Copyright (c) 1998 Oklahoma City University

Oklahoma City University Law Review


Spring / Summer, 1998


23 Okla. City U.L. Rev. 13





PART ONE: INTERDISCIPLINARY PERSPECTIVE: Anthropological Perspectives: Idealization and Power: Legality and Tradition in Native American Law


Laura Nader *, Jay Ou **


* Professor of Anthropology, University of California, Berkeley.

** Ph.D. candidate, Department of Anthropology, University of California, Berkeley.



HIGHLIGHT: In the United States the contestation of Indian identity and sovereignty provides a window onto the uses of idealizations in power-laden negotiation processes. Problems of idealizing Indian culture as harmonious and non-adversarial makes tribal sovereignty a mirage without strict legal guarantees.

By the 1970s, successful and unsuccessful litigation alike shifted the balance of power between Indians and the federal and state government. From the 1970s on, federal and state government in concert with tribes and corporations began to push for negotiated settlements, in cases ranging from religious freedom, and reparation, to water, game and fishing rights. Some years later, Alternative Dispute Resolution entered the reservations via national Indian conferences, professional networks, government and private institutions, the argument being that ADR is more compatible with "traditional" native culture and society. The differential use of idealizations of the American Indian took center stage in the struggle over nuclear waste storage on Indian lands.

American historical and fictional writing have instilled in the American public a misinformed and highly inaccurate view of the American Indian . . . the "Vanishing American" . . . . There developed a voluminous history of the American idea of the Indian as a savage, a concept indispensable to a righteous and ethnocentric people appropriating a continent . . . . In more recent times a more refined concept of the "savage" Indian performs another function . . . . Bureaucrats promote programs to "liberate" the Indian under the mistaken notion that Indian culture and misery go together . . . . There is also . . . the "noble" side of the aborigine. At times this noble savage theme has done the Indian more harm than good.

--Ralph Nader n1



I. Introduction

This Article discusses the meaning of a legal history that includes processes of idealizing legal styles. We argue that idealizations play an important part in legal power plays, particularly in disputes centering on the quest for scarce resources. The portrayal of self or of others is not benign or simply self-serving, or prejudicial or spiritual. Rather, such portrayals may be part and parcel of legal stratagems, sometimes bilateral, sometimes unilateral, that contending parties use to gain power.

Under colonial conditions European colonizers introduced legal styles as a means of cultural control wherever they went. It is now well documented that in Africa, the New World, and the Pacific the harmony legal model was used as a pacification tool for colonizers, but harmony legal models are also used as an attempt by those colonized to regain sovereignty. n2 Thus the question of whether indigenous peoples adhere to [*15] harmonious or penalizing styles of dispute resolution retains a perennial interest, not the least because such contradictory idealizations are used differently in power struggles both internal and external to indigenous communities. n3

In many anthropological studies in the New World, and elsewhere, we find images of native peoples living harmoniously in societies governed by law based on principles of conciliation and compromise. n4 Equally commonplace are notions of the not so romantic "savage" whose laws were penal in nature and harsh in application found annotated in philosophical works or in a sociology reflecting a Durkheimian bent. Both characterizations of the laws of native peoples have been defended as humane, or else denigrated as "savage" and in need of the "civilizing process." Anthropologists have played a part in such contrasting representations, now painting a Romantic Rousseuian scene, elsewhere a more Realist view of indigenous law "on the ground." Indeed, even native people's self-portrayals use various versions of law in idealized form often as a contrast to the less than "civilized" law. n5 And of course, White people do likewise. n6

This Article is about the uses and misuses of idealizations of Indian law. The first two sections consider the anthropological and historical background of the topic. This is followed by an examination of cases in which Indian sovereignty and self-determination are at stake. The following section looks at the role of Alternative Dispute Resolution ("ADR") among Native Americans, and the last part of the Article looks in detail at a case study--that of Nuclear Waste Storage on reservations--to demonstrate how idealizations of a "harmonious" legal system among Native Americans are used as a strategy to coerce them into accepting radioactive waste by government and industry officials. [*16]

A. Anthropological Perspectives

In anthropology, the issue of idealization has been problemized by use of the comparative and interactive models in ethnographic work. For example, Elizabeth Colson draws an interesting contrast between British rule of African indigenous communities and the conditions of rule for Native Americans under United States law. She notices that in Africa, British colonial administrators believed that people had the right to live as their ancestors had if tradition did not conflict with colonial policy. The British policy of indirect rule made it possible for Africans, in turn, to adapt their needs to their political realities by calling their legal innovations "traditions," what they had always done. As Colson notes, anthropologists discovered that traditional rules were being invented on the spot to legitimate a course of action by realistic actors of the local scene. And although colonial administrators tried to restrict dispute hearings to matters of fact, there was still the pull to tradition which made them examine all the social implications of a specific dispute. n7

Colson, who had worked among Native Americans as well as Africans, also noted that tradition never had the same force in the United States that it had in the British colonies. The British had a long tradition in common law; the United States was pursuing a policy of cultural assimilation. Thus, while Africans resisted superordinate power under the guise of tradition, Native Americans had no such resource because Indian institutions were seen as a barrier to assimilation. Where Africans were believed to be able to make legal arguments, and even encouraged by the British policy of indirect rule, Native Americans were denied local autonomy on their reservations which gave them less opportunity to develop legal traditions. "Instead they were forced to defend themselves in alien courts governed by legal rules stemming from another tradition." n8

Idealization is also illuminated by a model encompassing legal pluralism and legal complexity. In Ruth Benedict's book Patterns of Culture, probably the best-selling book on Native American peoples, she portrayed Pueblo society of New Mexico as characterized by norms of social cooperation and by the internalization of high value placed on social harmony. n9 For Benedict, Pueblo society had elaborated a system of social control devoid of coercive physical sanctions. Benedict's position [*17] was challenged by E. Adamson Hoebel, another anthropologist who had written earlier about native peoples, his best-known work being on the Cheyenne. For Benedict, according to her critics, the Keresan/Pueblo society had found the secret of harmonious living without law. n10 Hoebel's work had uncovered quite the opposite; the Pueblos were a complex society known to use extreme forms of physical sanctions applied by designated local officials. It is at this point in his analysis that Hoebel reminds us that representatives of the United States government limited Pueblo autonomy in their exercise of penal sanctions and often, in other ways, undercut or superseded indigenous legal administrations. The Pueblos were expected to follow the laws of the states and the federal government--a conflict between jurisdictions that remains unsettled to this day. While Benedict's analysis ignored the wider realities, both political and social, Hoebel realized that Native Americans were clearly part of a wider culture that influenced whether such communities were devoid of coercive physical sanctions. In other words, he recognized the power of the state, a position which he did not hold in his earlier and idealized view of the Cheyenne. n11

B. Historical Angles--Case Studies

Historical perspectives on Native Americans and the law are key to any analysis of the meaning of idealizations of law. As historians have indicated, the relationships between Native Americans and the United States were restricted to a governmentto-government form as indicated by the separate treaties with Native American governments between 1778 and 1871. n12 Negotiations with native leaders was, as with the heads of nations, separate from the United States.

Over time, the sovereignty of native nations has been diminished to the contemporary condition described as "internal colonization." n13 The steps through which native peoples' nations were reduced in their rights to self-government were incremental: settlers' wars that led to expansion of the United States from the eastern seaboard to the Pacific, targeting of [*18] native governments and eliminating leaders, co-optation or the external appointing of Indian leaders were all part of the story. By the mid-1880s, armed resistance by American Indians ceased in exchange for reserved territories with guaranteed permanent protection from further disputes with White settlers. The mid1880s were also the beginning of the movement from sovereignty to what analysts call colonial subordination to the United States. For example, the passing of the Major Crimes Act usurped native jurisdiction on reservations. n14 The Crimes Act was followed in 1887 by the General Allotment Act replacing the traditional mode of collective use in land tenure by the Anglo-Saxon system of individual property ownership. n15 Once the allotments were made, surplus acres were opened to non-Indian homesteading or public areas. In 1898, the Curtis Act was passed thereby terminating the territorial sovereignty of Indian Nations depriving tribal governments of governing functions. n16 The intention was assimilation and exploitation.

In 1924, the Indian Citizenship Act unilaterally conferred American citizenship upon all Native Americans. n17 In 1934, the Indian Reorganization Act ("IRA") was passed by Congress requiring that tribal governance be based on charters drafted by the Bureau of Indian Affairs and that tribal councils be subject to the approval of the Secretary of Interior or his delegate, the commissioner of Indian Affairs. n18 Specifically relevant to the argument in this Article, was the decree of an electoral form of democratic majority rule which many believed to be antithetical to native traditions of consensus decision making. Some twothirds of Indian nations acquiesced to reorganization while onethird rejected the reorganization as a violation of treatyguaranteed sovereignty. But the IRA was not the end of the story.

In 1952, the Bureau of Indian Affairs submitted a list of American Indian nations that were ready for "termination of all federal services." The Termination Act of 1953 resulted in the dissolution of 109 indigenous nations, and the remaining reservations were increasingly placed under state jurisdictional authority. n19 In 1956, the Relocation Act was passed with funds to support the voluntary relocation of any Native [*19] American willing to move to a selected urban center, again a drain on potential leadership on the reservations. n20 The Indian Civil Rights Act was passed in 1968 (having been preceded by Public Law 89-635 which provided for standing to sue the federal government), and relocation was finally shut down in 1980. n21

II. Sovereignty and Self-Determination Cases

The legislative, judicial, and executive branches have all had histories of ahistorical prejudice against established diplomatic treaties with Indian nations. Of the three, the executive branch--even with Nixon's self-determination policies and Clinton's "new federalism" image--and especially the legislative branch have shown the most flagrant disregard for Indian rights, even those established by law, treaties, or even congressional action. It is clear by comparison that the judiciary has provided the most important forms of Indian legal redress. In addition to the successful setting of legal precedent, litigation has raised the stakes in the power play of government and private interests in Indian affairs. The so-called "legal warriors" have brought about greater attention to Indian rights at home and abroad (such as international tribunals on Indian rights).

Nowhere is the legal fiction and ambiguity more prevalent than in Supreme Court cases concerning Indian sovereignty. Chief Justice John Marshall in Fletcher v. Peck n22 discussed Indianoccupied land in Georgia as vacant, and in Johnson v. M'Intosh n23 Marshall held that the United States had preeminent sovereignty over its claimed territory by virtue of the doctrine of "Discovery" and the rights of "Conquest." Early test cases of Native American sovereignty involved the Cherokee tribe. Cherokee Nation v. Georgia n24 and Worcester v. Georgia n25 established the principle that Indian nations had the status of "domestic, dependent" nations, in trust status under federal plenary power. Indian nations were, therefore, considered "wards" of the "guardian" federal government. Although the cases ruled against Georgia's impingement of Cherokee sovereignty, federal authority over Indian affairs was asserted. n26 [*20] [*21]

This ambiguity in defining sovereignty vacillated in subsequent high court cases between those pronouncing Indian sovereignty over states and jurisdictional control by states. In addition, legislative enactments pertaining to Indian affairs were interpreted in the context of judicial and constitutional ambiguity. n27 Ideally, the function of the courts pertaining to Indian affairs is to interpret federal laws and actions in favor of Indians and consistent with the federal trust responsibility, as long as they are outlined in treaties and agreements. However, the "plenary power" and "political question" doctrines can limit the exercise of the sovereignty of Indian tribes, as witnessed most clearly in the case of religious freedom.

Whatever the short term benefits of negotiation, the finality of settlements and the fact that they effectively closed the door to future legal action should warrant critical rethinking of the ADR solution for Indian nations, something addressed later in this Article. Endemic setbacks in the legal system should foster greater legal activism rather than withdrawal to negotiation, where the rules are not set in precedent and where coerced agreements are finalized with a winwin stamp. Given the history of judicial and legislative setbacks, perhaps the idea of a separate Court of Indian Affairs should be re-examined. n28

The Indian Claims Commission, established in 1946, was designed to provide justice and retribution to Indian nations whose lands were illegally expropriated. Instead of returning land, the Commission provided monetary compensation based on the estimated price per acre of the land at the time of expropriation. The Commission is roundly [*22] criticized for failing to provide adequate compensation for past grievances and for requiring Indian claimants to sign away rights to seek claims in the future. An assessment of the Commission notes that it "at least provided an unprecedented opportunity for tribes across the country to become acquainted with the potential of the courts and the operation of law in forwarding Indian interests." n29 It pushed Indians to enter civil rights law, and, more generally, it fostered the development of Indian law programs (such as the Native American Rights Fund, the Institute for the Development of Indian Law, and the University of New Mexico Indian Law Program).

The Alaska Native Claims Settlement Act of 1971 created thirteen regional corporations in Alaska for Native inhabitants and monetarily settled land and resource claims. This settlement allowed for the ceding of Native Alaskan territory and resources to the government for a relatively small sum of money. n30

The 1978 American Indian Religious Freedom Act pronounced the "policy of the United States to protect and preserve the inherent right of the freedom to believe, express, and exercise the traditional religions" n31 of American Indians. It has come under criticism for its lack of teeth or enforcement mechanisms. In the 1980s-1990s, federal courts decided over ten consecutive cases denying Indians' claims for religious freedoms. n32 [*23]

In cases involving gambling, however, the federal courts have protected Indian sovereignty. The first high stakes gambling tribes were the Seminole (beginning in 1981) and Yaqui (beginning in 1983). The Cabazon of San Diego presented the first big test case for Indian gambling at the federal level in California v. Cabazon Band of Mission Indians. n33 Following the Cabazon and Morongo Indians' successful case for gambling in 1983, Riverside County and California appealed to the Supreme Court. In the mid1980s, the Federal Bureau of Investigation ("FBI") investigated murders and mob connections in the casino, bringing it to the attention of Congress. Justice Byron ruled that California might regulate but could not prohibit gambling; the Cabazon were under civil/regulatory category stemming from Public Law 280. In 1988, the Indian Gaming and Regulatory Act passed in Congress; it effectively forced states to negotiate compacts with Indian nations for gambling operations. n34 A series of cases filed against Indian gambling operations in the 1990s were all in favor of Indian tribes.

Indian water rights are more complicated. Between 1965-1980, Indian tribes attempted to bury the judiciary in water rights lawsuits. This strategy had tangible success, often through negotiated settlements after litigation. Negotiations also yielded negative results for some tribes. n35 The policy of negotiating Indian water rights has resulted in inconsistent policies because political exigencies obstructed strong leadership from [*24] the federal government, settlements were worded around circumstances to disclaim precedent, and tribes' litigation rights were voided in negotiated settlements. "Without the political power necessary to get budgetary appropriations for Indian projects, the tribes were incapable of converting the Winters rights guaranteed them by the Supreme Court into actual beneficial use of their waters. Meanwhile the remaining water resources were rapidly being appropriated by non-Indians, with Bureau of Reclamation acquiescence, and support." n36 The controlling structure was "the iron triangle"--the interlocking directorates of the Bureau of Reclamation (Interior Department), state officials, and corporate interests. n37

III. Mediating and Litigating: ADR and Reservations

A review of several key areas of Indian legal history brings to light the difficulties of making a final assessment on litigation in Indian affairs. As Indian legal theorist Kirke Kickingbird pointed out, although oftentimes ruling against Indian sovereignty, the judiciary has more consistently held in favor of Indian sovereignty than the legislative and executive branches. n38 Depending on the political slant of the judiciary and the specifics of each case, Indian case law shows an inconsistent pattern.

Proponents of ADR for Native American tribes argue that in contrast to adjudicatory forms of dispute resolution, mediation promotes internal community cohesion, cultural pride, and tribal sovereignty. It is also deemed to play a positive role in tribes' dealings with federal and state governments and private corporations in cases ranging from religious freedom and repatriation to water, game, and fishing treaty rights.

By the 1970s, successful and unsuccessful litigation alike shifted the balance of power between Indians and federal and state governments. Beginning in the 1960s, the availability of legal aid for Indian groups led [*25] to a marked change in the handling of Indian affairs. The threat of litigation, as much as legal precedent itself, provided Indians with bargaining chips in their external affairs. However, a string of legislative enactments and judicial rulings negating Indian political sovereignty and religious freedom pushed many Indian groups to seek alternatives to legal reform. In the 1970s, federal and state governments, in concert with tribes and corporations, began to push for negotiated settlements to resolve disputes that would otherwise have had to undergo prolonged and costly litigation.

Alternate Dispute Resolution entered reservations in the 1970s via national Indian conferences, professional networks, and government and private institutions in much the same way that it entered mainstream American legal spheres. n39 Rationalizations for ADR center on its compatibility with "traditional" Native American society--deemed to be more harmonious and less adversarial than that of the West but also included its practical dimensions as an alternative to costly, strenuous processes of litigation. The view of traditional Native society as harmonious, consensual, and lacking adversarial legal systems is not altogether accurate. n40 Mediation and other non-adjudicatory forms of dispute resolution play a complex role in Indian affairs, such that judgment as to its relative merit cannot be so easily pronounced. Depending on the specific context of each case, ADR has differing results. In addition, the long term effects of ADR may cast short-term practical gains in a different light. n41 [*26]

The American Indian movement of the 1960s was fueled by the outrage regarding reorganization, termination, relocation, and other federal initiatives not the least of which brought corporations onto Indian Lands, threatening the rights to natural resources needed for subsistence. n42 The backlash against Native American political mobilization began in 1969 under the Nixon administration. It culminated in the Indian Self-Determination and Educational Assistance Act, n43 which some analysts saw as an American invention of indirect rule designed to bolster the Bureau of Indian Affairs ("BIA") and IRA. The reservations were split into the traditionalists and the accommodationists. From that point, the American Indian movement took its issues to the international arena and the United Nations Commission on Human Rights, thereby prompting United States policy makers to proceed with greater caution. Indian activism culminated in changing the way Indians are viewed by others and by their own people and was enough to move the Senate Select Committee on Indian Affairs in 1987 to move in directions that may diminish IRA control and which could enhance the negotiating positions of native governments, thereby generating hope for the revitalization of Native American self-government.

Because the ruptures between the arrival of the White man and the present are so enormous, the reconstitution of "traditional forms" of government are--of necessity--imagined. There has been a beginning around the two sets of issues stemming from contact: the expansion of federal authority over the tribes, and an Indian law that is a result of changes in tribal law through a succession of events whereby American law was imposed on them and through which sovereignty was the key issue. n44 The two contemporary expressions of this history are the search for tradition (or authenticity) in negotiation and mediation, and the use of the alien courts to argue issues of treaty rights and outright violation of federal laws. [*27]

A search for tradition through mediation (or identity politics) accompanied Indian activism. The search for authenticity fed the favored idealizations. It is useful to recall the point made in E. Adamson Hoebel's Keresan Pueblo Law demonstrating Native American legal pluralism. He frames his article around the inherent tensions between two systems. Hoebel tells of Pueblo governors who punished students, who upon return from the federal boarding school, refused to wear traditional dress, and of the Washington officials who came, in turn, and arrested these governors. Hoebel's analysis engages the competing power structures in which Indian sovereignty and United States law interact. He recognizes that the present legal practices of the Pueblos are largely an expression of adaptation and readaption through successive centuries of devastating assaults. If Hoebel is correct that "the conflict over the powers of the Pueblo oligarchies within the framework of the United States constitutional law will not rest," n45 it is not surprising that Native American mediation was sought as refuge.

The rise of mediation in Native America paralleled the ADR movement so widely promoted by Chief Justice Warren Burger during the seventies and into the eighties in mainstream society. The same federal government monies fed and encouraged mediation among Whites as well as Native Americans. The argument that the ADR movement was a pacification plan to stem the rights movements of the 1960s includes the American Indian Movement. n46 As the 1960s rights cases began to find their way into the federal courts, ADR was mobilized to stem the tide of new cases entering the courts--consumer cases, civil rights cases, women's cases, and of course Native American claims. Thus, as Indian Activists searched for tradition and pan-Indian themes such as consensus decision making through mediation, the United States government was launching a movement to get the "garbage cases" out of the courts and into alternative modes of dispute resolution. Idealized images were fed by both parties--the federal government and native peoples. As noted earlier, in 1978 the United States Supreme Court observed: "Traditional tribal justice tends to be informal and consensual rather than adjudicative, and often emphasizes restitution rather than punishment." n47 [*28] At Native American locales, similar idealizations were heard. The Native American emphasis on consensus diverges from the adversarial model of adjudication that "is based on the authority of a central government, win-lose decisions, power, and coercion, all of which are methods contrary to traditional Navajo values." n48 "Peacemaking is an old and time-honored tradition among Native Americans. We need to remember and revive these concepts, values, and skills that worked for us for thousands of years before foreign political systems that work less well were imposed on us." n49

Interestingly, the rise of native people's litigation was also due to national legal assistance programs, and, as a strategy, has generally worked well for tribes in disputes with outside entities, perhaps too well for the powers that be. By means of litigation, tribes have established legal precedents with regard to tribes' treaty rights and inherent sovereignty and scarce resources such as land, water, and mineral rights. At any rate, the very fact of litigation as an option for Native Americans has made negotiation more of an option, especially if conflict resolution is a progression of stages that can end in negotiation. The several dozen disputes over American Indian water rights now in state and federal courts are preceded by stronger legal rulings confirming claims to natural resources necessary to preserving and restoring traditional economies. In some cases, legal rulings preempt water rights of non-Indian water users and it is in such instances that negotiation of claims has been an option, one to which American Indians have been somewhat resistant preferring adjudication of their rights. Conflicting claims pit Indian claims against municipalities, states, large-scale developers, and external corporations. It seems that negotiation is enhanced when it is one of several strategies such as litigation, lobbying, direct action, unfavorable publicity, and alliances with other Indian groups and non-Indian non-governmental groups.

IV. Negotiating Nuclear Waste Storage on Reservations

The differential use of idealizations of "the" American Indian took center stage in the struggle over nuclear waste storage on Indian land. Once it was clear that Indian tribes were the most politically feasible hosts for nuclear wastes, the United States Office of the Nuclear Waste Negotiator, in concert with key proponents of tribal economic development, went full force in identifying and utilizing cultural [*29] variables with which to market the storage of nuclear wastes. Also critical to the process were idealizations of tribal sovereignty and economic development. What followed was a rapidly intensifying struggle between proponents and opponents of nuclear waste storage on reservation land--with all sides claiming the true Indian way.

A. The Legislative Context of Nuclear Waste Negotiation

A 1987 amendment to the 1982 Nuclear Waste Policy Act ("NWPA") established the Office of the Nuclear Waste Negotiator. n50 The Negotiator had the express goal of finding a voluntary host among states and Indian tribes for temporary Monitored Retrievable Storage ("MRS") and permanent high-level nuclear waste storage. If successful, the Negotiator would put an end to the decades-old dilemma of nuclear waste disposal in the United States. At the Negotiator's disposal were millions in taxpayer money and federal plenary authority.

According to one proponent of this change in policy, the "negative public perception" of nuclear waste disposal was a major stumbling block to progress. This problem was to be solved by the Negotiator, utilizing a "voluntary obligation" model based on commitment, trust, and respect rather than a "forced obligation" model which was unreliable, ineffective, and antithetical to democracy. n51

Following Senate confirmation of President Bush's nomination of former Idaho Lieutenant Governor and Attorney General David H. Leroy as the first United States Nuclear Waste Negotiator, the Office of the Negotiator began operations in August of 1990. The Negotiator's Office was delegated the authority of a federal agency, and full cooperation was expected from other agencies. Working relationships were developed with the Department of Energy, Nuclear Regulatory Commission, Department of Interior, Bureau of Indian Affairs, Department of Defense, and Environmental Protection Agency. Contact was also maintained with agencies that could aid in the voluntary negotiation process, such as the Federal Mediation and Conciliation Service, the [*30] National Academy of Sciences, the Community Relations Division of the Department of Justice, the Defense Nuclear Facilities Safety Board, and the Nuclear Waste Technical Review Board. n52 Although Congress officially played no role in the negotiation process, the Negotiator's Office continued to inform Congress and related committees of its progress.

The Negotiator's Office also actively sought out working relationships with industry representatives such as the Edison Electric Institute, the American Nuclear Energy Council, Electric Power Institute, and the United States Council for Energy Awareness. It also attempted to establish ties with environment and public interest organizations, although many such groups were highly critical of the Negotiator's Office and its dealings. The Negotiator and senior staff also attended and spoke at national conferences, symposia, and other meetings held by organizations such as the Institute of Nuclear Materials Management Western Governor's Association, International Association for Impact Assessment, American Nuclear Society, and the Council of Energy Resource Tribes. n53

In addition to creating the Negotiator's Office, the 1987 amendments to the NWPA contained provisions for providing financial and other benefits for voluntary hosts. Temporary MRS site hosts were entitled to $ 5 million annually prior to receiving spent fuel and $ 10 million/year after receiving spent fuel; permanent repository site hosts were entitled to $ 10 million/year and $ 20 million respectively. n54 The Negotiator's Office was quick to point out, however, that much higher amounts were possible as evinced in the case of the Waste Isolation Pilot Project in New Mexico, which involved hundreds of millions of dollars. n55

In June of 1991, the Department of Energy ("DOE") authorized feasibility assessment grants to allow states and Indian tribes to independently assess the possibility of hosting a temporary MRS site. Phase I feasibility assessment grants of $ 100,000 were offered to prospective hosts. For a more site-specific study, Phase II-A grants of $ 200,000 required the state/tribe to work with the DOE to identify at least one preliminary site. Phase IIB grants offered up to $ 2.8 million could be requested to finalize an MRS site, and to enter into formal [*31] agreement with the Negotiator. Therefore, over $ 3 million per applicant could have been spent before any formal agreement was made. n56

Ten days after the grants were officially offered to states and Indian tribes by the Negotiator's Office, the Mescalero Apache of New Mexico received a Phase I grant. Of the seven additional awards granted in 1992, six were given to Indian tribes. The non-Indian county site in Utah was promptly denied by its governor, following statewide criticism. n57 In the case of Indian tribes, however, states did not have the jurisdictional authority to intervene in the MRS plan. Tribes' purported political sovereignty privileged them with the authority to carry on in their discussions with the Negotiator. Regardless of the eventual outcome of the MRS plan, the process of negotiating nuclear waste storage with the federal government had tangible effects on internal and external tribal politics.

B. The Negotiating Process

In a 1991 speech to the High Level Radioactive Waste Management Conference and Exposition in Las Vegas, Nevada, Negotiator Leroy made clear the voluntary nature of the nuclear waste negotiation process: n58 "We target no one, appreciate those who say 'maybe,' and absolutely respect those who say 'no.'" The potential host has total discretion to decline or drop out at any stage of studies or dialogue for any reason, or for no reason at all, without penalty.

To fully articulate the meaning of this marked change in nuclear waste policy, the Negotiator's Office outlined its operating principles as follows:

* The process must be truly voluntary;

* Requests for information and preliminary discussions are not viewed as a commitment to proceed further;

* All dialogues are terminable at the will of the host;

* All discussions should begin with the thoughtful evaluation of issues concerning health, safety, and the protection of the environment;

* There are no irrelevant issues; [*32]

* A prospective host is entitled to achieve an equity for helping to solve a national problem, and the means of achieving that equity should represent the concerns, needs and desires of the host;

* The process must encourage broad public participation and seek to consider credibly the views of all affected stakeholders; and;

* The success of the process is possible only through full participation

To make this last point clear, the Negotiator's Office offered full consultation and information on nuclear waste storage, arranged site visits to nuclear facilities, and promoted an air of mutual cooperation with interested parties through speeches, conferences, and personal contact. To host a nuclear waste facility, the interested jurisdiction must have entered the process voluntarily, studied the issues independently, and have the ability to discontinue the process at any time.

Furthermore, the Negotiator was vested with the authority to negotiate a package that was not limited to financial payments. The benefits package could also include a whole array of items, including infrastructure improvements, environmental improvements, public schools, higher education programs, health care programs, related federal program expansions, economic development programs, transfer of ownership of federal properties, tax subsidies or property value protection programs, public recreation improvement programs, local employment or products purchasing agreements, and any other benefit, equity, assurance, assistance or offset. The negotiation process clearly involved more than the safety and technicalities of nuclear waste disposal.

Negotiator Leroy succinctly summed up the position of his office in the introductory package Invitation for Participation and Dialogue, which was sent out to state and tribal leaders in October 1991. "Negotiation only fails, and fails miserably if, for whatever reason, we choose not to talk." Weighted with financial and other incentives, this "truly voluntary" negotiation process seemed poised to mark a precedent in the history of United States nuclear policy and practice, steeped in the secrecy and authoritarianism of the Cold War era. n59 [*33]

C. Nuclear Natives

The Negotiator's Office targeting of Indian tribes gained greater urgency following the withdrawal of every county proposal. The support of tribal councils and proponents of Indian development became the critical goal. Drawing from its experiences in Indian resource development and waste management, the Council of Energy Resource Tribes ("CERT") played an instrumental role in the MRS negotiation process. The Negotiator's Office attended Indian leadership conferences, sponsored informational tours of the nuclear industry, and helped organize and promote nuclear waste disposal conferences for interested Indian tribes.

Idealizations of "the" traditional American Indian played a key role in the negotiation process. This was highlighted throughout the Negotiator's public relations campaign for reservation nuclear waste storage. He employed metaphors of the natural world in his speeches and characterized Indian peoples as being at peace with nature. According to this line of reasoning, American Indians were the most fit to safeguard nuclear wastes because of their oneness with nature. This was also a view supported and used by CERT representatives and other proponents of reservation nuclear waste storage.

This process was set in motion in the Negotiator's December 1991 speech to an audience of some 600 tribal leaders at the National Congress of American Indians, entitled Federalism on Your Terms: An Invitation for Dialogue, Government to Government. Leroy began his speech by acknowledging that Chief Seattle's "prophetic words foretold many things," then continued by repeatedly using the Duwamish Chief's words to illuminate the "negotiable, credible, and hopeful" position of the federal government: "We can be as flexible as the winds and tides with these benefits." He ended his speech by offering the "new federalism" as manifest in the nuclear waste storage as the answer to the famous quote popularly, but erroneously, attributed to Chief Seattle, "We may be brothers after all. We will see . . . ." n60

Those critical of the negotiation process argued that such idealizations constituted nothing less than a "cynical manipulation of Indian identity" to sell nuclear waste dumps to impoverished Indian tribes. n61 Moreover, these critics--which included Indian and mainstream environmentalists and journalists, Indian community organizations, tribal [*34] leaders, and concerned tribal members--believed that planned economic and political benefits would not necessarily accrue equally to all tribal members; rather they would only contribute to the inequitable power play of reservation politics.

This contestation of Indian identity and sovereignty was highlighted in a key retreat meeting sponsored by CERT and the Mescalero Apache tribal council. Held at the plush Cheyenne Mountain Conference Resort in Colorado Springs, the meeting's theme was Dialogue on Tribal Perceptions of the Ethical and Moral Bases of Nuclear Energy and Radioactive Waste Management. Critics noted that the meeting "seemed to set the mood for nuclear waste storage." n62 The meeting highlights the power dynamics of the nuclear waste negotiation process and clearly illustrates the relationships between the nuclear industry, federal government, tribal proponents, and critics of reservation nuclear waste storage. In addition, the meeting provides a window into the uses of idealizations in the power-laden negotiation process.

D. The Construction of "Tribal Perceptions of Ethics and Morality"

The conference was attended by representatives from the Department of Energy, the Negotiator's Office, Edison Electric Institute, United States Council for Energy Awareness, Pacific Nuclear (MRS contractor), National Tribal Environmental Council, fourteen tribal councils, and several academics specializing in ethnic and Indian history. n63 Critics of the nuclear presence on Indian land were ostensibly not invited, though some were present by chance. n64 [*35]

The conference was set up to be a "consensual dialogue" between equal participants. The agenda for the conference was outlined in the fifteen-page Sourcebook for the Dialogue, stressing the importance of rationality and reason in a dialogue, as symbolized in the world of the ancients.

The introductory section of the sourcebook provides a narrative of events that led to the MRS plan. Given the space constraints, it lacks a thorough chronology, much less coherent discussion of the nuclear waste crisis. The second section on Tribes and Radioactivity gives a positive account of Indian uranium mining and a negative account of hydroelectric energy development on Indian land. The rest of the sourcebook provides an outline of the six sections which would serve as the thematic frames for the three-day conference. Each section is comprised of a few questions related to the respective topics, followed by brief passages from various books and articles on ethics, philosophy of science, American Indian cultures, risk analysis, and national, international, and tribal politics. On day one, the two afternoon discussions would be on 1) Ethics and Morality Defined: Tribal, Mainstream, American, Scientific, and Institutional Perspectives; and 2) Dialogue on Ethical and Moral Balkanization: Or, Is There a Common Good? The next day's morning sessions would be on 3) Dialogue on Striking a Balance; and 4) Am I My Brother's Keeper? A Dialogue on Responsibility. The final two afternoon discussion sections would focus on 5) Who Pays? A Dialogue on Equity; and 6) Is There a Moral Basis to Radioactive Waste Management? The final morning session of the conference was set aside for Summary and Next Steps.

Given the themes and contextual passages provided to serve as the guiding framework for the conference, important moral and ethical questions are made to appear to largely concern issues of institutional responsibility and responsiveness in project construction and implementation, rather than more fundamental ethical issues arising from the particular history and politicaleconomy of nuclear energy and wastes. The sourcebook reveals a particular amalgamation of ideas and experiences that ultimately equates the moral responsibility of "traditional" Indians to taking responsibility for nuclear wastes.

E. The Dialogue

The dialogue began with a traditional invocation by Herman Reuben, Chairman of the General Council for the Nez Perce. The idea of a traditional invocation was immediately explained by David Lester, Executive Director of the Council of Energy Resource Tribes, in his [*36] welcoming introduction. Council of Energy Resource Tribes General Counsel Mervyn Tano then laid out the groundrules for the dialogue.

In his opening remarks, Lester explained the basic principles of a traditional gathering. Following Reuben, he noted the significance of acknowledging the Creator before an important dialogue. The Creator had given humans the gift of speech to communicate and pray to the Creator primarily, and also to communicate with one another, "to understand what our neighbor needed and to also ask in return that which is needed for our family's survival." Lester also noted that one doesn't listen with one's ears/brain, but rather with one's heart, "the primary organ of consciousness" which would place understanding at a deeper spiritual level. This was taught to young David Lester, an Oklahoma Creek, by his grandmother.

Given this traditional way of listening/understanding, Lester called for a holistic larger vision toward a higher uniting principle. This would come about from an open, honest exploration of the issues. Each person would contribute to the dialogue with the gift of wisdom accorded by both one's "cultural context" as well as "the institutional perspective of one's official position." According to Lester, "Given the fact that tribes have survived millennia upon millennia, this tribal custom of reaching consensus before acting was a very effective way of governing, however inefficient it may seem at any particular moment." The intent of the effective dialogue of consensus building is "to move information to knowledge and then knowledge to wisdom."

Lester articulated the relevance of the consensus building process to the work of a multi-tribal organization such as CERT by creating a dichotomy between traditional Indian ways (culture and language) and non-Indian ways (business, management, scientific, and technical knowledge). The developer's goal would be to overcome this polarization with a vision of a higher uniting principle "that brings them together into parts of a single whole, rather than an either/or position that we may perceive in the beginning." Such wise, unifying decisions were claimed to have provided for CERT's success. Similarly, the survival of a tribe would require both traditional ways and modern non-Indian expertise, much like that held by CERT's lawyers, accountants, and managers. Asserting his cultural heritage as an Oklahoma Creek and his professional identity in CERT Lester claimed to have succeeded in overcoming the dichotomy between tradition and modernity. Lester ended his introduction with the assurance that the dialogue must be open: "no one has a wrong perspective; but rather, a perspective that we all should understand and appreciate as we move forward in the dialogue." [*37]

As facilitator, however, Lester maintained direct control of the dialogue. When concrete issues of institutional responsibility were brought up, Lester turned the floor to someone to change the subject or to provide a perspective to end further debate. Lester was insistent on taking the dialogue to an abstract level. He frequently used idealizations of the Indian worldview, such as the web of life or the hunter-prey relationship. In addition, focus questions for the sessions were abstract, making regulation of the dialogue easier to manage. Recesses were called at moments when issues became too specific and problematic.

This direct control was supplemented by less direct or indirect controlling processes. Nuclear industry representatives often supported the views of their colleagues either by affirming their positions or defending them when under attack by others. They frequently referred to one another; even without prior acquaintance, it was assumed that their languages were commensurable. This sort of support did not require both participants to agree; oftentimes, ideas were appropriated to fit into the larger scheme of supporting nuclear waste disposal. For instance, McCollough noted at the end of the dialogue that he was strongly against the entire idea of the MRS program. But throughout the dialogue, his presence was used by others such as Lester and Tano to affirm their own positions. This was especially the case when abstract terms such as reason, morality, or ethics were discussed, in which case, there was enough ambiguity in the dialogue for an agenda to be imputed.

A sense of social harmony was maintained by keeping as much of the dialogue as abstract and personalized as possible. Abstractions tended to reiterate a notion of a "common good" and values were personalized, thereby rendering transparent specific institutions. For instance when Prairie Island Sioux environmental coordinator Joseph Campbell directly attacked General Electric or Westinghouse, nuclear industry representatives generalized the criticisms as affecting all nuclear utilities companies and expressed support for industry efforts to deal with nuclear wastes.

In another instance, when Acoma tribal council member Augustine Howard criticized the outside "experts" at Hanford for being dishonest to her community, nuclear engineer Sol Burstein defended the "White man's business" world. This brought Howard's comments to an abstract and personal level. Moreover, through confessions of feelings of honesty and morality, a sense of harmony was maintained. In this way, nuclear industry representatives claimed to be morally on par with Indians whose lands were desecrated by unchecked open pit uranium mining. The content of the utterance was also an important variable. For instance, [*38] Campbell's attack on legislators and attorneys was answered directly by the argument that environmental regulations reflected the moral purity of just those people. This abstract defense of the present legal and regulatory apparatus, dealing with nuclear energy and wastes, quelled further discussion on the topic.

Idealized Indian traditions were contrasted with idealizations of Western reason. The synthesis of the dichotomy was considered necessary for Indian survival in the modern world. Reason, safety, a better lifestyle, and indeed sovereignty were therefore at the hands of the experts. Several times in the dialogue, a participant would observe that the discussion had come "full circle," in that a synthesis between science and tribal philosophy was successfully made. The strategic uses of such idealizations were particularly evident when industry and federal officials claimed to share the wisdom of Indian morality. Negotiator Leroy and nuclear industry representatives sympathized with Indian views of the natural world. Utilizing his Indian identity, Lester claimed that all present-day environmentalists were imperialistic conquerors, threatening to divide the "common will of the Indians," just as the French or the English had done centuries ago.

Pro-development Indians dissociated themselves from their institutional ties and criticized development models that were otherwise encouraged and implemented through their work. For instance, Lester's frequent stabs at the United States Government and other participants' critiques of the Bureau of Indian Affairs made their positions more familiar to other Native participants. Criticisms from others not representing such institutions did not carry the same weight. Thus, Campbell's outbursts did not qualify as reasonable because he did not have the professional experience to make such a judgment. This served to limit critical discussion of the MRS plan. In this way, rapport, or a sense of community, was gradually built in the dialogue.

It has been argued that an analysis of the timing of particular speech and speakers' cultural political positions in relation to utterances reveals an underlying agenda to construct agreement on the definition of metareferences such as morality, ethics, and Indian spirituality for the ultimate goal of selling the idea of nuclear waste storage on reservation land. Moderation of the dialogue was partly accomplished as participants utilized concepts and identities at specific moments. For instance, symbolic references such as Indian identity, Biblical morality, scientific progress and reason, and institutional responsibility were used to keep the dialogue as abstract as possible. By disciplining emergent concrete issues in this manner, the dialogue was in effect regulated by those who [*39] had the most to benefit from the matters at hand. Indeed, this was precisely the point as outlined in the sourcebook.

F. The Problem of Idealizing Indian Culture and Sovereignty

The problems of idealizing Indian culture as harmonious and non-adversarial are clear in the MRS case, played out in reservations, retreats, and conferences. Far from lacking conflict and discord, the push for nuclear waste storage on Indian land ignited heated debate and even led to intimidation tactics and physical violence in some cases. By December of 1993, out of a total of sixteen tribal applicants only four advanced to Phase II, two of which moved onto Phase II-B site identification before the MRS program was congressionally defunded in the summer of 1993. This did not prove the end of the controversy, however, as the Mescalero Apache signed a private commercial MRS deal with some thirty-three utilities in February 1994. When this deal fell through, due to internal and external pressure, the Skull Valley Goshutes began negotiations for a private agreement.

It is also clear that tribal sovereignty can be a mirage without strict legal guarantees. Far from gaining federal recognition of political sovereignty, an Indian MRS host would have been placed under greater scrutiny and control by federal agencies due to the security and safety threats posed by nuclear wastes. Indeed, the waiving of the right to sue in the case of becoming a de facto permanent nuclear waste site would also be a severe blow to the tribe's sovereign rights. Nor was there any way of being sure that consistent funding for MRS hosts would continue.

Finally, the MRS case illustrates the way in which idealizations of Indian history and culture could be used in inequitable power plays. Appealing to Indian tradition and customs, the federal Negotiator and tribal counterparts aggressively marketed nuclear waste storage to Indian tribes. The diversity of economic and political interests in Indian Country, both internal and external to the community, casts serious doubts on simplistic notions of American Indian sovereignty, not to mention the role of Indian law in defining sovereignty. Indeed, the very distinction internal/external should be put into question, as cultural concepts as much as economic and political models continue to be borrowed, shared, and appropriated across the spectrum of power in Indian Country. [*40]

G. Negotiating Trust, Negotiating Sovereignty

In the 1980s, the decades-long search for a permanent nuclear waste repository site came together with the drive for negotiated settlements in Indian Country. Trust as a moral principle and trust as legal status were used interchangeably, and debate over the potential problems of host sites were deftly avoided. The internal divisions, state-Indian conflicts, and citizen-government bureaucracy differences were overridden by federal nuclear waste negotiations. For the first time in its centuries old existence, the United States federal government fully acknowledged the sovereign right of Indian tribes. The process involved not only the negotiation of sovereignty, but also the negotiation of trust as a moral principle.

In January of 1994, President Bill Clinton hosted a symbolic visit at the White House from Native American leaders. The visit was to usher in the era of the "new federalism." It was to be a period marked by openness and trust between the federal government and Native American tribes. The MRS case has shown that more important than the symbolic trust between tribes and the federal government is the underlying structure of the political process in Indian Country. This structure is interwoven with the legacy of Indian law, which itself poses no certain answers for the future of tribal needs. The law has at least provided a starting point for Indian-federal relations, and litigation has had positive, as well as negative, effects for Indian affairs. In the MRS case, the negotiation process reveals the inadequacies of relying on the symbolic and overriding the precedence of Indian law to bring about economic and political remedies.

V. Postscript

Hidden in contemporary legal notions of idealizations is a hierarchy of values, in particular one that values harmony over conflict or confrontation. As has been argued elsewhere:

Conciliation, harmony, and resolution have such different uses and consequences as to merit different labels. Harmony that leads to autonomy is different from harmony that leads to control or oppression or pacification; conciliation may lead to conflict as well as to peace; and resolution may lead to injustice as well as justice . . . . Ideas such as harmony and behavior such as con [*41] frontation may originate locally and spread, be imposed, be recombined and used to control or to resist control . . . . n65

Disputing may be a means to harmony and to autonomy and selfdetermination; conflict may be part of the struggle in life that keeps people bound together. For those spearheading commercial or colonialist policies, harmony may be an ideology of pacification and a way to "civilize" populations. The significance of such observations has in some places been part of Native America for centuries. Native American social structures are not of one piece generally, rather they are situationally organized.

The notion of structural poses among eighteenth century Cherokee villages illustrates, indigenous policy "on the ground," indicating the flexibility built into the social system. For the hunt, the Cherokee village was organized around aggregates of independent households for purposes of punishing a killer. The village became an aggregate of independent clan-segments for purposes of reaching certain decisions, or in religious festivals or in agricultural affairs. The structure was the whole village--a gathering of clan-segments plus the cross-cutting body of elders--to carry an offensive war or to respond to attack. The village became a hierarchical order of command based on age and gender, a group also used to handle negotiations and in the organization of ball games with other villages. As the record indicates, "Cherokee village social structure was the rhythmic appearance and disappearance of those four structural poses." n66 Using the structural pose model allows us to move away from the coercion of idealizations. Anthropologists studying the Pueblos were probably both correct. The Pueblos were harmonious, certainly during a Pueblo general council, but were also coercive where they had war parties or when they punished an individual.

The idea of structural pose is useful in helping us understand the interconnections, and as this Article has indicated, when mediation, litigation, negotiation or other tactics are indicated. Idealizations such as mediation or negotiation can be exploited as indicated in the discussion of MRS or permanent high-level nuclear waste storage. The key is for those caught in a situation to realize when they are members of a general council or a war party. n67 Indeed, Native Americans who are effective [*42] mobilizers are well aware of the politics of legality, tradition, and idealizations and are under no illusions about the role of self-interest at all levels of participation. It is to those individuals who are caught in an ideology of harmony that this Article is dedicated. n68




n1 American Indians: People Without a Future? Harv. L. Sch. Rec., Apr. 5, 1956, at 3; see also Martha Minow, Indentities, 3 Yale J.L. & Human. 97, 97-130 (1991) (for discussion on the legal implications of assigned identities).


n2 See generally Martin Chanock, Law, Custom and Social Order (1985) (recounting a history of British colonialists in Africa and their pacification techniques); Laura Nader, Harmony Ideology: Justice and Control in a Zapotec Mountain Village (1990) (reviewing the uses of the harmony legal model).


n3 See States v. Wheeler, 435 U.S. 313, 332 n.34 (1978) (idealizing traditional tribal justice as "informal and consensual rather than adjudicative, and often emphasizes restitution rather than punishment.").


n4 See June Starr & Barbara Yngvesson, Scarcity and Disputing: Zeroing in on Compromise Decisions, 2 Am. Ethonologist 553, 553-56 (1975).


n5 See Native American Perspectives on Peacemaking, 10 Mediation Q. 321-422 (1993); see also Robert D. Garrett, Mediation in Native America, 49 Disp. Resol. J. 39 (1994).


n6 See Steven Haberfeld & Jon Townsend, Power and Dispute Resolution in Indian Country, 10 Mediation Q. 405 (1993). See also Wheeler, 435 U.S. at 332 n.34.


n7 See Elizabeth Colson, Tradition and Contract: The Problem of Order 80-84 (1974).


n8 Id. at 83.


n9 See Ruth Benedict, Patterns of Culture (1959).


n10 See E. Adamson Hoebel, Keresan Pueblo Law, in Law in Culture and Society 92 (Laura Nader ed., 1969); Karl N. Llewellyn & E. Adamson Hoebel, The Cheyenne Way (1941). This was the first joint work by a lawyer and an anthropologist.


n11 See Hoebel, supra note 10, at 92-116.


n12 See Sidney L. Harring, Crazy Snake and the Creek Struggle for Sovereignty: The American Legal Culture and American Law, in 39 Am. J. Legal Hist. 365-80 (1990).


n13 See Rebecca L. Robbins, Self Determination and Subordination--The Past, Present, and Future of American Indian Goverance, in 6 Native Americans and the Law: Native American Sovereignty 287-321 (John R. Wunder ed., 1996).


n14 See Act of Mar. 3, 1885, ch. 341, 9, 23 Stat. 385 (codified as amended at 18 U.S.C. 1153, 3242 (1994)).


n15 See Act of Feb. 8, 1887, ch. 119, 24 Stat. 388 (codified as amended in scattered sections of 26 U.S.C.).


n16 See Act of July 1, 1898, ch. 545, 30 Stat. 571.


n17 See 8 U.S.C. 1401(b) (1994).


n18 See Act of June 18, 1934, ch. 576, 48 Stat. 984 (codified as amended at 25 U.S.C. 461-494 (1994)).


n19 See Act of Aug. 15, 1953, Pub. L. No. 83-280, 18 U.S.C. 1162 (1994).


n20 See Act of Aug. 3, 1956, Pub. L. No. 84-959, 70 Stat. 986.


n21 See Indian Civil Rights Act of 1968 201, 25 U.S.C. 1301 (1994).


n22 10 U.S. (6 Cranch) 87, 142 (1810).


n23 21 U.S. (8 Wheat) 543, 587-89 (1823).


n24 30 U.S. (5 Pet.) 1 (1831).


n25 31 U.S. (6 Pet.) 515 (1832).


n26 See Kirke Kickingbird et al., Institute for the Dev. of Indian Law, Indian Sovereignty 1-13 (1977), reprinted in 6 Native Americans and the Law: Native American Sovereignty 1-64 (John R. Wunder ed., 1996). This workbook has a good overview and assessment of sovereignty cases, some of which are summarized below.

Sovereignty Cases:

In Ex Parte Crow Dog, 109 U.S. 556 (1883), the Court found that the United States had no jurisdictional authority to prosecute Intra-Indian killing on reservations. Ostensibly, this ruling led to the passage of the Major Crimes Act in 1885, which extended federal jurisdiction on reservations. In United States v. Kagama, 118 U.S. 375 (1886), an Indian man, Kagama, challenged the constitutionality of the Major Crimes Act claiming that his murdering of another Indian on the Hoopa reservation did not come under the jurisdiction of the United States. In denying Kagama's claim, and therefore that of Indian nations to sovereignty free from federal jurisdiction, Justice Samuel Miller opined that Congress had an "incontrovertible right" to exercise its authority over Indians as it saw fit, for their own "well-being," since they were in a guardian-ward relationship. See id. at 38384. While recognizing that Indian nations constituted "a separate people, with the power of regulating their internal and social relations," they were denied their sovereignty because of their dependence on the United States for their political rights, and were found to lack legal recourse. See id. at 381-82, 384. This contradictory case led to the passage of 5000 laws regulating Indians. In Lonewolf v. Hitchcock, 187 U.S. 553 (1903), Justice Edward D. White concluded that due to its plenary power the United States could abrogate sections of the Treaty of Medicine Lodge with Comanches and Kiowas without their consent.

The Reserved Rights Cases:

Several cases addressed the power of the federal government to reserve from state regulation water rights for native nations. In United States v. Winans, 198 U.S. 371, 381 (1905), the Court addressed a conflict over whether the state of Washington could extinguish the Yakima Nation's fishing rights in the Columbia River. Justice McKenna held that the fishing controversy "was part of the larger rights possessed by the Indians, upon the exercise of which there was not a shadow of impediment, and which were not much less necessary to the existence of the Indians than the atmosphere they breathed." Winans relied upon the relatively non-controversial proposition that Washington could not extinguish rights already granted by the federal government. In Winters v. United States, 207 U.S. 564 (1908), the Court ruled that water rights, once reserved by the federal government for Native Americans, could not be taken by a state. In Tee-Hit-Ton Indians v. United States, 384 U.S. 272 (1955), Justice Reed opined that the Tee-Hit-Ton band of the Tlingit Nation (Alaska) could not establish aboriginal title to 350,000 acres of territory, which the Court acknowledged they used and occupied since "time immemorial," because there was no treaty by which Congress recognized their title. In Iron Crow v. Oglala Sioux Tribe, 231 F.2d 89 (8th Cir. 1956), the court of appeals upheld the Oglala Sioux tribe's power to make and enforce its own laws on taxes and adultery. The court recognized the constitutionally guaranteed sovereignty of Indian nations. In Williams v. Lee, 358 U.S. 217 (1959), denying a non-Indian storeowner the right to sue an Indian customer for transactions occurring on the Navajo reservation, the Court held that the state had no jurisdiction over Indian land as it interferes with Indian self-government. Tribal courts were protected. In McClanahan v. Arizona Tax Commission, 411 U.S. 164 (1973), the Supreme Court held that Arizona could not tax the income of a reservation Indian, although it may have some control over non-Indians. It ruled that Congress was responsible for dealing with sovereign Indian nations. In United States v. Mazurie, 419 U.S. 544 (1975), the Supreme Court held that non-Indian business on reservation was under jurisdiction of Indian courts. In Santa Rosa Band of Indians v. Kings County, 532 F.2d 655, 662-64 (9th Cir. 1975), the court of appeals held that a county could not enforce zoning laws in reservations, even though Public Law 280 gave the state civil jurisdiction. In Bryan v. Itasca County, Minnesota, 426 U.S. 373 (1976), the Supreme Court found that Public Law 83-280 did not allow states to tax Indian personal property. In Oliphant v. Schilie, 544 F.2d 1007 (9th Cir. 1976), rev'd, Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), the Ninth Circuit court of appeals held that Indian courts had jurisdiction over non-Indians within their reservation. In Tom v. Sutton, 533 F.2d 1101 (9th Cir. 1976), the court of appeals held that an Indian could be convicted in tribal court.


n27 Article IX of the Articles of Confederation vests the Continental Congess with the sole and exclusive right and power of regulating trade and managing, affairs with Indians not members of the states. See Art. of Confed. art. IX. The Commerce Clause of the Constitution asserted that trade with Indian Tribes would be regulated in the same way as with foreign nations and states of the union. See U.S. Const. art. I, 8, cl. 3. Article I, Section 2 of the Constitution defines Indians not taxed as comprising polities separate from that of the United States. See U.S. Const. art I, 2.


n28 See Vine Deloria, Jr., & Clifford M. Lytle, The Future of Indian Nations, in The Nations Within the Past and Future of American Indian Sovereignty 244-64 (1984).


n29 Nancy Lurie, The Indian Claims Commission, 436 Annals Am. Acad. Pol. & Soc. Sci. 181 (1978).


n30 Alaska Native Claims Settlement Act of 1971 2, 43 U.S.C. 1601 (1994).


n31 See 42 U.S.C. 1996 (1994).


n32 The following are key cases:

Bowen v. Roy, 476 U.S. 693, 699-700 (1986), involved an Abenaki man who refused to register for a social security number while receiving food stamps. His claim that the required assignment of a social security number would violate his religious freedom rights was denied on the grounds that it was a "purely internal government matter." Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439 (1988), involved the Forest Service's planned building of a six-mile paved road (known as the G-O Road connecting roads between Gasquet and Orleans, California), which would have disrupted the solitude of an area known to Yurok, Karok, and Tolowa Indians as "High Country," used for vision quests, medicine, and religious ceremonies. The majority opinion put forth by Justice O'Connor argued that "whatever may be the exact line between unconstitutional prohibitions on the free exercise of religion and the legitimate conduct by the government of its own affairs, the location of the line cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development." Id. at 451. Even after conceding that the road would have a negative impact on Indian religious practices, the ruling argued that the government was not directly coercing individuals to affirmative conduct inconsistent with their religious beliefs, though such actions would prevent conduct consistent with religious beliefs. In analyzing this ruling, Vine Deloria, Jr., points out that a negotiated settlement was not sought after by Indians and their attorneys and the federal government because the "trust doctrine" was the dominant paradigm at the time. He suggests that a negotiated settlement based on treaties would have been the more fruitful avenue for redress. See Vine Deloria, Jr., Trouble in High Places: Erosion of American Indian Rights to Religious Freedom in the United States, in the State of Native America: Genocide, Colonization, and Resistance 267-90 (M. Annette Jaimes ed., 1992). Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), denied Smith of his religious freedom to use peyote in ceremonies with the Native American Church. The ruling held that the state of Oregon held a constitutional right to impose civil or criminal penalties because peyote was denied to others by state law. Therefore, the law of general applicability overrode the constitutional free exercise of religion clause. To date, over eighteen cases have been decided by the Smith precedent.


n33 California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987).


n34 Indian Gaming Regulatory Act of 1988 2, 25 U.S.C. 2701 (1994).


n35 See Marianna Guerrero, American Indian Water Rights: The Blood of life in Native North America, in The State of Native America: Genocide, Colonization, and Resistance 189-216 (M. Annette Jaimes ed., 1992) (providing an overview of the key cases in Indian water rights litigation and negotiation); Thomas McGuire, Getting to Yes in the New West, in State and Reservation: New Perspectives on Federal Indian Policy 224-46 (George P. Castile & Robert L. Bee eds., 1992) (surveying the push to negotiate and not adjudicate Indian water claims in the 1970s).


n36 Lloyd Burton, American Indian Water Rights and the Limits of the Law 23 (1991). In Winters v. United States, 207 U.S. 564 (1908), the Supreme Court upheld lower court rulings that the Gros Ventres and Assiniboines were the senior appropriators of the Milk River in Montana because of their treaty rights. The Winters doctrine established Indian water rights; however, the United States' "plenary power" allowed for the oversight and control of water resources by the Department of Interior. See Burton, supra, at 23.


n37 See Daniel McCool, In Command of the Water: Iron Triangles, Federal Water Development, and Indian Water 257 (1987).


n38 See Kickingbird et al., supra note 26, at 34.


n39 See Laura Nader, The ADR Explosion, in Windsor Yearbook of Access to Justice 269-90 (1988).


n40 See Clark Wissler, The American Indian: An Introduction to the Anthropology of the New World 177-85 (3d ed. 1957). Clark writes that variation characterized pre-European Native America. Blood vengeance was widely distributed, elaborate judicial mechanisms were found around the upper Mississippi and the Great Lakes. The Iroquois had formal trials. In the Southwest, compensation for murder and minor injuries prevailed. There was indemnity among the Pueblos, and in the Gulf states self-help prevailed.


n41 The following articles give a positive overview of ADR and Native American tribes. Robert Garrett, Mediation in Native America, 49 Dis. Resol. J. 38 (1994). This short article by an Oklahoma attorney and professional arbitrator provides a positive assessment of mediation in Native American communities. Diane LeResche, Editor's Notes, Native American Perspectives on Peacemaking, 10 Mediation Q. 321 (1993). Diane LeResche, a specialist in the field of conflict analysis and resolution and a professional tribal peacemaking consultant, points out that peacemaking the Native American form of mediation, emphasises spiritual and sacred dimensions of human relationships. Some describe the move towards traditional forms of tribal peacemaking as follows: "We are learning again how to disagree without being disagreeable." Id. at 323. There was a Tribal Peacemaking Conference in 1985 and in October 1992, the National Conference on Traditional Peacemaking and Modern Tribal Justice Systems. See Steven Haberfeld & John Townsend, Power and Dispute Resolution in Indian Country, 10 Mediation Q. 405 (1993). Haberfeld is executive director of Indian Dispute Resolution Services, Inc., and Townsend is mediator and trainer at IDRS. Though providing a brief salutory nod to the legal and political (symbolic) gains achieved through litigation and urging a multipronged approach (including adjudication and mediation) to legal issues, the advantages of mediation ("tribal peacemaking") are played up by the authors.


n42 See Joane Nagel, The Political Mobilization of Native Americans, 19 Social Sci. J. 37 (1982) (discussing the history of U.S. Indian policy and describes patterns of American Indian mobilization).


n43 See Indian Self-Determination and Assistance Act of 1975 2, 25 U.S.C. 450 (1994).


n44 See generally Kickingbird et al., supra note 26.


n45 E. Adamson Hoebel, supra note 10, at 116 n.11. As Hoebel stated, "The very presence of state and federal courts, overly zealous administrators, and proselyting missionaries has been an influence that could not be ignored." Id. at 94.


n46 See Nader, supra note 39, at 269-90; see also Laura Nader, Coercive Harmony: The Political Economy of Legal Models, in Essays on Controlling Processess 1-13 (Kroeber Anthropological Society Papers No. 80, 1996).


n47 States v. Wheeler, 435 U.S. 313, 332 n.34 (1978); see also Garrett, supra note 5, at 39.


n48 Id.


n49 Id. at 43.


n50 See 42 U.S.C. 10241-10243(d) (1994); see also Jay Ou, Native Americans and the Monitored Retrievable Storage Plan for Nuclear Wastes: Late Capitalism, Negotiation, and Controlling Processes, in Essays on Controlling Processes 32, 32-89 (Kroeber Anthropological Society Papers No. 80, 1996). Mr. Ou has been studying the MRS Project since 1993.


n51 As stated in the 1992 Annual Report of the Office of the Negotiator, "the process we have created to solve our national high level waste storage problem represents a new approach to participatory democracy." David H. Leroy, Office of the Nuclear Waste Negotiator, 1992 Ann. Rep. to Congress (Jan. 1993).


n52 See id. at 20.


n53 See id.


n54 See Jon D. Erickson et al., Monitored Retrievable Storage of Spent Nuclear Fuel in Indian Country: Liability, Sovereignty, and Socioeconomics, 19 Am. Indian L. Rev. 73, 80 (1994).


n55 See id.


n56 See id. at 81 (providing an MRS Grant Status Table).


n57 See 42 U.S.C. 10173a(a) (1994).


n58 Negotiator David H. Leroy, Address at the High Level Radioactive Waste Management Conference and Exposition (1991).


N59 Letter from David H. Leroy, Negotiator, Office of the Nuclear Waste Negotiator, to tribal leaders (Oct. 1991) (on file with the Western Network final report/feasibility study for the MRS in San Juan County, Utah).


n60 Juan Avila Hernandez, How the Feds Are Pushing Nuclear Waste on Reservations, 17 Cultural Survival Q. 40, 40-42 (1994).


n61 Valerie Taliman, Nuking Native America, Third Force, Mar.-Apr. 1993, at 18-27.


n62 Id. at 22.


n63 Established jointly by CERT, the National Congress of American Indians, and the Native American Rights Fund with the assistance of grants from the federal Administration of Native Americans, the Environmental Protection Agency, and the Ford Foundation. The National Tribal Environmental Council has been criticized by Indian environmental activists for its conflicts of interest with the nuclear industry. It has also been criticized for its exclusivity in closing its meetings to the Indigenous Environmental Network, a grassroots Indian environmental coalition. Federal nuclear waste grants and programs have also been provided to the National Congress of American Indians. In 1992, federal nuclear waste grants made up 80% of CERT's total federal grants. See Hernandez, supra note 60.


n64 The presence of all aspects of the military and civilian nuclear cycle--uranium mining, milling, and processing; nuclear plants; weapons-grade fuel reprocessing; bomb testing; and nuclear waste disposal--on Indian land has been termed by some critics as "the new radioactive colonialism." Ward Churchill & Winona LaDuke, Native North American: The Political Economy of Radioactive Colonialism, in The State of Native America: Genocide, Colonization, and Resistance 241-66 (M. Annette Jaimes ed., 1992).


n65 Laura Nader, Harmony Ideology Justice and Control in a Mountain Zapotec Village 320-21 (1990).


n66 Fred Gearing, The Structural Poses of 18th Century Cherokee Villages, 60 Am. Anthropologist 1148, 1157 (1958).


n67 See Winona LaDuke, Native Environmentalism, 17 Cultural Survival Q. 46, 46-48 (1994); see also Winona LaDuke, Whitewashing Native Environmentalism: Reservation Based Organizations and the National Money Pie, 7 News From Indian Country 1 (1993); Hernandez, supra note 60.


n68 See also Nancy E. Hovis, Tribal Involvement Under the Nuclear Waste Policy Act of 1982: Education by Participation, in Environmental Law and Litigation 45-65 (1988).