Spillover: Native Americans and U.S. Law

Response to Articles by Clemmer and Monette

Justin Richland

Richard Clemmer’s article and Richard Monette’s commentary on the vicissitudes of indigene-US relations further refine and elaborate a story of colonial dominion and resistance whose fundamental features resound across “Indian Country” — those spaces and places in the continental U.S. where native peoples engage each other as citizens of indigenous sovereign nations. In telling the ongoing story of Western Shoshone efforts to press their treaty rights, and the legal structures and practices by which the US argues that those claims were disposed of through the Indian Claims Commission process, Clemmer recounts a kind of “bait and switch” narrative regarding (1) what entity authoritatively represents the interests of the Western Shoshone; and (2) whether or not those interests are monetarily commensurable.  Clemmer’s narrative has robust parallels in the history of federal Indian relations among a number of tribes, including the Hopi, where both Clemmer and I have done extensive research. It is a story I imagine can be heard in a lot of tribal nations, and indeed is one that is heard in colonial contexts worldwide.

At Hopi, Oliver La Farge was sent by the BIA in 1936 to persuade the several historically autonomous Hopi-speaking pueblos in Northeastern Arizona to federate into a single Hopi tribe. His first contacts, and strongest support, came from the leadership of the easternmost villages of “First Mesa,” a group which, at least today, is understood as having always been particularly receptive to non-Hopi – including Navajo, Tewa, and even Spanish – modes of social organization and praxis. As he recounts in the journal he kept during his stay among the Hopi, the reception for the idea of a “Hopi tribe” was much cooler in the remaining Hopi villages, and on more than one occasion he was convinced the effort would fail.

As many, including Clemmer, have since written, the effort did indeed fail; the vast majority of Hopi eligible to vote on the passage of a Hopi tribal constitution never cast a vote – a response even La Farge rightly understood as Hopis voting with their feet against the referendum, and against the tribal representative organization it was meant to create. And yet, in his official reporting back to Washington, La Farge declared victory, counting only the votes actually cast, the majority of which were in favor of passage.

Though La Farge’s journal is silent on the reasoning behind his claiming victory, he does describe, in his final entry, how the US bears a certain responsibility to bring native communities along the road to progress, even if they are initially unwillingly, insofar as it is a road they never wanted, or asked for, but is one they are inevitably on now that Euro-Americans have settled among them. Significantly, when La Farge was asked by the BIA to prepare a second report on Hopi tribal government a decade or so later, when the Hopi Tribal Council was all but defunct, with no villages sending representatives, La Farge writes with some resignation that he should have anticipated how staunchly the Hopi would have resisted such re-organizing efforts. Indeed, though today the Hopi have a tribal council, several villages who originally opposed passage of the constitution continue to refuse to send representatives, and have never done so in the 70 plus years of its history.

Clemmer rightly points out that part of the problem has to do with the tribal imaginary* that informed the IRA and other aspects of the US side of the Federal-Indian relations. If BIA agents couldn’t see a “tribe” on the other side of the negotiation table, they had to make one with which to deal. When it turned out that no native nation in the US possessed all the requisite elements of the US’s tribal imaginary, it became very likely that the “bait and switch” that befell the Shoshone and Hopi would befall all such groups. Indeed, this may in fact be a problem of representation and identity in law generally, as Clemmer suggests through the invocation of the important contribution of Weissbourd and Mertz to our understanding of legal semiosis. Imagine how much more complex and alienating the problem of representation and representative politics becomes, then, when the peoples and systems of social organization being so affected have no history of the particular mode of representation being pushed on them by the settler administration (as in the cases of the Western Shoshone and the Hopi, but also in cases all over the world; see, for instance, the examples described by Sally Falk Moore in colonial Kenya).

Indeed, one can imagine how, in such circumstances, it can feel to members of those communities that they are fighting against not only the ill will of a few greedy technocrats, but rather against an entire legal and political apparatus that is organized systematically against their interests. And in such a light, it is perhaps a testament to Professor Monette’s patience, optimism, and fortitude, that for him and those he sometimes represents, the law still offers the potential for justice for Native peoples in the US.

Let me be clear. In my mind, to assume that the patience, optimism, and fortitude described in Monette’s piece, or evidenced in the political action of someone like Shoshone activist Carrie Dann, as pollyannish naivete, would also be wrong. For as Monette so aptly describes it, there is an underlying ambiguity to law as a mode of political ordering that in fact does keep it open as a tool to be deployed for the pressing of indigenous interests. And this too is part of its semiotic structure – the ways in which it requires prior legal principles to carry forward into the representation and application to present and future circumstances. That is, it has often been the case that the legal categories that in one sociopolitical moment in history are used to reify indigenous peoples and limit their rights – categories like “domestic dependant nation,” or “Indian Country” or even “tribe” – can in a later point in time become the categories by which they are able to make substantial gains. Though the Western Shoshone have yet to prevail on the claims that their Treaty rights have not been recognized nor abrograted by the federal government, other tribes — such as those who brought actions in the Winans and Winters cases described by Monette — have prevailed. Indeed, I think Monette’s insights on these matters are particularly apt when he explains that the pendulum swings that characterize Federal Indian Law over the years are not unique, in kind if not degree, but rather are characteristic “of the general processes [of law] that affect everyone.” It is also what he says should motivate indigenous peoples, and really all peoples, “to sit down, educate ourselves, understand it, use it to our advantage.”

In this sense, when read together these two pieces suggest something of a double vision of law as it relates to, and is seen by, indigenous peoples in the US. On the one hand, it can and does appear as something of a crabbed institution, leading us to ask — is it one whose inherent conservatism contributes significantly to the ongoing disenfranchisement of indigenous peoples, requiring them to perform a kind of “being Indian” that bears little resemblance to their actual lives? Or, on the other hand, is it a tool for the promotion and securing of indigenous interests as well?  Through its commitment to ostensibly objective principles, does US law keep open the possibility that its categories — for all their misapplication in one moment — can, at some later moment deliver justice?  In my own work with tribal nations and with those who are politically engaged in the promotion of indigenous rights — in the on-going story of the enduring presence of native nations in the US — the law figures in both ways, sometimes simultaneously. I certainly value the ways in which both Richard Clemmer and Richard Monette capture this double-vision of law in their pieces from this issue of the Political and Legal Anthropology Review . And I hope others will follow their fine example.


*EDITOR’S NOTE — Anthropologists use the word “imaginary” to describe cultural imagery that is widely shared in the imaginations of groups of people. For example, in this case Richland refers to the image of “tribes” that was shared by European Americans and the US government in their dealings with Native Americans – an image that rested in the imaginations of the group that controlled the legal system and drafted legislation, but that did not necessarily fit well with the images held by Native Americans themselves, nor with the actual patterns of their lives.

Return to Native Americans and U.S. Law Spillover Conversation