Land Rights, Claims, and Western Shoshones: The Ideology of Loss and the Bureaucracy of Enforcement

Abstract

This essay examines the shifting legal‐political discourses surrounding the concepts “claim,”“property,” and “rights” with regard to the Western Shoshone. It argues that an “ideology of loss” structured the Indian Claims Commission (ICC) proceedings. These proceedings parted Native Americans from their land, often despite existing treaties affirming land rights. Far from “settling” historical claims, the ICC proceedings actually produced and transformed Native and non‐Native histories and added a new bureaucratic facet to the colonial encounter. The discussion suggests that the attempted conquest of Native Americans is not a single fact accomplished in the past but is rather an ongoing process that is driven by the American political economy. Reference to the works of contemporary scholars, as well as to those of ancestral scholars Henry Sumner Maine, Karl Marx, Max Weber, and Antonio Gramsci elucidates how a dominant legal philosophy was put into place. This philosophy permitted the wielding of legal power and undermined Native Americans’ contestation of that power. Nevertheless, indigenous peoples such as the Western Shoshones, and the lawyers working with them, have found ways to use law to exert agency in the face of this bureaucratic force—creating an at‐times ambivalent or double‐edged relationship with legal power.

Claiming Indigenous Rights to Culture, Flora, and Fauna: A Contemporary Case from New Zealand

“…The structure of the Waitangi Tribunal seems to summon up a kaleidoscopic mix of genuine grievance and jockeying for power – a mix accompanied by a blending of (and continuing debate over) cultural continuity, essentialism, and invention. In fact, the New Zealand case poses a fascinating contrast to many other situations where indigenous peoples resort to law, because the Waitangi Tribunal does not put claimants in the impossible position of having to argue that nothing has changed over time in order to assert claims based on tradition or culture (contrast the situations described by Povenelli 2004 and Clemmer 2009, among many others). But if we concentrate merely on this admittedly interesting and problematic (ethically and intellectually) aspect of the case, we miss something more basic to this complex situation.…”

Editors’ Introduction: At Disciplinary Edges

“…This Tribunal avoids a double bind frequently imposed on indigenous people who wish to make legal claims in today's context: it does not require that time be frozen, or that claimants prove a virtually impossible form of cultural continuity in which they can trace practices, identities, and ideas in unchanging form from some “authentic” past to the current time. (For a contrasting example from the United States, see Clemmer 2009.) And yet, Levine argues, the Tribunal's neoliberal foundation creates a different kind of double bind that makes claims based on generalized cultural identity deeply problematic.…”

U.S. Law and Native American Rights in Action – A Law Professor and Activist's View

“…Tribes – their leaders and their citizens – have to make sure their lawyers aren't selling them down the tubes. Like the Western Shoshone (see Clemmer 2009), we have to recognize that we are sometimes given false choices by law – and we have to learn how to explain those false choices, that there may be a third alternative. Of course, sometimes, there isn’t.…”