Native Jurisprudence

Native American CRT scholars have been active in addressing indigenous people’s rights, sovereignty and land claims. Here we also witness sameness and disparity. Christine Zuni Cruz (2005) elucidates her feelings that Critical Race Theory is a lived experience for indigenous peoples: [1]

It is in the stories of our fathers, our sisters, our children, all those within

our communities. It is a compelling story that must be told and must be

included in the analyses of the law that our profession engages in. If we

don’t speak them, no one else will.

Castagno and Lee (2007, p. 4) note that Native Jurisprudence or ‘TribalCrit includes tenets and principles that ‘are culturally specific to Indigenous people and communities’. The term ‘TribalCrit’ (Tribal Critical Race Theory) was coined by Bryan Brayboy (2005); Brayboy (ibid., pp. 429-430) lists its nine tenets follows:

  • 1. Colonization is endemic to society.
  • 2. U.S. policies toward Indigenous peoples are rooted in imperialism, White supremacy, and a desire for material gain.
  • 3. Indigenous peoples occupy a liminal space that accounts for both the political and racialized natures of our identities.
  • 4. Indigenous peoples have a desire to obtain and forge tribal sovereignty, tribal autonomy, self-determination, and self-identification.
  • 5. The concepts of culture, knowledge, and power take on new meaning when examined through an Indigenous lens.
  • 6. Governmental policies and educational policies toward Indigenous peoples are intimately linked around the problematic goal of assimilation.
  • 7. Tribal philosophies, beliefs, customs, traditions, and visions for the future are central to understanding the lived realities of Indigenous peoples, but they also illustrate the differences and adaptability among individuals and groups.
  • 8. Stories are not separate from theory; they make up theory and are, therefore, real and legitimate sources of data and ways of being.
  • 9. Theory and practice are connected in deep and explicit ways such that scholars must work towards social change.

As Castagno and Lee (2007, p. 5) put it following Brayboy (2005) and Tsosie (2000), ‘[t]ribal nations have a unique history and a unique political relationship with the federal government, and both of these factors must be central to analyses’.

Tsosie takes the specific example of Native Hawaiians. The Hawaiian monarchy was overthrown by a group of American insurgents, with the help of the US military, in 1893 (Tsosie 2005-6, p. 32). Tsosie (ibid., p. 43) argues that ‘[e]xamining the concept of justice through the CRT lens of “equality” demands that we consider the notion of “equality of nations”’ as a possibility to achieve justice and reconciliation (ibid.). For Native Hawaiian people:

are not ‘Indians’. They are not merely ‘indigenous peoples’. They are the Kanaka Maoli and they are the contemporary descendants of the Kingdom of Hawaii, which never voluntarily surrendered to the United States (ibid., p. 42).

Referring to US policy towards Indigenous peoples in general within Federal Indian Law, Tsosie explains that Indian tribes had only a ‘right to occupancy’ rather than the territorial rights of a ‘real’ nation (ibid., p. 43). Moreover, because tribes were perceived to be in a rudimentary state of governance, they were deemed to be ‘wards’ of the federal government (ibid.). ‘The notion that Indian nations’, she continues, are not fully socialized or civilized also creeps into these cases, masked as a fear that tribes will not respect the “civil rights” of non-Indians, or even nonmember Indians’ (ibid., p. 44). This was not always the case Tsosie points out, and cites treaties that were signed in a spirit of diplomacy between Europeans and Native Nations in the eighteenth century (ibid., pp. 44-5).

Because the privilege and power resides in federal and state governments, she concludes, rather than with tribal governments, the ensuing problems such as lack of meaningful tribal jurisdiction over assaults and domestic violence between non-Indians and Indians, for example, are treated as a ‘social condition’ (ibid., p. 44), ‘amenable perhaps for federal funding to “study” the problem’ (ibid.). ‘But no one seriously questions the validity of the basic structure’ (ibid.).

Citing Cheryl Harris 1993) Tsosie (ibid., p. 43) goes on to make the case that ‘formal equality’ can and often does disadvantage people of color, and that CRT transcends formal justice and builds ‘on the truth of the political, social, economic and spiritual conditions experienced by a people, to analyze alternative possibilities to achieve justice’ (Tsosie 2005-6, p. 43). Tsosie’s solution is for Native people ‘to define, assert, protect, and insist upon respect for the right to be what they always have been: distinctive governments and societies, autonomous and free’ (ibid., p. 45). This means resisting the colonial enterprise, which uses external power to define the ‘other’ as subordinate to the colonial nation, and taking back power and constructing tribal sovereignty from within Native societies (ibid.) (the restoration of indigenous rights in the Bolivarian Republic of Venezuela, including collective ownership of land, and the right to an intercultural and bilingual education is discussed in chapter 8 of this volume).

These distinctive differences in the Native American experiences, any more than those of the other racialized groups in the US, do not, of course, detract from the commonalities of racism experienced by racialized communities there and, indeed, worldwide. Overall, similarities and differences between African Americans, Latina/o Americans, Asian Americans and Native Americans underline Dixson’s (2006) aforementioned analogy with jazz—in unison and out of unison at the same time. As will be argued throughout this volume, however, these differences and similarities, to be fully understood, need to be related to and articulated with ongoing changes in the capitalist mode of production.

CRT has a number of other variants which are not specifically ‘ethnic’, and therefore, fall outside the remit of this book. These include Critical Race Feminism (Harris 2001, p. xx); and ‘a ... queer-crit interest group’; (Delgado and Stefancic 2001, p. 6) (see Delgado and Stefancic (2000) for discussions of these variants).

  • [1] realize, as people of color, as people who love our families, our people,we don’t engage in critical race analysis in the abstract. We are a part of theanalysis. We experience the impact of race, color, and culture in the context ofpower.
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