Cannibalistic Precedent-Eating Leopards

There's a darkly amusing pattern that emerges during periods of Republican governance. As a general rule, Republicans support deregulating any arena to enable maximum exploitation and abuse of vulnerable people. In particular cases, though, individual Republicans might have personal reasons for opposing such exploitation and abuse. They have a niece who is diabetic, so they support limiting the price of insulin, or they have a sibling who is disabled, so they support expanding anti-discrimination protections for the disabled, or they have a parent with cancer, so they support enhanced government funding for cancer research, or they have a friend who died of gun violence, so they support reasonable gun control regulations.

The problem, though, is that while each Republicans has their personal exception, they don't have the same exceptions. So for each exception, the Republican is left alone with only Democrats backing his initiative, and is shocked and dismayed that his colleagues could be so heartless as to not even support insulin price limits/disability protections/cancer research/gun control. They then dutifully return back to the Republican mass and vote against their colleagues' exceptions, in accordance with the general rule, and so none of the exceptions ever pass. Rinse, wash, repeat forever.

One suspects we're about to see a similar dynamic on the Supreme Court, with a 6-3 conservative supermajority that is out to draw blood. For the most part, the six right-wing votes are aligned -- like all Republicans, they are eager to jump on any opportunity to hurt the vulnerable and historically marginalized. But on individual issues, there may be an exception for a particular Justice. And that Justice will make a plea for his or her colleagues to slow down, to respect precedent, to here make an exception to the general principle of "the Constitution means what the founding fathers Texas GOP platform committee says it means". And the colleagues will say "LOL no, get bent," and the typical 6-3 decision will just be a 5-4 decision instead.

Like with congressional Republicans, the "exceptional" justice will rotate depending on the issue. On abortion recently, it was Chief Justice Roberts, whose opinions in Dobbs and Jackson were summarily ignored by his colleagues. Today, it was Justice Gorsuch on Indian law, as the Supreme Court in Oklahoma v. Castro-Huerta, over a passionate Gorsuch dissent, radically undermined tribal sovereignty and cut off a signature Gorsuch opinion from just a few years back (McGirt v. Oklahoma) at the knees.

McGirt was a 5-4 opinion which held that much of Oklahoma remained tribal land, and that therefore under longstanding Court precedent the state of Oklahoma lacks criminal jurisdiction over crimes committed by Indians in those areas. Many of us, myself included, wondered whether McGirt would survive the new regime on the Court (nobody really knew Barrett's position on Indian Law issues). But boy were we thinking too small. The Court did not overrule McGirt, it overruled Worcester v. Georgia, the famous case that respected Cherokee tribal autonomy against attempts by Georgia (with a healthy assist from Andrew Jackson) to obliterate the tribe. Nixing Worcester was not to my knowledge on anyone's radar screen. But the YOLO Court must have asked itself why it should settle for overruling a case from 2020 when you can take down a seminal Indian Law case from 1830 and neuter the 2020 one in the process? Now states presumptively have criminal jurisdiction over crimes committed by Indians on tribal land, undoing nearly two centuries of law and precedent that respected tribal sovereignty in this area.

Justice Gorsuch's dissent is quite strong -- and, in fairness, this is an area where he's been consistently excellent on. But I can't help but feel like it is one big cry about precedent-eating leopards eating his precedent, when he himself is part of the same pack of precedent-eating leopards. Yes, they're cannibalistic precedent-eating leopards and they're coming for you too. You'll do the same to one of them shortly. What sympathy do you expect here?

This teeny, tiny bit of schadenfreude is the only bright spot in yet another grim day from the Supreme Court, which just is bestowing horror after horror upon the American people.

What are the Stakes of "Indigenous"?

95% of discourse applying the "indigenous" frame to Israel/Palestine, whether "pro-Israel" or "pro-Palestine" in orientaiton, is political rather than analytical.

This is something I've believed for a long time, and it was further entrenched seeing this narrative cartoon by J.B. Brager in Jewish Currents titled "When Settler Becomes Native" (Brager borrows their title, consciously or not, from prior works by Mahmood Mamdani and Raef Zreik). 

The cartoon purports to trace and attack claims by Jews that they are "indigenous" to Israel. If one reads it carefully, though, one notices that it actually never succeeds in this objective on an analytical level. 

The case for Jewish indigenous status in Israel is relatively straightfoward: Israel is where Jews are from, not just in a vague historical sense but in a concrete sense that has continually demarcated their status as a "people", they were over the course of history forced out and forced into a subordinated structure of domination by foreign powers, and now they've come back. 

Against this, Brager doesn't actually do much to show that Jewish claims of indigenous status are not valid. They somewhat limply acknowledge that the Jewish claim actually fits decently well with the common benchmarks of indigenousness proposed by UN Special Rapporteur  Jose Martinez Cobo, but contends that their adoption to this case is exploitative -- if anything, Cobo's framework must fail because it seems to allow for the Jewish claim. 

Waving at Patrick Wolfe's well-known aphorism that settler-colonialism is a "structure, not an event" doesn't alter this. The claim that Zionism is a decolonial movement is precisely the claim that it disrupted a prior structure of dispossession and disenfranchisement that Jews had been laboring under  properly characterized as "colonial" (that it is difficult to point to a specific moment in 1549 when Jews "lost" territory that was previously theirs makes the "structure, not event" paradigm more, not less, attractive as a means of encompassing the Jewish case. It is not a specific historical moment but an ongoing structural condition where external powers arrogated to themselves the exclusive power to declare what Jews were and what their relationship to politics, land, culture, and so on could be). Ironically, the strongest claim for why Jews aren't "indigenous" to Israel is that "indigenous", as a category only applies in cases where the dispossession is ongoing -- if one succeeds in reversing it, one isn't indigenous anymore (hence why it makes more sense to refer to Algerians as "indigenous" during the French colonial period than it does today, post-independence). But this would be a pyrrhic victory for Brager, since it would defeat Jewish claims of indigenousness only by accepting that Zionism was successfully decolonial.

For these reasons, Brager's argument is not primarily focused on actually falsifying the notion that Jews are indigenous. For the most part, Brager instead works backwards from the conclusion; their argument is primarily that recognition of Jews as "indigenous" would have bad political consequences -- described variously (and the oscillation between the two is so rapid that they effectively blur together -- an effect that is certainly intentional) as either endorsing Israeli territorial maximalism and the view that Palestinians are foreign colonial invaders, or endorsing that Israel has any claim to exist at all. Since JC readers think both of these positions are bad things to endorse, it must conclude that the Jewish claims of being indigenous are bad as well.

Of course, working backwards from the conclusion, in addition to being bad analytical practice, comes with "political" dangers of its own -- as when Brager comes within a hairsbreadth of asserting that the entire idea of Jewish "peoplehood" must be rejected because any understanding of Jews as more than "just" a religion might bolster the claim that this "people" could legitimately claim indigenousness. Ironically, given the time Brager spends accusing their adversaries of engaging in biological essentialism, here they suggest that the only possible foundation for Jews being a "people" is a biological one (the other day I interacted with someone who used the fact of converts to mock the idea that Jews, as a whole, could be "indigenous" to Israel -- now who's running the biological essentialism play?).

Likewise, addressing the case of Mizrahi Jews (and groups such as JIMENA, which have long made the association of continued indigenousness), Brager doesn't refute the indigenous status, they just denounce them endorsing the "mythologization" of leveraging their own status as (potentially?) indigenous with those of all Jews. But -- leaving aside the actual demographics of Israel -- why can't they view the relevant frame of analysis as "the Jewish people", viewed as a collective? Why must they be forced to endorse compulsory separation such that their history is not our history? Put simply: why aren't Mizrahi Jews, to the extent they are indigenous, entitled to state that all Jews are part of their community and are thereby indigenous as well (Ironically, the implied answer is -- once again -- biological essentialism). 

I don't have time to fully go into it here, but there is a sort of enforced normative quiescence being demanded of Mizrahi Jews where they maybe can be accepted as indigenous so long as they accede to non-Jewish Middle Easterners' declarations over who counts as a community member and what constitutes valid political and social action. They can be indigenous so long as they do not in any way challenge other actors' decisions over why they're indigenous or how they count as indigenous. If they deign to operate independently and make their own choices over who is part of "their" community -- for example, viewing all Jews as being part of their collective and thereby sharing in whatever patrimony they can claim as indigenous to the region -- then they need to be slapped down. We see a version of this in Yuval Evri and Hagar Kotef's provocatively titled "When Does a Native Become a Settler?", which regardless of its other faults, does not dismiss out of hand the prospect of Jewish nativeness. However, it does persistently locate "native" Jewish choices that linked up with the Ashkenazi Jewish Zionist project (such as adopting Hebrew as the daily language) as decisions to "settlerize", rather than decisions expressing indigenous agency and intentional choices regarding how they conceptualized who was part of their community. Put differently, if we accept Mizrahi Jews as valid indigenous "cases", that has to include their authority to declare that, under their conception of who they are, all Jews are part of their community in the relevant respects -- they are not bound to endorse others who wish, for their own purposes, to make and enforce sharp lines where "these Jews" are qualitatively a different people than "those Jews".

All of that said, it is the case that "indigenous" and "settler-colonial", in their political valence, tend to be associated with maximalist claims. On the pro-Israel side, they are often mustered to defend not just Israel's existence but the occupation and the wholesale rejection of any valid Palestinian claims, presented as foreign interlopers; all the land simply is Jewish land by right, settlement is simply taking the land back, and any non-Jewish presence is at most tolerated at the sufferance of the rightful owners. On the pro-Palestine side, these terms are again frequently deployed not just to object to the occupation but to contest the validity of there being an Israel at all; Israel is naught but a foreign invasion, the Jewish population anywhere in Israel is a settler population, the morally correct remedy to the crime of Israel existing is for it to be dissolved, and we should cheer if Jews (to quote a figure quoted in Brager's cartoon) go "back to where the fuck they came from."

Whatever their uses as analytical paradigms -- and I agree they can be quite useful (for example, I found the Zreik article, linked above, very thought-provoking) -- as terms of political mobilization "indigenous" and "settler-colonial" are the terms of first resort for those seeking to drape extremist solutions in a moral garb. That's true, again, on both sides of the ledger (it is not an accident that the Jewish claims over Sheikh Jarrah are framed as "land back" claims -- the Jewish claimants are successors to Jews who were dispossessed and expelled from their land by Arab armies in 1948!). As far as Israel and Palestine are concerned "indigenous" is where political commentators go to when they don't want to compromise a single inch but still want to appeal to some sort of putatively non-partisan moral principle. It is seductive in that it doesn't just promise everything, but promises everything with the gloss of moral justification to take a free rein.

No wonder, then, that Brager views it as unacceptable that Jews could claim "indigenous" for ourselves. Of course, their problem isn't the maximalism, it's who gets to be maximalist; they don't want to give up the maximalist utility of the indigenous frame, they just want to keep it for their preferred side. To some extent, the impetus behind this whole cartoon is oh no -- if it isn't the consequences of my actions paradigm! 

But if anything, the potential validity of Jewish claims of indigenousness should trigger a reassessment over the stakes of that label, and it probably would be worth reflecting on why this framework is so easily associated with and utilized by those proposing "solutions" to the conflict that are more-or-less open in their disdain for any sort of rights or claims by their disfavored side. If Jews are indigenous to Israel, then ... what? Does that mean Palestinians cannot also be indigenous to it? Does that justify violent expropriation of Palestinian-owned land, or the depravation of Palestinian civil rights and liberties? It would indeed be bad if Jews being indigenousness to Israel meant that therefore permanent occupation and dispossession of Palestinians is thereby justified! Brager's implicit response to this is to say "yes, it would be justified if Jews were indigenous, which is why Jews can't be indigenous" (I have sometimes wondered if Revanchist Zionism is what happens if Fanon wins the decolonization battle in a rout). My preferred response is to say "no, it wouldn't be justified, which means that can't be a consequence of Jews being indigenous." 

Brager is not fully wrong that the discursive impact of the "indigenous" debate, as it is used in contemporary political discourse, often serves to distract from if not justify obvious ongoing and continuing injustices. But ideally, it is precisely the strong potential legitimacy of Jewish claims of indigenousness that should prompt us to resist the deployment of "indigenous" to justify maximalist irredentism whose manifest immorality would otherwise smack us in the face. It is a bad thing -- this shouldn't have to be said, but apparently it does -- that we have people flirting with overt ethnic cleansing or mass expulsions and presenting them as moral imperatives (still worse when it is being done by people who have the power to carry out their flirtations, but certainly not good when it remains -- for the time being -- "merely" a fantasy)! And once we do that, we can start to think about what useful work "indigenous" (or "decolonial") can do in terms of both explaining the present and imagining the future, that is not simply a tool for maximalist fantasizing (this article in Tikkun is, I think, a worthwhile example of the project).

ZoomZoom Roundup

I just finished my first week teaching over Zoom (undergraduate Constitutional Law). So far, it's going decently well I think -- considerably more interactive than I had anticipated, which is a good thing. But it does take a fair amount of concentration to keep my eyes on the ball for two consecutive hours. Thank god for breakout rooms (just remember to unmute yourself when you bring people back....).

* * *

British voters think Keir Starmer's competence contrasts nicely with Boris Johnson's ineptitude. Amazing what having a leader who isn't a widely-reviled extremist can do for a left-wing party.

When it comes to whether "Jews are indigenous to Israel", I'm less interested in the tiresome Twitter brouhaha than I am in this really thoughtful essay on the subject in Tikkun Magazine.

Long interview with Harvard Law Professor Larry Tribe on occasion of his retirement. Come for the stories of him growing up in Shanghai as a Jewish refugee, stay for the tale of how the Supreme Court Justices determined whether movies were "obscene".

A very interesting article by Roseanna Summers in the Yale Law Journal asking what everyday people think counts as "consent".

I'd much rather focus on Zach Banner than on DeSean Jackson, if it's all the same to you.

We could have beaten coronavirus, but unfortunately one of our two political parties has turned into a death cult. July is going to be rough.

Word is that Washington's football team soon won't be named after a racial slur.

A Tribe's Sovereign Authority To Exploit Workers

One of my favorite cases to teach is Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). Martinez involved an ordinance by the Santa Clara Pueblo tribe which granted tribal membership to the children of men -- but not women -- who married out of the tribe. A suit challenging the ordinance was brought by a a Santa Clara Pueblo woman married to a Navajo man and their daughter, who would not be deemed a citizen of the Santa Clara Pueblo nation under the ordinance. It's fun to teach because it pits two deeply-held liberal commitments -- gender equality and political autonomy for indigenous communities -- against one another. Even Catherine MacKinnon wrote that she found the case "difficult" (adding "and I don't usually find cases difficult."). The law seems manifestly misogynist, but it is difficult to think of a more fundamental element of tribal sovereignty than the authority to determine who qualifies as a member of the tribe -- and in any event, respecting tribal autonomy means nothing if it doesn't include allowing them to do things you don't like. The case never fails to make my students squirm (the Court, for its part, held that the suit could not be maintained).

But Santa Clara Pueblo is nearing 40 years old. Maybe it's time for some fresh blood. And in today comes the Sixth Circuit in NLRB v. Little River Band of Ottawa Indians. The case involves a challenge to a tribal ordinance governing labor and employment rules, which primarily impact the tribe's multi-million dollar casino (most of whose employees and customers are non-tribal members, but whose revenue makes up the lion's share of the tribe's budget). From how it is described in the court opinion, the ordinance at issue would make Scott Walker blush:

[The ordinance] grants to the Band the authority to determine the terms and conditions under which collective bargaining may or may not occur; prohibits strikes, work stoppage, or slowdown by the Band’s employees and, specifically, by casino employees; prohibits the encouragement and support by labor organizations of employee strikes; prohibits any strike, picketing, boycott, or any other action by a labor organization to induce the Band to enter into an agreement; subjects labor organizations and employees to civil penalties for strike activity; subjects employees to suspension or termination for strike activity; subjects labor organizations to decertification for strike activity; subjects labor organizations to a ban on entry to tribal lands for strike activity; and requires labor organizations doing business within the jurisdiction of the Band to apply for and obtain a license. [It] also precludes collective bargaining over the Band’s decisions to hire, lay off, recall, or reorganize the duties of its employees; precludes collective bargaining over any subjects that conflict with the Band’s tribal laws; exempts the Band from the duty to bargain in good faith over the terms and conditions under which the Band’s employees may be tested for alcohol and drug use; limits the duration of collective bargaining agreements to three years or less; provides that decisions by the Band, through its Tribal Court, over disputes involving the duty to bargain in good faith or alleged conflicts between a collective-bargaining agreement and tribal laws shall be final and not subject to appeal; and limits the period of time during which employees may file a deauthorization petition. Further, [it] prohibits the requirement of membership in a labor organization as a condition of employment. It also prohibits the deduction of union dues, fees, or assessments from the wages of employees unless the employee has presented, and the Band has received, a signed authorization of such deduction. [It] prohibits Band employers, such as the casino, from giving testimony or producing documents in response to requests or subpoenas issued by non-tribal authorities engaged in investigations or proceedings on behalf of current or former employees, when such employees have failed to exhaust their remedies under the [tribal ordinance].

Yowzers. Labor groups complained, alleging the ordinance was unlawful under the federal National Labor Relations Act. And they're almost certainly right ... if the NLRA applies to the tribe -- a question that the statute is silent on. That was the question before the Sixth Circuit, and in a 2-1 decision the court agreed with the National Labor Relations Board that the statute did apply as against the tribe.

Having read the opinions though, I'm inclined to think that the dissent got the better of it. This law seems repulsive to me, and its enactment is enough to convince me that the NLRA should apply to tribes. But the statute is silent on that question, and the real question is what we should infer from that silence. The majority opinion draws the sweeping conclusion that, subject to a few exceptions, when Congress crafts a generally-applicable law we should assume that they intended to divest tribes of their sovereignty over that area. This is a 180 to how I understand tribal sovereignty, which is that we assume that tribes maintain most if not all of their sovereign powers unless Congress takes some specific step to demonstrate it intends to strip that sovereignty away. Here, there is no indication that Congress thought it was applying the NLRA to Indian tribes, and the extraordinarily belated attempt by the NLRB to assert such authority makes that inference even more dubious as a matter of congressional intent.

Incidentally, for all you folks who think all contested legal questions boil down to politics, the panel consisted of -- you guessed it -- two Republicans and one Democrat. What you might not have guessed is that it was the Republicans who split: George W. Bush appointee Julia Smith Gibbons wrote the opinion, joined by Carter appointee Gilbert Stroud Merritt. The dissent was authored by fellow GWB appointee David McKeague.

The case may feel like a good outcome, but I think it creates a bad rule. Respect for tribal sovereignty and autonomy means our default should be to preserve their sovereign authority unless Congress makes evident its intent to do the contrary. Ordinances like this certainly heighten the appeal of "the contrary" in the labor law context. But ultimately, that's a decision for Congress to make. Allowing Courts to make it for them, and in the process make tribal sovereignty the exception rather than the rule, would have devastating consequences for the autonomy and independence of Indian tribes and runs counter to the basic principle of Indian sovereignty.