The Journal of Things We Like (Lots)
Select Page

The Staying Power of Injustice and the Prolonged History of the Trafficking of Indian Children in The Other Slavery

Andrés Reséndez, The Other Slavery: The Uncovered Story of Indian Enslavement in America (2016), available at Amazon.

The Other Slavery: The Uncovered Story of Indian Enslavement in America is a devastating encyclopedic account of slavery in the Spanish colonial New World. For me, the ultimate effect was a surprising combination of a renewed sense of the intractability of old problems like racism and slavery and an acute sense of having awoken to a new historical reality that I previously knew next to nothing about.

As a professor of federal Indian law, I begin my class each semester with a brief overview of early colonialism, including the Requerimiento, a document that Spanish explorers read to Indigenous peoples before attacking them. Drafted in 1510, the Requerimiento threatened the original inhabitants of the Spanish colonies with slavery and war if they did not accept Christianity and the primacy of both the Pope and the Spanish monarchs. Despite my knowledge of the widespread use of this document, I had no idea of the breadth of the system of enslavement that Indians in the Spanish New World, ranging from New Mexico, California, Utah, and Florida down to Chile, were subject to. Author and UC Davis historian Andres Reséndez posits remarkably that Indigenous peoples’ precipitous population declines from the end of the fifteenth century through the mid-sixteenth century were due more to “slavery, overwork, and famine” than to disease. (P. 17.) While shocking given the prevalence of the disease theory, this idea makes intuitive sense to me because I can see the popularity of the disease hypothesis standing alone possibly being fueled by its resonance with old but unfortunately not quite extirpated Western ideas of the supposedly divinely ordained superiority of Europeans and European-Americans compared to their Indigenous counterparts. Given slavery’s overtly oppressive character, the idea that Indigenous populations were decimated through slavery (in addition to disease) is undoubtedly more difficult for European-Americans to reckon with. In short, the book pierced me and changed me, and I will never see American history or Latin American history the same way again.

It would be impossible to do this book any sort of justice in the course of a short review, so I will touch on a few of the insights that The Other Slavery led me to. First, the book elucidates how Anglo-centric the teaching of history in the context of U.S. federal Indian law tends to be. It showed me starkly that the snippets I previously knew about the history of tribes in the Southwest were grossly inadequate. I am now convinced that it is essential to know a fair amount about the Spanish government’s colonial policies to understand federal Indian law. Looking at it solely through the lens of historical British, French, and American policies is insufficient—too much is left out that can help us understand how we got to where we are today.1

One of the harsh truths that the book instilled in me is the difficulty of effecting justice through law. At the same time, one of the rays of hope that sustains the book and bulwarks the reader against utter despair is that there were several Spanish rulers (as well as priests and scholars) who saw the injustice of Indigenous enslavement and who, in the case of the rulers, enacted laws outlawing the practice. For instance, King Ferdinand and Queen Isabella as well as King Philip IV, his wife Queen Mariana, and their son King Charles II all enacted laws prohibiting taking Indians as slaves. These laws had important beneficial effects—indeed many slaves sued for their freedom under them—but, all in all, the laws ended up freeing only a small portion of all the Indian slaves throughout the New World. (P. 74.)

Reséndez carries us through numerous innovations that colonial leaders developed to circumvent these laws. As he explains, “[a]ll over Spanish America, Indian slave owners and colonial authorities devised subtle changes in terminology and newfangled labor institutions to comply with the law in form but not in substance.” (P. 75.) Thus, slavery, after being outlawed, gave way to a tribute system involving encomiendas, which were rights granted by the Crown that included the ability to demand work from Indigenous persons. New encomiendas ceased in 1673, and so they were replaced by another tribute system, also involving forced labor, called repartimientos. Finally, when repartimientos began to be phased out in the late 1700s, debt peonage, which had existed for centuries, came to the forefront as the most prevalent species of slavery. (P. 238.) Debt peonage proved hard to root out—although a few politicians and political appointees made heroic efforts—and Reséndez points to one example in New Mexico that occurred as late as 1967. (P. 314.)

This is a difficult emotional path to follow as a reader. We learn, for instance, that, as anti-slavery laws became more ingrained, Spanish colonial slave traffickers were replaced by tribal traffickers, including Caribs and Comanches. Furthermore, the laws had the unfortunate effect of promising the Native slaves more than they could deliver: “[the Indians’] experience of the campaign [in the late 1600s] was marked by dashed hopes, anxiety, and restlessness.” (P. 147.) These relentless innovations in slavery and slave-like institutions are one of the central themes of the work, and what they ultimately tell us is that justice is extremely hard to effect in the face of contrary economic interests.

One very early example of a colonial leader flouting the law involves Columbus himself. His contract with the Spanish monarchy allowed him to invest in the cost of his expeditions in order to gain a percentage of any profits derived therefrom, and thus he had a direct economic incentive to exploit the Indigenous people and to try to get around slavery laws—indeed, he noted that the Indians of Española were its “greatest wealth” and that they did “all the work of men and beasts alike.” (P. 28.) The difficulty of achieving justice when it threatens economic interests is a lesson that can equally be applied to other facets of injustice in the United States, and Resésendez himself describes the Supreme Court’s disappointingly narrow interpretation of the Thirteen Amendment, which proved a tragedy not just for Indians mired in debt peonage, but also for newly free African Americans. (P. 304-05.)

Another revelation for me was the fact that the assimilationist practice of social services’ removal of Indian children from their homes, which is generally traced back to the mid-1900s, had an important and largely unrecognized historical antecedent: stealing Indian children into slavery.2 In most circumstances in the Spanish New World, Reséndez explains, Indian slaves who were women or children were considered more valuable than grown men. Indeed, even the Requerimiento itself threatens to enslave the listener’s wife and children. Thus, The Other Slavery exposes us to a long and appalling history of stealing Indian children into slavery. One of the most gut-wrenching quotes is this one by Alonso de León, describing Mexico in the late sixteenth century: “In those days, we did not consider anyone a man until he had journeyed to the Indian rancherías, whether friends or enemies, and seized some children from their mothers to sell.” (P. 99.)

Stealing children was also a rampant practice in California and in what eventually became the American Southwest, and Reséndez describes several different forms of it. Among them are the Mormon practice in Utah in the mid-1800s of purchasing Indian children under the pretense of saving their souls (which also involved erasing their cultures), apprenticing Indian children to white families in California also in the mid-1800s, and the widespread practice of stealing Navajo children in the 1860s. At one point during the Navajo Campaign, Kit Carson requested permission from General James Henry Carleton to allow the Utes assisting the U.S. forces to keep the Navajo women and children they captured partly because otherwise the Utes would not be sufficiently compensated for their services and partly because selling the Navajo captives into slavery in Mexico would “cause them to loosen their collectiveness of interest as a tribe.” (P. 286.) Thus, shades of genocide are apparent in Carson’s missive and in the U.S.’s condonation of the practice (although this particular request was refused). The fact that thievery of Indian children has such a long history in America reinforces the need for the Indian Child Welfare Act and similar state laws to protect against further iterations of this type of abuse.

In conclusion, The Other Slavery is indispensable reading for professors in the U.S. who teach federal Indian law. More broadly, I sincerely wish that Chapter One, which is about Columbus, could be read by everyone who teaches some aspect of New World history at any level. I would hesitate to recommend any of the other chapters individually—for those who are interested in colonial history, Indigenous history, or the history of slavery, all of the chapters delineate crucial parts of the same horrifying story.

  1. There has also been important scholarship on slavery under French colonial rule—and its continuance under British rule—in Canada. See, e.g., Marcel Trudel, Canada’s Forgotten Slaves: Two Hundred Years of Bondage (trans. George Tombs 2013). For a discussion of Indian slavery in colonial and early American Virginia, as well as elsewhere in the United States, see  Gregory Ablavsky, Making Indians “White”: The Judicial Abolition of Native Slavery in Revolutionary Virginia and Its Racial Legacy, 159 U. Pa. L. Rev. 1457 (2011). []
  2. Another key historical antecedent to these removals was the genocidal boarding school system, which came to the forefront in the late 1800s. []
Cite as: Ann E. Tweedy, The Staying Power of Injustice and the Prolonged History of the Trafficking of Indian Children in The Other Slavery, JOTWELL (April 25, 2017) (reviewing Andrés Reséndez, The Other Slavery: The Uncovered Story of Indian Enslavement in America (2016), available at Amazon), https://equality.jotwell.com/the-staying-power-of-injustice-and-the-prolonged-history-of-the-trafficking-of-indian-children-in-the-other-slavery/.

Being Interconnected

Drucilla Cornell & Karin van Marle, Ubuntu Feminism: Tentative Reflections, 36 Verbum et Ecclesia (2015).

For a number of years, Drucilla Cornell has been studying and reflecting upon ubuntu,1 an African term expressing the idea that humans come into being through interconnectedness and that therefore they have a being, understanding, and set of obligations that emerge in their interconnections. The 2015 article authored by Cornell and South African scholar Karin van Marle summarises ubuntu, compares it with classical Western individualist notions of the self, and considers what it has to offer to Western feminism. The article not only serves as an introduction to a significant African concept, but also challenges Western legal feminism to reflect on its foundational concepts. Although this particular article is relatively short, it is very rich in detail and offers a number of intriguing directions for further reflection and action. In this brief review, I will summarise some key features of ubuntu as presented by Cornell and van Marle, and offer a few comments about its broader significance. My intention is to inspire readers to go to the original article: the ideas are new to me and my rendition of them is short and lacking in depth.

By contrast to Western philosophy, the idea of ubuntu does not permit questions such as “who am I?,” “what do I know?,” and “what ought I to do?” to be addressed separately in the abstract. We are not abstract beings, but become beings in a time and a place, and are always already surrounded by others. Who we are, what we know, and our ethical obligations are connected. As Cornell and van Marle explain,

Ubuntu is a philosophy on how human beings are intertwined in a world of ethical relations from the moment they are born. Fundamentally, this inscription is part of our finitude. We are born into a language, a kinship group, a tribe, a nation, and a family. We come into a world obligated to others, and those others are obligated to us. We are mutually obligated to support each other on our respective paths to becoming unique and singular persons.

(P. 2.)

As Cornell and van Marle further explain, ubuntu bypasses key Western distinctions between ethics, epistemology, and ontology. Ethical imperatives are embedded in our fundamental connectedness and in the dignity necessarily accorded to all people as a result of the “social bond.” (P. 3.) The emergence of the human in an intermingled, obligated life means that it is impossible to distinguish, as Western philosophers do, the question of being from that of knowing, and that of right action: “Ubuntu in this sense encapsulates how we know the world as well as how we are in it through the moral obligations as human beings who must live together.” (Id.)

Because ubuntu emphasises that humans are “intertwined” in this way, it is not only about our origins and context, it also concerns the production of the future. Activism and critique are built into ubuntu, because community is constantly regenerating and reformulating itself, and because it is up to the participants to acknowledge the ethics of common existence: “human beings are born into an affective network that is constantly being transformed by the participants themselves.” (Id.) The authors describe ubuntu as having not only a radical and critical edge, but also a revolutionary core because it so thoroughly places human beings together in solidarity.

For example, in the context of South Africa, the authors discuss the work of Sampie Terreblanche,2 who, in their words, “describes 354 years of patterns of unfree black labour to underscore that the transformation in the country cannot move forward unless it completely undoes that history.” (P. 3.) As he argues, transformation in South Africa cannot be accomplished by replacing a system of explicit exploitation of black labour with neoliberal capitalism because the economic and social system is still structured by the history of black servitude. Striving to live together in solidarity is a profoundly anti-racist practice and philosophy, because it means openly contesting the ongoing effects of this history. (Such an approach is clearly of relevance in Australia and many other countries where colonialism remains a living practice.) Again, to unsettle a distinction that Western thinkers find hard to overcome, ubuntu is both critical and revolutionary: it encourages both transformation and ongoing reflectiveness and dissent as “there is always more work to do together in shaping our future,” and “the future in a deep sense is always a collective project.” (P. 5.)

This understanding of intermingled lives does have some resonances in Western theory, and in particular in relational feminism and anti-racist feminism. As the authors outline, it adds depth to the linking of feminist ethics and anti-racism. Understanding that social belonging connects everybody and implicates us all in change means that it is not possible to promote oneself at the expense of others, or pay attention to a particular group while marginalising some other group. As they say, “the flourishing of one human being is not separate from the flourishing of all other[s].” (Id.) This does not entail a rejection of the individual – “individuation is … valued, but as individuation, not individualism.” (Id.) We become “unique and singular” individuals in our interconnected situations, and not in any sense separately from community. Thus we are neither entirely relational nor self-determining, but individuals shaped by and belonging to a social context.

There are many further implications of this thinking for feminism generally. To summarise them briefly, ubuntu feminism is described by Cornell and van Marle as including the following elements: surpassing the tension between care and justice; the unthinkability of justice without radical equality; the rejection of an unmodified feminism; and the multiple possibilities for understanding the home and women’s spaces. Finally, they explore its potential contribution to discussions about spatial politics and, in particular, challenging the differentiation of spaces in politicised and gendered ways.

Cornell and van Marle show that the idea of ubuntu has much to offer Western feminism, philosophy, critique, and activism. It might be argued against this proposition that Western thought already has many of the resources needed to underpin and promote a transition to a less individualistic and more egalitarian and connected worldview. It could furthermore be suggested that “external” ideas cannot easily be translated into the different and very resistant context of Western thought. While these points might be true, it is also imperative that Western thought challenge and renew itself by drawing inspiration from non-Western philosophy. Importantly, as the authors point out, there cannot be justice that is ahistorical and merely local. Therefore the concepts and practices through which justice is promoted cannot derive solely from a single tradition, especially one that has pinned so much faith in the sovereign individual. If we are to have a common global future the first step is to understand our interconnectedness and our deep reliance on each other and each other’s well-being. This project of developing a sense of human connection through feminist, anti-racist, anti-colonialist, and other egalitarian movements has always been important, but it is now extremely urgent in the face of exploitative political movements that build support through politics of division and fear.

  1. For instance, Drucilla Cornell, uBuntu, Pluralism and the Responsibility of Legal Academics to the New South Africa, 20 Law & Critique 43, 47 (2009). []
  2. Sampie Terreblanche, A History of Inequality in South Africa (2002); Lost in Transformation (2004). []
Cite as: Margaret Davies, Being Interconnected, JOTWELL (February 27, 2017) (reviewing Drucilla Cornell & Karin van Marle, Ubuntu Feminism: Tentative Reflections, 36 Verbum et Ecclesia (2015)), https://equality.jotwell.com/being-interconnected/.

Liberty, Equality, Polygamy?

Since the 2003 Lawrence v. Texas (539 U.S. 558) decision in which the United States Supreme Court overruled the criminalization of private homosexual conduct in the United States, the argument that the ruling would lead to same-sex marriage and also to the recognition of polygamous marriage has been made with regularity by Supreme Court Justices and law professors. Most recently, in the 2015 Obergefell v. Hodges decision, the Court proved Justice Scalia right and extended the fundamental right to marry to same-sex partners. (Obergefell v. Hodges, 576 U.S. __ (2015)). In his dissent in Obergefell, Justice Roberts reprised the Scalian slippery slope argument and asked whether “States may retain the definition of marriage as a union of two people….Indeed from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world.” (Id. (Roberts, J., dissenting).) Invariably, when asked to legally justify the prohibition of polygamy against constitutional challenge, proponents of exclusively monogamous marriage rely on a host familiar Orientalist tropes as well as assertions of social dangers with little empirical proof.

Regardless of whether one agrees with the practice of plural marriage or same-sex marriage as a moral matter, it has become a requirement in the marriage cases, at least from Perry, Windsor, and now Obergefell, that objections to legalization be based on logical, discernible evidence rather than vague suppositions or, worse, stereotypes. Professor Jonathan Turley’s article The Loadstone Rock: The Role of Harm in the Criminalization of Plural Unions examines and challenges the proffered justifications for continuing the criminalization of polygamy. Using two cases, one from Canada that he refers to as “The Bountiful” (Reference re: Section 293 of the Criminal Code of Can., 2011 BCSC 1588), and Brown v. Buhman1 from the United States (947 F. Supp. 2d. 1170 (D. Utah 2013)), Turley argues that post-Lawrence, the ability to show harm from specifically consensual, adult plural marriages is very difficult if not impossible.

The article begins with a brief overview of the Canadian reference and the Brown case. The laws being questioned in both cases are remarkably similar, which makes for an excellent comparative analysis. In both contexts, though the law affects other communities, the state’s criminal prohibition is directed at Mormon polygyny. The similarity notwithstanding, the different analyses of harm undertaken by the courts result in polar opposite outcomes: The Brown court found that Utah’s ban on informal polygamous unions in which the parties never seek state licensing or recognition does not implicate harms that are compelling enough for the state to invade consenting adults’ privacy. Women and children are protected by other laws like domestic violence and child abuse laws, and these harms cannot be assumed as necessarily arising in all polygamous unions to ban their informal practice. The Canadian court, on the other hand, was persuaded by expert testimony of significant harm arising from polygamy, particularly to women and children, to justify a criminal ban of the practice.

While the discussion of these cases is fascinating particularly for those of us who teach comparative family law, the real contribution of the article is in the challenge to the use of harm in continuing the ban on polygamy. Turley suggests that the harm principle as articulated by Utilitarian philosophers and specifically John Stuart Mill was once a favored argument of conservative Liberal supporters of privacy. Mill’s harm principle restricted government regulation only to those actions that directly harmed others, therefore removing consensual acts from its purview. Turley argues that the way that this principle has been deployed in some recent feminist scholarship has begun to take an illiberal turn reminiscent of an entirely different philosophical tradition—that of Lord Patrick Devlin. Turley argues that these feminist uses of the harm principle to argue that polygamy results in social rather than individual harm forces a particular choice upon all citizens resulting in what he calls “compulsive liberalism,” “where harm is defined broadly to subsume consensual acts that foster discrimination or stereotypes.” (P. 3.)

Resting on moral conceptions of harm, in short, returns us circularly to illiberal theories like that of Devlin, who argued that moral harm alone was a sufficient basis for state action such as criminalization, in opposition to the Millian harm principle. Turley asserts that compulsive liberalism is eroding some of the most fundamental rights of individuals in a liberal society, tracing this trend from the early argument made by Catherine MacKinnon that pornography always and inevitably subjugates women to current attempts to regulate speech and expression via hate-speech legislation and attempts to protect religious sentiments. One might add the proscription against holocaust denial, activism for Palestinian rights, and regulation of Islamic dress to Turley’s examples indicating that it is not only liberal feminists engaging in this sort of compulsory liberalism. Nevertheless, Turley argues persuasively that illiberal regulation of free speech based on conceptions of societal harm—perhaps even espoused as a threat to the public order—reintroduces morality alone as an adequate basis for criminal regulation.

The polygamy cases, Turley argues, “fall on the very fault line between compulsive liberalism and libertarian theories over the function of criminal sanctions.” (P. 1943.) Examining the expert testimony on harm supporting continued criminalization in the Bountiful and Brown cases, Turley asserts that in Bountiful there was a willingness to rely on theoretical claims of social harm even when the unions were “consensual, and reveal[ed] no cognizable harm to the participants. It was the threat of its very existence to the fabric of marriage as an institution that [Chief Justice] Bauman saw as a credible basis for criminal sanctions.” (P. 1944.) The possible harm to women, children, and the institution of monogamous marriage sounds very much like the harms offered by opponents of same-sex marriage. Moreover, they resuscitate Lord Devlin’s argument that the law does not protect individuals but society.

Even if we do not espouse the view that all the law should do is protect individuals from other individuals or from an overreaching state consonant with Libertarianism, Turley’s exploration of the expert testimony raises the question of whether these are, indeed, harms to society causally related to the polygamous structure or form of marriage. The reliance on harm to women in the face of consent and, indeed, choice, raises questions whether feminist opponents of polygamy value autonomy even when they do not agree with its ultimate outcome. Can women choose polygamy freely? Can women choose to dress modestly? Or are these choices always compelled by the invisible hand of the patriarchy from which the only escapes are those authorized by liberal feminist orthodoxy? Turley rightly points to a conundrum at the heart of this kind of feminist project: the possibility that freedom will not look like what the majority wants and will reflect norms that are not typically white, upper-middle class, and European in origin.

Ultimately, Turley challenges the idea that a polygamous marriage treated on equal terms with a monogamous marriage is a threat to women’s equality. It is questionable that a form of marriage is inherently unequal. As I have argued, monogamous marriage historically suffered from serious gender inequality until the mid-twentieth century and in many respects continues to do so.2 Abuses within these marriages were tolerated with equanimity by the law. Only after the women’s movement of the 1960s onwards have we been able to rehabilitate monogamy into a more egalitarian form through legal enactments like domestic violence, child abuse, and age of consent laws. Even if we focus on polygyny in its more extreme forms, there are means by which we can legally structure these marriages to distribute the rights and obligations and, indeed, even the legal status of marital partners, more equally among all the spouses. And certainly, as Turley points out, family structures with multiple partners are not restricted to polygyny but include polyamory and polyandry. These relationships can be egalitarian and cooperative, or not—just as monogamous marriages. But that does not preclude them from being valid choices by both men and women.

The animus that has been directed at polygamy from religious conservatives to liberal feminists has failed to respond to the problem of the disparate treatment of people in plural marriages or those who want to form them (and this is not necessarily always a heterosexual arrangement) from those in monogamous marriages. What is the feminist response to multiple-partner gay or lesbian relationships? Surely these do not implicate gender inequality. As Turley argues most persuasively, using the state’s power to criminalize plural-partner marriages by reducing these to extreme polygyny and then basing the argument for prohibition on moral disgust or fear of prospective societal disintegration alone takes us back to 1950s: it is going backwards and should not be mistaken for progress towards greater equality and freedom.

  1. The decision in Brown was subsequently vacated for mootness by the United States Federal Court of Appeals for the Tenth Circuit. Brown v. Buhman, No. 14-4117 (April 11, 2016). []
  2. See generally, Cyra Akila Choudhury, Between Tradition and Progress: A Comparative Perspective on Polygamy in the United States and India, 83 U. Colo. L. Rev. 101 (2012). []
Cite as: Cyra Akila Choudhury, Liberty, Equality, Polygamy?, JOTWELL (December 12, 2016) (reviewing Jonathan Turley, The Loadstone Rock: The Role of Harm in the Criminalization of Plural Unions 64 Emory L.J. 1905 (2015)), https://equality.jotwell.com/liberty-equality-polygamy/.

Responding to Economic Inequality: The Place of Race

Olatunde C.A. Johnson, Inclusion, Exclusion, and the “New” Economic Inequality, 94 Tex. L. Rev. 1647 (2016).

Inclusion, Exclusion, and the “New” Economic Inequality by Olatunde C.A. Johnson (hereinafter The “New” Economic Inequality) addresses key questions that have arisen in this difficult era of austerity, retrenchment, and increased economic insecurity in rich countries. These questions include: where does racial inequality fit in the high-profile discourse about the (re)discovery of economic inequality? And, in a world of extreme and growing economic inequality, what kinds of inclusionary practices contribute to remedying racial inequality?

I read this article because I’m working on a research project1 about the role of law in implementing inclusionary practices. This project concerns inclusionary practices in Europe and Latin America, while The “New” Economic Inequality focuses on the legal customs, traditions, and remedial instruments of the United States. Fortunately, the article’s critical analyses of the limitations of historic “remedies” for racial inequalities in the U.S. and of the absence of race from much of the contemporary discourses of economic inequality are of broader significance, as are the article’s insights into the importance of place-centred remedies to struggles for racial equality.

A comprehensive introduction to the article contextualises and sketches the contours of the “new” economic inequality as it has been elaborated in recent academic and popular literatures and points to the uneasy fit of racial inequality within this discourse. The obduracy of racial inequality in the United States – as evidenced by social and economic measures including wealth, criminalisation, security, health, education, and racialized unequal access to other key public and private goods – does not comport well with the narrative of economic inequality as a “new” phenomenon. That narrative positions economic inequality as a radical change that has recently diminished the lifestyles and life chances of an almost universal middle class, the former beneficiaries of the credit-fuelled consumer society of the mid-twentieth century. If the problem of inequality that dominates contemporary social policy conceptualises economic inequality as a new situation that ruptures the fabric of an imagined time/space of equality and social mobility, where does that leave racial inequality, an aspect of American life that positioned Black and African-Americans as a perpetually excluded “other,” juxtaposed against an ostensibly universal norm of equality?

Johnson eschews the idea of subsuming contemporary racial inequality within some notion of the economy as generating a shared, “pan-racial” experience of structural inequity. Instead, The “New” Economic Inequality explores the historical-spatial underpinnings of racial inequality and the struggles to stop it, focusing in particular on the often complex and tense relationship between inclusion (anti-discrimination) claims based on race, gender, and other grounds of historic exclusion, and the sedimented distributional entitlements associated with the “democracy of opportunity” tradition in the U.S.2

Part I of the article outlines how concepts of space and place illuminate the processes and consequences of exclusion through class, race, and ethnicity and the implications of such exclusion for social (im)mobility. It draws on key studies of the impact of residential segregation by class and race on intergenerational (im)mobility. Relying on Patrick Sharkey’s work, for example, The “New” Economic Inequality documents (i) the huge and persistent differences in neighbourhood poverty experienced by low-income white and African-American residents of major U.S. cities, (ii) the significant impact this differential has had on access to publicly provided goods such as education and private market-based opportunities to secure good jobs and accumulate wealth, and (iii) the enduring, multigenerational effects of these differences.3

Part II of the article then reviews different legal instruments for tackling unequal places and remedying the opportunity deficits they create. The revival of integration litigation based on fair housing law is an interesting development, especially in the wake of the Supreme Court’s recent holding that racial integration is a core purpose of the Fair Housing Act and that the legislation supports disparate impact claims. A more intriguing aspect of the remedies discussion is Johnson’s survey and assessment of non-litigation strategies to address inequalities of place and race. These strategies include the use of governmental programming and spending regulations to require agencies and grant recipients actively to promote fair housing4 and sustainable communities.5 But perhaps the most interesting alternative to litigation discussed in the article is the “community benefits agreement” (CBA), an example of a regulatory compact through which the plans of developers and investors to (re)manufacture urban space are made conditional on agreements with local community coalitions and governmental organisations (municipalities, economic development agencies) to deliver inclusionary benefits such as decent wages, good jobs, affordable housing, sustainable environmental conditions, parks, and schools.

Johnson is careful not to suggest that the CBA offers much more than a limited intervention, suitable only in some circumstances, for the legacies — and enduring problems – of economic and racial exclusion. But her analysis does highlight a potentially exciting dimension of this type of intervention. As Johnson writes: “what is novel as a regulatory approach … is the shift … to a framework in which redistributive demands are made of private power and public goods. The aspiration of the CBA framework is not simply inclusion in structures of opportunity presumed to be operating correctly, but the remaking of the terms of how those structural arrangements distribute opportunity.” (P. 1662.)

Ultimately, what I most liked about Inclusion, Exclusion, and the “New” Economic Inequality is the article’s insistence on the importance of positioning racial, gender, and ethnic inequality as “a necessary disruption of the current interest in economic inequality,” a disruption that demands a rethinking of regulatory regimes and policy practice, a rejection of “narratives of integration” into the failing economic institutions of the early twenty-first century, and a new focus on “remedying the failures of the past, while responding to an evolving economic and racial order.” (P. 1665.)

  1. Funded by the British Academy, Award number: PM150186. []
  2. Joseph Fishkin and William E. Forbath’s recent work frames this tradition as a mode of constitutional political economy consisting of three key elements: “restraints against oligarchy”; “a political economy that sustains a broad middle class, wide open and broad enough to accommodate everyone”; and an inclusion principle “that democracy of opportunity must extend to all the people across lines of race and other invidious group-based distinctions,” see e.g., Joseph Fishkin & William E. Forbath, Wealth, Commonwealth, & the Constitution of Opportunity (U. Tex. L., Public Law Research Paper No. UTPUB632, 2015), available at SSRN. []
  3. Patrick Sharkey, Stuck in Place: Urban Neighborhoods and the End of Progress Toward Racial Equality 67 (2013). []
  4. Affirmatively Furthering Fair Housing Final Rule, 24 C.F.R. Parts 5, 91, 92, et al. (2015), cited at Johnson P. 1658. []
  5. Johnson illustrates this point with the Sustainable Communities grant programme administered by the Department of Housing and Urban Development in collaboration with the U.S. Department of Transportation and Environmental Protection Agency, see sources cited at footnotes 60 and 61 in Johnson’s article. []
Cite as: Toni Williams, Responding to Economic Inequality: The Place of Race, JOTWELL (November 11, 2016) (reviewing Olatunde C.A. Johnson, Inclusion, Exclusion, and the “New” Economic Inequality, 94 Tex. L. Rev. 1647 (2016)), https://equality.jotwell.com/responding-to-economic-inequality-the-place-of-race/.

Where the “Normal” Is Gendered and Unjust

Do you want that with fries, salad, or a side order of sexual harassment? Kaitlyn Matulewicz’s paper on sexual harassment in the restaurant industry prodded me to look differently at interactions with servers and to reflect more broadly on the burdens placed on those who experience harassment. Her starting point is the legal standard by which, to qualify as sexual harassment, workplace conduct must be objectively “unwelcome” and outside the “normal.” Drawing on interviews with women full-service restaurant workers, Matulewicz argues that the organization of restaurant work makes women vulnerable to enduring sexual harassment. Structuring elements of restaurant work – hiring and dressing practices, the focus on customer service, and the legally approved wage-tip relation – normalize women workers’ subjection to unwanted sexualized experiences.

Matulewicz gives plenty of space to the women interviewed, allowing us to hear their voices. I appreciated her methodological decision not to ask the participants outright whether they had experienced sexual harassment. Instead, she asked them to talk about their work and to describe their interactions with customers, co-workers, and management. That decision was crucial to the project because her participants “often struggled in defining sexual harassment and thinking about their own experiences in relation to it.” (P. 135.) One reason for this struggle is that sexualized conduct is so “normal” in their workplaces – and that the workers need to please their customers.

While the paper’s primary aim is presenting the women’s accounts, Matulewicz connects her inquiry to legal literature on equality, such as work by my colleague Colleen Sheppard, and to legal and sociological research on labour and gender. Matulewicz cites data on the composition of the restaurant industry: women, the young, and visible minorities are disproportionately present in the “front of the house,” serving customers, while men are disproportionately present in the “back of the house,” in the kitchen and the manager’s office.

Matulewicz shows that, in a workplace where sexualized interactions are common, the prevailing legal approach can lay on the recipient of unwanted attention the burden of communicating that conduct is “unwelcome.” That a worker’s remuneration depends on tips, within the client’s discretion, stacks the deck against doing so. Participants reported learning strategies of “laughing it off” to get through the shift.

While the problem isn’t new, this paper pressed me to keep reflecting on the challenges of addressing systemic injustice using complaint-driven mechanisms – ones that work best for egregious individual incidents. I have been thinking of this problem in the context of my service as an assessor for my university’s policy on harassment, sexual harassment, and prohibited discrimination. The paradigm case for such mechanisms probably involves outrageous statements made before witnesses agog, but reliable. Meanwhile, a gamut of conduct and workplace decision-making remains, to use Matulewicz’s term, “more ‘subtle’” and harder to challenge.

A quick Web search tells me that Kaitlyn Matulewicz is a doctoral candidate in the Faculty of Law at the University of Victoria, an organizer with the Retail Action Network in Victoria, and has extensive experience as a server in the food and beverage industry. It’s an impressive combination of scholarly research, activism, and lived experience – and I look forward to reading her work again before long.

Cite as: Robert Leckey, Where the “Normal” Is Gendered and Unjust, JOTWELL (October 14, 2016) (reviewing Kaitlyn Matulewicz, Law’s Gendered Subtext: The Gender Order of Restaurant Work and Making Sexual Harassment Normal, 24 Feminist Legal Stud. 127 (2016)), https://equality.jotwell.com/where-the-normal-is-gendered-and-unjust/.

Taking the Classroom Beyond the Building’s Walls

John Borrows, Outsider Education: Indigenous Law and Land-Based Learning, 32 Windsor Yearbook on Access to Justice (forthcoming 2016).

John Borrows is a lead actor in the cast that makes it worth being part of the play of life. He’s always thoughtful and interesting; his scholarship thick with love. And I love reading his work.

In Outsider Education he appears as himself – teasing the reader with an introductory paragraph that leaves you wondering if he’s going to make an argument for old school legal education by apprenticeship, then turning the whole thing on its head. It’s not an argument for white men training white men in book-heavy chambers over sherry; it’s a reminder that Indigenous legal education in North America prior to European arrival kicks it even more old school.

Borrows uses this article to remind us that our legal worlds aren’t as narrow as we might have been taught to imagine them. Law can be found in “homes, businesses, hospitals, courts, cities, and rural landscapes.” (P. 3.) He calls for legal education to take root in land and outside contemporary classrooms.1 If you want an example of how a law professor can take learning “outdoors,” you should read Borrows’ recounting of Professor Doug Harris’ property law class in Part 2.

Part 3 turns to how pedagogies can be developed that reflect and are attentive to Indigenous legal traditions. Perhaps most striking for those uninitiated in the scholarship of Borrows’ is his claim that law is not only what can be found in positive expressions issued by legislatures or courts, but also that it is found in specific Indigenous legal systems, and I would hazard that Borrows would claim even more broadly, in our practices. Most challenging, perhaps, Borrows claims that we should work with students in learning from the earth and develop “land-based literacy” as an explicit goal of legal education.

Turning to Part 4, Borrows recounts the work of law schools like Lakehead Law to integrate law students and legal education with specific First Nations communities, at least in intensive settings if not more generally throughout their legal educations. The illustrations in this section provide an outstanding “go to” for ideas for law professors who care about connecting students with the “practice” of law, and Indigenous law more particularly.

Borrows’ work in this article is emblematic of his scholarship in several ways. First, it is unerringly generous. Borrows’ illustrations are often drawn from experiences outside his own. He highlights and celebrates the efforts of others to build legal education initiatives that help us learn from the land and incorporate Indigenous law into legal education. Second, I confess to being a sucker for good writing, and Borrows is a good writer. Third, the scholarship is mature – it reflects Borrows’ long consideration of these matters.

Ultimately, Outsider Education is an article that persuades. It’s hard to read it and not be convinced that you need to change your way of thinking about your own classes.

  1. For a similar argument, see Leanne Betasamosake Simpson, Land as Pedagogy: Nishnaabeg Intelligence and Rebellious Transformation 3 Decolonization: Indigeneity, Educ. & Soc’y 1 (2014). []
Cite as: Kim Brooks, Taking the Classroom Beyond the Building’s Walls, JOTWELL (September 14, 2016) (reviewing John Borrows, Outsider Education: Indigenous Law and Land-Based Learning, 32 Windsor Yearbook on Access to Justice (forthcoming 2016)), https://equality.jotwell.com/taking-the-classroom-beyond-the-buildings-walls/.

Squeezedness and Feminisms in the Age of Counterterrorism

Jayne Huckerby, Feminism and International Law in the Post-9/11 Era, 39 Fordham Int’l L.J. 533 (2016).

There are many reasons to like Jayne Huckerby’s most recent article, and many different ways to incorporate this work into your reading and classes. The article has appeal to feminist, international law, national security, and peace studies. There are several things this article does that I like lots. At its most basic level, it’s a helpful reminder of where feminisms stand on or in relation to the complex terrorism and counter-terrorism terrain. Huckerby takes an exhaustive review of the literature, in the best sense of the phrase, presenting scholars with copious notes detailing discussions in law reviews, peer-reviewed journals of allied fields, books, U.N. and U.S. government reports, and the popular press. Anyone eager to learn more about gender, feminisms, and international law, or to write a syllabus, would do well to comb her notes.

Huckerby’s writing is crisp, giving readers gems of legal thought like:

[A] post-9/11 account of women’s victimhood also tends to focus unduly on women’s experiences at the hands of non-State actors (terrorists), rather than to illuminate ways in which State counter-terrorism policies have also undermined women’s rights or to address a more complicated picture of victimhood whereby women often feel squeezed between terror and anti-terror.

(P. 557) (citations omitted).

This squeezed-ness is an important concept that I hope Huckerby will pursue further. Huckerby goes to great length explaining the ways in which women are often caught in the middle of national security discourse. In some instances, they are subjects of terrorism and anti-terrorism policy as well perpetrators of non-state violence. In others, they are objects to be protected or passive non-agents who aren’t seen as contributing to national security discussions. It calls to mind Martin Heidegger’s geworfenheit, or thrownness. As Heidegger theorized a freedom in the arbitrariness associated with thrownness, so too does Huckerby’s “squeeze” seem to represent a liminal space from which feminist action could take place. That the squeeze between terror and anti-terror is full of frustration and rife with danger indicates its affinity to Heidegger’s thrownness. In this acknowledgement there is the potential for challenging the objective case of squeezedness by interjecting in the squeeze a subjective embrace of the arbitrary, opening the door or moving out of the squeeze and toward political action.

A provocative theorizing of subject positions, a masterful command of source material, and crisp writing are not all Huckerby does (which would be more than enough to make the article an important read). In the long shadow of the September 11, 2001 attacks there’s been comparatively little work on women’s role in both terrorism and counter-terrorism policy. Huckerby intercedes, concluding that we need to focus on four issues, which happen to be interrelated:

the human rights and gender issues at stake in women’s engagement in and support of violent extremism; the impact of violent extremism on women and girls and gender equality; the roles of women and gender equality in countering terrorism and violent extremism, including through women’s participation in security institutions; and the impact of counter-terrorism and countering violent extremism on women and girls.

(P. 590.)

This is an ambitious agenda to be sure. In today’s political climate, feminisms still cause confusion and condemnation from across the political spectrum and indeed occasionally from feminists themselves. This contentiousness is proof positive of the need for more work like Huckerby’s, which helps explain the significance of feminisms to better understanding international law. One wonders what hope there is for sustained and meaningful engagement with feminisms and the rights of women and girls, however, when some people amazingly still understand feminism as a dirty word. Of course something needs to be done, and recent attacks in Turkey, continued violence against Kurds and other ethnic minorities throughout Europe and Asia, and instability in Nigeria all indicate that these issues must be addressed by government leaders, activists, and educators sooner rather than later.

Significantly, Huckerby highlights the tension in “women, peace, and security” efforts. These efforts may benefit women and girls, but often serve national security needs. They may also marginalize human rights perspectives (P. 578). While it may be easy to applaud the U.N. for its focus on women, it would be unhelpful to conclude that the U.N.’s agenda is altruistic or, perhaps, even helpful. Huckerby’s critique should encourage scholars to consider the advantages and disadvantages of these converging focal points.

Lastly, and this may seem a minor point, I was particularly encouraged by Huckerby’s inclusion of girls, who unfairly and quite often are assumed to be included in “women” or “feminisms.” At the international level, it is especially important, given children’s high mortality rates in many countries and inadequate legal protections, to name them. I hope this move will encourage other feminist legal scholars and writers on international law to remember the important and particularly vulnerable role children have in countries across the world.

This is a fine article and a welcome piece of scholarship on feminist legal theory and national security law.

Cite as: Nick J. Sciullo, Squeezedness and Feminisms in the Age of Counterterrorism, JOTWELL (August 1, 2016) (reviewing Jayne Huckerby, Feminism and International Law in the Post-9/11 Era, 39 Fordham Int’l L.J. 533 (2016)), https://equality.jotwell.com/squeezedness-and-feminisms-in-the-age-of-counterterrorism/.

Not Complicit, but Inadequate: Looking at the Concurrent Rise of Human Rights and Neoliberalism

Samuel Moyn, A Powerless Companion: Human Rights in the Age of Neoliberalism, 77 L. and Contemporary Problems 147 (2014).

Lately I’ve been hoping that the sense of impending doom I feel at the lengthening list of things-that-are-worse-than-they-used-to-be might be at least somewhat mitigated if I could only identify the way(s) in which that list could be boiled down to one – okay, maybe two or even three – big thing(s). Neoliberalism lurks as a strong contender, hence a search for articles I like – lots – that trace this approach, whether at the macro, mezzo, or micro level. There are many such articles, but what I’ve chosen to highlight here is from Vol. 77 of Law and Contemporary Problems, a special edition on law and neoliberalism. Guest Editors Jedediah Purdy and David Singh Grewal explain, with charming delicacy, in their introductory essay, “….the term ‘neoliberalism’ may be unfamiliar to some American legal audiences…[but] it is a common part of the scholarly lexicons of many disciplines and is widely used elsewhere in the world, notably in Latin America and Europe.” (Assuming they are right, here is an attempt at Neoliberalism in a Nutshell:  In contrast to the more social-liberal approaches many Western governments followed just after World War II, neoliberalism emphasises the withdrawal of the state in favour of laissez-faire, market based organization, with characteristic policies aimed at privatization, deregulation, and elimination of social benefits regimes). Purdy and Grewal go on, step by step, to build the case for legal scholars in the US to pay some attention to neoliberalism as a phenomenon and a zone of scholarship.

The piece I’m talking about here is Samuel Moyn’s A Powerless Companion: Human Rights in the Age of Neoliberalism (it occurs to me that the title might not help you understand why I thought this would assist my sense of impending doom). In this piece, Moyn considers three themes – global capitalism, the human rights paradigm, and rising economic inequality. He describes the simultaneous burgeoning of the first two in the 1970’s, and the relatively more recent availability of empirical data that document the third – all noted by numerous other scholars – before arguing that the “crucial connection” between human rights and neoliberalism “is a missed connection: precisely because the human rights revolution has at its most ambitious dedicated itself to establishing a normative and actual floor for protection, it has failed to respond to—or even allowed for recognizing— neoliberalism’s obliteration of the ceiling on inequality.” (P. 151.) He positions his insights as in between Marxist and mainstream, concluding in part that there is no point berating human rights for this failure to engage – rather, human rights should be encouraged to keep out of this zone, lest it be seen as a collaborator. (Id.)

The article is divided into four parts. The first asks, essentially, “What would Marx say?,” positioning Marx’s (shifting) recognition of the comfortable fit between human rights and exploitation as fixed within the state, even if some later iterations might have allowed for recognition of phenomena now established but then barely imagined. The second part traces the concurrent rise of neoliberalism and international human rights regimes. Recognizing the shared “negative conditions” and “ideological building blocks,” Moyn asks if there’s anything beyond these basic similarities. In doing so he creates a research agenda, calling for more (detailed, specific) work on “how exactly to frame the relationship of the human rights explosion with neoliberal victory” (P. 159).  He also suggests a conclusion based on what we know now, one which holds the “…prestige and prominence of international human rights to be symptomatic of a loss of structural accounts of social relations without their being causally responsible or morally culpable for it.” (Id.)

In part three, Moyn moves to consider the actual impact of human rights, building the case for his mildly but clearly stated skepticism about both the power of human rights and any causal connection between human rights and neoliberalism by looking at judicially enforced social rights and the relatively newer engagements of human rights in both international trade law and corporate social responsibility. Part four concludes by repeating that conclusions about the complicity of human rights are premature – but their inadequacy in the face of global market fundamentalism is certain. We must look elsewhere for a “threatening enemy,” a peerless champion to supplement (not replace) our powerless companion.

I liked this article for a variety of reasons. Here are just three. First, I teach students who are, for the most part, true believers in human rights. They came of age in the human rights era and most of them seem to see these rights as natural parts of the legal landscape, and definitively good and just (not to mention something inherently in the province of law and lawyers). This article is a careful incision into that thinking, calibrated to engender critical doubt while at the same time offering the language and politics of the neoliberal critique. I look forward to offering it to my students. Second, Moyn has some deftly compact turns of phrase in this very readable article: “In an era in which human rights norms and movements are frequently overloaded with expectation, the best conclusion is that a Band-Aid is not an adequate response to a charnelhouse (even if Band-Aids have their uses).” Finally, I liked this article as a gateway drug. Socioeconomic inequality, in various forms and measures, is the defining feature of these times. I cannot imagine there is a scholar of law who can afford to ignore neoliberalism, the empirical measure of its programs, or its critics. For people not already deeply engaged with this kind of scholarship, Moyn is a great place to start.

Cite as: Sonia Lawrence, Not Complicit, but Inadequate: Looking at the Concurrent Rise of Human Rights and Neoliberalism, JOTWELL (June 6, 2016) (reviewing Samuel Moyn, A Powerless Companion: Human Rights in the Age of Neoliberalism, 77 L. and Contemporary Problems 147 (2014)), https://equality.jotwell.com/not-complicit-but-inadequate-looking-at-the-concurrent-rise-of-human-rights-and-neoliberalism/.

A Brave and Honest Examination of the Complexity of a Feminist Defence Ethos

Abbe Smith, Representing Rapists: The Cruelty of Cross Examination and Other Challenges for a Feminist Criminal Defense Lawyer, 53 Am. Crim. L. Rev. (forthcoming 2016).

Reading the work of those writing from a different perspective has been productive to the development of my own thinking. Abbe Smith’s forthcoming article, Representing Rapists: The Cruelty of Cross Examination and Other Challenges for a Feminist Criminal Defense Lawyer, is no exception. Like her other scholarship, Representing Rapists is impeccably written, thoughtful, and well reasoned. What makes this work exceptional is its brutal honesty. With its steadfast transparency and willing self-reflection, the article is downright brave.

Abbe Smith, a well known legal ethicist and criminal lawyer, has committed much of her professional attention to theorizing and defending the need for unmitigated zeal in the representation of the criminally accused – including, of course, those accused of sexual offences. With a view to better protecting sexual assault complainants, I have dedicated a lot of scholarly attention in the last few years to developing feminist arguments in support of the ethical limits on defence lawyers who represent clients accused of sexual offences. Where our perspectives likely differ most is with respect to the cross-examination of sexual assault complainants.

However, as Smith states clearly in her opening paragraphs, Representing Rapists is not an articulation of the procedural, ethical, and constitutional justifications for the no-holds-barred cross-examination of the truthful complainant. Instead, this article discusses “how it actually feels to confront and cross-examine” truthful sexual assault complainants, and “how to come to terms with these feelings”. It is an admirable attempt to develop a feminist defense ethos, pursued through open self-reflection and a willingness to engage seriously with the trauma caused to survivors not only by sexual violence but by the judicial system and criminal defence lawyers.

The article proceeds through five parts. In the first part, Smith highlights the broader context for the defence of those accused of rape and other sexual offences. For her, the broader context relates back to her justification for criminal defence work more generally. The United States is one of the most punitive countries in the world. And of course, its carceral state is populated predominantly by poor, racialized, or otherwise vulnerable people. As a result, for the criminal defender, “the stakes are higher, the urgency greater, the feeling of lawyerly responsibility more intense.”

Part II of the article considers the experience of women and children who have been sexually assaulted – aspects of both the sexual violence itself and the trial experiences of sexual assault survivors are contemplated. Smith’s method is unique. She examines the experiences of these survivors by immersing herself in, and quoting significantly in the article from, the rape memoirs of several women. The descriptions are raw, unflinching, and at times difficult to read.

Part of what makes Representing Rapists so bold is the way in which, in Parts III and IV, Smith then integrates these women’s experiences with the criminal justice response to their sexual violation into a discussion of some of her experiences representing men accused of rape. She is honest about the way some of her cases made her feel and the dissonance this causes. At one point, she compares herself to one of the women whose memoir she draws upon. The rapist of another reminds her of a man she once represented. Later she sees herself in another woman’s painful description of the lawyer that cross-examined her. The effect is intense.

Smith includes descriptions of the corporeal details from both the memoirs and cases she has taken, details of the pain and loss of self experienced by these women, and descriptions of the connections they make between the intimacy imposed upon them during the rape and the shame this generates. She also describes the shame she has felt after cross-examining a sexual assault complainant, knowing she has only added to theirs.

And she accepts responsibility: “Defence lawyers do not get to apologize – no matter how much we may want to….Victims of serious crime get to hate us. It is the least we can do for them.”

Smith’s analysis is nuanced. While she attempts, in Part V, to reduce the “dissonance of rape defence” experienced by feminist lawyers, she does not shy away from the tensions she is unable to reconcile. She is ever-cognizant of the humanity of her clients, including those who have committed heinous acts, and unapologetic in her commitment to her conception of justice.

Of the many things that I love about this piece, one is that it pushes me – it challenges me – to be as honest and as nuanced as I can in my own scholarship.

I do not agree with some of the defence counsel strategies Abbe Smith supports, nor the justifications she offers for them. But I could not agree more with the concept of feminism she embraces: a feminism that is brave, that attempts honesty and accepts complexity, and that is committed to dignity for all.

Cite as: Elaine Craig, A Brave and Honest Examination of the Complexity of a Feminist Defence Ethos, JOTWELL (May 5, 2016) (reviewing Abbe Smith, Representing Rapists: The Cruelty of Cross Examination and Other Challenges for a Feminist Criminal Defense Lawyer, 53 Am. Crim. L. Rev. (forthcoming 2016)), https://equality.jotwell.com/a-brave-and-honest-examination-of-the-complexity-of-a-feminist-defence-ethos/.

Contextualizing the Harms Caused by Appropriation of Indians’ Intangible Cultural Property

Angela R. Riley & Kristen A. Carpenter, Owning Red: A Theory of (Cultural) Appropriation, Tex. L. Rev. (forthcoming 2016), available at SSRN.

Laguna Pueblo writer and critic Paula Gunn Allen has argued that “[t]he American Indian poet is particularly bereft of listeners.” This is due to the fact that she “has difficulty locating readers/listeners who can comprehend the significance of her work, even when she is being as clear and direct as she can be, because . . . differences in experience and meaning assigned to events create an almost impossible barrier.”1 It occurred to me in reading and Angela Riley and Kristen Carpenter’s “Owning Red: A Theory of (Cultural) Appropriation,” that Indians face similar problems in telling the story of the harms caused by cultural appropriation, particularly those harms relating to intangible aspects of Native identity.

To non-Indians raised on tales of Wild West cowboy and Indian skirmishes and myths of generous Pilgrims who shared their bounty with Indians during the first Thanksgiving—and particularly to white Americans cloaked in racial privilege—fashion designers’ appropriation of Native dress and beer companies’ use of the names of deceased Indian heroes may seem innocuous—or even—as is sometimes argued—like genuine homage. Professors Carpenter and Riley provide the backstory needed to comprehend and contextualize these harms. They also offer compelling ideas for a solution. Most importantly, they show how contemporary appropriations of Native identities are part and parcel of a history of disrespect of Native property rights, including the right to cultural identity—and further that It is because of this colonial history of never-ending loss that non-Indian Americans so often fail to perceive the losses caused by appropriation. And conversely, it is precisely because of this history that the losses caused by appropriation are so devastating to Native peoples and individuals.

Riley and Carpenter use the term “owning Red” to refer to “the widespread practice by which non-Indians claim and use Indian resources for themselves, often without attribution, compensation, or permission.” (P. 110.) Tying the justice system’s lack of respect for Native property and religious rights to the legal system’s and society’s sanctioning of the appropriation of Native identity and intangible cultural property, Carpenter and Riley explain that, “with the virtually unimpeded taking of Indian lands, lives, bodies, and cultures, eventually all things Red became the property of non-Indians.”

However, their explication of the link between the law’s disrespect of Native rights and the legal system’s and society’s lack of understanding of the harms of cultural appropriation goes beyond the idea that the justice system’s lack of protection of Native property and religious rights leads to more disrespect of Indian rights—both by additional entities and individuals and with respect to additional types of rights—a point I and others have made elsewhere.2 Rather, their analysis insightfully contextualizes how the federal government’s removal of Indians from their ancestral lands, which began in full force in the 1830s, itself interfered with—and diminished–tribes’ and Indian individuals’ ability to engage in cultural practices and to maintain their cultural identities.

The confiscation of the land was not necessarily a literal appropriation of Native identity–the aspects of identity taken were not always taken to be used by non-Indians, but rather the taking of the land was often an end in itself. However, beyond the immediate and devastating losses of land that Removal and other violations of Indian real property rights effected, they concomitantly caused a disruption of cultural identity and an inability to maintain crucial lifeways. To see this is to better understand—even if the understanding of an outsider like me will always be imperfect—the harm that cultural appropriation wreaks on Native peoples. In contemporary instances of cultural appropriation, then, not only is there a taking and distortion of intensely personal, often sacred–and carefully guarded–cultural practices, but the taking is superimposed on other, earlier legally enforced takings of these very identities from Native peoples themselves. Thus, although Indians’ objections to cultural appropriation are often seen as anomalous in the freewheeling, fluid culture of mainstream America, there is more to the story, as Carpenter and Riley help us understand, than differing understandings of whether it is acceptable to borrow from other cultures. Instead, cultural appropriation of Native identities is especially devastating given the extent to which Native peoples have had to fight—often on the pain of imprisonment and even death—for the right to practice their own cultures.3

Professors Carpenter and Riley provide several examples of recent appropriations of intangible cultural property, which they divide into easy and hard cases, and they provide proposed solutions for how to address each of these problems. Their solutions vary according to the problem, and this seems quite fitting given both the diversity of types of cultural appropriation, from use of mascots in professional, college, and K through 12 schools, to fashion designers’ use of Indian regalia on the runway and pharmaceutical companies’ appropriation of Native peoples’ traditional knowledge for commercial gain on the one hand and the diversity among tribes and tribal cultures on the other.

I admired the article in not proposing a one-size-fits-all solution for these quite different types of cultural appropriation and for the fact that, even among mascots at different institutional levels, they offered a nuanced and multi-faceted analysis. One of the challenges in writing about tribes and tribal law is that there is a temptation—as well as pressure from within the academy and from the standards of academic writing—to offer broad-based analyses and solutions, but the incredible diversity of the Nation’s 566 federally recognized tribes simply does not permit this in most contexts. Carpenter and Riley acknowledge and embrace this diversity, as is evident from their analysis of Indian mascots at the college and secondary school levels. At the college level, they note the success of the National Collegiate Athletic Association’s policy of disallowing abusive racial/ethnic/national origin mascots but allowing continued use of Indian mascots and logos in cases where the team seeks and receives the consent of the relevant Indian tribe. They use Florida State University’s modifications of its mascot based on the recommendations of the Seminole Tribe of Florida—and the way that interactions among school and the Tribe about the mascot eventually fostered a deeper relationship between the two–as an example of the policy’s success. Here too, however, they do not shy away from the complexities of tribal diversity, and rightly note that the Seminole Tribe of Oklahoma—which was originally based in what is now Florida but was removed to Oklahoma by the federal government—opposes all use of Indian mascots. As the authors suggest, there are good solutions but probably no perfect solutions in such complex situations.

In the other contexts, the authors’ proposed solutions are similarly tailored to the individual case. For example, with respect to use of Indian headdresses—which are traditionally reserved for revered warriors in the tribes in which they are utilized–in fashion shows, Carpenter and Riley suggest that education and increased dialogue may be the answer, given that the First Amendment likely acts as an insurmountable barrier to barring all use of traditional Indian clothing by unauthorized persons and that such a law would be overly restrictive even as to Native artists who wish to provide critiques or innovations. While this solution may seem somewhat dissatisfying at first glance, it is likely the only realistic solution for this wide-ranging problem with its diverse manifestations. Finally, I was intrigued by the authors’ idea that, with respect to commercial appropriation of Indian heroes’ names, such as Hormel Brewing Company’s unauthorized but judicially sanctioned use of Crazy Horse’s name to sell liquor, the answer may be to expand the role of tribal law in such cases. Their analysis led me to wonder what it would be like if a federal law were passed requiring entities attempting to use Native individuals’ names for commercial gain to comply with tribal law—or providing for tribal jurisdiction over such disputes—and what the benefits might be both in terms of protecting indigenous property rights to identity and in fostering greater understanding of—and respect for—Native perspectives. All in all, “Owning Red: A Theory of (Cultural) Appropriation” is a rich and interesting read that does justice to the tremendous complexities of tribal cultures and the vicissitudes of appropriation of intangible cultural property.

  1. Paula Gunn Allen, Answering the Deerin Speak to Me Words: Essays on Contemporary American Indian Poetry 145 (Dean Rader & Janice Gould ed., 2003). []
  2. See, e.g, Ann E. Tweedy, Unjustifiable Expectations: Laying to Rest the Ghosts of Allotment-Era Settlers, 36 Seattle U.L. Rev. 129, 155 & n.134 (2012). []
  3. As Professors Carpenter and Riley acknowledge, they are building on the work on Rebecca Tsosie, Angela R. Riley & Kristen A. Carpenter, Owning Red: A Theory of (Cultural) Appropriation, draft at 105, and Professor Tsosie herself recently published another excellent article on cultural appropriation. Rebecca Tsosie, Just Governance or Just War?: Native Artists, Cultural Production, and the Challenge of “Super-Diversity, 6 Cybaris 56 (2015). []
Cite as: Ann E. Tweedy, Contextualizing the Harms Caused by Appropriation of Indians’ Intangible Cultural Property, JOTWELL (April 5, 2016) (reviewing Angela R. Riley & Kristen A. Carpenter, Owning Red: A Theory of (Cultural) Appropriation, Tex. L. Rev. (forthcoming 2016), available at SSRN), https://equality.jotwell.com/contextualizing-the-harms-caused-by-appropriation-of-indians-intangible-cultural-property/.