Archive for category Indian Law

Professor Clinton Interviewed on Baby Veronica Case

Professor Clinton was interviewed about the Baby Veronica ICWA case that the Supreme Court heard yesterday on Due Diligence.

A copy of the radio interview is located at:

Robert Clinton Interviewed on AZ-TV on Tohono O’odham Casino Proposal

AZTV7/Cable 13, Me-TV 7.2, HSN 7.3, Phoenix-Prescott, AZ

Code of Indian Offenses

Chief Sitting Bull For years scholars have described the Code of Indian Offenses, first adopted by the federal government in 1883, as a reservation criminal code designed to cover lesser misdemeanors. The Code of Indian Offenses helped create the Courts of Indian Offenses, which at their height imposed on perhaps two-thirds of the nation’s Indian reservations a federally dominated western style court composed of tribal members picked by and responsible to the federal Superintendent of the Reservation. The few surviving Courts of Indian Offenses, many of which are Oklahoma, are now known as CFR Codes. The Code also helped establish the Indian Police, also composed of tribal members selected, paid, and supervised by the federal Superintendent of the Reservation. Perhaps the most notorious act of the Indian Police involved their murder of Tatanka Iyotake (Sitting Bull — pictured above) the great Hunkpapa Lakota holy man and leader in 1890 at Standing Rock as a result of federal concerns over his support for the religious revitalization Ghost Dance movement among the Lakota. Clearly, the Courts of Indian Offenses and the Indian Police involved efforts by the federal government to substitute a federally controlled western style colonial government for the traditional governance structures and leadership of the tribes. A good summary of that effort is found in William T. Hagan, Indian Police and Judges: Experiments in Acculturation and Control (1966).

Considerably less attention has been paid to the actual content of the Code of Indian Offenses. About a decade and half ago, my efforts to locate the original copy paid off. When I received it, I was startled to discover that very little of the Code of Indian Offenses actually dealt with matters which would be classically regarded as crimes in western societies then or today. In fact, most of the Code of Indian Offenses was directly aimed at outlawing Indian culture. Thus, the practice of medicine men, Indian dances, the giving of gifts to compensate and honor a family for the a daughter given in marriage, potlaches and other traditional reciprocal gift-giving, polygamy and other Indian customary practices were all made punishable offenses by the Code of Indian Offenses. In fact, the reference to other misdemeanors was the last item listed and the one to which the least attention was paid.

Also remarkable were the penalties prescribed in the Code of Indian Offenses. By the time of the Code of Indian Offenses was promulgated most of the nomadic plains tribes had been corralled onto reservations, early examples of internment or concentration camps. Their traditional hunting lifestyles had been effectively destroyed by such confinement, as well as the deliberate federally sponsored eradication of the buffalo (bison) on which they depended. This forced change in tribal economies resulted in the nation’s first welfare state, in which the tribal members became completely dependent on federal rations (the development of Indian frybread being the most obvious and long lasting by-product of this change in subsistence habits). In this context, the penalty prescribed by the Code of Indian Offenses for practicing traditional and customary ways often involved the denial of rations. Thus, the federal government’s message to tribal Indians in the late nineteenth century was crystal clear — abandon your traditional culture and comply with the Code of Indian Offenses or starve. The Code of Indian Offenses therefore was not an early criminal code for Indian Reservations, as it is sometimes portrayed, but, rather, the clearest evidence of a deliberate federal policy of ethnocide — the deliberate extermination of another culture.

The shocking evidence of such federal ethnocide is found in the federal government’s own words in the original Code of Indian Offenses. Because of the difficulty I originally had in locating it, I have chosen to publish it to the internet here.

The Code of Indian Offenses was finally amended when John Collier assumed the role of Commissioner of Indian Affairs in the administration of President Franklin D. Roosevelt in 1933. He eliminated all references to the bans on dances, such as the sacred Lakota Sun Dance, and other customary Indian practices. The modern incarnation of the Code of Indian Offenses is found at 25 C.F.R. Part 11 and it, unlike the original version, does provide a basic criminal code for lesser crimes committed by Indians on reservations covered by these provisions.

IGRA 20th Anniversary Conference — October 16-17, 2008

ILP HeaderSDO Logo 

The Indian Legal Program at the Sandra Day O’Connor College of Law at Arizona State University, American Indian Policy Institute at ASU, American Indian Law Center, Inc., Native Nations Law and Policy Center at University of California, Los Angeles, National Congress of American Indians, National Indian Gaming Association, Arizona Indian Gaming Association, and the New Mexico Indian Gaming Association are pleased to announce a conference to commemorate and celebrate the twentieth anniversary of the enactment of the Indian Gaming Regulatory Act. The Conference entitled Indian Country’s Winning Hand: 20 Years of IGRA will be held on October 16-17, 2008 at the Ft McDowell Yavapai Nation’s Radisson Fort McDowell Resort & Casino in Scottsdale/Fountain Hills, Arizona.



Thursday, October 16, 2008


7:00 – 8:00 am Registration

8:00 – 8:45 am Welcome and Introduction

8:45 – 10:20 am A History of the Indian Gaming Regulatory Act

10:20 – 10:45 am Break

10:45 – 12:15 pm Federal Implementation of IGRA: The National Indian Gaming Commission, the Bureau of Indian Affairs and the Department of Justice

12:15 – 2:00 pm Keynote Luncheon

2:00 – 3:30 pm Class III Gaming Compacts and the Impact of Indian Gaming on TribalState Relations

3:30 – 3:50 pm Break

3:50 – 5:30 pm Class III Gaming Compacts and the Impact of Indian Gaming on TribalState Relations


6:30 – 8:30 pm Pathbreaker’s Banquet (Courtyard Plaza)


Friday, October 17, 2008


7:30 – 8:30 am Check-In

8:30 – 10:00 am The Economic Impacts of Indian Gaming

10:00 – 10:20 am Break

10:20 – 12:15 pm Indian Gaming’s Impact on the Tribes

12:15 – 2:00 pm Keynote Luncheon

2:00 – 3:15 pm Indian Gaming and the Federal Tribal Relationship

3:15 – 3:30 pm Break

3:30 – 5:30 pm Where Does Indian Gaming Go From Here?


Confirmed Speakers: (listed alphabetically)

  • Allison Binney (tentative)

  • Dr. Eddie Brown

  • Robert N. Clinton

  • Philip S. Deloria

  • Howard Dickstein, Esq.

  • Franklin Ducheneaux

  • Eric D. Eberhard

  • Larry Echohawk

  • Shawn Ellis

  • Diane G. Enos

  • Franklin Ettawageshik

  • Glenn M. Feldman

  • Matthew L.M. Fletcher

  • Thomas F. Gede

  • Carole E. Goldberg

  • Kevin Gover

  • Stephen M. Hart

  • Jacqueline Johnson

  • Joseph P. Kalt

  • Dan Kolkey

  • Thomas L. LeClaire

  • Steven Andrew Light

  • Arlinda Locklear

  • Michael Lombardi

  • Deron Marquez

  • Heidi McNeil Staudenmaier

  • Kathryn R.L. Rand

  • G. William Rice

  • Fawn Sharp

  • Jim Shore (tentative)

  • Alexander Tallchief Skibine

  • George Skibine

  • Kate Spilde Contreras. Ph. D.

  • Jonathan Taylor

  • Rebecca Tsosie

  • Mark Van Norman

  • Kevin Washburn

  • Richard West

  • Dr. Peterson Zah

Others who have been or are being invited,

not yet confirmed.

Carl J. Artman

Raphael Bear

Melanie Benjamin

Joe A. Garcia

Philip N. Hogen

Mark Macarro


Richard M. Milanovich

Raymond G. Sanchez

Ernest L. Stevens, Jr.

Kimberly Teehee

Minor Correction to Ward Churchill Report

The following correction has just been posted on the Inside Higher Education website. The original can be viewed at

The members of the investigative committee that explored allegations of research misconduct against Ward Churchill have unanimously adopted a statement that identifies one misstatement in their report, offers additional language to fix that mistake, and clarifies that the changes in no way relate to their conclusions about Churchill, who has since been fired by the University of Colorado. While the members all agreed on the statement, only three of them agreed to its release to Inside Higher Ed. Their names appear at the end of the statement.

The statement reads:

The undersigned were members of the Investigative Committee appointed by the University of Colorado at Boulder in December, 2005 to consider allegations of research misconduct against Professor Ward Churchill. The full text of our lengthy report can be found at:

Although our tenure as members of that committee ended when we submitted our report in May, 2006, we feel an obligation as scholars to correct one sentence in that report. On page 34, an incomplete sentence resulted in an inaccurate statement. The relevant sentence reads, “The pages referenced by Professor Churchill in the Salisbury book do not contain the words ‘Wampanoags’ and have no discussion of any disease or epidemic (including smallpox).”

That sentence should have read, “The pages referenced by Professor Churchill in the Salisbury book do not contain the words ‘Wampanoags’ and have no discussion of any disease or epidemic (including smallpox) spread by John Smith or attributed by Salisbury to Smith’s 1614 visit to the area.” We were obviously aware of Salisbury’s discussion of the epidemic(s) that struck in 1616-18: subsequent pages of our report refer to his account of those outbreaks of disease.

When the error in the sentence on p. 34 was pointed out to us in spring, 2007, Professor Wesson announced the correction in a letter to the University of Colorado’s official paper, Silver and Gold Record, published on 12 April 2007; she asked also that it be communicated to the university officials considering Professor Churchill’s case. Now that the university has completed its deliberations, we want to ensure that the correction is drawn to the attention of the wider scholarly community.

Although our report’s description of these pages in Salisbury’s work was inaccurate, we took into account during our deliberations the actual contents of the pages in question and those surrounding them. This correction therefore does not change any of our findings about research misconduct with respect to the specific allegation it concerned or any of the other allegations.

Thank you for allowing us to correct the record.

Robert N. Clinton, Foundation Professor of Law, Sandra Day O’Connor College of Law, Arizona State University

José E. Limón, Director, Center for Mexican-American Studies and Mody C. Boatright Regents Professor of American and English Literature, University of Texas at Austin

Michael L. Radelet, Professor and Chair, Department of Sociology, University of Colorado at Boulder

Race, Citizenship, and the Cherokee Nation

American racism has deep roots and persistent effects. Its most recent manifestation occurred when an overwhelming majority (76%) of the Cherokee Nation of Oklahoma voted to amend their new tribal constitution to require for the first time a degree of Indian blood for enrollment as a citizen (member) of the Nation. The fact that it was the Cherokee Nation that graphically demonstrated the long-lasting vestigial effects of white American racism is truly sad and ironic.

Prior to their removal from the ancestral aboriginal homelands in Georgia, North Carolina and Tennessee on the horrendous Trail of Tears, the Cherokees both influenced southern plantation culture in significant ways and were also significantly influenced by it. One of the most troubling aspects of that cross-cultural influence involved adoption by some Cherokees of plantation farming culture together with slavery. While history suggests that the Cherokee experience with slave holding was nowhere near as brutal as that suffered by slaves held by their white neighbors, the experience nevertheless was dehumanizing. That history gives lie to the notion that slavery uniquely constituted a white imposition on colored peoples and that “people of color” were incapable of such discrimination. Many of the Cherokees’ slaves suffered the same indignities as their “masters” when they were forcibly removed with the Cherokees on the Trail of Tears to the Indian Territory. The fact that some members of the Cherokee Nation continued slavery in the Indian Territory led portions of the Nation to side and fight with the Confederacy during the Civil War. In fact the last Confederate battalion to surrender during the Civil War was the batallion of Cherokees, Seminoles and Osages led by Brigadier General Stand Watie (Degata or Stand Firm), a noted and controversial Cherokee leader, who surrendered months after Lee had capitulated at Appomattox.

Traditional Cherokee notions of clan and kinship originally influenced their sense of identity. Those traditions were continued in nineteenth century Cherokee written law which provided that anyone, including a white or black person, married to a member of the Cherokee Nation and residing in their territory was a voting citizen of the Nation, even after divorce or death of the Cherokee spouse, so long as the individual did not remarry outside the tribe. These laws provided a challenge to nineteenth century white racism and in United States v. Rogers (1846), the United States Supreme Court held that a white citizen of the Cherokee Nation under these laws was not an Indian for federal Indian law purposes. Rather than deferring to the tribal definition of citizenship, the Court essentially held that a white by blood was always white, irrespective of the tribal legal view of the matter. Thus, the Cherokee customary view of tribal identity initially did not requite Indian blood; instead it required Indian kinship which could be acquired by birth, marriage, or adoption.

White racial attitudes, however, did focus on blood and ancestry and they ultimately infected the manner in which even the Cherokees viewed their basic national identity. Following the Civil War the slaveholding tribes of the southeast, by then mostly removed to the Indian Territory (today’s eastern Oklahoma), were forced to sign separate treaties with the United States in which they agreed to grant full citizenship to their former slaves, their freedmen, irrespective of any Indian blood. Thus, Article 9 of the Treaty of Washington D.C. with the Cherokee Nation signed in 1866 expressly required that “all freedmen who have been liberated by voluntary act of their former owners or by law, as well as all free colored persons who were in the country at the commencement of the rebellion, and are now residents therein, or who may return within six months, and their descendants, shall have all the rights of native Cherokees.”

While the political guarantees of the 1866 Treaty were initially implemented in the Cherokee Nation, since the late nineteenth century, the Cherokee Nation ceased keeping separate freedmen’s rolls and, notwithstanding the this express treaty guarantee have since then denied to many descendents of the Cherokee freedmen basic political rights of Cherokee citizenship, including the right to enroll and the right to vote, guaranteed by Article 9. In so doing, the Cherokee Nation clearly abandoned their traditional nonracial approach to citizenship and increasingly adopted the American racist sense of their identity that surrounded them. In fact, it seems no accident that the Cherokee Nation ceased recognizing the political rights of the Cherokee freedmen at about the same time the United States Supreme Court ushered in “separate but equal” with its decision in Plessy v. Ferguson (1896).

This collision of race, citizenship and identity recently came to a head in the Cherokee Nation as Lucy Allen sought through litigation to vindicate the guarantee of full Cherokee citizenship promised her ancestors in Article 9 of the 1866 Treaty. In Allen v. Cherokee Nation (2006), the Cherokee Nation Judicial Appeals Tribunal held in a 2-1 decision that the membership rules of the Cherokee Constitution and laws did not require any degree of Cherokee blood and that descents of Cherokee freedmen were entitled to be enrolled as full citizens in the Nation by virtue of the 1866 Treaty despite almost a century of tribal noncompliance.

Principal Chief Chad Smith immediately reacted negatively to the ruling and sponsored a constitutional amendment to assure, quite contrary to the traditional Cherokee sense of identity but consistent with its more recent racist behavior, that Cherokee membership required evidence of Cherokee blood, thereby again marginalizing the Cherokee freedmen. Obviously, Chad Smith’s proposal constituted nothing short of a deliberate decision to break the obligations assumed by the Cherokee Nation in 1866 Treaty, an odd position for a tribe that has often asserted its own treaty rights.

Earlier this month, the Cherokee Nation voted in a referendum to limit citizenship in the Cherokee Nation to persons of Cherokee blood. Most of the descendants of the Cherokee freedmen had not yet been enrolled and therefore could no participate in the referendum. The vote indicated that 76% of the voters favored moving from a race neutral to a racial definition of Cherokee citizenship in great part to exclude the descendents of the Cherokee freedmen who, of course, are of African-American descent. Since over 2,000 Cherokee freedmen descents had enrolled, the practical effect of the vote was to revoke the Cherokee citizenship of over 2,000 people and to deny future enrollment to others who could prove Cherokee freedmen descent. Answering a question asked by Chief Justice Stacy Leeds in the Allen litigation as to whether the Cherokee Nation was a political tribe or a race, the people of the Cherokee Nation voted overwhelmingly in favor of race. Since the Cherokee Nation did not begin as a people who culturally drew racial classifications as part of the determining tribal identity, the fact that three-fourths of the tribe now calculates its identity in purely racial terms speaks volumes about the ability of long-standing American racism to virally infect, contaminate and alter the sense of identity of others, including the victims of racial discrimination.

The vote of the Cherokee Nation earlier this month to break its 1866 Treaty with the United States and to formally adopt a racial definition of Cherokee citizenship that requires blood quantum raises a fascinating question about the appropriate response of the federal government. Clearly, as a result of the recent Cherokee referendum, many thousands of people who should have been entitled to citizenship in the Cherokee Nation under Article 9 of the 1866 Treaty will now be disenfranchised and many thousand more will be denied the opportunity to enroll. These events are only the most recent and most visible test of how and whether the federal government should react to internal tribal decisions about membership that disenroll members of the tribe who previously were thought to be lawfully entitled to tribal citizenship. In most instances, the disenrolled are of the same race and ethnicity as those who remained. In this case, however, the disenrolled are primarily African-American and those remaining have some degree of Indian blood, specifically Cherokee blood. This mix of race and tribal membership attracted considerably more public attention than the other tribal disenrollment disputes that are simmering around the country.

When the white government of South Africa disenfranchised and relegated to second class citizenship its black citizens under the guise of apartheid, the international community and, more particularly, the United States government took action to assure that equal political rights were given to all. Economic and cultural embargoes and the refusal to recognize or deal with the white apartheid government ultimately ended human rights abuses in South Africa and returned political control to a democratic state in which all South Africans had the right to participate equally. While Indian tribes no doubt have the same sovereign right to determine their own citizenship that South Africa does, their sovereign authority to do so does not and should not insulate them from either criticism or adverse political action by the federal government when they make decisions that disenfranchise or expel portions of their tribe, particularly when they do so strictly on the basis of race. The United States is a party to the 1866 Treaty and, just like any Indian tribe, has a right to insist that its treaty rights be honored. Cutting off federal assistance or refusing to recognize or deal with any government of the Cherokee Nation of Oklahoma elected under the citizenship rules just adopted by Cherokee voters might be major steps the federal government could take to demonstrate that racism is no more acceptable when undertaken by Cherokee voters than when adopted by Southern legislatures a half-century ago in de jure segregation statutes. Only time will tell whether the federal government has the same will and patience to end abuses of basic human political rights by Indian tribes in the same way it did in South Africa. The response of the United States government to this challenge will speak volumes about whether it really has developed a mature government-to-government relationship with the Indian tribes, as it frequently claims.


Ward Churchill Report

A large portion of my activities during the spring 2006 semester were taken up serving as one of two outside members on the University of Colorado Investigatory Committee Regarding Allegations of Research Misconduct by Ward Churchill. The final report of that committee can be found here and, we hope, largely speaks for itself.

Indigenous Treaties: A Comparative New Zealand/United States Perspective

Today, I delivered a talk entitled Indigeneous Treaties: A Comparative New Zealand/United States Peespective in which I jusxtaposed the treatment of the Treaty of Waitangi of 1840 with the Maori in New Zealand with the treatment of American Indian treaties in the United States. A copy of the talk can be secured in Acrobat format by clicking on the title of the talk above. Comments or criticisms by email would be appreciated.

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!