Reasons for the Relative Invisibility of Indian Law and Policy?

The academic study of American Indian law and policy is, I suspect, not a way to get ahead in the world. Being a highly-regarded Indian law and policy law prof or polisci prof is like being a highly-regarded minor league baseball player.

There was a decent sampling of Indian law profs on the latest survey of top scholars at top 70 law schools, but only a small number of the top 70 law schools even offer Indian law classes on a regular basis, let alone cultivate Indian law scholarship. I think the disinterest in Indian law scholarship in elite law schools contributes in some way to the disinterest in Indian law cases at the appellate level, where a goood number of cases seem to be decided on gut reaction, indicating a lack of engagement with the legal questions raised.

A new paper by political scientist Kevin Brunyeel suggests that “settler colonialism” is significantly to blame for the lack of scholarly interest and engagement. Despite what I say below, I like the paper and recommend it. Regardless of the merits of the argument, the paper has quite the opening:

The discipline of political science does not take indigenous politics seriously. To be sure, there are political scientists who have made important contributions to the study of indigenous politics. However, the bulk of the discipline either does not place indigenous politics in its field of vision or it analyzes it through frameworks that forestall adequate analysis. The worst offender in this regard is American political science, both in the sense of the sub-field that studies the United States and the scholarship and institutions (i.e. political science departments, associations, journals) of the country.

I’m tempted to substitute law schools for political science departments in the above paragraph but I can’t, not completely. First, there are thousands of Indian law papers published every decade, and to say there isn’t a venue for Indian law scholarship is laughable. Second, the American Law Institute is about to start a project on American Indian Law, which is an excellent sign that Indian law is growing up and gaining respectability in the legal world.

But the “settler colonialism” theory is intriguing. From the paper again:

I reveal the predispositions within that shield or distract scholars from seeing the value and importance of indigenous politics. These predispositions are: i) the emphasis on sovereignty as an exclusive characteristic of the state; ii) the inability of much of the scholarship on the politics of race and ethnicity to account for or understand the political identity and politics of indigenous people. In my discussions of both areas and predispositions, there will be consistent reference to the role of settler-colonialism as a historical and persistent structuring force in political life. As such, my analysis of these topic areas and their predispositions is, among, other things, an effort to refuse the general inattention to settler-colonialism in much of the political science discipline. In short, I claim that taking indigenous politics seriously means taking settler-colonialism seriously, and vice versa.

I’ll leave out discussion of the second point. I don’t understand the gist of the second part of the paper, which involves President Clinton claiming he is 1/16th Cherokee and Toni Morrison’s announcement in 1998 that Clinton was our first black president (kind of a silly thing to say in hindsight, eh?).

Brunyeel has an interesting first point though: the idea of a non-international state exercising inherent sovereignty must be fairly shocking to American political scientists and constitutional scholars who only see two sovereigns in the American polity. At least it would have been shocking in the 1970s, and maybe into the 1980s, but in 2012? Not so much shocking as confusing.

Sovereignty theory has evolved dramatically since the 1940s, when post-World War II political theory picked it apart. Pure sovereignty no longer exists as a viable theory (I thank WS for unveiling this for me in her great paper on tribal sovereignty and human rights, forthcoming later this year!). So there are three sovereigns in the US — federal, state, and tribal — and all of them have to acknowledge their sovereignty has been compromised somehow, some sovereigns more than others.

All of this is to say I think there is a bit of a double standard out there when it comes to tribal sovereignty. Tribal leaders oversimplify and see pure tribal sovereignty as a viable political theory, when it simply isn’t (but some form of robust sovereignty IS). Skeptics of tribal sovereignty see tribes under the thumb of the federal government (conquered is a term I hear a lot) so there cannot be sovereignty at all (Justice Thomas in US v. Lara seems inclined to this theory). But states are also under the thumb of the feds, and states have sovereignty, right? Why can’t tribes be limited, domestic sovereigns with some aspects of sovereignty recognized through treaties and Acts of Congress, just like states are limited, domestic sovereigns with some aspects of sovereignty recoginzed by the Constitution?

All of this is to say Brunyeel has a point but I am wary of blaming it all on “settler colonialism” or requiring that good scholarship in the field requires respect for the theory of “settler colonialism.” I am wary of relying too much on the past to decide how things are going to progress in the future. Indian tribes can’t go to the states and feds and say tribes are entitled to some aspect of sovereignty because of what happened in the past. Indian tribes have to earn it, even take it on occasion. No one’s giving anything away.

I think American Indian law and policy is worthy of study because it’s new and dynamic and involves the most modern and creative theories about what sovereignty means in a globalized world. Law schools and political science departments are slow to recognize that. Academic institutions are bit conservative in that way. As Indian law and policy scholars, we can earn recognition and force those staid institutions to do more by showing them more. In some areas of the US, mostly the west, law schools are committing educational malpractice by not compelling more students to at least acknowledge Indian law. North Dakota and Oklahoma law schools, for example, should require Indian law. New Mexico, South Dakota, and Washington state already know this. Everyone who practices in those states in the next 100 years will confront an Indian law question. That’s a fact.

I fear, though I don’t know for sure, that going back to the well of “settler colonialism” is going to open all the doors we want. Fear of the rise of tribal governments is a real thing (you can call that a product of settler colonialism) but it cannot be overcome by resort to the past. Maybe one time you could, but not anymore.

Academics interested in Indian law and policy should be arguing why American Indian law and policy is important as a practical matter. If we can’t do that, then I guess “settler colonialism” is all we have. But good academics will be able to do it.