INDIGENOUS LAW SUMMARIES: SELECTED RECENT LAW REVIEW ARTICLESby
Anosh Yaqoob, JD 2008
The Center for Excellence in Native Hawaiian Law is committed to exploring and critically examining the many significant and pressing issues facing Native Hawaiians and other indigenous peoples. This includes exploring new theories and practical arguments being developed by legal and indigenous scholars in law reviews and journals. This issue of Ka He‘e summarizes law review articles analyzing indigenous peoples' use of international law, community- and native-oriented property rights, and lawyering in indigenous communities.
1. S. James Anaya, Indian Givers: What Indigenous Peoples Have Contributed To International Human Rights Law, 22 WASH. U. J.L. & POL’Y 107 (2006).
Professor S. James Anaya’s article is drawn from a speech given at the Public Interest Law Speakers Series held at Washington University in St. Louis School of Law in 2006. Professor Anaya’s article presents two main points: first, indigenous peoples worldwide have found international law helpful in pursuing their claims for redress; and second, indigenous peoples’ very participation in the international legal context has itself done much to contribute to international human rights law.
Indigenous Use of International Law
Professor Anaya identifies two distinct strains concerning the use of international law by indigenous peoples. In the first yet ultimately less successful line of reasoning, native peoples argue for the application of international law to their claims because as political communities, they attempt to posit for themselves the attributes of nation-statehood in order to be considered among nation-states—which are the primary international law actors. Professor Anaya concludes that this approach to utilizing international law is futile because the historic development of international law with nation-states as primary actors was wrought from a racism which was meant to exclude indigenous peoples from participation in the international legal order. Essentially, an international legal regime centered around nation-states was crafted to exclude indigenous peoples.
The more successful legal vehicle for indigenous causes in the international arena, argues Professor Anaya, lies in the second manner in which indigenous peoples have utilized international law: bringing their claims within the scope of international human rights, which the international order has embraced since the Second World War. Professor Anaya advocates that engaging the human rights framework of current international law has been, and will continue to be, a successful avenue for addressing indigenous peoples’ concerns.
Indigenous Improvements to International Law
Professor Anaya briefly analyzes four distinct ways in which indigenous peoples’ participation in the international legal order has changed that body of law for the better. First, indigenous peoples’ involvement in international human rights has been path-breaking in giving voice to human collectives beyond just states per se. Indigenous rights as collective conceptually rejects the traditional individual/state dichotomy, and has improved international human rights law. Second, indigenous peoples’ involvement in the international legal arena has helped to break down state sovereignty which has been used as an almost impenetrable shield to charges against state abuses of indigenous concerns and rights. Third, indigenous involvement in international law has strengthened the notion of self-determination, by providing an alternative to the traditional nation-state as a legitimate form of human collective. Finally, Professor Anaya analyzes how indigenous participation in international law has helped to strengthen the importance of non-state actors in the international legal regime at large.
2. Alfred L. Brophy, Aloha Jurisprudence: Equity Rules in Property, 85 OR. L. REV. 771 (2006).
Professor Alfred L. Brophy’s article describes the manner in which property law in Hawai‘i has incorporated the Native Hawaiian concept of “Aloha” or the “Aloha spirit.” The article briefly explains traditional American property law with its major tension between individual private property rights and community property rights, then describes Hawai‘i’s history, post-Western contact. Brophy then discusses Hawai‘i’s contemporary statutory, constitutional, and case law concerning property, and finally concludes that, like critical race theory, feminist legal theory, and law and literature, Aloha Jurisprudence has a place in law, in general, that can contribute to shaping a better world.
In an attempt to begin to sketch the contours of an Aloha Jurisprudence, Brophy first highlights alternative views of property rights that were present at the time of the American Revolution, suggesting that Aloha Jurisprudence is not entirely outside the contemplation of traditional American property law. Hearkening back to a 1765 dissertation by John Adams, Thomas Paine’s Common Sense, and the Supreme Court’s 1837 decision in Charles River Bridge v. Warren Bridge, Brophy argues that community-oriented rights to property have long held a voice in the American legal tradition.
Brophy’s article then turns to the historical development of property law in Hawai‘i beginning with the Māhele of 1848. Brophy describes a series of cases, beginning with Oni v. Meek (1858) through Public Access Shoreline Hawaii v. Hawaii County Planning Commission (1995), and culminating with Diamond v. State (2006), where Hawai‘i courts have integrated traditional Native Hawaiian property concepts with traditional, Western-style notions of property rights. Brophy also describes the Hawai‘i State Legislature’s past actions promoting community property rights, further evidencing the existence of Aloha Jurisprudence.
Brophy concludes that while Aloha Jurisprudence presently remains undefined, in time, the pursuit of community-oriented views of property law in Hawai‘i will lead to judicially-defined standards, more meaningful content, and legal scholarship. Ultimately, a more humanitarian approach to property law is the hallmark of Aloha Jurisprudence, and a community-oriented view of property rights may very well have influence that extends beyond the Hawaiian Islands.
3. Christine Zuni Cruz, Toward A Pedagogy and Ethic of Law/Lawyering For Indigenous Peoples, 82 N.D. L. REV. 863 (2006).
Professor Christine Zuni Cruz’s article Toward a Pedagogy and Ethic of Law/Lawyering for Indigenous Peoples blends two works: a shorter piece drawn from a speech given at the Indigenous Law Conference on Indigenous Justice Systems, and a longer traditional law review article addressing the special concerns facing lawyers serving indigenous communities.
Toward a Pedagogy and Ethic of Law
In her remarks to the Second Annual Indigenous Law Conference on Indigenous Justice Systems at the Michigan State University College of Law, Professor Zuni Cruz reflects on having become the first tenured Pueblo law professor at the University of New Mexico, as well as on the concept of “firstness” generally.
Her main point concerning “firstness” is that the pause and reflection about any individual’s status as “the first” to do anything says more about the racism, injustice, and inequality about the system under which the individual is the first, rather than giving any meaningful comment about that individual person. Professor Zuni Cruz discusses Harry Belafonte’s interview with Larry King where Belafonte expressed deep regret at both then-Secretary of State Colin Powell and National Security Advisor Condoleezza Rice concerning their lack of strong, firm objection to America’s initiation of the Iraq war.
Professor Zuni Cruz then recounts many potentially disheartening statistics from the 2000 census indicating the dearth of Indian professionals—especially lawyers and law professors. She details how she first came to understand “brain drain” and its negative impact of depriving tribal communities of their most educated, well-qualified individuals. She also cautions, however, that simply attaining more numerical representation in the legal profession is not going to help Indian communities: she makes clear that “western legal training does not provide the universal solution to every issue we encounter in Indian country…There is something about indigenous knowledge that causes western knowledge to pale beside it.”
Finally, Zuni Cruz provides some uplifting words to law students. She cites an American Bar Association study finding that law school is a hostile and isolating environment that is damaging to self-esteem. She exhorts law students to “keep their feet on the ground and their head in the sky.” She reminds law students that in a short time they will be practicing in the profession, serving their tribal communities, and that the rigors of legal education may well help them in serving their communities. She closes her remarks with the keen observation that lawyers from tribal communities seeking to serve those communities have high expectations to live up to.
Indigenous Peoples and the Pedagogy and Ethics of Law/Lawyering
In the second portion of her article, Professor Christine Zuni Cruz addresses the inadequacy of the American legal educational system in training indigenous people to be leaders for their tribal communities. She explains that many indigenous communities often differentiate between Peace Leaders or White Leaders (leaders who lead in times of peace and address internal matters) and War Leaders or Red Leaders (those who lead against external threats during times of war). She then discusses how traditional American legal education focuses on molding law students into becoming War Leaders ready to protect their tribes against external legal threats and litigation, while neglecting to train them how to be Peace Leaders so that they may address the internal affairs of their tribes. Peace Leaders must study the internal law of their communities and their own legal histories because a different kind of decision-making process is deployed; Peace Leaders are not at war with their own communities.
Zuni Cruz then develops an analysis recommending the different types of knowledge attorneys should have when serving tribal communities within tribal justice systems. For her, there should be “interdisciplinarity” in teaching indigenous legal traditions. Equally important are sensitivity of the processes of arriving at justice within tribal communities because of their smaller, closer knit compositions; consensus building among those in tribal communities; the use of narrative and voice; the importance of language; and understandings about the interconnectedness of indigenous knowledge, land, and peoples.
