Archive for category Indian Law

Clinton's Lore

This article is taken form the weekly issue of the New Zealand Listener published October 30-November 5 2004 Vol 196 No 3364

Clinton’s Lore

by Steven Price

When tribes no longer see themselves as victims, this gives them incredible spiritual strength, says a visiting expert on American Indian law, who sees parallels with the situation of many Maori.

Mention the prospect of giving sovereignty to Maori, and Bob Clinton is likely to bridle a little, but not for the same reason as, say, Don Brash. “Can I suggest something?” Clinton will ask. “You’re not giving them anything. It’s already theirs.” It’s something to acknowledge, not bestow.

Maori sovereignty is not a radical notion for Clinton. He has spent 30 years studying American Indian law, arguing about it as a lawyer, teaching it as a professor, and applying it as a judge. This year, he’s at Victoria University’s law school working on a book, tentatively titled The Great Father’s Powers. The book excoriates the US Government – the “Great Father” – for failing to fully acknowledge the powers of governance of Native Americans. And Clinton is inclined to think that, in some ways, what’s happening in New Zealand is worse.

Because Maori sovereignty is a radical notion to middle New Zealand. Recent New Zealand governments have been prepared to negotiate with Maori claimants over redress for historical injustices, and consult over the development of some policies. But never do they concede that power – raw, decision-making, governmental power – may have to be shared.

For Clinton, that’s odd. He’s surprised at the “total unwillingness to recognise that a treaty, which – in its Maori version, at least – clearly includes rights of sovereignty, created a federated relationship between two peoples with separate rights of self-government”.

Article two of the Treaty of Waitangi, remember, promises Maori “te tino rangatiratanga” – the unqualified exercise of chieftainship – over their lands, villages and all their treasures.

Most indigenous peoples have to scramble to argue that their ancestors were hoodwinked by misleading colonialists into signing treaties, but in New Zealand the differences between the Maori text and the English text are there in black and white. For example, it’s only in the English text that “sovereignty” as such was ceded. The Maori version cedes “kawanatanga”, or governorship, which may be something less than sovereignty.

“You’ve got the only indigenous treaty I know that has two official written versions,” says Clinton. “You’ve got the proof that what indigenous people frequently claim happened, actually happened.”

Issues are more complex in the US, whose government signed nearly 375 treaties with various American Indian peoples. Much of their history has followed the same tragic path as here. Settler expansion. Land disputes. Wars. Court battles. Claims settle- ment processes. Sovereignty issues. But for all the similarities, things have played out differently in the US. Many Native Americans live on reservations, where they exercise real, though limited, rights of sovereignty. Tribal councils make political decisions and pass laws. Tribal administrations run schools and health clinics. Tribal courts rule on tribal members’ commercial disputes, divorce and custody battles, employment issues – even criminal cases.

Clinton hears some of those cases. Although he has no Indian blood, he was invited to be Chief Justice of the Winnebago Supreme Court in Nebraska (with jurisdiction over about 3000 tribal members). He’s also Associate Justice of the Cheyenne River Sioux Tribal Court of Appeals (6000 members) and the Colorado River Indian Tribes Court of Appeals (6000-7000 members).

So, how does this sovereignty shake down? Would a parallel Maori justice system be, as retired Court of Appeal judge Sir Duncan McMullin suggested last year, “unjust, unrealistic and impractical”?

Clinton doesn’t think so. Federal Indian law only recognises the tribes’ jurisdiction over their own members and territory, he notes. The tribal criminal law that they apply is similar – though often simpler – than the criminal law in neighbouring states. Serious crimes are still dealt with by federal courts. The procedure they follow is less formal, more grounded in respect, good faith and common sense than Western courts, he says. “They think of these things as requiring healing.”

One of the quirks of the tribal criminal justice system, Clinton says, is that sometimes defendants are too honest, even though they may be exposing themselves to a prison sentence. “In Indian culture, there’s a strong sense of telling the truth and doing right when a wrong is committed.”

Still, the tribal courts are in an ongoing tug-of-war with their US counterparts. The US Supreme Court, for instance, has held that the tribes do not have jurisdiction over non-members who commit criminal offences on their reservations. In part, that’s because juries would be comprised entirely of Indians. “White courts fear the implications,” says Clinton. But it’s a one-way street. The federal government tries Indians for major crimes, even when there’s no Indian on the jury. “It’s a distrust of having people of a different race on the jury judging white people. It’s pure, simple racism.”

Clinton argues that the sovereignty of Indian peoples has been short-changed by the US Government over the years. He points to a clause in the US Constitution that treats American Indians as analogous to separate countries. “Simply put,” says Clinton, “the federal government has no legitimate claim to legal supremacy over Indian tribes.”

Ironically, this approach tracks closely with the Supreme Court’s increasing defence to the states’ rights to manage their own business; and to the usually conservative demand that the Constitution should be interpreted as its framers intended.

Even with only limited sovereignty, many tribes are prospering. The Mississippi Choctaw, for example, led by visionary and business-savvy chief Philip Martin, are a major manufacturer of car-parts and greeting cards. They and other tribes have utilised their sovereignty rights to set up some wildly profitable casinos on the reservations, out of the reach of state casino bans. Such income is replacing the tribes’ reliance on federal government handouts, although a lot of tribes – especially the largest ones – remain mired in poverty.

But measuring sovereignty by economic success or even land repatriation is a mistake, argues Clinton. He points to a 1971 settlement with indigenous people in Alaska, who received a pot of money and 44 million acres of land. To manage the land, they have formed a mishmash of regional corporations, tribal governments, intertribal consortiums and messy alliances with local and state government offices. It’s land ownership, but it’s not government.

“Sovereignty is an empowering concept. The most important thing that sovereignty has done for the American Indian people is to give them a sense that they’re not so much victims, but a separate people with power. If you don’t see yourself as a victim, that gives you an incredible spiritual strength.”

But isn’t this sort of sovereignty limited to those with territory, like reservations, to exercise it over? Not necessarily, says Clinton. The Cayuga people of upstate New York are recognised as a tribal nation, even though they have had no land for most of the past two centuries. “They are another government; a separate, sovereign people, even though they have been landless. Not all sovereign rights are linked to land. For instance, US law recognises tribal authority to make child custody decisions for tribal members, wherever they live.

For Clinton, the lessons are clear. Indigenous people need to participate properly in settlement processes for them to be legitimate. He applauds our Waitangi Tribunal model, which he says mirrors the Treaty relationship. But there’s a problem, he adds. Over the years, the Crown has “so suppressed iwi government that you haven’t got an effective settlement”. One of the government’s obligations must be to “assist in re-creating governing authorities with power to legitimately speak for their people and to manage assets of the community”. The people have to participate, and not just through lawyers sitting down at some distant negotiation table; they have to fully buy into the process.

Is this what’s wrong with the foreshore and seabed proposal? “I don’t want to tell you Kiwis what to do. That’s not my place as a guest in your wonderful country. But it seems to me that what’s getting lost is a focus on the process – everyone’s so focused on the outcome. The Treaty of Waitangi represents a coming together of two peoples, creating a bargaining partnership. Having one party to the agreement dictate the outcome without bargaining about it: that’s not a partnership.”

But isn’t the word “partnership” – which doesn’t appear in the Treaty, though does appear in some court decisions about it – rather vexed?

“A treaty is in essence a partnership. And on any interpretation, article two creates some obligation to protect Maori property claims.”

So, when Clinton hears people like Haami Piripi and Margaret Mutu warning about a possible civil war, he’s not surprised. “I think ‘civil disobedience and resistance’ is perhaps more apt,” he suggests. He has seen it before, many times: occupations, protests – even occasional armed stand-offs, triggering violence. The famous 1973 occupation at Wounded Knee, for instance, ended with two deaths and a shooting injury. Clinton doesn’t condone the violence in any way. “But it’s a warning we need to hear,” he says, “without condemning those who responsibly sound the cry of alarm.”

Equality & Indians

While visiting on sabbatical at Wellington University Victoria and discussing with others the debates over Maori rights, the question of the liberal paradigm of equal treatment of citizens within a state frequently arose. This problem involves precisely the same discussion of equality frequently heard regarding Indian law in the United States.

One answer that has occurred to me here is both obvious and rarely heard. The western liberal paradigm has actually created two notions of equality that must be considered: (1) equality of citizens within a state and (2) equality between states with concomitant respect for the normative legal tradition of each state reflected in doctrines of comity and respect for sovereignty. The importance of the historic treaty relationship with many indigenous peoples is that it situates the problem in the second, rather than the first, paradigm.

By more recently situating the debate about indigenous rights in the first paradigm much of the recent discussion of indigenous rights by legal critics simply assumes away the basic problem — the need for equal respect for the normative legal traditions of indigenous peoples. In fact, by situating the problem automatically in the first western paradigm, rather than the second western paradigm, an automatic discrimination and inequality is created — the discrimination against the normative legal tradition of the indigenous people which invariably is ignored in the discussion in preference for the normative legal tradition of the dominant colonial state under the guise of an an argument based on equality of treatment. This is not equality; it is rank colonial discrimination against the normative legal tradition of the colonized indigenous people. So much for western liberal arguments based on equality of treatment!