States. Part V elaborates and defends an American Indian Declaration of Independence as the legitimate expression of the natural legal right of Indian peoples to self-determination and as a rejoinder to Lara and the philosophical and historical foundation upon which it rests. Finally, Part VI examines and rejects alternate proposals for the realization of Indian self-determination that stop short of secession.
VastLeft @ Corente offers you a tee that fails to be bipartisan and alarms the Villagers ...
Comments
In other words, SSDD, right? This is why political coalitions are important, and why it worthwhile developing them. No law, right or legal framework can forever be sheltered from the whims of the Legislature. This is why you need influence to see that your interests are either sheltered (moneyed big business) or at the very least considered in the councils of power (say like right wing evangelicalism, Southern Baptist style).
It's a problem being 6 of something and 1/2 dozen of another, but that strange 'middle ground' may hold a unique place in the law, and one that may not be easily resolved. I say the best hope may be for a few more 100 years of profound legal confusion and conundrum. It's a profound pardox of the law and has been for a very long time. Living within this paradox and letting it thrive may be the best approach for many different reasons. The most disastrous errors occurr within the framework of the received wisdom of a 'grand plan', driven by an unpleasant and inhumane ideology of one type or another. Legal fashions come and go, the people must stay and survive.
Posted by: VJ | October 1, 2004 03:09 AM
A vowel please, I've no idea what SSDD could mean.
Local leading women of color chose an elder white male with political tourettes ("all asians look alike", "we've all been hurt by the white man ... and the black man") and local party connections over a mid-life Indian woman with good policy creds and two decades of party work. So much for the value of Old-World women-of-color.
Elsewhere in Maine, the leading gay-lesbian group endorsed a straight white male republican over a non-straight Indian woman democrat. So much for the value of Old-World sexual non-discrimination.
Political coalition with the invaders probably means termination, independent of context.
Posted by: Eric | October 1, 2004 06:34 AM
"SSDD" = "same shit, different day."
Unless you were being sarcastic, Eric. Your sense of humor is sophisticated enough that sometimes I can't tell. :)
Posted by: Linnaeus | October 1, 2004 05:24 PM
I was pre-bitter-black-bean-water. Almost asleep.
Three years ago on TL we'd a long discussion on our theoretical frameworks. That kind of thing doesn't happen very often and it was rather interesting.
Posted by: Eric | October 1, 2004 05:47 PM
We all need to work the coalitions better. Create them, nuture them, & make them stick, and make the opposition expalin why they think they can do better. It's hard work, but hey, no one's shooting at you just yet.
Posted by: VJ | October 2, 2004 03:38 AM
So when GL00 sent their ED to Maine she came with the attitude that Tribes are interest groups. No minority group sided with the Two Tribes project for a casino (we opposed it too, but only because it was sited on Abenaki land, not theirs). The MDP has leadership overlap with Casinos NO!, and told the ED for KE04 that there are no Indians and they don't vote. So at D-30-something, KE04 is down 20k enthusiastic Indian votes -- the margin for GL00 -- because the MDP just doesn't need Indians for its purposes, and those trump the purposes of the DNC.
In state races, blacks and g/ls join the white MDP in keeping Indians out of the legislature. As for shooting us, well Harry Tomah lost his race by 500 votes, MB lost hers by 25, and Donna is going to loose too.
For those "progressives", colonialism pays. They are "progressive colonialists" and siding with them is just getting sucked into a civil war between Europeans over how they divide North America.
It appears from a dispassionate, Indian-centric analysis of Maine Indian politics, that it could be better, assuming that local non-Indian Democratic interests did not interpose, if KE04 carries the national election. However, as MDP dominates the Federal-Tribal relationship when the DNC holds the Federal Administration, Tribes do not win. Because of the unprincipled exploitive behavior of the MDP off-cycle and on-cycle, it does not appear to be in the interests of Tribal Governments to support the MDP.
If KE04 can carry Florida and Ohio, great. If they carry Maine, the value is greatly diminished, if not negative, for all five tribes.
Its nice on paper to want to be progressive and all, but as one Chief remarked, "Republicans leave us alone", and sovereignty is everything. It trumps over war and poverty and civil rights and awful Christianity.
Posted by: Eric | October 2, 2004 09:49 AM
Right, sounds as dysfunctional as any party I've heard of. I'm unclear on the position on the casino though. Is there a majority in favor of it, for it to be located differently or what? These are eminently resolvable issues that could be negotiated within the realm of local and state politics, but as you mentioned somehow are not being done by the MDP. This should have been a jobs issue for the region, why was it not sold as this? I don't claim to be a progressive. Living in the South disabuses one of any such hopeful but ultimately fantastic notions. I don't know how the MDP could 'dominate the Federal-Tribal relationship' because I'm not there. If they are frustrating the administration of Federal law or reg's they should be protested.
But again, the lens through which the MDP candidates *may* be viewing the situatiuon may be very prosaic and typically self centered & individualistic. You get knocked off one by one due to being not seen as a cohesive voting bloc or force. Now there are many, many reasons for this behavior and the usual outcomes. Where do black and GBL communities see their interests lie, and why? What are the members of the coalition doing about such issues and where does your community fit in?
If it is as you say that you are just on the outside looking in so why not vote Repug., do you have any other interests besides these, or do you simply want to take a stand and say, 'Basta!' I finally want 'x' (representation by a tribal member) and I'm willing to risk everything to see that it's done'?
It's my sense (admittedly a scarcely informed one) that despite a cohesive bloc of votes, ~20K, again despite being the probable margin of victory, it may just not reliable or cohesive enough for the big boys to pay attention to. Hence my thoughts on the necessary but ugly work of coalition building. Looking up from the bottom of the well, this might not seem like kind words, but it does happen all the time in other states with and other communities.
I'm mystified over the 'colonialism' argument. The modern day radical right wing Repug's would happily make the entire country subject to neo-colonialism via laws, rules and regulations, giving industry wholesale rights that individuals would no longer enjoy. Leave you alone? Hardly! This is not a game between Europeans vs. Natives. This is a game between humanity, hope and the future vs. the dark satanic *colonial* mills of the 18th-19th century. See Jack Balkin's comments on this book 'The Most Activist Supreme Court in History' by Thomas Keck (U Chicago Press). Where do you think your wider interests will lie with MORE Repug. Federal courts? Does this count for anything? Is there a calculus available to account for this impending disaster?
My advice would be to get the necessary backing to get into office. You're almost there. From there you can more easily build broader coalitions that will support your interests. You can imagine that this can be Repug., but there's really not much proof for this on a national basis, and those are the guys that will be making the laws that affect you and everyone else. The Federal administration is a mess and has been for quite sometime, again better representation might help that a bit. But it's my thought that the best we can hope for the near term is to muddle along somehow without too much damage being done.
Posted by: VJ | October 3, 2004 03:24 AM
Let me a bit more clear about the issue of the Federal courts. I'm willing to bet that within 5-10 years of a 2nd Bush term, a fully radicalized Republican Federal judiciary will see nothing inconsistent about negating and ending any and all forms of tribal sovereignty in law. The link to the Jack Balkin story on the USSC should appear above. [And no, that's not really my email either].
[http://balkin.blogspot.com/2004/09/republican-judicial-activism.html]
Posted by: VJ | October 3, 2004 03:39 AM