Excerpted From: Lauren Ashley Week, Cultural Resources, Conquest, and Courts: How State Court Approaches to Statutory Interpretation Diminish Indigenous Cultural Resources Protections in California, Hawai'i, and Washington, 12 Michigan Journal of Environmental & Administrative Law 103 (Fall, 2022) (183 Footnotes) (Full Document)


LaurenAshleyWeekIn 1999 two University of Colorado professors, Patricia Nelson Limerick and William Riebsame, endeavored to answer the question “what should every westerner know?” Using a combination of online surveys and focus group meetings with communities across the Western United States, Limerick and Riebsame encountered a common narrative: a desire by non-indigenous westerners to acknowledge “that the Indians were here first.” However, the researchers also experienced shared disappointment in the boundaries established with this response. From Bend, Oregon to Sedona, Arizona, although focus group members recognized Native Americans as the original peoples of the land, not a single non-indigenous participant suggested that any action beyond mere acknowledgement was warranted or required. Instead, Limerick and Riebsame documented a widely held but deficient conviction that “any injury done to Indian people was an episode of sorrow long past any opportunity for corrective action.”

Since its inception in the 1980s, Critical Race Theory has documented the United States' two original sins: slavery and conquest; yet, scholars have also recognized that while the former is well known, the latter is simultaneously “obvious and unknown.” Explanations for the inattention given to the colonization and enduring exploitation of Native communities include the relatively small percentage of indigenous people that make up the modern United States populace, the cultural persistence of the “myth of vanishing,” American exceptionalism, and a misguided belief that indigenous genocide happened so long ago it has “receded into the background of history.” Regardless, these realities and misconceptions seem to have shaped responses to Limerick and Riebsame's questions in 1999.

Despite Critical Race Theory's newfound national attention, public discourse has still not widely acknowledged the histories of colonialism and conquest and how the “discovery,” founding, and westward expansion of the United States continues to affect indigenous populations. As Critical Race Theory scholar Juan F. Perea states, “[t]he failure to engage with the conquest promotes ignorance of the real, devastating harms done to Native people by whites, who continue to benefit from their dispossession of Indian lands.” Thus, America's incapacity to address systemic colonization explains why Limerick and Riebsame's non-indigenous focus group participants repudiated the next steps after acknowledgement: first, asking “is there anything we can do” for the Native communities displaced by settler ancestors, and second, accepting responsibility for reparations for Native land dispossession.

The failure to engage with the original sin of conquest also permeates the American judicial system. Scholars of federal Indian law have underscored that “every time the courts construe a statute regulating Indian affairs [,] they must in some way come to terms with the manner in which Congress acquired power over the continent and its indigenous peoples.” Throughout the nineteenth and early twentieth centuries, federal courts legitimized the United States' authority and guardianship over Native land and populations by asserting the inherent power and protective duties of the conquering sovereign and/or claiming racial and cultural superiority. As American cultural norms have progressed and developed through the late twentieth and early twenty-first centuries, a majority of society no longer deems appeals to conquest or supremacy appropriate or acceptable. Yet, federal courts continue to either take the United States' sovereign authority for granted or purposely avoid the question of its legitimacy-- leaving the basis of congressional power over Native lands and communities “unexplored and unarticulated.” While modern courts have occasionally acknowledged the violent and oppressive origins of congressional power in Indian affairs, the federal court system has still not meaningfully reckoned with the persistence of settler colonialism in cases implicating indigenous sovereignty and rights. Critical Race Theory critiques this failure of the judicial system and in doing so overtly recognizes that “the United States acquired sovereignty on [the North American] continent by violent conquest.” Moreover, Critical Race Theory scholars depict how the majority of white European settlers defended “the subjugation of indigenous cultures by claiming racial and cultural superiority.” By failing to acknowledge the history of conquest, the federal judicial system continues to perpetuate a subjugation premised on white supremacy and the foundational violence of settler colonialism.

Only limited scholarship has interrogated if and how the state court system may parallel the failures of the federal benches. This Note aims to understand how state courts--specifically in California, Hawai'i, and Washington--either ameliorate or perpetuate modern forms of conquest through their approaches to statutory interpretation. Moreover, this Note focuses on the specialized subject matter of cultural resources protection and considers how both historic preservation laws and environmental review processes safeguard or fail to protect indigenous cultural resources.

This emphasis connects the analysis to current manifestations of physical conquest as perpetuated by the limitations of cultural resources protection laws in preserving the sovereignty and remaining rights of Native Americans to tangible land. This Note further explores how state court interpretations may, at best, inadvertently and, at worst, covertly perpetuate the racist and supremacist arguments of earlier courts. Since cultural resources protection laws aim to safeguard the intangible spiritual, political, and cultural values associated with land in Native communities, legal reasoning that prioritizes white European ideas about appropriate (and often extractive, economically-driven) land uses at the expense of indigenous understandings and practices creates a cultural hierarchy rooted in white supremacy and colonial thinking.

Due to the interpretation of such statutes by state courts, how effective are state protections of indigenous cultural resources and property rights? As the Western United States' “liberal sisters,” do California, Hawai'i, and Washington's politics create state court systems more committed to favorable interpretation for indigenous communities? Or do liberal appeals to social justice and environmental protection fail to facilitate judicial respect for Native knowledge and sovereignty?

Part I of this Note introduces the states used as case studies and interrogates how even states with liberal politics and large indigenous populations ultimately fail to respect Native sovereignty, making them ideal cases studies for the persistence of settler colonialism in state court jurisprudence. Part II broadly defines cultural resources and outlines the protections provided for such resources under the applicable state statutes of California, HawaiBacki, and Washington. Part III briefly introduces the “discovery” doctrine and critiques it from the lens of Critical Race Theory and the specialized sub-branch of Tribal Critical Race Theory (“TribalCrit”). Finally, Part IV analyzes how state court approaches to statutory interpretation fail to incorporate important Critical Race Theory context, diminish indigenous cultural resources protections, and thereby perpetuate modern day conquest.

Note on Terminology

Throughout this Note, the terms Native and indigenous are interchangeably used when broadly describing Native American people. For population calculations, this Note relies on data from the 2020 American Community Survey, which groups mainland indigenous populations with Native Alaskans in the category “American Indian or Alaska Native” and estimates “Native Hawaiian” populations jointly with “Other Pacific Islanders.” Since this Note includes Hawai'i as a case study state, Native Hawaiians and Pacific Islanders are also encompassed whenever the terms Native, indigenous, and/or Native American are used generally. Whenever possible or appropriate, indigenous communities are identified by their tribal name. Further, when discussing specific populations, the terminology collectively preferred by members of that community is employed. Native Americans are sparingly referred to as “Indians.” Such terminology has been limited to (1) quotations containing the original (usually culturally outdated) language of other research papers authored during the early years of Critical Race Theory; and, (2) references to the overall federal statutory framework or specific acts pertaining to “Indian tribes,” as that is the language used by the law itself. Additionally, the modifier ‘tribal’ is used when discussing the indigenous branch of Critical Race Theory and to denote land under Native American ownership and control as designated under federal and state law.

These conventions abide by the terminology guides curated and provided by the Native Governance Center and the Smithsonian's National Museum of the American Indian. However, as emphasized by the National Governance Center, it is important to recognize that terminology and language are everchanging, highly personal, and sacred, and that a comprehensive, all-inclusive guide for appropriate or preferred conventions does not exist. Thus, as recommended by the National Governance Center, other resources have been consulted which have been created by Native-led organizations throughout the research and writing of this Note.

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Even in the “liberal sisters” of the American West--a region home to vast tribal land and large indigenous populations--courts favor canons of statutory interpretation that embrace problematic legacies while devaluing Native sovereignty. By analyzing state court opinions as tools of modern conquest, this Note reveals the work and advocacy still needed to decolonize the United States' judicial systems at all levels. In cases interpreting state cultural resources protections, state courts can and should embrace an interpretive strategy rooted in indigenous cultural understandings and knowledge. Such a refocusing would recognize and respect one of the key tenets of TribalCrit: “The concepts of culture, knowledge, and power take on new meaning when examined through an [i]ndigenous lens.”

Moreover, state courts can and should acknowledge state legislative purposes aimed at promoting Native sovereignty and reparative justice. This reframing would not only legitimize the court as a venue that upholds the will of the people as encapsulated through representative democracy (at least in the “liberal sisters”) but also furthers the tenets of TribalCrit and the will of Native communities. Lastly, state courts can and should abandon any interpretation rooted in the concept of “discovery.” In March 2023 the Vatican disavowed the doctrine, and with it “the mindset of cultural or racial superiority which allowed for [the] objectification or subjection of people ....” Chief Justice Marshall relied on European colonial history and its deep interconnections with the Christian faith to justify and support the American adaptation of “discovery.” Although Critical Race Theory scholars and indigenous activists have long brought the doctrine into question, the Vatican's repudiation further supports state court rejection of the federal precedent.

As powerfully highlighted by Brayboy, “[i]ndigenous peoples have a desire to obtain and forge tribal sovereignty, tribal autonomy, self-determination, and self-identification.” Approaches to statutory interpretation that incorporate indigenous knowledge, honor legislative purposes that promote Native sovereignty, and disavow the doctrine of “discovery” offer a solution to the question “is there anything we can do?” As a strategy, such approaches recognize past harms and accept responsibility for reparation and the future protection of indigenous cultural resources as already advocated for by existing historic preservation and environmental review state statutory frameworks in California, Hawai'i, and Washington.

University of Michigan Law School and Taubman College of Architecture and Urban Planning, Juris Doctor and Master of Urban and Regional Planning Candidate, 2023.