mathew l. m. fletcher on kevin brunyeel, settler colonialism and the invisibility of indian law and policy


All of this is to say Brunyeel has a point but I am wary of blaming it all on “settler colonialism” or requiring that good scholarship in the field requires respect for the theory of “settler colonialism.” I am wary of relying too much on the past to decide how things are going to progress in the future. Indian tribes can’t go to the states and feds and say tribes are entitled to some aspect of sovereignty because of what happened in the past. Indian tribes have to earn it, even take it on occasion. No one’s giving anything away.

I think American Indian law and policy is worthy of study because it’s new and dynamic and involves the most modern and creative theories about what sovereignty means in a globalized world. Law schools and political science departments are slow to recognize that. Academic institutions are bit conservative in that way. As Indian law and policy scholars, we can earn recognition and force those staid institutions to do more by showing them more. In some areas of the US, mostly the west, law schools are committing educational malpractice by not compelling more students to at least acknowledge Indian law. North Dakota and Oklahoma law schools, for example, should require Indian law. New Mexico, South Dakota, and Washington state already know this. Everyone who practices in those states in the next 100 years will confront an Indian law question. That’s a fact. 

I fear, though I don’t know for sure, that going back to the well of “settler colonialism” is going to open all the doors we want. Fear of the rise of tribal governments is a real thing (you can call that a product of settler colonialism) but it cannot be overcome by resort to the past. Maybe one time you could, but not anymore.

Academics interested in Indian law and policy should be arguing why American Indian law and policy is important as a practical matter. If we can’t do that, then I guess “settler colonialism” is all we have. But good academics will be able to do it.

Mathew L. M. Fletcher, ‘Reasons for the Relative Invisibility of Indian Law and Policy?’, Turlte Talk Blog.

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