US Government as the Grinch: Commentary on US Supreme Court ruling on tribal trust land

As the British might describe it, the state of affairs to do with self-determination, autonomy and inherent sovereignty and indigenous lands in the United States is a bloody mess. The United States government has spent the past two hundred plus years trying to sort out what relationship it wants with the indigenous groups that were there first, before the US, before the first European colonizers made their way over the ocean.

On the one hand, the US has an invented fiction now accepted as fact in the form of the Thanksgiving holiday “tradition” that venerates the help of indigenous groups that saved the “Pilgrims” from starvation at Plymouth Colony. The tradition goes that without the help of the benevolent and altruistic neighboring indigenous groups, the Pilgrims would not have known how to plant crops and harvest them in the New World and would have died rather miserable deaths of starvation and disease in what was meant to be the land of plenty. After being saved by the wisdom of the Indians, a big harvest feast was thrown where everyone got together in a happy celebration, perhaps not unlike the Christmas feast after the Grinch found out his heart was not in fact three sizes too small and that he could enjoy a feast with the Whos.

As a child growing up, playing outside with neighbourhood kids and making up games (yes I was fortunate enough to grow up in a time when this was possible and the word play-date had never been uttered) around October we started to play “Pilgrims.” The problem was, no one in fact wanted to play the Pilgrim, we all wanted the role of the Indians. The Indians were cool, skilled, heros. The Pilgrims were sort of grim and mostly ungrateful bumblers.

The United States like its Indians in myths and traditions, in dusty relics of the past, in sports mascots and nicknames. Presented like that, Indians are just like envisioned in my childhood games: cool, skilled, heros.

Thus, on the other hand, The United States government has never really gotten over the fact that the indigenous groups within its boundaries or on the land it wanted to put in the boundaries were there. It tried to make them go away. It tried massacres. Then again, from time to time, the United States thought it might be helpful to be friends. Especially when there was a war to be fought against the British. So the United States would strike up treaties of friendship, treaties that made provisions for land and so forth. But then it would be back to business as usual and the United States government would be again trying to find ways to make the Indians go away. If massacres did not work, perhaps shipping them off to lands no one else would want would work. That was fine for awhile, until it turned out that the United States really wanted that land after all. Then assimilation was tried. Perhaps simply getting the indigenous groups to fade into the European white society would work. Nope, that did not work either. Unrecognizing all the tribes might force the issue... reorganizing them on a blueprint that mimicked the assimilative government styles of white society and that disregarded the traditional ways in which peoples had lived and organized themselves, quite successfully in fact.


Now and again the United States would have a pang of conscious. Self-determination era. Restoring lands that were taken—albeit held in trust by the United States for the benefit of the tribe. Occasionally deciding to pay monetary damages for treaties breached and land stolen.

The thing is, the US just cannot make up its mind what its relationship should be with indigenous groups. Now it seems to be backfooting, this latest United States Supreme Court decision reveals the utter farce of the way in which the US deals with trust lands, and anything else they have been trusted with in regard to indigenous groups. This is a ridiculous decision and deserves to be treated with contempt and utterly condemned. There is no judicial soundness in the decision. If this were the answer to a law exam question, it would have been failed as being pure fiction based on no legal authority. But this is not an errant student. It is the United States Supreme Court and once again, in its supreme indecision and flip-flopping of whether to be friend or foe to indigenous groups, it has added a new layer to the bloody mess it makes of state-indigenous relationships.

Unlike the Grinch, who eventually overcame the problem of a heart three sizes too small, the United States Supreme Court and the government is unable to do this, and instead slither about in the dark, forcing trees and presents and such back up the chimney--taking back what was never really theirs to seize in the first place.

Perspectives: Indigenous Scholarship and Feminist Writing

I have a marvellous book on my desk that I have only just started to read. Some time ago, I had blogged wanting to find out more on Indigenous critiques of white scholarship, especially of white scholarship on Indigenous issues. And indeed, there is a book on that very thing, by Aileen Moreton-Robinson, called “Talkin’ Up to the White Woman: Indigenous Women and Feminism”. Now perhaps I am blogging about this book prematurely as I have not finished reading it, and I plan a future blog when I have finished the book. But it is such an interesting and important book that I wanted to comment now—as I am only starting to read through it.

I myself am a late-comer to the academic debates on feminism. It was not until starting my PhD studies in a mid-career/mid-life switch that I came stumbling upon feminist writing. I wondered, at the same time that I was hungrily devouring the writings, why it was that I had never come across it before. Certainly feminist perspectives were not offered to me in my own previous (Juris Doctorate degree) legal education. I knew about feminism because I knew of women’s rights and women’s issues in the real world. But the wealth of feminist literature—and the criticisms of it—that was all new to me.

I was introduced to it in a most unorthodox way—through chatting with fellow mid-life career switchers trying to get a PhD people at the local dog park. It was here I was first introduced to Critical Race Theory, and Critical Race Feminism. It’s not as if I was hiding from feminist literature. It is just that if you are not made aware something exists, it’s awfully hard to go looking for it. Finally, I became aware. Why was this literature so hard to find—why did it take so long? Why is so much in law that varies from certain conservative perspectives hidden, driven underground, never acknowledged? Again— you have to know it is there to go looking. I think in years past this sort of exercise was called consciousness raising. And I think we need some more of this in mainstream law and legal studies—consciousness raising!

And as I read, I also became aware of the debates within feminist literature about women of colour and white women.
A passage from Moreton-Robinson (pg 151) explains:

“...critiques of white feminism by black and Indigenous women challenge the universality of the subject position middle-class white woman in different but interconnected ways. These critiques are grounded in different experiences from those of white feminists, and they expose the reproduction of power relations between the white community and the Indigenous community within feminism. The priorities of Indigenous women are often in opposition to and are different from those of the white feminist movement and the nation state.”

I have had only a skimming, preliminary read of Moreton-Robinson’s book. I am looking forward to reading it fully and in-depth as there is much to be learned from it.

What's in a Name? Indigenous Peoples, Sports Mascots and a Reality Check

Respectful and appropriate use of indigenous names, references, cultural symbols and representations are issues that can come up in a number of legal areas. One of the most curious tales comes from North Dakota where the state government mandated the use of the “Fighting Sioux” nickname and mascot for the university sports team in defiance of a ban of the name by the National Collegiate Athletic Association (NCAA) that oversees university sports in the United States. According to this article:

“The NCAA banned UND [University of North Dakota]from hosting postseason tournaments and said the school could not use the nickname or logo in postseason play, or else it must forfeit those games.”



The use of indigenous names and symbols for sports teams has been under close scrutiny for many years. Those who defend the usage of indigenous names, symbols or mascots for sports team make the rather ironic claim of “honouring” indigenous groups. But some indigenous groups take an opposite view, that the use of indigenous names, symbols and other indigenous representations is anything but respectful. This article provides an informative summary of the long-standing debates. It also points to this link about the film “In Whose Honor?” that provides a more detailed analysis of the the usage of indigenous names and symbols for sports team nicknames and mascots.

So adamant was the North Dakota state government that it passed a state law that required the use of the “Fighting Sioux” nickname-- in defiance of the NCAA position. A vote earlier this week in North Dakota delivered a strong message—end its usage. (details at this link)

There are of course sports teams in the United States that continue to use nicknames and mascots that reference indigenous groups and culture. Perhaps the North Dakota vote heralds a wake-up call that indigenous peoples are not relics found only in museums or found in black and white Westerns— but are alive and here today. Perhaps more than anything the debate points to the deep irony of the positioning of indigenous peoples in mainstream United States—there is little recognition of their existence, let alone recognition of rights, in the present day—but plenty of energy devoted to their playing a role in the recollection of a romanticised and idealised past. Cigar store “Indians” and other such mascot like symbols are welcomed—but living breathing individuals and groups making their existence known are given scant attention.

Peru on protecting traditional knowledge

The Peruvian Institute for the Defense of Competition and Intellectual Property Protection (INDECOPI), meet last week in Lima with representatives of fourteen countries in Latin America. The meeting aimed to share experience on systems of resource protection and traditional knowledge. This time, the institution will share the Peruvian experience in the protection of genetic resources and traditional knowledge, specifically through the national registries of traditional knowledge and system identification, management and monitoring of cases of biopiracy.

INDECOPI says “Today, the importance of these resources and knowledge is becoming increasingly clear, given its application and use in different branches of food industry and health, and becoming part of the identity and cultural heritage of our people”.

Peru set up a legislative framework to protect genetic resources and traditional knowledge -- Law No. 27811, which covers a sui generis rule of collective traditional knowledge related to biodiversity. Peru also has a National Anti-Biopiracy Commission, chaired by INDECOPI, which aims to identify, analyze and deal with cases of biopiracy involving Peruvian origin resources or traditional knowledge of indigenous Peruvians. The Commission has resolved favourably to the Peruvian and indigenous peoples, 10 cases of biopiracy (in the patent offices of Japan, Korea, France and European Patent Office).

INDECOPI reports that the meeting was also attended by Chief of Staff Advisors to the Presidency of the Council of Ministers, Mauritius Chabaneix Belling and Begoña Venero, Head of the Section of Genetic Resources and Knowledge traditional World Intellectual Property Organization (WIPO) in Geneva.

Source INDECOPI.

Twenty Years after Mabo

There is a great deal in the news about the twenty year anniversary of the Mabo decision from the Australian High Court. The Mabo case was a landmark decision that challenged the legal fiction that Australia was uninhabited at the time of “discovery. Thus as a place that was terra nullius claim was made to the land on that basis. This of course utterly denies the existence of the Aboriginal peoples that were there. Scholar William Wallace comments on key elements of the Mabo holding:

“The two most important and dispositive findings made by the court were, first, that the title was never effectively extinguished by the Crow, and second, that the land was been continuously held from some date prior to the discovery by Captains Cook and Phillips...The holding of Mabo II represents the culmination of small steps of policy change, which led to the judicial recognition of a legal concept, native title, that had been denied by the declaration of “terra nullius” some 157 years prior.”

The idea of native title is seen as an improvement over a legal doctrine that denied the very existence of Aboriginal people. But in the celebrations over the very important Mabo decision, sight should not be lost of the fact that there are problems in the exercise of claims of native title.

An interview with Les Malezer of the Australian Congress of Australia's First Peoples can be read at this link. He makes the claim that in fact native title is a “sell out”. The process of making native title claims is seen to be cumbersome and unworkable, and the reach of the law not sufficient to provide sufficient resolution to land claims. Moreover, he raises a caution about the way in which payments are being made through agreements with “extractive industries”:

“..extractive industries are trying to be positive about this to ensure that benefits are deriving from it. But one thing we know for sure that's happening under these agreements is that the benefits are not economic development, they are one-off payments and they're unlikely to survive a generation.”

Recommendations that were issued after the Special Session of the UN Permanent Forum on Indigenous Issues denounce the use of the terra nullius doctrine and comments on proposals for an international rather than domestic venue to deal with indigenous land claims:

“The Permanent Forum welcomes the recommendation to establish a voluntary international mechanism to receive and consider communications from indigenous peoples specifically concerning their claims to, or violations of, their rights to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired. This recommendation deserves further elaboration by indigenous peoples and others concerned.”

Thus, while the Mabo decision certainly should be celebrated, the need for continued efforts to satisfactorily address the legacy of terra nullius and the doctrine of discovery is great. Is this something that should be left to state/domestic jurisdictions or is it more appropriately dealt with as an international matter? Many issues remain to be resolved twenty years after Mabo.

Not at Home in the Land of My Ancestors

( a not very scholarly post...)
I dreamed of home last night, as I often do. And the dreams are soothing and peaceful. I look on the faces of the ones I love, family and friends, and speak with them. We are together and we are happy and the deep ache in my heart—in my very soul—is gone. The dreams are vivid, and they linger in the few moments of the transition between dreaming and waking. And then they fade—they are the fragments and then gone—and I know when I wake up I am not home.

I do not hear the sigh of the wind through cottonwoods, in full leaf of summer. I do not hear the whirr of locusts in the heavy air of the late afternoon. I do not hear the chirping of a meadowlark.


The heavy pressure that settles back into my chest as I take my first waking breath tells me what my fading dreams do as well—I am not home.


I am in the land of my ancestors but I am not home. I cannot feel anything here of connection or belonging. I feel no tug of historical recognition. Somewhere in time and space, whether in my generation or in the ones before, this stopped being a homeland for me. I do not hear anything of ancestral voices speaking here. Maybe it is because they have nothing to say to me. Maybe they felt no connection to the place they were in the way that I do to the place that I am from, that is home to me. Maybe as peasants and warrior-kings and everything in between ( for my ancestral bloodlines branch out in these ways as do many people whose ancestors moved from the Old World to the New, there is nothing remarkable or unique in this) they had no particular love or identity with place. Maybe that is only some kind of New World feeling. But that is also hard to imagine—that they could feel themselves no identity or connection to this Old World land—it is after all a beautiful place of green valleys and heavy woods, a landscape that looks enchanted and other-worldly, wrapped in mist and soft rain. Maybe I am only in a place where they cannot reach me, cannot speak to me. Maybe I do not hear them through the intense drum-beat of homesickness that marks the beginning of each day.

There are words I want to write, things I want to say, that stray far from the dry and desiccated tomes of scholarly writing. I cannot even bring myself to face those words…not today. Not today. There are other things to think, other things to say, other ideas to fashion.

Today is part of the Queen’s Jubilee celebration and by coincidence, I am reading in the book Black Elk Speaks, by John Neihardt, of Black Elk’s experience with the Jubilee of Queen Victoria. Black Elk has travelled with a Wild West Show to England:

“Then we saw Grandmother England… Her dress was all shining and her hat was all shining and her wagon was all shining as so were the horses. She looked like a fire coming…

We liked Grandmother England, because we could see she was a fine woman, and she was good to us. Maybe if she had been our Grandmother, it would have been better for our people.”

But after that Black Elk becomes homesick:

“I was more and more sick to go home all the time now, because it had been two winters since I went away. I could not think of anything else..”

I find some recognition in these words if not comfort, exactly. I cannot know exactly what Black Elk felt or thought… I do not pretend or presume to feel as he felt. But I know what it feels like to be far from home… And time to do some of my own writing... to write some words of my own...

Forced and Involuntary Removal of Children

In an earlier blog post, I began to address the complex topic of the intercountry adoption of indigenous children from Guatemala as one aspect of the occurrences of forced removal that is denounced by the UN Declaration on the Rights of Indigenous Peoples. This blog post picks up the topic again, looking at the practices of forced removal of children.

Involuntary or forced removal of children is not a new phenomenon or something that has been done only to indigenous children. There are historic and current examples of removal of children who are on the margins of society.
Researcher Tobias Hubinette comments on this in his chapter “From Orphan Trains to Baby Lifts: Colonial Engineering, Empire Building and Social Engineering” in the book “Outsiders Within: Writing on Transracial Adoption” published by South End Press. He comments (pg 141):

“The closest parallels to international adoption in the history of global child migration would be the 130,000 children shipped from the British Isles to populate the Empire between 1618 and 1967, and the 1000,000 American children transported by the “orphan train” from the East Coast and placed out to substitute parents in need of labor in the Midwest between 1854 and 1929.”

Removing children from their families and communities can have the devastating and obvious impacts—breaking up family units and destruction of community structures. But the harms go further and deeper. It is one way to attempt to eradicate a group if not physically then culturally. As an African-American social worker friend and former colleague once remarked to me, the most effective way to bring an end to a group of people is to take their children. The National Association of Black Social Workers (USA) has a position paper that outlines the concerns that arise due to disparate treatment of African-American children in the US foster care system and the importance of children maintaining links with their culture and community.

Forced removal of indigenous children has been given a high profile. The 2002 film "Rabbit Proof Fence" addresses forced removal of children in Australia. The ongoing Canadian Truth and Reconciliation Commission addresses the forced removal of children to residential boarding schools. And the 1979 US federal Indian Child Welfare Act was passed in order to address the high rates of forced removal of indigenous children.

Intercountry adoption is another way in which forced removal of indigenous children has occured . And this was part of the dynamic of intercountry adoption in Guatemala, which future blog posts on this topic will address.