Spillover: Native Americans and U.S. Law

Comment on Clemmer’s Article

Larry Nesper

I appreciate opportunity to comment on Richard O. Clemmer’s article on the different ways in which the agents of law and bureaucratic process sought to transform Western Shoshone understandings of themselves as well as Richard Monette’s extension of the arguments presented into the domain of the complexities of legal practice. At several points in the essay, the thought, “Why would we expect anything else?” struck me as I read of the improvisational unfolding of the law’s ordering, channeling, enabling, disabling, and commensurating functions in this case and the nature of the resistance to those very processes that we all actually expect of law. I wrote about a version of this in The Walleye War: The Struggle for Ojibwe Spearfishing and Treaty Rights (2002), an ethnography of the ways in which history and culture inevitably and variously underlay and inform contemporary indigenous political action. In that case, it was off-reservation hunting, fishing and gathering rights that had been explicitly reserved in treaties, then ignored for more than a century by state governments, then upheld in late 20th century court cases that were regarded by the Ojibwe who held them as “an incommensurable value not transmutable into money.” Not exactly land per se but de facto, land and water were at the very center of the case. Quite a number of mostly non-Indian people observing and participating in this political and social conflict—widely regarded as the most severe in the state of Wisconsin in the 1980s—were quite sure that it was really about money: Indian people were provoking non-Indians by exercising their “judge-created” rights in order to drive up the price of the inevitable citizen-bankrolled lease of the rights. Lease, in this case, being the means by which something that should have been lost–in the legal and social order underlain by this “ideology of loss”—is moved from the present and future into the past tense in the dominant society’s collective socio-historical imagination.

Most counter-intuitively, at least from the perspective of so many folks who think just about everything is ultimately “transmutable into money,” the tribal memberships of the only two bands hold referenda on the issue refused to follow their tribal government’s recommendation to them to lease their rights. Here my colleague Richard Monette’s analysis of the governments created by the Indian Reorganization Act is most salient. Holding “proprietary information,…act (ing) and talk (ing) and walk (ing) like private corporations,” they are well designed for commensurative undertakings wherein indigenous forms of wealth and property are transferred to settler control entailing unanticipated consequences for the indigenous body politic. Perhaps this is why so many unreformed IRA governments are currently so ineffective at actually governing and so indisposed to reform given the value of controlling the corporation for those fortunate enough to monopolize the exercise of power.

The conflict over treaty rights would be resolved by the early 1990s, in part through the efforts of the Great Lakes Indian Fish and Wildlife Commission, an eleven-tribe, inter-tribal natural resource management agency that effectively co-manages lands and waters in three states, with those states, so that meaningful treaty harvests on the parts of tribal members can take place. Rather unlike colonial political entities such as the Shoshonean “Te-Moak Bands Tribe,” GLIFWC was created by and exercises “delegated authority from its 11 member federally-recognized Ojibwe tribes in Wisconsin, Michigan and Minnesota.”[1] Perhaps not quite as enlightened as the Winters and Winans Supreme Court decisions, Congress’s PL-638 passed in 1975 and legislatively initiating the federal Indian policy era of self-determination is law that the tribes have been able to use for purposes of exercising their sovereignty.  Creating such an entity as GLIFWC is one rather consequential example of such an exercise. And there have been others.

Richard Clemmer writes of presumptive sovereignty in his opening vignette about “buckarooing” and encountering ancestral spirits. Richard Monette writes of counseling the Eastern Band of Cherokees to assert that the collective is the source of law as, he writes, “(t)hey came to the table with full sovereignty when making treaties.” In addition to the actual exercise of retained treaty rights, these same dispositions manifest in the Western Great Lakes with many of the bands taking full responsibility for the inevitable internal disputes any society generates by developing their own courts. Though some of the bands had courts to adjudicate disputes between the tribe and its members over the welfare of Indian children, such as the Lac Courte Oreilles Band, the recognition of treaty rights stimulated the development of courts in all of the others as it had earlier in Michigan at Keweenaw Bay Indian Community, for example. GLIFWC wrote a model code for the exercise of usufruct on the lands and waters between the reservations that was adapted and adopted by bands that were the political successors of the signatories of the treaties. Over time, the courts would typically expand the domains of jurisdiction taking more and more responsibility for internal governance. They would also indigenize the institutions to different degrees, working to articulate an appropriate and distinctive jurisprudence in the different communities.

Wisconsin is a Public Law 280 state. The law is a piece of Termination Era legislation that effectively granted the federal government’s share of tribal-federal concurrent jurisdiction to certain states. “Opening the state courthouses to Indian people,” as the law had been charitably interpreted by some of its proponents, had the effect of undermining tribal governmental development. The subsequent recognition of the treaties thirty years later began a reversal of that process so that the tribal-judicial community made of up of the eleven tribes and the state of Wisconsin has developed protocols for allocating jurisdiction where both the tribes and the state share it, and the Supreme Court of the state has just implemented a rule in 2009 that state court judges can transfer cases from state courts to tribal courts on their own authority. This, clearly is, a state-level affirmation of tribal sovereignty grounded in that incommensurable sovereignty that antedates the very existence of the states.

In his commentary on these essays, Justin Richland writes that among other things, law is also  “a tool to be deployed for the pressing of indigenous interests.” Indeed, true of both law about indigenous people, as well as law developed by indigenous people, certainly in different measures and with less and more, respectively, predictable results. I echo Richard Clemmer’s final words, “The struggle continues,” in multiple registers.

[1] Executive Administrator Jim Zorn testifying on H.R. 3534, the Consolidated Land, Energy, and Aquatic Resources Act of 2009, September 17.

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