We’re pleased to share a short excerpt from Justin B. Richland’s new book, Cooperation without Submission, which was published this September. It is well-known that there is a complicated relationship between Native American Tribes and the US government. In Cooperation without Submission, Justin B. Richland, an associate justice of the Hopi Appellate Court and ethnographer, closely examines the language employed by both Tribes and government agencies. Native American Tribes see themselves as nations with some degree of independence, entitled to recognition of their sovereignty over Tribal lands, while the federal government acts to limit that authority. In this vital book, Richland sheds light on the ways the Tribes use their language to engage in “cooperation without submission.” In this excerpt, Richland explores a brief history of federal Indian law since Cherokee Nation v. Georgia.
It has been almost two hundred years since the 1831 Supreme Court decision in Cherokee Nation v. Georgia, in which were announced some of the foundational principles of federal Indian law. Chief among these were: (1) that Tribes are “domestic dependent nations” retaining certain inherent rights of self-determination and internal governance, while ceding other aspects of their sovereignty to the United States, including absolute title to their Aboriginal lands and resources; and (2) that to the extent that US settler colonialism infringes on Tribal sovereignty, the federal government bears a “trust responsibility” to Tribal Nations. That is, whenever the United States enacts policies affecting Tribal Nations, it must do so in a manner that comports with Tribes’ best interests. These remain, ostensibly, the two organizing principles of US policies toward Tribal Nations to this day, including those that are supposed to animate the details of regulatory and administrative processes that have constituted the front line of Native-US engagements (Getches et al. 2016; R. Miller 2015).
Even those unfamiliar with the history of US policies toward Native Americans will know that this relationship is one in which the “best interest” of Tribal Nations has usually been defined by federal actors in ways that effectuated the further loss of Tribal Nations’ political, economic, and sociocultural autonomy. This certainly was the case from the mid-1800s to early 1900s, when the prevailing policies called for the breaking up of collective Tribal land holdings, the cultural assimilation of Native Peoples through forced reeducation, and the erasure of Tribal Nations’ political relations to the United States (Pommersheim 2009; Wilkinson 1987). It is also true of the policy from the late 1950s to the late 1960s, which attempted to end the unique relationship between certain select Tribes and the US, to additionally allow several named state governments to assume criminal jurisdiction over Tribal lands in their borders, and to do both without any effort to secure Tribal consent for these tectonic policy shifts. Scholars of federal Indian law and Tribal governance understand both periods as the long dark nights when Tribal Nations suffered the greatest losses at the hands of a US government that was ostensibly acting in their best interests (Getches et al. 2016; Wilkins and Stark 2018).
But some argue that settler colonial depredations have also been enacted on Native Nations between the 1930s and 1950s and again from the late 1960s until now, when the nominal commitments of US policy toward Native Nations have been the acknowledgment of Tribal rights to self-governance. These periods are characterized by laws that ended prior assimilative policies and inaugurated processes for “recognizing” and “reorganizing” Tribal Nations, while later encouraging them to exercise their rights to self-determination by exerting greater control over the day-to-day operation of federally funded programs. While these policy eras express a greater commitment to Tribal sovereignty, they have more recently come under criticism for actually doing more to erode genuine Tribal self-governance. The critique is that they fail to genuinely acknowledge and be open to the decision-making authority of Tribal Nations over their own futures, while at the same time hiding behind virtuous-sounding policies the United States’ role in continuing to deprive Tribal Nations of their rights (Bruyneel 2007; Coulthard 2014; Deloria and Lytle 1983).
In light of this, colonialism in the United States, Canada, Australia, and other settler nation-states has been described as uniquely committed to the elimination of Indigenous Nations (Veracini 2010, 2015; Wolfe 1999, 2006). And this is true “whatever settlers may say” (Wolfe 2006, 388). One of the founding theorists of settler colonialism, Australian anthropologist Patrick Wolfe, quotes Deborah Bird Rose when he writes that “to get in the way of settler colonization, all the native has to do is stay at home” (388). Given this, he argues:
Settler colonialism has both negative and positive dimensions. Negatively, it strives for the dissolution of native societies. Positively, it erects a new colonial society on the expropriated land base—as I put it, settler colonizers come to stay: invasion is a structure not an event. (388)
This concept of settler colonialism has found fertile ground in Native American studies, Indigenous studies, and the anthropologies concerned with both. It discloses how and why struggles like the resistance of the Standing Rock Sioux Tribal Nation to the Dakota Access Pipeline arise not just when US policies are explicitly oriented to the elimination of Tribal Nations but also in periods when those policies proclaim US support for Tribal self-governance and economic development. Wolfe’s theory contextualizes Indigenous resistance as a legitimate response both to overt acts of settler violence and to the equally insidious settler impulse to “maintain the refractory imprint of the native counterclaim,” a perverse drive to cultivate an “‘indigenous aura’ to reflect and justify the settler state’s independence from what was the mother country” (Wolfe 2006, 389).
In a similar vein, historian Philip Deloria (1998) describes this refraction as the kind of “playing Indian” on display from the earliest days of the US’s pre-revolutionary era into the present. It is evident in the acts of colonial rebels in the Massachusetts Colony, who disguised themselves as Mohawks and destroyed tea shipments from the United Kingdom in what is now known as the Boston Tea Party. But it is also present in the seemingly more benign appropriations by the Boy Scouts of America and its ersatz Indian themes, which arose at the very same time that US policies were lashing Native Peoples with the deepest cuts of forced assimilation. And it continues in the various mascot controversies that continue to embroil sports culture in the United States (King and Springwood 2001). A great irony of the interest that non-Native individuals and institutions have long displayed for Native Nations and their norms, knowledge, and relations is that their interest has almost always come at the expense of Indigenous Peoples themselves.
The irony is no less dramatic, and the appropriation no less serious, when the “playing Indian” is less obvious. For example, some of the theoretical and analytic apparatuses I use in this book are schools of thought whose unique efflorescence can be at least partly traced to the norms, knowledge, and relations gained from early Euro-American encounters with Native Nations and their theories of sociality and governance.
Justin B. Richland is an associate justice of the Hopi Appellate Court as well as an associate professor of anthropology at the University of California, Irvine, and faculty fellow of the American Bar Foundation. Richland is the author of several works on the contemporary legal systems and practices of Native American Nations, including Arguing with Tradition: The Language of Law in Hopi Tribal Court and Introduction to Tribal Legal Studies.