Stanley-Ryan on Ka mua, ka Muri: He Whakaputanga, Concealed Indigenous Histories, and the Making of International Law @ashstanleyryan

Ash Stanley-Ryan, Graduate Institute of International and Development Studies (IHEID); Victoria University of Wellington; Te Herenga Waka - Faculty of Law, is publishing Ka mua, ka Muri: He Whakaputanga, Concealed Indigenous Histories, and the Making of International Law in Law & History. Here is the abstract.

This article examines how our understanding of international law is harmed by the systematic erasure of indigenous experiences and histories. He Whakaputanga o te Rangatiratanga o Nu Tireni is used as a case study. The article first considers several methodological considerations for legal historians. A theoretical approach is constructed which centres Māori voices and Te Reo Māori, and accepts that history is both political and contingent. In the next section, two parallel histories are detailed: pākehā stories of he whakaputanga as act to secure Imperial interests; and Māori recollections of he whakaputanga as an affirmation of independence, in response to an ever-more-intrusive world. The two histories are then considered through the lenses of jurisdictional encounter and international legal reproduction. These lenses show how history and law have undertaken a demarcating exercise, concealing Māori histories and removing he whakaputanga from legal relevance. This process has harmed international law, because it legitimises imperialism and hides law’s contingent nature. The article closes by recalling Moana Jackson’s call for ‘honesty about the misremembered stories and the foresight to see where different stories might lead’. NB: typos, including the use of the term "te re rangatira" rather than "te rangatiratanga", are not corrected in this preprint.

Download the article from SSRN at the link.

Metallic on Six Examples Applying the Meta-Principle Linguistic Method: Lessons for Indigenous Law Implementation @NaiomiMetallic @SchulichLaw @unblawjournal

Naiomi Metallic, Dalhousie University School of Law, is publishing Six Examples Applying the Meta-Principle Linguistic Method: Lessons for Indigenous Law Implementation in the University of New Brunswick Law Journal. Here is the abstract.

Building on “Five Linguistic Methods for Revitalizing Indigenous Laws,” this article explains and analyses six examples of implementation of the ‘meta-principle’ or ‘word-bundle’ linguistic method for Indigenous law revitalization. The method refers to using a word in an Indigenous language that conveys an overarching, normative principle of the Indigenous group, and is the most utilized form of the five linguistic methods to date. The examples span its use by judges, public governments as well as Indigenous governments, and these actors employ different methods for identifying and interpreting the meta-principles. The variations between them reveal four categories of approaches to identifying, interpreting and implementing meta-principles: (1) inherent knowledge of decision-maker; (2) in-court evidence; (3) official ratification; and (4) advisory bodies. There are different benefits and challenges associated with each category, and there are several lessons we can take from studying them. These examples and the categories show us that communities and their governments have real options, and precedents, to not only begin to revive their laws, but also to put them into practice.

Download the article from SSRN at the link.

Oguamanam on Traditional Knowledge and the "Public Domain" Revisited @Chidi_Oguamanam @

Chidi Oguamanam, University of Ottawa, Common Law Section, has published Wandering Footloose: Traditional Knowledge and the 'Public Domain' Revisited at 2018 JWIP 1. Here is the abstract.

Ongoing interdisciplinary theoretical interests over the “ownership of culture” is a complex conversation that has pitched traditional knowledge (TK) and its holders against other knowledge systems in a manner that implicates significant power relations and plural philosophical orientations over the governance of knowledge. Nowhere is the pressure on TK more pronounced than in the new- found interest of the United States and its allies over the public domain, as evident in the work of the WIPO's special committee charged with negotiating sets of legal instruments for effective protection of TK, genetic resources, and folklore (a.ka. traditional cultural expressions). TK stakeholders are put on the defensive on the assumption that effective protection of TK would undermine the public domain. Ironically, led by the United States, countries who worked tirelessly over the decades to ratchet up intellectual property protection at the expense of the public domain have now reconstituted themselves into its later day champions when it comes to TK. However, it is not as if the Indigenous and local community custodians of TK have no approximation of the public domain in their customary laws, practices and dealings with knowledge production. There has yet to be an interest in non-Eurocentric conceptions of the public domain. Such an interest presents an opportunity to revisit the public domain imperative in order to adumbrate an inclusive and multicultural jurisprudence of the phenomenon.

Download the article from SSRN at the link.

Call for Papers: International Journal for the Semiotics of Law

Call for Papers from Anne Wagner, Editor in Chief, International Journal for the Semiotics of Law

Special Issue Call for Papers “Signs in and of place: Indigenous issues in legal semiotics”

Colonization is both a contest of force and a struggle over semiotics. Signs of possession (such as cultivation or fences), representations of entitlement (savages and empty maps) and linguistic replacement (naming places, people and things, enforcing education in colonial languages) were part of the arsenal of colonial law. Semiotics is also central in the modern era of the recognition of Indigenous rights, through translation of Indigenous relationships to territories and social and political organization into the language of property and self-government, as well as in the resignification of the place of law (and the law of places) in the discourses of nationhood, resource development and environmental justice.

This special issue for the International Journal for the Semiotics of Law invites high quality contributions from scholars of all disciplines, in English or French, that undertake rhetorical, hermeneutic, sociolinguistic, discourse or semiotic analyses of Indigenous issues. Of particular interest are papers discussing Indigenous law, philosophy, art, music, narrative, ceremony, languages and acts of care for the land.

Guest Editor: Kirsten Anker (Faculty of Law, McGill University, Canada) Submissions: send paper proposal (max. 400 words) by 30 June 2014 to kirsten.anker@mcgill.ca

Selection: selected authors will be invited by 31 July 2014 to submit a full paper Final submissions: papers (max. 9,000 words) to be sent by 15 December 2014 for double-blind peer review Publication: it is anticipated that papers will be published in Volume 28/2 of the IJSL (June 2015)

Publication spéciale : Appel à contributions « L’empreinte des lieux : la sémiotique et les enjeux autochtones » La colonisation est à la fois un concours de force et une lutte sémiotique. L’occupation (pensons à la culture de champs, ou à l’érection de clôtures), l’appropriation sans vergogne (des « sauvages », de l’espace « vide ») et le remplacement linguistique (nommer les lieux, les personnes et les choses, instruire dans les langues coloniales) faisaient partie de l’arsenal du droit colonial. Aujourd’hui, la sémiotique joue toujours un rôle fondamental dans la reconnaissance des droits autochtones qui se fait par la traduction de la relation que les peuples autochtones entretiennent avec leurs territoires ancestraux et leur organisation sociale et politique, en termes de propriété et auto gouvernance. Elle est également essentielle à l’élaboration d’une nouvelle manière de comprendre le lieu du droit (et droit des lieux) dans les discours actuels de la « nation », du développement des ressources naturelles et de la justice environnementale.

Cette publication spéciale de la Revue internationale de Sémiotique Juridique invite les chercheurs de haut niveau et de tous les domaines, qui s’intéressent aux enjeux autochtones d’un point de vue critique (analyse du discours, rhétorique, herméneutique, sociolinguistique, sémiotique) à proposer des textes en anglais et en français. Un intérêt particulier sera accordé aux textes qui discutent les perspectives et les pratiques autochtones, le droit, la philosophie, l’art, la musique, les récits, les cérémonies, les langues et les différents rapports aux territoires.

Éditrice invitée : Kirsten Anker (Faculté de Droit, Université McGill, Canada) Soumissions : envoyer une proposition de texte (400 mots max.) avant le 30 juin 2014 à kirsten.anker@mcgill.ca Sélection : les auteurs sélectionnés seront invités à soumettre leur texte au plus tard le 31 juillet 2014 Soumission finale : les textes finaux (9,000 mots max.) devraient être envoyés au plus tard le 15 décembre 2014 pour soumission au comité de lecture

Publication : il est anticipé que les articles seront publiés dans le volume 28/2 du RISJ (juin 2015)

Anne Wagner, Ph. D., Associate Professor, Université du Littoral Côte d'Opale (France) Centre Droit et Perspectives du Droit, Equipe René Demogue - Université de Lille II (France) Research Professor, China University of Political Science and Law (Beijing - China)

http://fr.linkedin.com/in/annewagner http://link.springer.com/book/10.1007/978-90-481-9322-6/page/1

 Editor-in-Chief of the International Journal for the Semiotics of Law - http://www.springer.com/law/journal/11196 Series Editor, Law, Language and Communication - Ashgate Publisher (http://www.ashgate.com/Default.aspx?page=3916) President of the International Roundtables for the Semiotics of Law - http://www.semioticsoflaw.com/

The Assertion of Rights: Guatemala's Marlin Mine Conflict, 2005-2011

Anabella Sibrián, International Platform Against Impunity, and Chris Van der Borgh, Utrecht University, have published La Criminalidad de los Derechos: La Resistencia a la Mina Marlin (The Criminality of Rights: The Resistance to the Marlin Mine) at 4 Oñati Socio-Legal Series 63 (2014). Here are two abstracts, one in Spanish and one in English. The article is in Spanish.

Este ensayo desarrolla diferentes estadios de resistencia y criminalización de grupos comunitarios opuestos a la Mina Marlin en Guatemala, entre 2005 y 2011. Éste es uno de los primeros conflictos relacionados con la defensa de territorios indígenas frente a intereses empresariales que tiene lugar después de la firma de los Acuerdos de Paz de 1996; acto simbólico que cerraba un periodo de tres décadas de terror y crímenes de lesa humanidad. El argumento central es que este conflicto puede ser visto como un jardín experimental, tanto desde la perspectiva de los pueblos indígenas como desde aquélla de los actores que han buscado neutralizar o hasta quebrar la resistencia, en un contexto de presencia selectiva del Estado.

This essay develops different stages of resistance and criminalization of communities and their members acting in opposition to the Marlin Mine in Guatemala between 2005 and 2011. This has been one of the first conflicts related to the defence of indigenous territories facing business interests, after signing the Peace Agreements of 1996; symbolic act that closed a period of three decades of terror and crimes against humanity. The central argument is that this conflict can be seen as an experimental garden from both, indigenous people perspective and the perspective of actors seeking neutralize or break the resistance, in a context of selective presence of the State.

Download the article from SSRN at the link. See also other articles of interest in this issue, including Fabien Le Bonniec, Las Cárceles de la Etnicidad: Experiencias y Prácticas de Resistencia de los Mapuche Sometidos a la Violencia Política en la Era del Multiculturalismo (2000-2010) (Prisons of ethnicity: Experiences and Practices of the Mapuche Resistance Subjected to ...).

Colonialism, Cultural Assumptions, Property Rights, and Land Law Reform

Robert Home, Anglia Ruskin University, has published ‘Culturally Unsuited to Property Rights?’: Colonial Land Laws and African Societies at 40 Journal of Law and Society 403 (2013). Here is the abstract.

Hernando de Soto, advocate of central registers of land rights, raised the possibility of Africans being culturally unsuited to property rights. This article argues that sub‐Saharan Africa's high proportion of tribal/communal land (as distinguished from private and public/state land) results from a combination of geography, history, and population distribution. External colonial rule created a dual system of land tenure that restrained private property rights in the tribal/communal land areas. The research draws upon archival evidence from the colonial land tenure panel chaired by Lord Hailey (1945–50). The finding is not that Africans are inherently culturally unsuited to property ownership, but that colonialism reinforced pluralistic forms of property rights, which create particular challenges to land law reform. 

The full text is not available for download from SSRN.

Indigenous Sovereignty: A Literature Review

Jennifer L. Archer, Archer Law Corporation, has published Sovereignty as a Social Construct: A Literature Review of Indigenous Peoples’ Perspectives.

The concept of sovereignty is both culturally and historically dependent. Sovereignty evolved within the Western legal tradition as a tool to legitimize imperial conquest over Indigenous peoples, territories and resources. Indigenous peoples, as non-state actors in the international community of sovereigns, have found themselves defined by this narrow and often-violent conception of power, which, at its heart, is contrary to Indigenous peoples’ values and epistemology. This has made it difficult for Indigenous peoples to engage or assert Western sovereignty without also experiencing a form of cultural and epistemological assimilation. An understanding and respect for the values that form the basis of Indigenous sovereignty can ultimately allow for the possibility of genuine social and legal reconciliation within the international legal system.

This literature review allows current narratives regarding Indigenous sovereignty to provide an emerging counterpoint to the dominant legal discourse in order to demonstrate that sovereignty is ultimately a man-made construct. Once we acknowledge sovereignty as a social construct, we can undertake to (re)construct new laws in a manner that no longer legitimizes the domination of imperialist values over Indigenous values.

Download the paper from SSRN at the link. 

Traditional Property Law and Indigenous Culture

Susan Elizabeth Farran, Northumbria University & University of the South Pacific, has published The ‘Unnatural’ Legal Framing of Traditional Knowledge and Forms of Cultural Expression. Here is the abstract.

The consequences of social and economic development in Pacific Island States are far reaching and on a number of levels illustrate the head-on collision of endogamous and exogamous forces. This is particularly evident in the ways in which manifestations of cultural property and traditional knowledge are harnessed and regulated. Laws inspired by western liberal thinking and capitalist economies see intellectual effort as giving rise to property rights and their related remedies, which are premised on individualism, exclusion and the commodity value of knowledge and creativity and its physical manifestation. Traditional, indigenous perceptions are however different. While knowledge may be power it is not always exclusive, individual or commercial. Cultural property creates networks of exchange and reflects continuums between the past and the present, between people and generations, and people and places. Increasingly there is pressure internally and externally to exploit and use cultural property and traditional knowledge for development objectives. Linked to this is a real or perceived need to adopt or incorporate a range of legal measures. Many of these are reflections of the colonial past of Pacific islands and an illustration of the neo-colonial present. There are however some attempts to moderate this onslaught and to take steps to shape the regulatory framework in a way that bridges the traditional and the modern.
This paper considers the challenges facing Pacific island states seeking to articulate laws which meet the demands of modernity and satisfy the values of tradition. It looks in particular at the problems posed by unfamiliar legal concepts and the consequences of trying to bring traditional knowledge and cultural property within the framework of laws originating from very different cultural and normative backgrounds and concludes with a critical assessment of the contemporary legal picture.

Download the paper from SSRN at the link. 

Environmental Politics and Indigenous Peoples

Eve Darian-Smith, University of California, Santa Barbara, has published Environmental Law and Native American Law, at 6 Annual Review of Law and Social Science 359 (2010). Here is the abstract.

This review seeks to engage two bodies of scholarship that have typically been analyzed as discrete areas of inquiry - environmental law and American Indian law. In the twenty-first century, native peoples' involvement in environmental politics is becoming more assertive. In this context it is necessary to think about the impact indigenous involvement may have in shaping future U.S. environmental agendas and regulations. After briefly discussing the rise of environmental movements and environmental law in the United States, I turn to the historical treatment of native peoples and in particular the treatment of their natural resources. This historical backdrop is essential to understanding tribal status today under the Environmental Protection Agency, and the challenges some tribal governments now present to environmental exploitation and degradation by states and corporations. The review concludes by reflecting on the future of U.S. environmental law in the context of increasing pressure being exerted by international environmental law and global indigenous politics.

The full text is not available from SSRN.

Methods of Teaching Native American Literature and Law

Cristine Soliz, Colorado State University, Pueblo, and Harold Joseph have published "Native American Literature, Ceremony, and Law," in MLA Options for Teaching Literature and Law (Austin Sarat, Cathrine Frank & Matthew Anderson, eds., 2009). Here is the abstract.

The joint study of law and literature offers a platform for Indigenous Studies and other programs to explore divergent philosophies and systems of law that have marked the Americas since 1492: Native American Ceremony and Euro-U.S. Law. Although law and literary culture are seen as inextricable and thus seemingly preclusive of Native American ceremony, our essay suggests a rationale and approaches for exploring, in a classroom, the theme of Native American ceremony in its relation to law.

Native American ceremony, as fundamentally anomalous to Old World or Eurasian ceremony and law, interrogates, in the relation, the collective imaginary and ethos or internal logic that enters into creating and even needing law. This relation can be explored using imaginative literature and contrasted to networks that legitimate our practices, as well as to changing definitions of law, such as St. Augustine's Natural Law, and Jeremy Bentham's early definition that tied law to monarchy. Euro-U.S. law in America since 1492, for example, has relied on punitive force as its normative power, but what are the consent mechanisms in Native American ceremony and how does it differ from normative domains described by Euro-U.S. practices, such as religion and even literature? An exploration of this theme through interactive readings of literature and law would focus on what the relationship between law and Native American ceremony might be, based on the continuing presence of Indian ceremony against the force of the U.S. system of law as it increasingly exercises control over Native Americans on tribal lands. Despite the legalities of Euro-U.S. past and present control over Indians, Native American ceremony continues to play a strong part in the psychological processes of the Native American imaginary.

James Welch's Fools Crow is an exemplary fiction that raises these issues, which are made clearer through legal texts. The plight of a small village of Blackfeets and the implied historical events that follow receive a fuller reading through the Indian Removal Act of 1830, Andrew Jackson's Report to Congress in 1829 and 1835, including congressional rhetoric and Acts contemporary to the 1870s, the temporal setting of Fools Crow. These texts give access to divergent cultural practices both through the experience of imagination and through grounding the fictive in the reality of the political setting, setting being an important element of fiction. A reading through the lens of the legal texts motivates questions about why, in the last chapter, Fools Crow and the people observe a 7-day ceremony, even though they realize they are being overwhelmed by invasions of U.S. soldiers and settlers. This locus in the text creates an interpretive opening to the conflict between U.S. and Indian law, to divergent views of law itself and the collective imaginary that goes into its formulation and enactment. Law, as seen in Indian ceremony across America, is strongly tied to harmonious interaction with what the land offers.

Classroom approaches can be organized around major time periods addressing three kinds of legal texts: ceremony, Indian treaties, and federal law with corresponding texts in themes important for the 21st century because of environmental, humanitarian, and sustainability concerns and because of pressures for development of natural resources, many of which can be found on what remains of Indian land. Much of the conflict between Native Americans and Non-Indians, from the Makah whale hunt to more recent Hopi and Navajo opposition to creating artificial snow on San Francisco Peaks in Arizona, has been because of a lack of understanding of Indian Ceremony as valid law in the Americas.

Download the paper from SSRN here.

Tony Hillerman, Author of Mysteries Featuring Native American Sleuths, Dies

Tony Hillerman, the author of numerous bestselling mysteries featuring Navajo sleuths Joe Leaphorn and Jim Chee, has died of pulmonary failure. Here's more from the International Herald Tribune.

Mr. Hillerman's first Joe Leaphorn novel was The Blessing Way. For more about Mr. Hillerman's writing, check out the following websites (not a comprehensive list)

Tony Hillerman at mysterynet.com
Tony Hillerman at dancingbadger.com
Susan Mueller's Tony Hillerman Page

For more about Mr. Hillerman's work, try

Balassi, William Victor and John F. Crawford, This Is About Vision: Interviews With Southwestern Writers (Albuquerque: University of New Mexico Press, 1990).

Balibar, Renee, Philosophies du roman policier (Fontenay aux Roses: E.N.S., 1995).

Bargainnier, Earl F., Cops and Constables: American and British Fictional Policemen (Bowling Green, OH: Bowling Green State University Popular Press, 1986).

Bauer, Joyce M., The West Is Not God’s New Garden of Paradise: Demythologizing the American West in the Hardboiled Detective Fiction of Tony Hillerman, Bernard Schopen, and James Crumley (Dissertation, University of Nevada, Reno, 1998).

Carter, Catherine Anne, A Critical Analysis of the Detective Fiction of Tony Hillerman (Master’s thesis, Radford University, 1993).

Coale, Samuel, The Mystery of Mysteries: Cultural Differences and Designs (Bowling Green, OH: Bowling Green State University Popular Press, 2000).

Erisman, Fred, Tony Hillerman (Boise: Boise State University Press, 1989).

Fischer-Hornung, Dorothea, and Monika Mueller, Sleuthing Ethnicity: The Detective in Multiethnic Crime Fiction (Madison: Fairleigh Dickinson University Press, 2003).

Freese, Peter, The Ethnic Detective: Chester Himes, Harry Kemelman, Tony Hillerman (Essen: Verlag Die Blaue Eule, 1993).

Glassman, Steve, and Maurice O’Sullivan, Crime Fiction and Film in the Southwest: Bad Boys and Bad Girls of the Badlands (Bowling Green, OH: Bowling Green State University Popular Press, 2001).

Hamm, Ron, The Navajo Detective Novels of Tony Hillerman: A Bridge Between Two Cultures (Master’s thesis, Texas A&M University, 1989).

Heiss, Gwen Garnsey, Walking in Beauty: Tony Hillerman’s Indian Detective Fiction (Master’s thesis, San Diego State University, 1994).

Heite, Donna, Tony Hillerman: Mystery Novelist With a Southwestern Slant (Master’s thesis, Western New Mexico University, 1991).

Herbert, Rosemary, The Fatal Art of Entertainment: Interviews With Mystery Writers (NY: G.K. Hall, 1994).

Kaminsky, Stuart M., Behind the Mystery: Top Mystery Writers (Cohasset, MA: Hot House Press, 2005).

Kelleghan, Fiona, 100 Masters of Mystery and Detective Fiction (Pasadena: Salem Press, 2001).

Klein, Kathleen Gregory, Critical Companions to Popular Contemporary Writers (Westport, CT: Greenwood Electronic Media, 2001--).

Quirk, Tom, Nothing Abstract: Investigations in the American Literary Imagination (Columbia: University of Missouri Press, 2001).

Reilly, John M., Tony Hillerman: A Critical Companion (Westport: Greenwood Press, 1996).

Six, Beverly G., Slaying the Monsters: Native American Spirituality in the Works of Tony Hillerman (Dissertation, Texas Tech University, 1998).

Timmons, Janice, The Elevation Theme and Disjoint Themes in the Detective Fiction of Tony Hillerman (Master’s thesis, California State University, Dominguez Hills, 1996).

Winks, Robin W., Colloquium On Crime: Eleven Renowned Mystery Writers Discuss Their Work (NY: Scribner, 1986).

I'll be mentioning some articles about Mr. Hillerman's work in a future post.

A Look at Native American Law Through a Michigan Novelist's Eyes

Matthew L. M. Fletcher, Michigan State University College of Law, has published "Laughing Whitefish: A Tale of Justice and Anishinaabe Custom," as MSU Legal Studies Research Paper 06-16. Here is the abstract.

Laughing Whitefish, a novel by Robert Traver, the pen name of former Michigan Supreme Court Justice John Voelker, is the fictionalized story of a case that reached the Michigan Supreme Court three times, culminating in Kobogum v. Jackson Iron Co., 43 N.W. 602 (Mich. 1889). The petitioner, Charlotte Kobogum, an Ojibwe Indian from the Upper Peninsula of Michigan, brought suit to recover under a note issued to her father, Marji Gesick, by the mining company in the 1840s. The company had promised a share in the company because he had led them to one of the largest iron ore deposits in the country, the famed Jackson Mine. Despite the company's defense that Mr. Gesick was a polygamist and therefore Ms. Kobogum could not be his legitimate heir, the Michigan Supreme Court held that state courts had no right to interfere with internal, domestic relations of reservation Indians, and upheld the claim. Justice Voelker's tale is a powerful defense of the decision, and offers insights into why state courts should recognize the judgments of tribal courts even today.

Download the paper from SSRN here.

John Voelker (Robert Traver) is also the author of Anatomy of a Murder, filmed with Jimmy Stewart, Ben Gazzara, and Lee Remick.

Indigenous Law Conference Planned at Michigan State University

News from Professor Matthew Fletcher of Michigan State University College of Law:

The Michigan State University College of Law will host its fourth Indigenous Law Conference from October 19 through October 20 of this year in East Lansing, Michigan. The welcome reception is October 18. The topic is American Indian Law and Literature. Guests include Richard Delgado, Frank Pommersheim, and Kristen Carpenter. Here's a link to the conference.