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Know the West

Tribal nations are decolonizing cultural protection

A new book looks at a ‘third way’ for Indian law.

 

In 2016, the Standing Rock Sioux and flocks of their allies protested the construction of the Dakota Access Pipeline, which would carry Bakken crude oil from North Dakota to Illinois, crossing underneath Lake Oahe, the reservation’s water source. Tribal members opposed the pipeline over fears of water pollution and climate impacts; it also crossed their ancestral lands, and they argued that the U.S. Army Corps of Engineers had not adequately surveyed the burial grounds in its path. But because the pipeline wasn’t on tribal lands or under tribal jurisdiction, there were few legal options. As Indian law attorneys Hillary Hoffmann and Monte Mills write in their new book, A Third Way: Decolonizing the Laws of Indigenous Cultural Protection, after almost 200 years of treaties, court cases and federal infringement, “The tribe had lost almost every source of legal authority to regulate or stop it.” The pipeline was ultimately constructed, though its legality is still in court over potential environmental violations.

J.D. Reeves/High Country News

The battle over the Dakota Access Pipeline exemplifies how difficult it can be for tribal nations to assert their sovereignty within the existing legal structure to protect culturally important land, water, wildlife and ancestral objects. Over the last decade, however, Hoffmann and Mills argue that a new era of Indian law has emerged that protects Indigenous cultures based on Indigenous value systems. This “third way” — neither solely Indigenous nor European, but rather both — shows tribal nations working within those legal constraints in novel ways, or changing them altogether, to better reflect their values. This could mean different outcomes in future cultural protection conflicts.

Monte Mills, an associate professor and director of the Margery Hunter Brown Indian Law Clinic at the University of Montana in Missoula, has represented tribes, including the Southern Ute Indian Tribe in Colorado, in court. Hillary Hoffmann, a professor of environmental law at Vermont Law School, studies conflicts between public-lands regulations and tribal rights.

Sharing what they’ve learned over their combined 31 years of teaching Indian law and working with tribal nations, Hoffmann and Mills explore the myriad ways Indigenous people are decolonizing laws around cultural protection. High Country News recently spoke with them about this new era and what it could mean for tribal sovereignty.

This interview has been edited for length and clarity.

High Country News: What is cultural protection, and why does it matter?

Cultural protection law has been a sometimes well-intentioned but often harmful or inadequate way of protecting tribal culture.”

Hillary Hoffmann: Cultural protection as we describe it in the book is a tribe-centered body of laws that protect tribal culture using the tribe’s own value system.

Cultural protection law has been a sometimes well-intentioned but often harmful or inadequate way of protecting tribal culture, which includes tribal languages, religions, history, identity and affiliation, and more tangible cultural belongings, such as the bodies and belongings of ancestors and tribal art. It also includes traditional tribal practices, such as the tending and gathering of wild rice, or the stewardship of a natural feature like the Black Hills, Mauna Kea or Devils Tower.

One example of this type of law is the Archaeological Resources Protection Act, which was passed (in 1979) to stop the looting of past and current tribal communities. It not only failed to accomplish this, but has allowed a black market in tribal cultural belongings to flourish, in the U.S. and abroad. 

HCN: How did you both come across this idea, and, why is it particularly relevant right now?

Hoffmann: I came to this because of my work in environmental and natural resources law. I started writing about Bears Ears (National Monument in Utah) and the conflicts between tribal values and non-tribal values on public lands, especially in the context of oil and gas development. One of my real interests in this project was to illustrate how laws that everybody thinks of as being good for everyone don’t respect and protect adequately the special legal rights of tribes, like treaty rights and sovereignty. A lot of environmentalists, I think, wrongly assume that environmental laws benefit tribes and non-tribal members alike, and that’s not actually the case.

Tribes across the country are asserting their sovereignty in new ways and really bringing their own values and approach to solving critical challenges.”

Monte Mills: Tribes across the country are asserting their sovereignty in new ways and really bringing their own values and approach to solving critical challenges, whether in the context of a global pandemic like we have now, or the management of natural resources or the protection of cultural resources. We’ve seen events that have garnered significant national attention that bring these conflicts about tribal presence, tribal treaty rights and tribal roles in these conflicts to light, like Dakota Access.

It’s also a really important turning point for federal Indian policy more broadly. It’s been 50 years since the current era of self-determination was announced by President Richard Nixon, which has resulted in a significant growth in tribal government and tribal interests in sovereignty. But there’s a movement afoot to expand self-determination further. If there’s going to be a new era of policy around federal Indian law, it’s going to be the tribes that are going to define that, rather than be limited by federal laws and policies as they have been thus far.

HCN: How does your book tie into events of the last few months, such as police brutality protests, the pandemic, the Supreme Court McGirt decision or the Mount Rushmore protest?

Mills: There’s a whole shift in terms of political norms and standards going on right now. There’s a need to reckon with the policies that led to the current state of the law. For the most part, all of those policies were premised on the idea that Indian tribes either were gone or would go away or would be erased or marginalized. That type of reckoning needs to happen if the law is going to progress.

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HCN: The book focuses on cultural protection. Why focus on that specifically and not something more broad, like tribal sovereignty?

Mills:  It’s sort of a false distinction, because we are talking about the use of tribal sovereignty to protect Indigenous cultures. A “third way” really refers to a more effective legal framework that incorporates tribal values into cultural protection. And clearly one of the most central and most important tribal values is the exercise of tribal sovereignty.

We particularly focused on cultural protection because maybe more than any other area, there is an existing legal framework of federal, state and even some international legal standards that just don’t serve to actually protect items of Indigenous cultural value at all, or (do so) very minimally. Even though there are purportedly federal cultural protection laws, they don’t really reflect the Indigenous cultures that they’re expressly meant to protect.

Hoffmann: In some ways, the laws that relate to cultural protection are eroding tribal sovereignty. Some laws that should ideally protect Indigenous cultures and aspects of those cultures, like artwork or photography, currently allow for non-Indigenous people to obtain legal rights to cultural belongings of tribes.

HCN: The book is pretty thorough in its examples of flaws in existing law, but you also point out how tribal nations are working to reshape those rigid structures to actually serve their citizens’ needs. How are they doing that?

Hoffmann: Bears Ears is an interesting use of an existing law (the Antiquities Act) that has largely failed to protect cultural values. The (Bears Ears Inter-Tribal Coalition) that put together the proposal to create Bears Ears found a way to essentially use that old law that had been used to suppress tribal cultures, to re-inject tribal voices and tribal values into public-lands management. 

Mills: A few other examples we talk about are laws that tribes are developing and adopting themselves, even in the form of new constitutions that really weave together tribal cultural values with their systems of government. While those are currently focused on governance within the reservation, I think they provide a model for thinking about what state or even federal cultural protection laws could be like.

HCN: What motivated you to write this book?

Mills: We were interested in putting something out there that could be used as a tool, particularly by tribes and tribal advocates, to help contextualize and provide a basis for understanding, for example, a tribal claim to engage in co-management of a national monument like Bears Ears. As much as anything else, (we’re interested in) finding ways to ensure that the folks who have the longest connections, particularly with the cultural and natural resources of this continent, are the ones who are also leading efforts to manage or protect those resources.

HCN: How do you think that non-Native people can support and center Indigenous people in this third way?

Mills: Understanding more about the context, history and nature of treaty rights and tribal sovereignty is the first step. Then, with that context, working to shift perspectives around the role of tribes in our legal and political systems, so that there are more meaningful opportunities for tribes to take the lead on issues that don’t just affect their own reservations, but that can help move things forward for all of us.

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Hoffmann: We need to also decolonize our major environmental nonprofits, (which) tend to be the ones who are leading the way in these cases that center around tribal values. It’s been a great benefit to the tribes to have those major leaders advocating for them. But even better would be to have tribal lawyers bringing those cases and centering them around the values that the litigation is seeking to protect.

That’s why we used (“decolonizing”) in the title, because it’s so important to not just try to use what’s there to advance tribal values, but to try to really dig into those tribal values themselves to build whatever is going to come next.   

Anna V. Smith is an assistant editor for High Country News. Email us at [email protected] or submit a letter to the editor