Thursday, October 3, 2013

Sovereignty and Cultural Self-determination in the edited collection, Sovereignty Matters

By Derek Kauanoe

This entry provides a brief review of two essays in Sovereignty Matters: Locations of Contestation and Possibility in Indigenous Struggles for Self-determination (University of Nebraska Press, 2005)

Joanne Barker's "For Whom Sovereignty Matters"

In this introductory chapter, Joanne Barker unpacks the word “sovereignty,” while also covering important concepts like hegemony and domination. She offers varied definitions of the term and points out that the term is historically contingent. 

What we understand about the term “sovereignty” is that it is a European concept that has been used to exclude Indigenous communities because they did not have the same attributes of European nation-states at the time. Barker clarifies that: “the concept of sovereignty served the colonists in negating indigenous territorial rights and humanity while justifying the right of conquest by claims to national superiority.” Since Indigenous nations were not “sovereign” in the same sense that Europeans nations were, the former were dominated by the latter. Barker does a great job of introducing the Marshall trilogy, and she also provides us with information about Indigenous peoples in other parts of the world such as Australia (Mabo v. Queensland) and Canada (Delgamuukw v. British Columbia and subsequent legislation).   

The “sovereign”/”non-sovereign” binary was apparently easy to impose and utilize in other “meaningful” contexts.  Other relevant binaries used to justify domination was the believer/non-believer (Christianity) and civilized/un-civilized societies.  While discussing Johnson v. MʻIntosh, Barker also shows that because Indigenous communities did not use land in the same manner as Europeans, the taking of their lands were justified through use of the Doctrine of Discovery.   

I couldn’t help but wonder if Barker’s understanding of the other relevant term, self-government, is different from Taiaiake Alfred’s as he described the term in Peace, Power, Righteousness.  There, Alfred described self-government—as defined and exercised within settler state frameworks--as something to avoid since he defined it as inappropriate for indigenous communities. 

One thing I found important in this chapter that is relevant to other chapters in the book, particularly Kēhaulani Kauanuiʻs chapter on “The Politics of Hawaiian Blood and Sovereignty in Rice v. Cayetano,” is the concern that “conservative political interests” use reverse racism arguments to intentionally mischaracterize Indigenous peoples as only ethnic minorities with no recognizable claims to self-determination and self-governance (23-24). She argues that Indigenous people have been resisting such claims for some time. For example, she discusses indigenous mobilization at the international level: “By taking on the self-determination of peoples with group and individual rights to self-determination, indigenous leaders were claiming a difference from minorities and a status akin to the status of nations“ (19). These goals at the international level (to be recognized as having a unique legal/political status is also akin to what numerous Indigenous communities strive for at the “domestic-national” level. In the U.S., this is often called federal recognition; federal recognition reaffirms a political identity rather than a racial one and thus escapes the Supreme Court’s strict scrutiny as seen in Morton v. Mancari

Robert Miller's "Tribal Cultural Self-Determination and the Makah Whaling Culture"
Robert Miller provides a general and concise explanation of federal Indian law and the current support that federally-recognized Indigenous communities in the US enjoy today from the federal government. It is within this context that I think Miller makes a great contribution. His understanding of U.S. federal Indian law could have provided a great framework for some of the other chapters in this book.  For example, Kauanui characterizes the Hawaiian Homes Commission Act as a type of allotment, and Robert Miller’s chapter provides the context (and framework) for understanding how allotment policies were used against Native Americans. Such a framework is necessary for understanding the complex and nuanced issues surrounding Indigenous peoples in the United States and other American territories with indigenous peoples. 

While some scholars might criticize Miller for not being critical enough of the hegemonic, paternalistic, and colonial structures that persist in affecting tribes generally (and the Makah specifically), he approaches these issues from a pragmatic (and legal) perspective. In the process he acknowledges the support from the federal government to the Makah specifically, and other tribes generally, in its cultural preservation efforts (138, 139, 142). 

Miller leads into a discussion of this federal support for tribes by explaining the important fiduciary relationship the federal government has toward its Indigenous communities.  While Joanne Barker implicitly critiques the Marshall Trilogy as harmful to tribal interests, Miller explains how the guardian-ward relationship (that was found in the first Marshall Trilogy case and used to dispossess Native Americans of their lands) requires a certain type of conduct that benefits or may be useful to indigenous communities (137-139).  Unfortunately, this can go unnoticed by people unfamiliar with federal Indian law.  Miller however does not let the federal government off easy; he makes sure to acknowledge the past destructive policies imposed on the Makah and other Indigenous communities also that pre-dated the more contemporary federal policies that support the Makah and others (132-136). Miller also provides a helpful discussion on treaties (131-132). He explains how treaties actually work, what they actually are (grants from the tribe, not grants to the tribe), and how treaties are used by tribes today.

The background information on federal Indian law sets up his discussion of the subject identified in the chapter’s title, the Makah. No one can read this chapter without understanding the integral role that whaling plays in Makah culture, which makes the Makah culturally unique. Miller argues that this is an instance of cultural self-determination, a term he introduces early on in the chapter. Miller explains, “cultural self-determination is intimately tied to tribal sovereignty and the rights of self-determination for American Indian and Alaska Native tribes. This is so because native groups will decide form themselves what cultural practices to preserve, and they will use their political power and sovereign status to fight for those rights” (123). As Miller explains, this allows the Makah to act politically to protect and maintain their unique culture.

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