Pax Plena

  • What’s in a Name? The Redskins Mascot Controversy

    I’ve resisted weighing in on the latest round of the Native American/American Indian mascots controversy. When such debates rear their heads, the conversation is rarely constructive. For example,  of late, Washington Redskins owner Dan Snyder has been called both a racist and a bigot – and these were just letters from family.

    (I kid. I kid.)

    The current controversy actually has its genesis in a bill that was introduced in the House of Representatives this past March, long after the Redskins were unceremoniously bounced from the playoffs by the Seattle Seahawks. In legislation that was all but doomed to fail, Washington, DC Delegate Eleanor Holmes (D-DC)  drafted legislation that would effectively void any trademarks containing the term “redskin/s.” Naturally, the bill would have a significant impact on the Redskins franchise, its revenues, branding, and merchandise.

    Fast forward to this past May, when ten members of Congress sent a letter to  Washington Redskins’ owner Dan Snyder demanding that the team change its name. Consider also that the least effective sentence in the english language always begins with the phrase “members of Congress sent a letter.” Even so, the brouhaha persisted, apparently undaunted by such realist frivolities. And, now, everyone from NFL Commissioner Roger Goodell to Rush Limbaugh has had their say. Most recently, ESPN’s Rick Reilly threw gasoline on the flames by sharing a few thoughts on the controversy in his weekly column. After arguing that the majority of the opposition to Indian mascots comes from “white America” Reilly concludes:

    In fact, ESPN and many other media companies cover the Notre Dame Fighting Irish, the Cleveland Indians and the Atlanta Braves without a single searing search of their social conscience.

    Doesn’t matter. The 81-year-old Washington Redskins name is falling, and everybody better get out of the way. For the majority of Native Americans who don’t care, we’ll care for them. For the Native Americans who haven’t asked for help, we’re glad to give it to them.

    Trust us. We know what’s best. We’ll take this away for your own good, and put up barriers that protect you from ever being harmed again.

    Kind of like a reservation.

    [Link]

    So, opposing a team’s mascot is analogous to putting Indians on reservations? Um, got it…

    Cutting through the fog, it’s important to remember that such issues turn, as they always have, on the situation of the particular team and its relationship with American Indian tribes. The trouble when advocates claim a broad mandate regarding the sensitivity of a term or phrase is that their mandate is rarely as large as they perceive it to be.  As of today, there are 566 Federally Recognized Tribes in the United States scattered across the whole of the contiguous 48 states. Also as of today, there has been precious little effort to determine what position each tribe takes regarding the Redskins mascot. Any party claiming a mandate or mantle of authority to facilitate change on behalf of American Indians en masse is simply misguided. While some tribes have signaled their opposition, the perspective of a few tribes is hardly representative of the whole of Indian Country.

    On the other hand, the conversation being raised by opponents of the mascot is an important one for America to have. As a Nation, we tend to handle race relations about as well as we handle Middle Eastern crises and occupations, not very well. (Here’s looking at you Syria.) The fact is, the status of American Indians within the legal framework of the United States has long been a point of internal and Constitutional tension. As a society (and certainly our Government), we Americans don’t really know quite what to do with Indian tribes. Whereas the Civil Rights movement was about incorporating disempowered minorities into the American social fabric, what American Indians advocate for in pursuing policies of tribal self-determination and sovereignty is one of measured separatism. In other words, they seek to be left alone so that they can govern their peoples, lands and resources. Naturally, a very real disconnect in the conversation results because matters of racial stereotype are almost perpetually conflated with matters of tribal governance.

    For the current debacle, I don’t see a tidy resolution to the situation. The Federal Courts have already concluded that the mascot name is not so offensive as to invalidate the Redskins trademark – and even if it is, the matter has lain dormant so long as to make the allegation moot. Short of pursuing abject censorship along the lines of Delegate Holmes, I don’t see a legal solution to the quagmire. Ironically, this would suggest that the groups opposed to the mascot are following exactly the proper course, seeking to influence public opinion and persuade the whole of society that the name is offensive and should be scrapped.

    Personally, I think tribal advocates are playing small ball by focusing on the mascot issue. There are real enemies to tribalism in the United States and given the pecking order of threats, the name of a mediocre football team just isn’t worth the energy being expended. Even if I were a Washington Redskins fan, I can’t see the mascot issue being a bigger concern than the Redskins’ 0-3 start, and the inability of a much lauded second-year quarterback to deliver.

    Of course, as a Dallas Cowboys fan, I don’t really give a damn. The team from Washington can be the Redskins or the Lobbyists and all will be right with the world if the Cowboys come away with a win.

  • Thoughts from the Waitangi Tribunal

     The Aramiro marae located between Hamilton and Raglan, New Zealand is a peaceful place. Surrounded by verdant hills, and craggy terrain, the marae structure itself is unprepossessing. In many ways, the humble building mirrors the selfless values of an ancient people that have long struggled to survive. Accordingly, the world seems very far removed here. The drums of war in Syria and frightful memories of terrorists attacks in a bustling city are all distant points on the horizon in so quiet a vale.

    What brought me to this sleepy corner of New Zealand was a hearing of the Waitangi Tribunal. The Tribunal is a novel institution among Nations with significant populations of Indigenous peoples. For New Zealand, the Tribunal is the judicial body tasked with hearing Māori claims alleging governmental violations of the 1840 Treaty of Waitangi. The Treaty of Waitangi is the agreement signed between Māori and the British ceding   The following is a brief description from the Waitangi Tribunal website:

    The Waitangi Tribunal was established in 1975 by the Treaty of Waitangi Act 1975. The Tribunal is a permanent commission of inquiry charged with making recommendations on claims brought by Māori  relating to actions or omissions of the Crown that breach the promises made in the Treaty of Waitangi.

    [Link]

    For the Māori hapū or subtribes that participate in the process, the route to redress and the resolution of their claims is lengthy. It can take years to get a hearing before the Tribunal and years after the hearing to get an adjudication of a final outcome. The process may seem impractical given that there are quicker routes to recovery, including direct negotiations with the Crown. But the speedy benefits of one do not produce the same meticulous documentary process of the Tribunal proceedings. Whereas Crown negotiations get the money to the iwi faster, it does not necessarily record the painful history behind the dollars or provide closure. The Waitangi Tribunal attempts to do both.

    One thing about the Tribunal proceedings that struck me as a Western, legal academic is how relaxed the rule of evidence are. The morning of the hearing, organized chaos ensued behind and scenes. My friends and hosts, the Greensil family, were feverishly putting the final touches on evidentiary briefs and guitar selections alike. The guitar numbers which had lyrics in English and Te Reo (Māori) were brief summaries of their family lore, offering their perspective of the Māori land confiscations that permeated New Zealand from the 1860s through the formation of the Waitangi Tribunal itself in 1975. Decades, even centuries of displacement was finally coming to a head and, to them, a musical expression of the moment seemed a fine way to present testimony of their family’s history.

    What was remarkable in witnessing the scene, was the faith the participants had in the process. In America, I’m often cynical and skeptical about the ability of our courts to be impartial and to administer justice in a fair manner. But in the Waitangi Tribunal proceedings, claimants presented their interpretation of events before the Court without a hint of cynicism, as if expecting a fair hearing and an impartial outcome from the Judges rather than merely hoping for one. For my friends, the testimony marked the culmination of a life’s work for their family matron – an attorney trained right here at Waikato University Law School. This embrace of the process and the knowledge of how long it took the parties to reach this point made the event exceedingly beautiful in its own way.

    My friends hail from Whaingaroa, an area of New Zealand containing the town of Raglan, a surfing haven famous for its black sands and iconic surf breaks. The town was featured in the seminal surfing movie The Endless Summer in which famous surfers follow the summer season around the world as the seasons change. Their iwi has long maintained a political separateness from the Tainui Iwi Confederation, a mega-iwi that seems to dominate much of Māori political affairs here on New Zealand’s North Island. Their district is said to always have been a separate political entity, giving the hapū in the area a unique, spiritual obligation to tend to the lands in perpetuity. Having been to Raglan a few times now, it is difficult to imagine a more sublime place over which to exercise such stewardship.

    After the first few testimonies, the hearing gets a bit tedious, soldiering on through the morning, afternoon and into the early evening. Witness after witness presents the essence of their briefs, which have all been submitted to the Tribunal in advance. The presentations are supposed to be kept within certain time constraints but these are loosely enforced. The Tribunal seems to prefer allowing claimants to tell their story, rather than rigidly enforcing a schedule.

    The pitfalls of such loose evidentiary rules and relaxed time constraints are obvious. The quality of testimony presented to the Tribunal varies widely. Some evidence, such as that presented by my friends, is well documented, packaged in quite professional briefs that have all been vetted by a small phalanx of attorneys. By contrast, testimony from others explored the finer points of possum eradication and proper techniques for re-seeding cockles. Where some claimants focus on the big picture of land confiscations, brutalities and oppression, others play small ball.

    In all, attending the hearing was a much welcomed opportunity. As a would-be scholar, I try to maintain objectivity to the extent possible. But witnessing a hearing like this reminds me that what I view in abstraction has real world consequences for the people involved. For my friends, this hearing was about their lands, their home place, and their family. It’s just as important to them as our acreage in Oklahoma, our farmhouse, and my family is to me.

    No matter where you are, history is a painful thing.

  • When Tribes Fail to Govern: Lessons from the Tribal Payday LendingFiasco

    My work here in New Zealand sometimes feels far removed from the context of my tribes and family back in America. But every now and then, stories drift across the Pacific from Indian Country that remind me how similar the challenges facing the World’s Indigenous peoples are. In this case, challenges of governance and good governance, in particular, strike me as a stubborn blight that Indigenous peoples are hard-pressed to overcome, both here and at home.

    Earlier this week, Indian Country Today featured a column by Jane Daugherty with the headline “New York’s Attack on Tribal Lenders is a Threat to All Natives.” For those familiar with the debacle, the headline  referenced the State of New York’s decision to sue three online payday lenders that are said to be affiliates of the Cheyenne River Sioux Tribe of South Dakota. The rub of the case, as summarized by the Wall Street Journal, is below:

    The lawsuit poses a key test for regulators who have begun cracking down on online lenders, including those affiliated with Indian tribes. Government officials say the lenders are violating state interest-rate caps and consumer-protection laws, but tribes say they are immune because they operate as sovereign governments.

    [Link]

    In her analysis of the matter, Daugherty opined that “New York’s action ignores the sovereign immunity of recognized Indian tribes, as repeatedly upheld in the Supreme Court and in numerous states.” She then goes on to cite a Colorado State court opinion on tribal payday lending and sovereign immunity as a “highly relevant” corollary to the matter at hand in New York.

    A few thoughts.

    First, it needs to be mentioned that a Colorado State court opinion is not highly relevant to the New York lawsuit at all. Ms. Daugherty isn’t a lawyer so it’s understandable that a layperson might confuse the jurisdictional authorities of various courts. But the fact is, while a New York State court might choose to consider the reasoning of a Colorado State court judge, an opinion issued in another state is in no way dispositive of the lawsuit before the court in New York, regardless of how compelling the logic of the Colorado opinion is. This is problematic for Daugherty’s piece because of the bulk of it cites excerpts from the Colorado opinion en route to the conclusion that New York will waste taxpayer dollars just like the State of Colorado – presumably because the outcome will be the same. On the contrary, New York could well reach a different conclusion entirely and even see its opinion upheld in Federal Court.

    Second, and in her defense, Daugherty correctly notes that the legal doctrine of tribal sovereign immunity is the major, legal oblation on the line in the New York matter. To wit, a gaggle of potentially affected tribes  have already filed a complaint seeking injunctive relief from the Federal District Court in effort to forestall New York’s efforts to regulate the tribal payday lending industry. In their complaint, the tribes asserted the defense of tribal sovereign immunity, a legal doctrine which prevents tribal governments from being sued without their consent. Elsewhere in the complaint, the tribes argue that permitting NY to regulate the industry even while the lawsuit proceeds, would be tantamount to inflicting an irreparable harm on the tribes through the disruption of the payday lenders’ operations. Indeed, there is some evidence to support this point already.

    There’s little question as to the profound consequences that such a legal challenge presents. Tribal sovereign immunity has long been viewed with some skepticism by the courts and has at various junctures come perilously close to being extinguished altogether. Naturally, parading an ethically suspect payday lender before the court, one that charges clients north of 355% interest on loans, does not a sympathetic defendant make. Nevertheless, one goes to war with the army one has, not the army one wants – as Defense Secretary Rumsfeld was fond of saying.

    Still, it stands to reason that the tribes involved could have taken preventative measures to ensure that clients doing business with tribal entities do not get hosed with 355% interests rates. I sometimes see red when I think of the interest rate on my credit card. I might well see black were my statement to include a rate of 355% (!!!). Frivolities aside, the tribes in question should have been proactive about establishing regulatory guidelines of their own, in order to ensure fair dealings and conformity to industry practices. True, tribes are not (in my view) subject to state regulatory regimes in this instance. But this is not to say that some form of regulation to protect consumers has no place in the tribal payday lending industry. What makes the lawsuit unfortunate is that the situation could have been avoided entirely had the tribes in question taken the initiative to govern.

    The lesson to learn from the debacle is that effective tribal governments carry on with the business of governing. Whether it is regulating the shady business practices of its own entities through tribal codes, or engaging with other tribal governments to implement, broad industry wide standards, effective tribal governments undertake the decidedly non-glamorous work of governance rather than allowing power vacuums to fester into a full-blown lawsuit.

    When viewed through the prism of tribal governance, the lawsuit pending in New York represents a critical, lost opportunity for tribes to demonstrate their competence.

  • Public and Private Life

    My wife, Son and I applied for an extension of our visas today. Coincidentally, today is also the four year anniversary of our marriage.

    If you had told me on our wedding day that four years hence we would be living in a foreign land, with an infant son in tow, I would have promptly asked you to leave. Our wedding was dry and, clearly, you would have been drunk.

    And yet, sometimes reality is even stranger than the fictions we create. So, here we are, sitting in an outdoor cafe, enjoying blue New Zealand skies, while Clark enjoys a bottle. Not only have we been away from America for six months but we have just applied to remain away longer – and during football season to boot.

    If there’s a comfort to be had in our absence, it’s that the public sector services here in New Zealand are just as dreadful as they are back home. There’s no more depressing place in earth than your local DMV. The same can be said for the New Zealand Immigration Office, Hamilton Branch.

    I won’t get too much into the weeds, except to say that only the government would make paying fees a fiasco and couple this inanity by referring patrons to a call centre rather than addressing questions in person – the presumptive point of having an office in the first place.

    Contrast this with my experience at my local (viz., private) bank in the same building only a few floors below. Prompt, courteous service. Happy to answer any questions Dr. Fodder. I’m not even the kind of Doctor that helps people and the staff was still deferential and unfailingly polite.

    All the same, it’s been a consequential four years to say the least. A good four years. And that’s not ever an easy or glib thing for me to say. I am blessed.

    – Posted using BlogPress from my iPhone

  • Indigenous Governance in the United States and New Zealand

    It’s been a long while since I’ve added an update on my work with Indigenous peoples. I had hoped this site would turn into a place where I could share some of the questions that have come about from my work and a place where I could obtain feedback from those interested in similar issues.

    Alas, somewhere between finishing my dissertation, welcoming my firstborn Son into the world, and moving to New Zealand, the blog was left to flounder.

    My time in New Zealand has been spent with the Māori and Indigenous Governance Centre in the Te Piringa – Faculty of Law at the University of Waikato. Having never lived abroad, it has been somewhat of a transition but the work has been interesting and I couldn’t be more please to be working in my field of expertise. And true to form, a lot of questions have come up that I’ve tried to address in various capacities – most directly in the form of a couple of law review articles that are still in the works.

    What I wanted to share, for now, is an article I drafted for the New Zealand Lawyer Magazine that applies some of the work done on Native Nation building in the U.S. to the situation of Māori iwi here in New Zealand. The response has been underwhelming so far but I hold out the naive hope that someone will give it a read and seek out further information – including the resources of our centre.

    By way of clarification, the point of the article, of course, was not to imply that America has the cure for every conceivable ill that colonization hath wrought. Rather, the point of the article is to suggest that there are enougH similarities between the challenges of indigenous governance in the U.S. and New Zealand that our countries can share lessons and avoid each other’s mistakes.

    I conclude the piece with this thought, which more or less summarizes my thoughts on Indigenous governance in general:

    Having traversed the desolate plain of trial and error, our tribal nations have experienced federal policies towards Indian governance that have ranged from the outright termination of tribal institutions, to the extant policy promoting tribal self-determination. If Māori can benefit from the troubling lessons of the United States’ past, we should be so fortunate to see something good come from something that was objectively rather grim. [Link]