In modernity, the fate of the commons overlaps with the history of indigenous communities. This is so not only because both tribes and commons are cultural forms of collective ownership, but also because today both forms of social organization exist in tension with the bureaucratic nation-state and the capitalist marketplace. Additionally, throughout the history of the modern era, states have used similar legal fictions to legitimize the enclosure of the commons and the colonization of indigenous peoples.
Today it is striking to consider how the reclamation of commons overlaps with the decolonization of indigenous peoples’ lands. In this and future blog entries, I will reflect on this shared, cross-cultural history and ask how the increasing strength of nonstatist, indigenous sovereignty might lend insight to the project to reclaim the commons.
There are legal tactics that protect and grow both the commons and indigenous sovereignty, but they are often embedded in a Western legal framework whose cultural assumptions need to be more closely examined. Many defenders of the commons have argued that the public trust doctrine is a key legal mechanism to protect the commons. In the U.S., Native Americans have had a long relationship with the trust doctrine, one that is instructive for twenty-first-century commons.
Most recently, in October of 2006, the U.S. government cited their fiduciary responsibility as trustees for the Skull Valley Goshute tribe in order to stop a fourteen year long attempt to build a private, high-level nuclear waste dump on Indian lands as a form of economic development.
The cynic would note that, historically, the US government has most often invoked its trust relationship as a means of robbing Native Americans of their sovereignty, making them wards of the state, sending their children to English language boarding schools, dividing their collective lands into individual plots, and so forth, promoting assimilation to industrial capitalism in the name of doing what was in the Indians’ best interest. But in the Goshute instance, we have a different kind of case, one where the federal government used their power of trusteeship to thwart the incursion of market values on Indian lands. What does this tell us about the trust doctrine as a legal tool for the long term protection of collectively owned land?
The Goshutes’ story is connected to a more general problem about where to store the increasing load of spent nuclear fuel, a waste product that was formerly the province of the federal government but now, since the early 1990s, has become just another out-sourced responsibility. As nuclear waste became a profit-seeking commodity, the private waste-management corporations and federal agencies who began to share the supervision of this most enduring toxic substance have been hampered by strict state and federal environmental laws as well as by taxpayers’ not-in-my-backyard attitude. Corporations and government agencies thought they had found a foothold outside of these state and federal domains when they began looking at Indian reservations as potential nuclear dumping grounds.
Given their unique form of sovereignty in the U.S., Indian reservations function as a kind of externality to the normal laws of the state. While this special legal status is necessary for the self-determination of Indian nations, it also provides what Randel Hanson, in his forthcoming book From Bads to Goods: Marketing Nuclear Waste to Indian Reservations (University of Minnesota Press) has called “dangerous opportunities.” Thus in the early 1990s private waste management companies began packaging high-level nuclear waste dumps as a form of economic development for impoverished Indian communities, offering tribes huge sums of money even to be considered as a potential site.
Hanson outlines how waste companies also got tribes involved in bidding wars with each other to bring down the overall costs of doing business on the reservation. In the case of the Skull Valley Goshutes, whose reservation lies within the borders of the state of Utah, the combination of extreme poverty and decades’ worth of non-nuclear dump sites ringing the reservation’s land, made the neoliberal economic offer sound like a good deal to some members of the tribal council.
While the Goshutes’ complex story is much longer than can be told here, the recent outcome that stopped the dump from being constructed should be of interest to those who propose the use of trusts for environmental protection of the commons.
In the Goshute case, invoking the trust doctrine provided a foothold outside of the market logic. Given the market’s interest in short-term, quarterly profits, market advocates reasoned that a nuclear dump was a good form of economic development. It would bring immediate cash flow to the tribe, allowing them to “choose” to make needed improvements to the reservation and/or purchase more pristine land elsewhere.
Opponents of the radioactive dump site understood that in the longer term – a term which, in the case of spent nuclear fuel rods, would last for thousands of years – the unsolved problems of safely storing nuclear waste would most likely rob the tribe of one of their most precious resources, the land that sustains them. And to protect the quality of the land – this cultural and economic idea that the land, which is sacred, must be there for future generations – opponents of the dump could find no effective argument in neoliberal economics.
For this reason, those who challenged the dump – including a coalition of tribal members and the global Indigenous Environmental Network – guardedly welcomed the Department of the Interior’s invocation of the tribe’s trust relationship with the federal government: “The Secretary [of the Interior] has the complex task of weighing the long term viability of the Skull Valley Goshute reservation as a homeland for the Band (and the implications for the preservation of Tribal culture and life) against the benefits and risks from economic development activities proposed for property held in trust by the United States for the benefit of the Band,” notes the Bureau of Indian Affairs in its Record of Decision. “[I]t is not consistent with the conduct expected of a prudent trustee to approve a proposed lease that promotes storing SNF (spent nuclear fuel) on the reservation.”
Although successful in this case, it bares repeating that Native peoples have had a long and tragic relationship with the trust doctrine. First proposed in the context of Native Americans in the 1830s by Chief Justice John Marshall in his famous decisions on the Cherokee cases, the trust doctrine initially empowered the federal government to act as trustee to protect the tribes’ interests against states’ rights. It also deferred to treaties and the international law of nations to legitimize the sovereignty of American Indian tribes as “dependent, sovereign nations” within the United States.
Later court cases abandoned Marshall’s “sovereign trusteeship” model of the federal/tribal relationship and used the law to legitimize the assimilation of Native Americans, punishing tribes’ collective forms of social organization and rewarding the kind of possessive individualism that inspired US policies of westward expansion. (See Lewis Hyde’s previous blogs on the Dawes Act – 07/05/2005 and 07/06/2005 – and the legacy of anti-commons thinking which these laws so well characterize in the history of the United States).
In other words, for over a century, when the federal government was “protecting” Native Americans, it was not protecting them as “commoners” with tribally owned land, but as self-interested individuals whose citizenship rights came from the U.S. and not the tribe’s government.
This situation began to change after World War II when the courts and Congress, along with the broader public, began to change their attitude toward American Indians. In the past twenty years, the trust doctrine has been cited by both the first Bush administration and the Clinton White House as the impetus behind strengthening Indian sovereignty. In 1996, for example, President Clinton called for a reform of agencies working with tribes to better satisfy the government’s trust obligation. Congress, too, enacted statutes such as the Native American Housing Assistance and Self-Determination Act of 1996 to improve the life of Indian communities citing the government’s “unique trust responsibility to protect and support Indian Tribes and Indian people” as the purpose behind the Act.
It appears that the trust mechanism can be strategically used to protect tribes’ collective existence, but at the same time the success of the trust doctrine depends on a broader cross-cultural understanding of justice, one that includes public support and the election and appointment of like-minded politicians.
What is instructive about the Goshute case for commons protection is that in the political climate of 2006, the trust doctrine was tactically invoked as an effective legal tool against the rationale of neoliberal economic policy. For the Department of Interior, short-term monetary gain was not a strong enough argument for trustees charged with protecting a community whose cultural and political life is so closely intertwined with the land.
As a broader measure, the public trust doctrine may now have entered the right political climate in which to act as a legal leverage for all US communities resisting monetization of collectively owned land, air and water. In brief, if Native American history is any indicator, the general American public may be well-disposed to form public trusts as a means to protect their commons from short-term, neoliberal economic solutions.
Indian tribes are like commons in that both are more ancient cultural forms of collective social organization preceding both the market economy and the nation-state. Indeed both forms persist today within the rules of capitalism and within the laws of the state. In future blogs I will continue to explore this complex, shared cultural history for the light it sheds on the protection of our commons.