Tribal Sovereignty Research Articles

From Gaming to Justice? A Note on the Effect of American Indian Casinos on Tribal Judicial Systems

From Gaming to Justice?A Note on the Effect of American Indian Casinos on Tribal Judicial Systems Randall Akee (bio), Valentina Dimitrova-Grajzl (bio), Peter Grajzl (bio), and Richard M. Todd (bio) AN EFFICIENT AND IMPARTIAL JUDICIAL SYSTEM is essential to economic development. The judiciary plays a central role in upholding property rights and promoting commerce in large-scale anonymous markets where reputation-based relational contracting loses its efficacy (see, e.g., Dixit 2003; Stephenson 2007). An effective judiciary has been shown to foster investment, entrepreneurship, industrial activity, and credit (see, e.g., Chemin 2009a, 2009b, 2012; Jappelli, Pagano, and Bianco 2005; Visaria 2009). In the context of Indian Country in particular, recent empirical evidence suggests that differences in legislative frameworks that structure the functioning of judicial institutions are an important driver of disparities in socioeconomic outcomes (see, e.g., Goldberg and Champagne 2007; Anderson and Parker 2008; Dimitrova- Grajzl, Grajzl, and Guse 2014; Dimitrova-Grajzl, Guse, and Todd 2015; Wellhausen 2017). This raises the question of what factors impact and facilitate the development of an effective judiciary in Native communities. In Indian Country, access to an effective judiciary has been limited as a consequence of a long history of federal encroachment on tribal sovereignty, inadequate government funding, and a maze of jurisdictional overlaps and limits. To fill the resulting institutional vacuum, tribal communities have striven to expand and enhance their own tribal judicial systems. Given that "tribal justice systems have been underfunded for decades" (US Commission on Civil Rights 2003, 77), financial constraints have been the main obstacle in this regard. In such an environment, characterized by severe resource scarcity, the American Indian gaming industry has emerged as a mechanism capable of relaxing tribal financial constraints (Akee, Spilde, and Taylor 2015). Indeed, a key goal of the 1988 Indian Gaming Regulatory Act (IGRA) was to promote "tribal economic development, self-sufficiency, and strong tribal governments" (Indian Gaming Regulatory Act 1988). The implementing regulations explicitly recognized tribal government spending to enhance the judicial system as "allowable expenditures of gaming revenues" (National Indian [End Page 32] Gaming Commission 2005). In addition, gaming conceivably creates additional demand for tribal judicial services. The socioeconomic impact of gaming in Indian Country has been explored by a handful of previous studies (see, e.g., Evans and Topoleski 2002; Reagan and Gitter 2007; Anderson 2013). However, to date, no contribution has empirically examined the link between gaming and tribal institution building, in particular, the development of tribal judicial systems. We evaluate how the presence of the American Indian gaming industry has impacted one basic yet salient dimension of tribal judicial systems: their extensiveness. Our analysis thereby fills an important gap in the emerging empirical literature that examines the causes and consequences of institutional development in Indigenous communities (see, e.g., Cornell and Kalt 2000; Dippel 2014; Akee and Jorgensen 2014; Akee, Jorgensen, and Sunde 2015; Aragón 2015). Data The source of our data on tribal justice systems is the 2002 Census of Tribal Justice Agencies in American Indian and Alaska Native Jurisdiction. We measure the size of a tribal justice system with the sum of all part-time and fulltime personnel working within the tribal justice system (Tribal Justice System Staff). Personnel is the key input in the administration of justice (see, e.g., Beenstock and Haitovsky 2004; Dimitrova-Grajzl et al. 2012; Dimitrova-Grajzl, Grajzl, and Zajc 2014; Dimitrova-Grajzl et al. 2016; Grajzl and Silwal 2017) and, therefore, an appropriate measure of the extensiveness of a tribal justice system. We concentrate our analysis on reservations with a population of at least five hundred in year 2000. Our dataset covers 106 reservations from twenty-three states; 97 of these 106 reservations have a tribal justice system. Our focal explanatory variable, Gaming, is Conner and Taggart's (2013) and Taylor and Kalt's (2005) dummy equal to 1 if the tribe associated with a specific reservation in year 2000 operates a class II (e.g., bingo facility) or class III (Las Vegas–style casino) gaming facility. Our 1990 reservation-level controls come from Akee and Taylor (2014) and include total population, percent of adults with a college degree, percent unemployed, median household income, and percent...

GC–MS Profiling and In Vitro Tyrosinase Inhibitory Activities of Bauhinia racemosa Lamk. and Bauhinia tomentosa Linn.

Bauhinia racemosa Lamk. and Bauhinia tomentosa linn. (Ceasalpiniaceae) leaves are used as holistic medicines mainly for inflammations and various skin disorders by the tribal sovereignty in Odisha ecoregion. This research work presents a study on chemical composition and tyrosinase inhibitory property of the methanol extract of leaves of Bauhinia racemosa (MBR) and Bauhinia tomentosa (MBT) with computational approaches. GC–MS technique, in-silico approach and in vitro tyrosinase inhibitory assay models were used for analysis of skin-whitening efficacies of these plant extracts. The major chemotype of the MBR was found to be myo-Inositol 4-C-methyl- (14.50%), whereas 3-O-Methyl-d-glucose (91.89%) was present in MBT as major compound. Tyrosinase inhibition was investigated against monophenolase (l-tyrosine). IC50 values of MBR and MBT were found to be 280 ± 0.9 and 610 ± 1.7 μg/mL, respectively. Molecular docking analysis of the binding of myo-Inositol, 4-C-methyl- and 3-O-Methyl-d-glucose with protein (PDB ID: 1wx2) showed an extensive hydrogen bond network with amino acid residues like ASN 191, ALA 202 and SER 206, THR 203, ASN 191, respectively. Both these compounds showed good binding affinities with target receptors and can be used as lead molecules for inhibition of tyrosinase. MBR and MBT might be suggested as a better source of skin-whitening agents for cosmetic and medicinal applications.

The Extraterritorial Reach of Tribal Court Criminal Jurisdiction

Conflicts over the jurisdiction between tribal, state, and federal courts arise regularly due to the nature of overlapping sovereignty. The Supreme Court accepts an average of almost three Indian law cases a year and has decided more than twenty Indian law cases with a jurisdictional focus since 1978. As tribes become wealthier, they are increasingly acquiring new lands outside of their existing reservations. This expansion of territory generates new border zones where state and tribal interests converge. The Sixth Circuit recently decided the first federal appellate case dealing with the inherent criminal powers of tribal court jurisdiction over the conduct of Indians on tribal land that is located outside of the tribe’s reservation. The unanimous decision of the Sixth Circuit panel upheld the tribe’s inherent right to extraterritorial criminal jurisdiction, but read into the opinion some limiting caveats that originate from civil, and not criminal, jurisdictional principles. This paper reads the Sixth Circuit’s decision in Kelsey v. Pope as the first in what is surely to be a myriad of conflicts over the extraterritorial jurisdiction of tribal courts. It suggests that while the Sixth Circuit’s approach to tribal sovereignty is generally in keeping with Supreme Court precedent, the court erred by conflating criminal with civil authority and thus over limited its discussion of the inherent powers of tribal courts. Instead the paper suggests that a more consistent reading of the inherent extraterritorial criminal powers of Indian tribes should support jurisdiction over both tribal members and tribal territory unless Congress has expressly circumscribed tribal authority. This broader understanding of extraterritorial jurisdiction is not only simpler to apply, but finds better support in Supreme Court precedent than the convoluted reasoning adopted by the Sixth Circuit.

Decolonizing Development: Perspectives from Indigenous Communities

In this symposium we will explore possibilities for Indigenous organizations to become a force for decolonization. Business enterprises owned and operated by Indigenous communities are one way for them to participate in the market economy. The challenge is to develop enterprise management and governance structures that allow Indigenous communities to participate in economic activity without sacrificing their social and cultural ties that are integral to their wellbeing. The long and violent history of colonialism has also shaped the experience of Indigenous communities’ relationship with the market economy. Indigenous resistance is thus central to the decolonial project, which rejects the universalistic and ‘objective’ assumptions of Eurocentric epistemologies and modernity while privileging multiple local histories, ways of knowing and ways of being in the world. In this symposium several Indigenous researchers will present their work that explores possibilities of how Indigenous organizations can engage with the decolonial project. In what ways do Indigenous epistemologies shape the ways in which Indigenous peoples and organizations participate in the market economy? What are the experiences of Indigenous entrepreneurs and businesses in their engagement with the market economy? What are the risks for Indigenous communities and organizations in participating with states and corporations in developmental and resource extraction projects? What alternative forms of organizations and economies can emerge from Indigenous imaginaries? These are some of the questions we will explore in the symposium. Decolonizing Development: Perspectives from Indigenous Communities Presenter: Bobby Banerjee; City U. London Decolonizing Indigenous Entrepreneurship: Economic Reconciliation through Hybrid Venture Creation Presenter: Rick Colbourne; U. of Northern British Columbia Community Entrepreneurship: The Case of the Sami Peoples Presenter: Leo Paul Dana; MBS Membertou Becoming a Force for Decolonization? Hybridity, Institutional logics, and Compromise Presenter: Mary E. Doucette; Cape Breton U. Tribal Sovereignty Presenter: Joseph Scott Gladstone; U. of New Haven Maasai and Hadzabe Peoples of East Africa. Presenter: Aloysius Marcus Newenham-Kahindi; U. of Saskatchewan Indigenous Community-Based Enterprises: Spaces for Resurgence and Decolonization Presenter: Ana Maria Peredo; U. of Victoria

Situating Psychotheraphy with Tribal Peoples in a Sovereignty Paradigm

American Indian and Alaska Native (AIAN) nations have experienced profound disruptions to their lifeworlds as a result of ongoing colonialism. With striking regularity, these disruptions have violated Tribal sovereignty, impacting Tribal capacities for self-determination. The ensuing distress within Tribal communities has been marked by the intergenerational transmission of colonial traumas and losses that have been conceptualized as historical trauma, historical trauma response, historical unresolved grief, and colonial trauma response. For mental health professionals to de-colonize their work with Tribal peoples, it is necessary to imbue mental health research and practice with a sovereignty perspective that supports Tribal nations’ rights to self-determination. In a sovereignty-based paradigm, psychotherapy and research would involve critically examining colonial assumptions currently enacted in western research and psychotherapy approaches and a search for therapeutic approaches that nurture each Tribal people’s self-determined relational, knowledge, and value systems.

“Indians Don't Make Maps”: Indigenous Cartographic Traditions and Innovations

This paper highlights works created by Indigenous cartographers throughout history and reflects on the ways in which they engage ideas of space, nation, territory, and relationships to land, as well as resist colonial occupation and epistemologies. In this sense, it also asserts the technological and theoretical interventions Indigenous cartographers have contributed, and continue to contribute, to the fields of cartography and geography. Lastly, this paper makes the argument that an increase in cartographic training in Indigenous communities is necessary in ongoing efforts to document indigenous histories and cultures, as well as efforts to strengthen tribal sovereignty and mobilize towards restorative justice.

BUILDING EVALUATION PARTNERSHIPS WITH TRIBAL COMMUNITIES FOR HOME VISITING.

The goal of this current descriptive study was to examine the roles and relationships of evaluators with the tribal communities in which they work. First, we describe a participatory community research model with a strong capacity-building component as the standard for assessing successful working partnerships between evaluators, programs, tribes, and tribal organizations. This model serves as a yardstick against which we examine the success and challenges of program-evaluation partnerships. Second, we report on a survey of tribal Maternal, Infant, and Early Childhood Home Visiting program leaders and outline their impressions of successes and challenges related to program-evaluation partnerships. Survey participants discussed the importance of working with evaluators who have deep investment in and understanding of the tribal community; respect for cultural relevance and honor for cultural ways; collaboration that includes transparency, trust, and translation of research for community leaders and members; a focus on strength-based design without losing the need to consider challenges; and relationships of mutual trust that can weather addressing stressors when issues of conflict, limited resources, and/or mixed expectations arise.

APPROACHES TO THE EVALUATION OF CULTURAL ADAPTATIONS OF HOME VISITING IN TRIBAL COMMUNITIES.

The research that underlies evidence-based practices is often based on relatively homogenous study samples, thus limiting our ability to understand how the study findings apply in new situations as well as our understanding of what might need to be adapted. In a preliminary effort to address those gaps, the requirements for the Tribal Maternal Infant and Early Childhood Home Visiting Program (MIECHV) included the expectation that grantees design and implement rigorous evaluations to address local priorities and to help build the knowledge base regarding the use of evidence-based home-visiting programs in tribal communities. A priority that emerged across many Tribal MIECHV grantees was to determine the added benefit of the cultural adaptations that they were making to their home-visiting programs. While there is literature to describe recommended processes for making cultural adaptations to evidence-based programs themselves, there are very few guidelines for evaluating these adaptations. In this article, we review the varied evaluation approaches utilized by Tribal MIECHV grantees and provide three case examples of how evaluators and tribal communities worked together to articulate evaluation questions and choose appropriate and feasible evaluation designs. The lessons derived from these Tribal MIECHV evaluation experiences have implications for the role of the evaluator in diverse communities across the country evaluating home visiting and other evidence-based practices in settings characterized by unique cultural contexts.

From Exploitation to Equity: Building Native-Owned Renewable Energy Generation in Indian Country

Indian country contains abundant renewable energy resources, and harnessing such resources is vitally important for national climate change mitigation efforts. Shifting the electric grid towards wind and solar generation also carries local environmental and health benefits, increases energy independence, and serves national security interests. For willing tribes, renewable energy development offers an opportunity for job growth and income base expansion. But if that development is to serve all parties: tribes, states, and the nation, then the current policy framework must change. If it does not change, policymakers risk continuing the long history of exploitative resource development on reservations. This article examines how legal structures impede utility-scale renewable energy development in Indian country and limit tribal self-determination. At the beginning of the Obama Administration, with increased national interest in climate change, commentators seized upon the potential of renewable energy to increase tribal sovereignty, improve Native economies, and provide greater access to electricity. Following years of false starts, legal scholars asked why the clean energy revolution was passing by Indian country and identified obstacles that slowed the growth of renewables. Despite such obstacles, by the end of 2017, a few large projects were operational. This paper examines how those projects succeeded within the current framework. The working installations serve as a rebuke to decades of abusive resource extraction arrangements and dirty fossil fuel power plants, which have produced severe health impacts and environmental degradation on Indian lands. But they also show how the existing legal and policy frameworks compel tribes committed to renewable energy development into certain arrangements, which then place constraints upon tribal sovereignty and limit the potential benefits to the tribe. Part I explains U.S. electricity law and renewable energy potential in Indian country. Part II addresses how the current legal and policy frameworks underpinning projects impede the widespread adoption of renewable energy in Indian country. Part III covers recent successes and failures, in order to draw functional lessons for parties interested in pursuing wind and solar projects within the existing framework. Part IV recommends policy and legal reforms that would increase tribal ownership of renewable energy projects while benefiting tribes, states, and the country as a whole. In particular, recommended reforms include providing mechanisms that promote self-determination through tribal project ownership, increasing federal financial support mechanisms, changes to current electricity regulations, and amending federal and state tax regimes to avoid stifling development in Indian country. Citation: From Exploitation to Equity: Building Native-owned Renewable Energy Generation in Indian Country, 43 Wm. & Mary Envtl. L. & Pol'y Rev. __ (forthcoming February 2019)

Sovereignty and social justice: how the concepts affect federal American Indian policy and American Indian health

ABSTRACTThe health disparities that are prevalent among American Indian and Alaska Native (AI/AN) communities are connected to the ideology of sovereignty and often ignored in social work and public health literature. Therefore, the purpose of this paper is to examine the health outcomes of American Indians from the time of contact with European settlers to the present through the ideology of sovereignty and federal government AI health policy. The foundation for the health outcomes of AIs and the governmental policies affecting them lie in the ideology of tribal sovereignty. This ideology has greatly impacted how the government views and treats AIs and consequently, how it has impacted their health. From the earliest treaties between European settlers and AIs, this legal relationship has been and remains a perplexing issue. With the examination of tribal sovereignty comes the realization that colonization and governmental polices have greatly contributed to the many social and health problems that AIs suffer from today. Understanding that the health disparities that exist among AI/AN populations cannot only be attributed to individual behavior and choice but is driven by societal, economic and political factors may be used to inform social work education, practice, and research.

Native Water Protection Flows Through Self‐Determination: Understanding Tribal Water Quality Standards and “Treatment as a State”

AbstractFor Indigenous communities, protecting traditional lands and waters is of the utmost importance. In the U.S. context, scholars have documented an unfortunate neglect of water quality on tribal lands. Treatment as a State (TAS) provisions, adopted in the 1987 amendments to the Clean Water Act, and tribal Water Quality Standards (WQSs) programs are intended to address such problems. Importantly, tribal WQSs may be more stringent than neighboring state standards, and can be used to influence pollution levels coming from upstream, off‐reservation users. Tribes can also develop WQSs that support unique tribal values, including ceremonial and cultural uses of native waters. Yet scholarly debates question whether tribal environmental self‐determination strategies can fully succeed within dominant regulatory structures. Based on a synthesis of the published literature, this article examines tribal WQSs as a case of tribal environmental self‐determination. The author discusses how U.S. tribes pursue WQSs under TAS, program outcomes, and why so few tribes have established WQSs to date. Because most scholarship was found within the legal literature, the author focuses on the legal and political outcomes that arise from tribal WQSs, and analyzes specific opportunities and constraints for program participants. The author also considers how some tribes use WQSs as a “third space” strategy—simultaneously working inside and outside of dominant government structures to advance tribal sovereignty (Bruyneel ). Additional research is needed to understand the diversity of tribal environmental self‐determination strategies that occur through federal regulatory frameworks and under tribal law.

Tribal Sovereign Immunity as a Defense in Overcoming IPR Challenges of Brand Name Pharmaceutical Patent Validity at PTAB – Effects on the Industry

Tribal sovereignty has been recognized by the American government since the establishment of the United States and tribal sovereign immunity has been a part of American jurisprudence for over a century. Tribal sovereign immunity continues to play an important role in modern times, especially in the last few years with the rise of inter partes review (IPR) proceedings stemming from the America Invents Act of 2011. IPR proceedings are filed with the United States Patent and Trademark Office (USPTO) and heard by the Patent Trial and Appeal Board (PTAB) as an alternative to or in conjunction with traditional patent litigation in the U.S. Court of Appeals for the Federal Circuit. Therefore, patent owners may have to defend their patents both at PTAB and in federal court.PTAB has recently granted its first motion to consider the issue of tribal sovereign immunity as it relates to patents covering the branded drug Restasis®. This case involves two giants of the pharmaceutical industry: Allergan PLC (Allergan), a brand name drug manufacturer who holds the Restasis® patents, and Mylan N.V. (Mylan), a generic pharmaceutical company.

Tobacco Industry Promotional Strategies Targeting American Indians/Alaska Natives and Exploiting Tribal Sovereignty.

American Indians/Alaska Natives have the highest commercial tobacco use in the United States, resulting in higher tobacco-caused deaths and diseases than the general population. Some American Indians/Alaska Natives use commercial tobacco for ceremonial as well as recreational uses. Because federally recognized Tribal lands are sovereign, they are not subject to state cigarette taxes and smoke-free laws. This study analyzes tobacco industry promotional efforts specifically targeting American Indians/Alaska Natives and exploiting Tribal lands to understand appropriate policy responses in light of American Indians'/Alaska Natives' unique sovereign status and culture. We analyzed previously secret tobacco industry documents available at the Truth Tobacco Documents Library (https://industrydocuments.library.ucsf.edu/tobacco/). Tobacco companies used promotional strategies targeting American Indians/Alaska Natives and exploiting Tribal lands that leveraged the federally recognized Tribes' unique sovereign status exempting them from state cigarette taxes and smoke-free laws, and exploited some Tribes' existing traditional uses of ceremonial tobacco and poverty. Tactics included price reductions, coupons, giveaways, gaming promotions, charitable contributions, and sponsorships. In addition, tobacco companies built alliances with Tribal leaders to help improve their corporate image, advance ineffective Youth Smoking Prevention programs, and defeat tobacco control policies. The industry's promotional tactics likely contribute to disparities in smoking prevalence and smoking-related diseases among American Indians//Alaska Natives. Proven policy interventions to address these disparities including tobacco price increases, cigarette taxes, comprehensive smoke-free laws, and industry denormalization campaigns to reduce smoking prevalence and smoking-related disease could be considered by Tribal communities. The sovereign status of federally recognized Tribes does not prevent them from adopting these measures. American Indians/Alaska Natives suffer disparities in smoking prevalence and smoking-related diseases as compared with other groups. The tobacco industry has used promotional tactics including price reductions, coupons and giveaways, casino and bingo promotions, charitable contributions and sponsorships, and so-called Youth Smoking Prevention (YSP) programs to specifically target American Indians/Alaska Natives and exploit Tribal sovereignty, which likely contribute to disparities in tobacco use and related diseases and deaths among this population. Tribal and public health policy makers should consider rejecting ineffective YSP programs and instead consider adopting proven policy interventions including tobacco price increases, cigarette and casino taxes, comprehensive smokefree laws, and anti-industry denormalization campaigns to reduce smoking and smoking-related disease.

Revolution in Higher Education: Identity & Cultural Beliefs Inspire Tribal Colleges & Universities

The public increasingly requires that higher education institutions demonstrate their return on investment by measuring graduation rates, cost per student, job placement rates, and income. The motivation is economic: public institutions are accountable to the investor, in this case, the taxpayer. Tribal Colleges and Universities (tcus), on the other hand, are indebted to and inspired by the revolutionary vision of their founders: the ancestors, elders, and community members who believed that higher education rooted in tribal sovereignty, identity, systems, and beliefs would ensure the survival and prosperity of their people. tcus are advancing Native student access and completion, developing scholars who are contributing to knowledge creation through community-based research, and promoting economic and entrepreneurial development in tribal communities.

Recognition, Antiracism & Indigenous Futures: A View from Connecticut

This essay is offered as a tribute to Golden Hill Paugussett Chief Big Eagle and his defiance of the entrenched racism to which his tribal community has been subjected. I situate this analysis in Connecticut in the early 1970s at a moment of particular historical significance in tribal nations' centuries-long struggles to assert their sovereignty, defend reservation lands, and ensure their futures. I analyze how the racialization of Native peoples in Connecticut informed the state's management of “Indian affairs” in this period and argue that the virulent racism of the state's antirecognition policy in the late twentieth century reflects a long history of institutionally embedded racist policies and practices. In this essay, I call for politically engaged, antiracist research that is concerned with understanding the complexities of tribal sovereignty asserted in local contexts in which governmental control of Indian affairs reproduces and validates White-supremacist ideology.

Congressional Plenary Power and Indigenous Environmental Stewardship: The Limits of Environmental Federalism

Congressional plenary power has been a powerful force in federal law for over a century, forming the legal foundation of Congress’s extraordinarily wide range of legislation over indigenous Americans, their lands, and their governments. The Supreme Court's corollary Plenary Power Doctrine has bolstered this power over time by requiring highly deferential judicial review of the many statutes related to Indian affairs. Despite the lack of a strong Constitutional foundation, Congress has consistently used the mantle of Plenary Power to legislate in a wide range of indigenous matters and the Supreme Court has declined to place meaningful constraints upon its exercise. In the area of environmental law in particular, Congress exercised its plenary power to delegate environmental regulatory authority through various statutes, including the Clean Water Act, the Clean Air Act, the Safe Drinking Water Act, and others. These delegations have been widely lauded for the opportunities they created in the area of tribal environmental law. Yet, despite the excitement that these amendments initially brought, their value remains open for debate. For instance, less than .1% of federally recognized tribes have obtained primacy from EPA under one or more of the Tribes as States (TAS) provisions in the environmental statutes. The faulty legal foundation and arguably low level of success of the TAS provisions (particularly when viewed across the entirety of tribal and indigenous lands in the United States) call into question the continuing role and value of the Congressional Plenary Power Doctrine itself. For, while the short-term goal of improving air or water quality might be achieved by the tribes that can manage to satisfy the numerous criteria to obtain primacy in one or more areas, the legal reality is that the federal government still controls the regulatory playing field for the vast majority of tribes, and even for tribes that have obtained TAS status in one area, but not others. This Article examines critically the role of Congressional plenary power, in the past and in the modern era, to illustrate how the Constitutional basis for Congress’s asserted power in this area is inherently flawed. It also explores the pragmatic limitations of Congressional plenary power over tribal environmental quality. Finally, the Article explains how continued recognition of Congressional plenary power over indigenous environmental regulation and environmental quality causes serious and troubling concerns for tribal sovereignty and tribal environmental quality in the long term.

Alternative Histories of the Old Indian Territory: John Milton Oskison's Outlaw Hypotheses

Alternative Histories of the Old Indian TerritoryJohn Milton Oskison's Outlaw Hypotheses Jenna Hunnef (bio) The tacit or explicit criminalization of indigeneity by the settler colonial state has been subject to consistent scrutiny in Indigenous North American literatures since at least the early nineteenth century. In what is currently the United States this thematic preoccupation transcends geographic and temporal boundaries, being palpable in Indigenous literatures from coast to coast (and beyond) throughout the nineteenth, twentieth, and twenty-first centuries, including, to name just a few examples, William Apess's Indian Nullification of the Unconstitutional Laws of Massachusetts (1835), Zitkala-Ša's "The Soft-Hearted Sioux" (1901), R. Lynn Riggs's plays The Cherokee Night (1930) and The Year of Pílar (1938), D'Arcy McNickle's novels The Surrounded (1936) and Wind from an Enemy Sky (1978), and Louise Erdrich's The Round House (2012)—to say nothing of similar concerns expressed by Indigenous writers in other settler colonial contexts, including Canada, Australia, and Aotearoa/New Zealand. Central to these texts, and many more like them, is the historical mediation of tribal sovereignty, legal jurisdiction, dispossession from the land, and the relativity of crime and criminality by tribal and US federal law. Building upon recent scholarship by Beth H. Piatote (Nez Perce) in which she foregrounds "the ways in which Native literature seeks to confront and suspend the force of law" (19), the present discussion identifies the symbolic potential for outlaw figures in Indigenous writing to literalize that suspension of law and thus stage alternative outcomes for tribal sovereignty and the shape of US–Indigenous relations during the assimilation era (ca. 1879–1934).1 [End Page 339] It is worth noting that this period also coincides with the zenith of outlaw activity in the United States and the passage of perhaps the most onerous and devastating federal Indian policies and Supreme Court decisions in the history of US–Indigenous relations, which resulted in the near-total elimination of official tribal sovereignty, significant losses of the communally owned tribal land base, and severe reductions in Indigenous peoples' civil and political rights.2 To illustrate this claim, I examine two fictional works by Cherokee author John Milton Oskison that were published during this period and feature outlaw protagonists: his early short story "The Greater Appeal" (1907) and his second novel, Black Jack Davy (1926). The outlaw alternatives depicted in each of these texts neither submit to settler legal frameworks nor make compromises merely in the interest of mitigating tribal and cultural loss inflicted by assimilative policies; rather, they actively maintain the sovereign integrity of tribal-national legal, cultural, and familial frameworks. Moreover, I suggest that in at least these two instances, the extralegal nature of Oskison's outlaws permit them to act as vehicles for the expression of anticolonial resistance and the persistence of Cherokee sovereignty. In this way I identify the outlaw figure as perhaps Oskison's most effective trope for communicating a sovereigntist stance in his creative work. Although Oskison lived most of his adult life outside of Indian Territory/Oklahoma, the people and landscapes that populated his childhood nonetheless dominate his fiction. "The Greater Appeal" fictionalizes the life of Belle Starr, an intermarried citizen of the Cherokee Nation and so-called "Bandit Queen" of the Indian Territory, while a character in Black Jack Davy is suggestive of Ned Christie, alleged "Cherokee outlaw." I suggest that Oskison's deliberate rewriting of the history of these outlaws illustrates what Piatote calls the "anticolonial imaginary" in Indigenous fiction, which she defines as "visions of alternative futures that may explain, in part, how Indian communities survived the violence of the assimilation era" (9). Building upon the provocative potential of Piatote's "anti-colonial imaginary," I suggest that both of Oskison's texts envision the Cherokee home/land not only as the primary site of conflict between Cherokee values and foreign assimilative agendas but also as [End Page 340] the space conducive to the most effective expression of anticolonial resistance. Notwithstanding the problematic racial and gender politics present in both stories,3 Oskison's deliberate disordering of both outlaws' historical circumstances via the sentimental mode critiques assimilation-era politics and envisions an alternative...

Indigenous Women’s Writing and the Cultural Study of Law by Cheryl Suzack

Reviewed by: Indigenous Women’s Writing and the Cultural Study of Law by Cheryl Suzack Inés Hernández-Ávila Indigenous Women’s Writing and the Cultural Study of Law. By Cheryl Suzack. Toronto: University of Toronto Press, 2017. ix + 168 pp. Notes, works cited, index. $24.95 paper. I was delighted to read Cheryl Suzack’s Indigenous Women’s Writing and the Cultural Study of Law. This deftly executed, beautifully organized, transnational, intersectional study is a welcome validation to the significance of literature (and its relationship to law)—in this case, indigenous women’s literature—as a powerful, articulate, historically conscious, worded weapon of defense on behalf of indigenous peoples. Suzack (re)presents indigenous women’s literature as a space of “transhistorical feminist consciousness,” practice, and agency, a site of “indigenous feminist literary activism” and reimagining that contests juridical enforcements propagated by a coloniality-steeped mainstream Western law, to the grievous detriment of indigenous women. She puts in relief the ways in which Silko, Mosionier, Erdrich, LaDuke, and she herself are contributing to the field of literature and law studies, exercising their right to speak, as indigenous women who are expert trackers, hunters, healers, and women of their revelatory word(s) in the pursuit of justice regarding matters of tribal sovereignty, gender, ethnic/racial identities, and the land, always countering “silencing and erasure.” Suzack demonstrates a mastery of the scholarship on literature and law. She astutely selected four pertinent legal cases, and the work of four indigenous women, three from the Great Plains, to demonstrate how tribal sovereignty and gender empowerment are allied. Her study builds with an elegant force that brings home her main (overlapping) points. In “Gendering the Politics of Tribal Sovereignty: Santa Clara Pueblo v. Martinez (1978) and Ceremony (1977),” Suzack shows Martinez’s activism as an expression of “Indigenous-feminist tribal sovereignty” within a “dignity-based framework.” [End Page 213] Thinking hemispherically, I am reminded of the Zapatista women’s slogan, “Mujeres con la Dignidad Rebelde” [“Women with the Rebellious Dignity”]. In “The Legal Silencing of Indigenous Women: Racine v. Woods (1983) [Canada]” and In Search of April Raintree (1983), Suzack (rightly) posits literature “as a source of cultural authority,” showing Indigenous women’s spirited challenge to the “learned powerlessness” that Mosionier reveals, through her Metís characters’ “bearing witness” (fictionally) to the constant real-life legal, violent assault on Indigenous women’s rights as mothers, as children, as sisters, and their connection to the land. In “Colonial Governmentality and Gender Violence: State of Minnesota v. Zay Zah (1977)” and The Antelope Wife (1978), Suzack addresses how blood quantum is used, via this law, to “separate [Indigenous] bodies from land,” and how Erdrich creates a story of urgency regarding Indigenous women’s agency “as agents of [intergenerational] cultural transmission and tribal values,” who lift up the sacred responsibility of language, naming, and memory. In “Land Claims, Identity Claims: Manypenny v. United States (1991)” and Last Standing Women (1998), Suzack takes on the entrapments caused by legally assumed “identity categories” that impact land (dis)possession, and demonstrates how LaDuke affirms and enacts in her novel the understanding that a higher law guides the Anishinaabe in their spiritual and historically grounded material relations to their land. In this study, Suzack reveals what is needed to transform transitional justice paradigms to processes accountable to Indigenous women’s justice goals, brilliantly anticipating the recovery of traditional indigenous legal systems. Inés Hernández-Ávila Department of Native American Studies University of California, Davis Copyright © 2018 Center for Great Plains Studies, University of Nebraska–Lincoln

Water Is Life: Ecologies of Writing and Indigeneity

Water Is LifeEcologies of Writing and Indigeneity Christina Boyles (bio) and Hilary E. Wyss (bio) “Water is Life,” the recent rallying cry of the Standing Rock Sioux opposition to the Dakota Access Pipeline, gestures to the urgency of understanding ecological depredations as an attack on life itself. The idea of “water protectors” (as the activists protesting the construction of an oil pipeline under the Missouri River call themselves) emerges from a specific historical moment in relation to #NoDAPL, but this is an apt way to imagine the work of this special issue more generally as a folding together of ecology, indigeneity, and the role of writing in making visible Indigenous ways of engaging with water. While water scarcity is a concern for all living beings, its impact tends to be greater for Indigenous communities. Reservations in particular are sites where government and corporate entities expose “residents to dangerous environmental conditions,” including dangers caused by air pollution, water contamination, dangerous working conditions, and weapons testing (Taylor 47). Although these environmental concerns are long-standing, increasing privatization of water resources, paired with the ongoing effects of climate change, have amplified discussions about Indigenous water rights in US media. Communities of color, particularly Indigenous communities, have always borne the brunt of environmental injustice; however, these issues have become more explicit in the Trump era. Both under the leadership of Scott Pruitt and in the wake of his resignation, the Environmental Protection Agency has rolled back environmental protections for protected federal lands, particularly those deemed to be of value for natural resource production. Although the EPA is charged with promoting and restoring the health of tribal lands, it also has the authority to allow “tribal communities and other stakeholders to pursue future beneficial use or reuse of resources [End Page 1] for economic, environmental, and traditional purposes” (“Cleaning Up”). Often, these “other stakeholders” are given precedence over tribal lands due to intersecting corporate and governmental interests. Such behavior places Indigenous communities at risk in terms of their health and well-being and threatens their sovereign claims to the land. In response, Native communities have developed a series of protests and legal challenges to contest corporate and governmental claims to these lands. Many of these debates center on the sovereignty of tribal nations: What authority do tribes have over their rolls, lands, and resources? How do these rights operate within Western power structures? How should they operate? These questions are not answered simply, but they all have a common concern: state and federal laws stifling Indigenous nations for profit and power. This special issue of SAIL examines the way Indigenous writers have focused on water—its use, the laws that regulate its distribution, and its cultural and ecological value both within and outside Indigenous communities—to generate meaningful dialogue about the relationship between colonialism, water rights, and tribal sovereignty. Varying water laws across the United States force Indigenous communities to structure their arguments within specific legal contexts. In the East, water rights are determined by riparian rights, which permit those whose land abuts a body of water to use and access that water. In the West, water rights are determined by prior appropriation, which grants water rights chronologically based on whoever first put the water to “beneficial use” as determined by state and federal law. In theory, this means that all water in the United States should be the property of Indigenous communities; however, Winters v. United States (1908) complicates this narrative. According to this ruling, Native water rights are determined according to the location and establishment date of reservation lands. Eastern reservations have access to water their federal land abuts, but they do not have exclusive rights or jurisdiction over this water. Western nations are given prior appropriation rights based on the date on which their reservation was established, a decision that significantly disadvantages many Native communities in the West, particularly those using water from the frequently overdrawn Colorado River. Other issues further complicate this framework; for example, non–federally recognized tribes have no legal water rights. Additionally, the Five Tribes—the Cherokee, Chickasaw, Choctaw, Creek, and Seminole—are [End Page 2] federally recognized tribes that possess fee lands rather than reservation lands...

Mining the ICC: Macroanalysis of the Indian Claims Commission

Conservative white politicians created the Indian Claims Commission (ICC) as part of a movement to terminate Indian tribes in the 1940s. Many indigenous studies scholars see the ill intent and certain unjust outcomes as proof of the ICC’s damage to tribal sovereignty. Using topic modeling to follow discourses in the decisions, this paper argues the Commission should be seen rather as a modest, symbolic step towards meeting federal promises. Topic modeling or macroanalysis allows researchers to read all of the legal decisions distantly. Viewed over time, the decisions categorize the changing relationship between Indian Country and the Federal Government from a policy of terminating tribes’ status to much greater tribal sovereignty. Text mining also highlighted certain types of decisions, driving analysis and allowing exploration of the corpus. The “accounting” topic and related decisions importantly required the Federal government to symbolically recognize their treaty obligations. The decisions mark a legal process and major events in the late 1960s and 1970s affected their changing discourse. The ICC itself subsequently affected the relationship between tribes and government. By directing an “accounting,” the decisions encouraged an additional step in the continuing process of political reconciliation.