Op-Ed: Andrew Curley, “The Navajo Nation’s Coal Economy Was Built to be Exploited,” High Country News, June 28, 2017.
Op-Ed: Andrew Curley, “The Navajo Nation’s Coal Economy Was Built to be Exploited,” High Country News, June 28, 2017.
I want to post this in a place where my students can find it because I am asked all the time about the Redskins issue and I want to be able point them to a written version of my thoughts on the topic. So here is a (failed) op-ed: [UPDATE: It found a home after all: https://indiancountrymedianetwork.com/news/opinions/allowing-redskins-trademark-says-doesnt-say/]
What Allowing the Redskins Trademark Says and Doesn’t Say
Recently, the U.S. Supreme Court held in Matal v. Tam—a case involving a rock group, “The Slants,” that applied for and was not granted a trademark for their band’s name—held that the patent office does not have the power to reject trademarks simply because they are disparaging. The holding is celebrated by some as an affirmation of the first amendment and will likely result in a more controversial trademark, that of the Washington Redskins, similarly being allowed. For me, whether a trademark for the Redskins is allowed to be registered or not, says very little about what the logo means and what it says about the nation.
I grew up in small part on the Navajo Nation, though I am a non-Indian. When I moved to Washington, D.C. more than a decade ago, I was shocked by the amount of Redskins paraphernalia I saw all around me. It hasn’t gotten less shocking with time. If anything, progress that has been made nationwide on gay rights, the rise of the Black Lives Matter movement, and the attention to gender pay inequality over the past ten years has made me even more aware that surprisingly little has changed when it comes to the most offensive logo in professional sports. People like to focus on Redskins’ owner Dan Snyder and NFL Commissioner Roger Goodell, making the logo about their decisions and not about the collective decision to continue to support such racist imagery.
The fact that the Supreme Court is now likely to quietly permit the Redskins trademark does not tell me what type of person I am dealing with, but their choice to put on a Redskins baseball hat certainly does. Ten years ago I would chalk up many of the t-shirts, sweatshirts, and hats to ignorance of the problematic aspects of the logo. But then, for a brief moment, there was a lot of organization by Indian leaders, including those from the National Congress of American Indians and the Oneida Indian Nation of New York, aimed highlighting the racism of the logo. Now when I see the logo—on a helmet sitting in my favorite restaurant, on the hat of my son’s physical education teacher, or plastered on the back of cars across the greater DC area—I know ignorance is not the explanation. Instead, the choice to sport the logo can only be attributed to indifference or racism and is most accurately a combination of both.
If confronted, most fans would likely argue that they are not racist, it just isn’t that big a deal. But imagine, for only a moment, if similar imagery for any other ethnic group was used by a professional sports team: indifference would not be an adequate justification and it isn’t here either. I love D.C. I love the museums, the walks along the C&O Canal, the ready availability of great Salvadoran, Thai, Indian, and American food. But I do get tired of the unquestioned racism and hatred so casually directed against Native Americans.
While the Matal v. Tam case indicates that the U.S. Supreme Court will likely come down on the side of allowing the Redskins’ logo to continue to have legal protection, just because the team gets trademark protection does not mean it is right to wear the logo. School districts, private employers, and even individuals should make it clear that they do not support nor will they tolerate racism, no matter how blasé the logo is treated. Just because the Redskins’ logo is part of the fabric of the NFL and of the nation does not mean that it should not be challenged, and just because the Supreme Court says something is permitted does not mean it is right.
I am trying not to take it too personally that I could not find an outlet to publish this. In the D.C. area I was happy to see that Sidwell students took the initiative to speak out against the logo. I would love to see my own school do the same.
My Op-Ed on Standing Rock: Ezra Rosser, Time To Recognize Standing Rock’s National Significance, Law360.com, Nov. 29, 2016. [This is a slight aside, but only slight from the ordinary poverty law stuff on the blog.]
I decided to briefly respond to Naomi Schaefer Riley’s The New Trail of Tears (2016). I had thought about doing a (scathing) book review on it, but the guru of all things Indian law, Matthew Fletcher, did a six part take down of the book on The Turtle Talk Blog that says much of what I would say. As Fletcher writes, “DO NOT READ THIS BOOK if you are a supporter of tribal interests and the future of Indian people, unless you’re interested in learning about a game plan to send 21st century Indian people on a new trail of tears.” He goes on:
The trap for readers is that TNToT seems like a reform minded book with deep sympathy for Indian people, with the federal government as the bad guy. It’s not. At best, TNToT is paternalism, termination era- and allotment era-style liberalism. NSR characterizes the Indians that live in Indian country as poor, alcoholic, suicidal rapists. Or really, really sad people who are always slowly shaking their heads (classic Vanishing Indian stuff).
At worst, this is paid propaganda for conservative organizations that tend to support the view that the federal government is a terrible thing. For NSR, Indians are either victims or perpetrators, and need to be saved or punished. Finally, and in my view most importantly, TNToT throughout ignores tribal and Indian property rights, which is ironic given that NSR will frequently refer to property rights as a justification for her conclusions.
It is an incredibly bad book. It is racist, it’s level of analysis is quite shallow, and it is something that I am surprised got published. There are scholars who share some of the author’s views regarding the causes of the problems on Indian reservations but their work tends to be less problematic and better reasoned. I couldn’t help but think as I read the book that if Donald Trump becomes President, the author is someone he might call to set Indian policy. And for people of this mindset, setting Indian policy means embracing once again allotment and termination. In other words, the book is filled with recommendations that involve stepping away from self-determination in favor of some of the worst moments in a history filled with bad moments in the relationship between Washington and Indian nations. Naomi Schaefer Riley’s ultimate goal seems to be similar to that of Andrew Jackson’s, to have Indians go away or melt into the larger American society. As I said, it is not a good book.
A bit of a rant: Though the protest at Standing Rock is arguably outside of the scope of poverty law, I want to briefly write about it as well as provide links to more information about the protest. I think a case can be made that in fact the Standing Rock protest is a matter of poverty law not only because it is a moment of tremendous coming together of Indian communities and nations, many of them marked by incredible levels of poverty and unemployment, but also because the Dakota Access Pipeline (DAPL) squarely raises matters of environmental justice (something I have written about previously in a different context). At the very least, I feel Standing Rock is as much a matter of poverty law as the protests about race and police violence are poverty law matters. But that also is part of my frustration when it comes to Standing Rock. I have a hard time conveying just how important Standing Rock seems to be to Indian communities and advocates to those who do not often think about Indian issues. It is also infuriating that the media attention to an ongoing and sustained protest by thousands of Native Americans of hundreds of Indian nations and indeed indigenous peoples beyond the United States is so lacking. If such a large and extended protest was a protest by any other group of people, even other disadvantaged groups, I think the media would be paying more attention to it. Can you imagine the uproar if dogs had been used against other groups?!? Dogs! Yet, when Indians are on the receiving end of such attacks and are the ones protesting, the media seems to have a short attention span. Compare the attention given to the Bundy protests over public land—protests by people (white ranchers) whose hopes seem essentially to be to not have to pay fees and to get land for free—to that given to Indians protesting the continuing threat posed by our fossil fuel addiction and the ways in which Indian interests are not taken into account.
I will admit that I have some misgivings about the fact that the DAPL became the locus for the protest movement that I think was building and looking for an outlet. Things would be easier and the justice of the protesters’ claims would be cleaner if the project was through reservation land as opposed to just upstream. And the Obama administration’s decision to give protesters a partial victory by placing a temporary hold on the pipeline development threatens to accomplish exactly what arguably it was meant to accomplish: taking the wind out of the sails of the protest without actually changing the eventual outcome (it came after a disappointing response by Obama to a question about Standing Rock while he was in Laos). So it is not the ideal, perfect set of facts to ground a protest movement. But putting these misgivings to the side, there was something incredibly inspiring about seeing the reactions by friends and by Indian country in general to the protests. The day after security guards used dogs to attack protesters, people got in their cars and seemed to head in mass to Standing Rock from reservations across the country. Their photos of the scene upon arrival of the large camp, their photos of mass marches, and of children, grandparents, and parents all joined in the collective fight may not be making it to the mass media as much as they should, but they are inspiring and worthy of celebration, reflection, and attention.
New Article: Jessica A. Shoemaker, Complexity’s Shadow: American Indian Property, Sovereignty, and the Future, forthcoming Mich. L. Rev. Abstract below:
This article offers a new perspective on the challenges of the modern American Indian land tenure system. While some property theorists have renewed focus on isolated aspects of Indian land tenure, including the historic inequities of colonial takings of Indian lands, this article argues that the complexity of today’s federally imposed reservation property system does much the same colonizing work that historic Indian land policies — from allotment to removal to termination — did overtly. But now these inequities are largely shadowed by the daunting complexity of the whole over-arching structure.
This article introduces a new taxonomy of complexity in American Indian land tenure and explores particularly how the recent trend of hyper-categorizing property and sovereignty interests into ever-more granular and interacting jurisdictional variables has exacerbated development and self-governance challenges in Indian Country. The entirety of this structural complexity serves no adequate purpose for Indian landowners or Indian nations and instead creates perverse incentives to grow the federal oversight role. Complexity begets more complexity, and this has created a self-perpetuating and inefficient cycle of federal control. However, stepping back and reviewing Indian land tenure as a system — a whole complex, dynamic, and ultimately adaptable system — actually introduces new and potentially fruitful management techniques borrowed from social and ecological sciences. Top-down Indian land reforms have consistently intensified complexity’s costs. This article explores how emphasizing grassroots experimentation and local flexibility instead can create critical space for reservation-by-reservation property system transformations into the future.
(Self-Promotion) New Articles: Ezra Rosser, Destabilizing Property, 48 CONN. L. REV. 397 (2015). Abstract below:
Property theory has entered into uncertain times. Conservative and progressive scholars are, it seems, fiercely contesting everything, from what is at the core of property to what obligations owners owe society. Fundamentally, the debate is about whether property law works. Conservatives believe that property law works. Progressives believe property law could and should work, though it needs to be made more inclusive. While there have been numerous responses to the conservative emphasis on exclusion, this Article begins by addressing a related line of argument, the recent attacks information theorists have made on the bundle of rights conception of property. This Article goes on to make two main contributions to the literature: it gives a new critique of progressive property and, more fundamentally, shows how distribution challenges in property call for a third path forward. Conservative scholarship is scholarship for property, defending traditional views of property against the influence of new realist-inspired deconstruction. Progressive scholarship works with property, showing how doctrine supports expanding property law to reach those who would otherwise be excluded. But missing from this debate is the possibility that, instead of working for or with property, the rise in inequality and the calcification of advantages defined at birth of the current economic and legal environment calls for work against property. Expanding the range of answers to the broad questions being asked of property to include deliberately destabilizing property would add to the academic debate and to the possible policy responses to the emerging threat of oligarchy. Working for, with, and against property are all answers to the question of how to respond to the property crisis of our time, the problem of inequality. This Article seeks to give some content to the neglected against portion of the spectrum.
and Ezra Rosser, The Political Possibilities of Reparations, 1 LAW & SOCIAL INQUIRY FORUM 20 (2015).
World Bank Webinar: “Poverty and Exclusion among Indigenous Peoples: What is the Global Evidence?” with Professor Gillette Hall. [51 minutes available at link above]
New Article: Alexandria Mayfield, Generous, Not Just: What Feeds the River of Tribal Despair and Poverty, 50 Tulsa L. Rev. 829 (2015).