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Excerpted From: Adam Crepelle, The Time Trap: Addressing the Stereotypes That Undermine Tribal Sovereignty, 53 Columbia Human Rights Law Review 189 (Fall, 2021) (424 Footnotes) (Full Document)

AdamCrepelleMany people have a hard time with Indians participating in the modern world. Indians' cultural aversion to markets and capitalism is blamed for the poverty that has ensnared Indian country for generations. Images of Indians as non-commercial defenders of nature may be why the protest at Standing Rock captured the world's attention. After all, the world expects Indians to defend their ancestral land from oil corporations. Indeed, Standing Rock was motivated by fears of environmental contamination and galvanized under the battle cry “water is life.”

Standing Rock received wide support from Indian country. Among the tribes supporting the protests were the Mandan, Hidatsa, and Arikara Nation, the Southern Ute Indian Tribe, and the Navajo Nation. Each of these tribes is heavily involved in the extractive industry; in fact, the Southern Ute Indian Tribe owns one of the most successful oil companies in the United States. The oil producing tribes supporting the Standing Rock Sioux were not being hypocritical. For these tribes, the conflict was not even about oil or the environment. Rather, the issue for tribes was the right to determine their own future. Popular tropes about Indians interfere with this fundamental aspect of sovereignty.

The Makah's attempt to exercise its treaty-guaranteed right to whale evinces this point. The Makah have resided on Washington's Olympic Peninsula for ages. Whales are vitally significant to the Makah culture; hence, the Makah secured the right to whale in its treaty with the United States. When overhunting by non-indigenous groups threatened worldwide whale populations, the Makah agreed to cease whaling for the survival of the species. The whale population eventually rebounded, and in 1999, the Makah sought to exercise its treaty right. The general public was outraged. The United States mandated the Makah use modern equipment during its whaling expedition and whaling opponents were particularly upset about this aspect of the hunt. An opponent of Makah whaling asserted, “Wake up in your teepee, put on your buffalo skin, paddle out in your canoe and stick it with a wooden harpoon. Until then, spare us the ‘spiritual existence’ nonsense.”

Despite the United States claiming a policy of tribal self-determination since the 1970s, contemporary federal Indian law continues to operate on stereotypes just as antiquated as the Makah whaling opponents' views. While the “guardian-ward relationship” between the United States and Indian tribes is now referred to as a trust relationship, the premise remains the same--tribes are not competent to govern themselves. Consequently, Indian reservations are burdened by dense, complex federal regulations that do not apply anywhere else in the United States. Federal Indian law jurisprudence is no better as the Supreme Court routinely wields outdated views of Indians to whittle away at present-day Indian rights. This is the time trap.

The time trap is the public's perception of the American Indian past. The time trap is not dangerous because history is ignored; rather, the time trap springs from reliance on a false historical narrative. This specially crafted version of the past is a spell cast to dehumanize an entire group of people. Although there is a racial component, the time trap is focused on culture, and no group is deeper in the time trap than Indians. People assume Indian cultures are static--suspended in time while the rest of the world turns. Consequently, Indians face backlash when they break with the popular historical narrative about Indian culture.

However, Indian cultures--like all cultures--were and remain dynamic. Indians seamlessly integrated European items into their cultures. As Cahuilla author Rupert Costo put it, “After all, the Indians were not and are not fools; we are always ready to improve our condition.” Other cultures have absorbed countless aspects of indigenous American cultures, from foods to political ideals. Society must recognize Indian cultures' adaptability; otherwise, the United States will forever remain in the colonial time trap. Though this Article focuses on how the time trap impacts present-day Indian rights, the time trap has been just as vital in denying other groups, like the peoples of Africa, their basic humanity.

This Article recognizes that abolishing centuries-old, time-trapped Indian tropes is unlikely to happen overnight. Despite living in the era of “fake news,” this Article assumes the truth still matters. The truth combined with the United States' ongoing racial reckoning should equal an opportunity to reevaluate how the United States portrays Indians. Given the federal government's trust relationship with tribes, the United States should lead the charge to challenge Indian caricatures. This should be simple, as most of the legislation and jurisprudence relating to Indians is overtly time-trapped. Moreover, revising the laws governing Indian country is paramount to improving the living conditions of contemporary Indians.

The remainder of this Article proceeds as follows. Part I explores the origins of federal Indian law and policy. Following this, Part II examines the implications of basing contemporary federal Indian law and policy on time-trapped stereotypes. Part III describes how the United States' indigenous inhabitants actually existed before European contact. Next, Part IV discusses how to unlock the time trap.

[. . .]

Lewis Carroll's Red Queen knew, “[I]t takes all the running you can do, to keep in the same place. If you want to go get somewhere else, you must run at least twice as fast as that!” Likewise, cultures evolve as the world changes. Cultures routinely adopt new means to fulfill their needs, and tribal cultures are no different. While there are certainly significant differences between Navajo and New Yorkers, Navajo and New Yorkers at their core both have the same fundamental human needs. Tribal governments need the same freedom to evolve as other United States' governments are afforded. Contemporary tribal leaders must be able to solve contemporary tribal problems on their own terms, and the law must allow them to do so. Federal Indian law must recognize tribes as self-governing nations with histories of adapting to new circumstances. Failure to acknowledge tribes' ability to adapt will keep tribes forever trapped in time.

Assistant Professor, Antonin Scalia Law School, George Mason University; Director, Tribal Law & Economics Project, at the Law & Economics Center; Associate Professor and Managing Fellow, Native American Law and Policy Institute, Southern University Law Center; Campbell Fellow, The Hoover Institution at Stanford University; Associate Justice, Pascua Yaqui Tribe.



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