GOLDBERG 2000 (Carol, Prof of Law at UCLA and Director of the Joint Degree Program in Law & American Indian Studies, Law & Social Inquiry, Winter)
The implications of Indian nations’ lawmaking power for the rhetoric and practice of legal resistance are considerable. When non-Native groups ascend the legal podium to challenge American legality, they do so solely as members of the American polity. They can allude to and rely on notions of justice that transcend prevailing legal arrangements; but ultimately, they have nowhere to turn in invoking law but the American legal system. Under these circumstances, it is hardly surprising that non-Indian social movements encounter difficulty in crafting a coherent and powerful alternative to dominant legal narratives. Indigenous Indian nations, in contrast, have legitimate claim to governmental status and can draw on the international rhetoric of self-determination and comity in resisting American law. They have their own legal orders, which continue their inherent and long-existent lawmaking powers and inspire challenges to the authority—not just the content—of American law. These diverse and distinctive bodies of law fuel and direct challenges to American legality, including the American legal conception of the U.S.-tribal relationship. If we think of law not only as a collection of coercive commands but also as a wellspring of legal mobilization activities such as voicing claims of rights and identifying wrongs (McCann 1996, 457), then the lawmaking powers of Indian nations endow them with such legal capital. Based on their own legal traditions, narratives, and conceptions of justice, Indian nations can assert, and at times have asserted, visions of political relations with the United States that contradict the official American legal rhetoric and doctrine. Thus U.S. government actions that American law may deem just and legally defensible may violate the tenets of Native law regarding the status of treaties, for example, or the nature of the U.S. trust responsibility. Federal law has denied these visions, maintaining that U.S. legal sources must determine the boundaries of tribal self-determination and other aspects of the federal-tribal relationship (Wilkins 1997). Nonetheless, Indian nations have often rejected federal pronouncements as the ultimate source of authority on their political status and rights, refusing to accord the final word to Congress or the United States Supreme Court. For example, some Indian nations have asserted jurisdiction to zone non-Indians’ land within their reservations despite federal court decisions seeming to reject their power. Indeed, the Supreme Court does not directly review the decisions of Indian nations’ courts, and has been given only limited jurisdiction to examine those actions via collateral attack. And while Congress asserts nearly unlimited power over Indian country, even claiming legal authority to “terminate” tribes, Indian nations often combat these incursions on their sovereignty with legal rhetoric that draws on their own, indigenous legal conceptions. Faced with a hostile U.S. position, Indian nations have also waged battles in the courts, the Congress, and state legislatures to enlarge the boundaries of tribal self-governance as defined by American law. Recent state initiative campaigns to attract support for Indian gaming and to overcome restrictive interpretations of federal Indian gaming laws are instances of such battles. Even as they engage in these legal and political struggles determined by federal law, however, Indian nations often refuse to concede unilateral federal control over the scope of tribal self-government. For example, when Congress enacted termination laws in the 1950s, most affected tribes refused to accept Congress’s edict and mobilized effectively through litigation and legislation for the restoration of their federal recognition. While these Indian nations were employing federal law, the driving force in the restoration campaigns was the tribes’ fundamental belief that the federal government had no power to eliminate their existence. Tribal nations thus have a rich tradition of resisting the federal government when it attempts to dictate the terms of their own sovereignty—both on the battlefield and in the courts and the Congress. This tradition of resistance is rooted in the independent sense of justice that can be cultivated in a separate tribal legal system.