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Bringing the Law Back In: Legal Rights and the Regulation of Indian-White Relations on Rosebud Reservation
by Thomas Biolsi
Bringing the Law Back In: Legal Rights and the Regulation of Indian-White Relations on Rosebud Reservation
Updated: November 18th, 2012
Bringing the Law Back In
Legal Rights and the Regulation of Indian-White Relations on Rosebud Reservation1
by Thomas Biolsi
This article argues that law is a fundamental constituting axis of modern social life-not just a political resource or an institution but a constituent of all social relations, particularly relations of domination. Given this, anthropologists must bring law back into our analysis if we are to understand power and inequality and the politics surrounding them. The particular case examined is the role of law-both "judge-made" case law and statutes en- acted by legislatures-in shaping the terrain of political struggle between Lakota and non-Indian people on Rosebud Reservation in South Dakota. It is argued that Native American legal rights based on unique jurisdictional doctrines in federal law push the Lakota struggle for empowerment in certain directions and locate struggle as against particular non-Indian opponents rather than against non-Indians in general. Ultimately, anthropologists inter- ested in power must come to recognize that law has a subpoliti- cal role in constituting and regulating the politics of and struggle over empowerment.
THOMAS BIOLSI is Associate Professor of Anthropology at Port- land State University (P.O. Box 751, Portland, Ore. 97207-075 I, U.S.A.). Born in 1952, he received his Ph.D, from Columbia Uni- versity in 1987. His research interests are political and legal an- thropology, ethnohistory, political economy, the history of In- dian-white relations, and race. He has published Organizing the Lakota: The Political Economy of the New Deal on the Pine Ridge and Rosebud Reservations (Tucson: University of Arizona press, 1992) and "The Birth of the Reservation: ~akin~
the Mod- ern Individual among the Lakota" (American Ethnolonist 2228- 53). The present article was submitted 22 VIII 94 and accepted 20 x 94; the ha1 version reached the Editor's office 5 I 95.
I. The field and archival research on which this article is based, conducted between 1991 and 1993, was supported by the American Council of Learned Societies, the American Philosophical Society, the Harry Frank Guggenheim Foundation, the National Endow- ment for the Humanities, and Portland State University. I am in- debted to many people in South Dakota who allowed me to inter- view them or otherwise assisted my research in concrete ways. Space limitations prevent me from naming them here. I do, how- ever, want to express my thanks to my sister Rose Cordier and her family and to the Antelope Community of Rosebud Reservation. I also want to thank my friend and colleague David Nugent for his critical insight and valuable feedback on this article.
Ever since British structural-functionalism fell to the DOlitical critique, law, once a central concern of anthropol- ogy, has been demoted to one of several "specialties" within the discipline. In the structural-functional para- digm law-understood as the configuration of social rights and obligations-was the central organizing axis of all societies. In Radcliffe-Brown's (1950, 1965) formu- lation, for example, kinship systems in primitive societ- ies were logically deducible plans for the smooth alloca- tion and transfer of rights in rem and rights in personam. Being a member of a lineage entailed a worldview for the social person, in front of whom stretched a world populated by others who stood in determinate jural rela- tionships. Therein lay the "clockwork" of primitive so- cieties that supposedly held them together. In the ensu- ing political critique of structural-functionalism, one central criticism was precisely this "jural focus" of the paradigm (Goddard 1972). What the critics had in mind by this phrase was the naive assumption of the struc- tural-functionalists that rules serve a self-correcting function in a social organism, settling disputes equitably and constraining the exercise of power within legitimate limits, and that they serve the interests of "everyone" within a seamless whole uncomplicated by fundamentally opposed parties or deep struggles over the social order. What was missing from this formulation, argued the critics, was the recognition that rules often, if not usually, serve not the interests of "everyone" but the particular interests of the powerful and that rather than being a constraint on power rules are a reflection of and help enable and reproduce relations of inequality (Asad 1973, Goddard 1972, Worsley 1956).
It is appropriate, however, to ask if in rejecting the structural-functionalists' naive Whig view of law we have forgotten the critical role of law in the very constitution of society, that is, in instituting the historically particular grounding preconditions for social life. It has increasingly become obvious to scholars in such fields as critical legal studies, feminist theory, marxistinfluenced history, legal sociology, law-and-society studies, and legal anthropology that law-the "voice" of the state-is not just a negative constraint on action, an instrument of domination manipulated by the ruling class, an empty ideological mystification, or an epiphe-
-nomenal part of the "superstructure." If we understand law as the state-sponsored field which grounds the con- ditions of possibility for actionable rights and legitimate social claims, then law is "deeply imbricated" in the very organization of modern society (Thompson 1975: 261). Put differently, law is productive or generative of subjectivity in the nation-state (Lazarus-Black 1994:263
n. 7; Lazarus-Black and Hirsch 1994a:13). Understood in this way, law is a dimension (at least) of all modern social relations, since all social relations presume a ground of rights and legitimate claims. It is not possible to think of subjectivity within modern society without seeing law-and the rights it allows or summons into existence-as one of the basic, constitutive axes of so- cia1 self and other,2 and it should not be possible to en- gage in political anthropology or write about any kind of power in complex societies without bringing in law, and thus the state, as a direct or indirect influence. The hegemonic power of the state in the medium of the law has not, however, been sufficiently appreciated in an- thropology. How much of the "cultural system" of American common sense, for example, is set in place by the state's legal apparatus? Consider law's role in struc- turing American common sense on the basis of property and other legally instituted rights (Gordon 1982:287):
A small business is staffed with people who carry
around in their heads mixed clusters of this kind:
"I can tell these people what to do and fire them if
they're not very polite to me and quick to do it, be-
cause (a) I own the business; (b) they have no right
to anything but the minimum wage; . . . (e) if they
don't like it they can leave," etc.-and the employ-
ees, though with less smugness and enthusiasm, be-
lieve it as well. Take the ownership claim: the em-
ployees are not likely to think they can challenge
that because to do so would ieo~ardize their sense of
rights of ownership, which they themselves exercise
in other aspects of life ("I own this house, so I can
tell my brother-in-law to get the hell out of it"). . . .
Law is a system of order, both in the sense of governing (see Hunt 1993) and in the sense of the making of social meaning. In recognizing law as a mode of constituting social relations, we would take notice of the role of the state in shaping civil society through legal hegemony; we would recognize that the legal operations of the state apparatus are a culture-making process and that state formation is a "cultural revolution" (Corrigan and Sayer I 98 5).3 Furthermore, were we to recognize the constitu- tive role of law, we would be forced to promote it from a specialized focus of legal anthropology to something "deeply imbricated" in just about all that we do in an-
2.On this constituting or socially constructing role of law, see Abel (1982),Amherst Seminar (1988),Balbus (1977),Brigham (1987),Bumiller (1988),Corrigan and Sayer (1981, 1985), Davis (I981),Freeman (1978, 1982), Gabel and Feinman (1982),Genovese (19761,Gordon (1982, 19841, Harris (19931,Hay (19751,Hunt (1985,
I993),Kelman (I987),Kennedy (1979),Klare (1979),MacKinnon (1983),Merry (1985, 1986, ~ggo), Olsen (1983),Rose (1987),Sarat and Kearns (1993),Silbey (1989),Snyder (1989),Stubbs (1986),Trubek (1984),and Yngvesson (1989). 3.This is not to say that the state's "citizens" merely accept the edicts of state-law or that the state apparatus directly dictates legal subjectivity by specifying precisely what entitlements will and will not be. Law is a field of contestation, and counsel representing legal persons ranging from welfare recipients to corporations pur- sue their clients' interests by pushing the interpretation of legal texts in arguable directions which can never be anticipated by legis- latures drafting laws or judges rendering decisions. Indigenous Na- tive American readings of sovereignty in federal Indian law drafted by congressmen are a case in point, and these readings have carried weight in federal courts. "The state" is far from omnipotent, and the outcomes of legal struggles can never be assumed. The discur- sive and institutional terrain on which legal struggles are played out (the rules of the game), however, are ultimately set by the state apparatus.
thropology. An anthropology of law should not be "a
subdiscipline 'apart from' social anthropology, but a the-
ory-building 'part of' social anthropology" (Starr and
While Radcliffe-Brown would not have thought in terms of "how subjectivity is constituted" through legal categories, he would have agreed that basic configura- tions of social rights and obligations are preconditions of social life. This is an insight we would do well to take seriously, while at the same time drawing on what we have come to recognize since the 1960s about the ubiq- uity of power and inequality in social life and the ongo- ing struggle over rights in modern society. This article will attempt to bring law back in by examining law's regulation of political struggle between Lakota and non- Indian people on Rosebud Reservation in South Dakota.
Federal Indian Law
Elizabeth Colson once pointed out that American Indi- ans are unusual among colonized indigenous peoples around the world in that they know and care so much about the law (Colson 1974:83). Indeed, for a long time federal law-as enunciated by both the courts and Con- gress-has been the terrain on which the pursuit of jus- tice and empowerment for Native Americans, both by Native American activists and by their allies, has taken place. In fact, the appeal to law by Native Americans is as old as the treaties signed with the United States (see Prucha 1994).
In the last half-century there has been a great flores- cence of scholarship on federal Indian law and of the pursuit of justice for Indian people through the courts. Beginning with the attorney Felix Cohen's work in the
U.S. Interior Department drafting tribal constitutions under the provisions of the Indian Reorganization Act (see Biolsi 19gz:chap. 4; Deloria and Lytle 1984a) and his authorship of the Handbook of Federal Indian Law (Cohen 1942)~ federal law has increasingly become a source of empowerment for Native Americans. The first wave of widespread lawyering (and anthropological ex- pert-witnessing) in Indian empowerment was the land- claim cases authorized by the Indian Claims Commis- sion Act of 1946 (see Sutton 1985 for a retrospective account).
A second wave of legal action in Native American empowerment has been going on for the past 25 or so years. This wave has emerged out of a remarkably cre- ative rereading of treaties and federal Indian law by tribal officials, people who are often called activists [for example, the American Indian Movement [AIM]), other people who are often called traditionalists, and attor- neys. This complex and diverse constituency has reread the law from (native) nationalist standpoints and has effectively argued the legal case for the sovereignty of native nations (see Deloria 1985, Ortiz 1977). This wa-ve has also seen the growth of an Indian law specialty in the legal profession, practiced by both non-Indian and, increasingly, Indian attorneys and scholars; the prolifer-
BIOLSI Bringing the Law Back In 1 545
ation of a literature4 and even a journal5 and case report- ers6 in Indian law; the appearance of Indian legal interest groups such as the Indian Law Resource Center and the Native American Rights Fund; the systematic use of tribes of attorneys with expertise in Indian law; and the proliferation of Indian litigation in the federal courts (for overviews of Indian law and its history, see Deloria and Lytle 1984b, Wilkinson 1987).
In the courts there have been both important successes and important losses for tribal sovereignty. On the one hand, there have been cases such as Santa Clara Pueblo v Martinez, 436 US 49 (1978)~ in which the Su- preme Court held that the inherent sovereignty of Santa Clara Pueblo precluded federal interference in its inter- nal affairs, even if they involved what under the U.S. bill of rights would amount to a denial of equal protection to a tribal member and her children. On the other hand.
try are not subject to the criminal, civil, or regulatory jurisdiction of the states. Moreover, this body of law can be read to assert that Indian tribes in Indian country have at least some inherent sovereign rights of jurisdic- tion over non-Indians on reservations even though those non-Indians may be denied representation in tribal gov- ernment. These rights are glossed by Lakota people and many other Native Americans as rfghts of sovereignty that derive from the pre-Constitutional, independent- nation status of "tribes."
But these are not politically stable or legally settled rights. Both of these rights are subject to continuous litigation the outcomes of which tend to be unpredict- able from case to case. Cases are often extremelv close
calls, and decisions one way or the other often hang by a highly technical thread and are subject to reversal on appeal. Indian law is far from "settled" or "black-letter"
there have been cases such as Oliphant v ~u~uamishlaw, and it has been characterized by legal scholars as
Indian Tribe, 43 5 US 19 I (1978)~in which the Supreme
Court held that tribes do not have criminal jurisdiction
over non-Indians on the reservation, an obvious limita-
tion on tribal sovereignty. Tribal pd~ice forces are thus
denied even the right to cite a non-Indian for speeding, a
power any municipality in the country takes for granted.
But Indian law is of interest not only because of the outcomes of specific cases for the political gains and losses of Native Americans. While law is certainlv im- portant to scholars interested in the subaltern because of the political role law has as a "resource" (Starr and Collier 1989:2), "tool," or "weapon" (the instrumental role of law) in the ongoing struggles for and against em- powerment, the significance of law involves more than particular rights lost or won. Law is also important in its subpolitical role, in shaping what is taken as "em- powerment" to begin with and how and where empow- erment will be sought. Law thus has a critical role in regulating (in the sense of Piven and Cloward 1971) poli- tics and struggle. In the case at hand, law's role in regu- lating politics is to be found in the power of legal rights, either "settled" or arguable, to determine the terrain of political consciousness, contestation, and struggle for empowerment.
Two legal rights are critical in Lakota-white politics and struggle. One is the freedom of Indians on the reser- vation from the jurisdiction of the state of South Da- kota. The other is the right of tribal government to exer- cise at least some jurisdiction over non-Indians on the reservation. A long line of federal case law and federal statutes-and, arguably, even the federal Constitution-can be read to assert that Indians in Indian coun-
This literature includes law journal articles, scholarly books, and a handful of law texts and reference books. For examples of the latter, see American Indian Lawyer Training Program (19881, Canby (1988), Conference of Western Attorneys General (19931, Getches and Wilkinson (19861, Pevar (~ggz),
and Strickland (1982).
American Indian Law Review, College of Law, University of Oklahoma, Norman, Okla.
Indan Law Reporter, American Indian Lawyer Training Pro- gram, Oakland, Calif., and Navajo Law Reporter, Navajo Nation, Window Rock, Ariz.
having fundamental contradictions and being incoher- ent (see Clinton 1975, 1976; Frickey 1990, 1993; Furber I99I ;Gillingham I 993 Wilkinson I987).' Furthermore, Indian jurisdictional rights have been subjected to re- peated historical infringement by federal legislation that has sought to end the protected legal status of Indians and Indian country, most recently during the "termina- tion" period of the 1950s; since then there have been recurrent attempts at "backlash" legislation and admin- istrative initiatives for "privatization" (for brief histor- ies of federal Indian policy, see Canby 1988:chap. 2; Getches and Wilkinson I g86:chap. 2; Jorgensen 1978; for a detailed history, see Prucha 1984).
This unsettledness of Indian jurisdictional questions in the courts and in Congress is generated by the excep- tionalism of Indian rights in federal Indian law. Indian legal status in the United States is a veritable "peculiar institution," an institution which logically violates the core liberal paradigm of formal equality just as much as slavery did (see Frickey 1990; Prucha 1994; White 1991:chap. 10).And just as there were powerful pres- sures to abolish the glaring inconsistency of slavery and racial estates in an industrial capitalist society legally constituted on the basis of formal equality, so there are great pressures at work to terminate the body of federal Indian law in order to erase the "special rights," the "race-based" exceptions, for Native American~.~
There is evidence, however, that a clear pattern is detectable in federal court decisions in Indian jurisdiction cases but that the logic has to do not with legal principles but with institutional arrangements in government and with the interests of non-Indians (Fetzer 1981, Kramer 1986).
The exceptionalism of Indian rights is, of course, relative and context-dependent. Indian rights are "exceptions" only if seen against the background of U.S. sovereignty and the assumed prior- ity of the U.S. Constitution. As native activists and their attorneys argue, however, if "tribes" are seen not as entities legally "within" the United States but as sovereign nations which happen to be geographically landlocked by U.S. territory but in which U.S. law should have no more force than in Canada, the exceptionalism of Indian rights would disappear. One of the systematic effects of the federal Indian law apparatus, at least since the 183os, has been to deny this kind of legal autonomy to Native Americans and to insist that Indian rights are encompassed by and are a part of U.S. law.
there are complex political and ideological dynamics
which make the complete abolition of Indian legal sta-
tus unlikely (Bee I 992, Castile I 992), Indian legal rights
are always at risk of losing ground.
It is almost inevitable, given the exceptional nature
of federal Indian law within a larger legal "empire" of
formal equality, that the protected legal status of Indian
people and Indian country will be challenged in the
courts, in legislatures, and in everyday practice. It is also
inevitable, given the systemic colonial oppression expe-
rienced by Indian people, that whatever legal rights they
can hold onto they will fight for, because even limited
rights can make a difference for colonized people. The
Lakota people on Rosebud Reservation perceive threats
to their legal status as the most easily recognized and
articulated of the immediate oppressions they experi-
ence, and protection and extension of these rights are
the most important aims of political struggle.
Federal Indian law has shaped, focused, located, and constrained the political struggle of Sicangu Lakota (also known as Rosebud Sioux, less commonly Brule Sioux, and recently Sicangu Oyateg or the Sicangu Nation) on Rosebud Reservation. The focus of the struggle is on two political fronts: state jurisdiction over Indians on the reservation and tribal jurisdiction over non-Indians on the reservation. After laying out histories of these strug- gles, I will return to the question of the role of federal Indian law in regulating the politics of Indian-white rela- tions.
State Jurisdiction over Indians on the Reservation
Rosebud Reservation was established in 1889 by the Great Sioux Agreement (25 Stat. 888)1° for the Sicangu Lalzota. Rosebud Reservation is legally Indian country, and it has repeatedly been made clear in evolving federal case law since Worcester v Georgia, 8 L Ed 483 (U.S. Supreme Court 1832)~ that, as a general rule, state gov- ernments and their subdivisions do not have criminal, civil, or regulatory jurisdiction over Indians in Indian country. The South Dakota constitution (1889)~ in con- formity with the provision specified in the federal en- abling act for statehood (25 Stat. 676), provides that the people of the state "forever disclaim all right and title to . . . all lands lying within [the state] owned or held by any Indian or Indian tribe; . . . and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United 'states" (South Dakota Constitution, art. 22). As that jurisdiction has evolved,
For example, the tribal license plates issued by the State of South Dakota for residents of Todd County (Rosebud Reservation) are imprinted "Sicangu Oyate, A Sovereign Nation."
Federal statutes are cited in the form customarily used in his- torical and legal writing. The first number refers to the volume of the Statutes at Large (Stat.) or United States Code (U.S.C.), and the second number refers to the page, in the case of the statutes, or the section, in the case of the code.
tribal governments and the federal government have ju- risdiction over Indians" on reservations (for descriptions of the case and statute law, see Canby 1988:chap. 7; Conference of Western Attorneys General I993 :chaps. 4-6; Cohen 1942; Getches and Wilkinson 1986:chaps. 4-8j Pevar 19gz:chaps. 7-9; Strickland 1982). On Rose- bud Reservation, major crimesi2 committed by Indians are under the exclusive jurisdiction of the federal courts (18 U.S.C. Sect. IIS~[a]).
Lesser crimes and civil causes of action involving Indian defendants are under the juris- diction of the tribal court.13
But things have never been simple regarding the ques- tion of state jurisdiction over Indian people on Rosebud Reservation. In an effort to "civilize" the Lakota, Rose- bud Reservation land was partitioned into units, known as allotments, assigned to individuals and held in trust by the federal government (25 Stat. 888). In 1906 Con- gress authorized the secretary of the interior to remove the trust status from the allotment of any individual deemed "competent and capable of managing his or her affairs" (34 Stat. 183). This process of removing trust protections, known as fee patenting, made the land sub- ject to state property taxation and granted the individual allottee full power to rent, mortgage, or sell the land. The vast majority of the fee patentees lost their land through sale, mortgage, and tax delinquency. Sales of Indian allotments in heirship status or deemed excess by the Bureau of Indian Affairs (BIA) were also held (see Biolsi I992:I4-1 5, 30; Department of Indian Studies 1981; Hoxie 1984:chap. 5; McDonnell 1991:chap. 7). Non-Indians began to enter Rosebud Reservation (Todd County, South Dakota)14 for settlement on the lands thus made available. By 1920 there were 871 whites and 1,912 Indians living on Rosebud Reservation, and the town of Mission had been established when a Rosebud Sioux tribal member deeded her fee-patented allotment to her non-Indian husband, who used the land for a town site. Mission was incorporated in 1932, and federal cen- suses had its population as predominantly non-Indian until 1980 (City of Mission 1982~; Todd County Trib- une 1965; U.S. Department of Commerce 1922, vol.
I I. Even the question of who is an "Indian" for jurisdictional pur-
poses has been repeatedly litigated (Durov Reina, 109 L Ed zd 693
[U.S. Supreme Court 19901; Ex Parte Pero, 99 F 28 [7th Cir, 19381;
St. Cloud v United States, 702 F Supp 1456 [U.S. District Court,
19881; State v Big Sheep, 243 Pac 1067 [Supreme Court of Montana,
19261; United States v Rogers, I I L Ed I 105 [U.S. Supreme Court,
major crimes include murder, manslaughter, kidnapping, maiming, felony sexual abuse, incest, assault with intent to com- mit murder, assault with a dangerous weapon, assault resulting in serious bodily injury, arson, burglary, robbery, and felony theft.
The tribal court and the Rosebud Sioux Tribal Council were established under the provisions of the Rosebud Sioux Tribal Con- stitution, ratified in 1935 (see Biolsi 1992).
The boundaries of Rosebud Reservation are contested, with the tribe claiming that the reservation-and thus Indian country- includes all of three South Dakota counties and parts of two others. The Supreme Court has held, however, that only Todd County constitutes the reservation, the other counties having been dises- tablished as reservation areas (Rosebud Sioux Tribe v Kneip, 5 I L Ed zd 660 [U.S. Supreme Court, 19771).
3:950). In 1990, the Todd County population comprised
1,431 whites and 6,883 Indians (U.S. Department of
Commerce I 99I :52). In this situation, there have been
strong pressures for the state to assume jurisdiction over
everyone, including Indians, on the reservation.15 These
pressures include a long-standing conviction among
many non-Indians and some Indians that state criminal
and civil jurisdiction would give persons and businesses
on the reservation more protection than does federal and
tribal jurisdiction. There is also a general opinion among
non-Indians that laws should apply equally, without re-
gard to racial status; it is unfair, in this view, that state
laws-for example, property taxes-apply to a white cit-
izen but not to his Indian neighbor. As a grassroots non-
Indian organization known as Civil Liberties for South
Dakota Citizens put it, justice depends upon "one set of
laws and the equal application of the law for all citizens"
(Todd County Tribune 1974).
As a result of national pressures to erase the protected
legal status of Indians and Indian country, Congress en-
acted Public Law (PL) 280 in 1953 (67 Stat. 588). The
general outlook of Congress and the BIA at the time was
characterized bv what is commonlv called the termina-
tion policy, referring to an intent to terminate the fed-
eral, protected status of Indian reservations (see Burt
1982; Drinnon 1987; Fixico 1986; Prucha 1984, vol. 2:pt.
9). PL 280 was part of this movement. It made manda-
tory the transfer to states of criminal and civil jurisdic-
tion over Indian reservations in California, Minnesota,
Nebraska, Oregon, and wisconsin.16 It also provided for
other states, including those like South Dakota which
had "disclaimers" in their constitutions of state jurisdic-
tion over Indians on reservations, to assume jurisdiction
over reservations through appropriate state action. The
South Dakota legislature attempted such action by en-
acting state jurisdiction bills on four occasions, in 1957,
1959, 1961, and 1963 (Clow 1981, State of South Dakota
I 5. The state already had lawful jurisdiction over non-Indians com- mitting crimes against non-Indians in Indian country as a result of the U.S. Supreme Court decisions United States v. McBratney, 104 US 621 (1882), and Draper v United States, 164 US 240 (1896). South Dakota had ceded this jurisdiction to the United States in 1901 (South Dakota Session Laws, 1901, chap. 106; 32 Stat. 7931, but Congress had returned it to the state in 1948 (62 Stat. 758; Olson v Shoemaker, 39 NW zd 524 [South Dakota Supreme Court, 1949); State of South Dakota Session Laws, 1951, chap. 187). I 6. Several reservations in these states were specifically exempted from the legislation.
17. Exercise of jurisdiction over reservation Indians by South Da- kota and its subdivisions had actually originated much earlier. The state legislature had adopted a law in 1929 claiming "concurrent jurisdiction" with the federal government over crimes by "any per- son" on any reservation (State of South Dakota 1929: chap. 158). There were other legal bases for claims of state jurisdiction over Indians on reservations. The South Dakota attorney general opined in 1939 that the state had jurisdiction over Indians on land that had been fee patented within the reservation and over individual Indians who had been fee patented (State of South Dakota 1939-40: 212; see also Richards 1g57:50) County court records that I have examined indicate that local subdivisions of the state government were exercising criminal and civil jurisdiction over Indians on Rosebud Reservation from at least as early as 1921. This took place
BIOLSI Bringing the Law Back In 1 547
For complex reasons, only the 1961 legislation (argua- bly) survived as a valid assumption of state jurisdiction by South Dakota (Clow 1981, State of South Dakota 1962). The bill had its origins in the concerns of the non-Indian Taxpayers League in Todd County on Rose- bud Reservation (and in Shannon County on Pine Ridge Reservation). The high incidence of drunken driving by tribe members was the principal issue, according to the Taxpayers League's lobbyist, interviewed in 1993. The legislation assumed jurisdiction over "criminal offenses and civil causes of action arising on any highways" in Indian country (South Dakota Session Laws, 1961, chap.
464)In 1964, however, the 1961 state highway jurisdiction law was struck down by the South Dakota Supreme Court in In re Hankins' Petition, 125 NW 2d 839 (1964). The court held that the 1961 act had not validly con- ferred state jurisdiction over Indians on reservation highways because it was inconsistent with the provis- ions of PL 280. PL 280 allowed a disclaimer state to assume only total, not partial, jurisdiction over Indian country as had the "mandatory" states when PL 280 was enacted in 1953 (In re Hankins' Petition). The State of South Dakota and its subdivisions ceased arresting Indi- ans in Todd County (State of South Dakota 1963-64: 382; Todd County Tribune 1964). The judicial prohibition of reservation highway juris- diction notwithstanding, political pressure for state ju- risdiction from non-Indian voters who perceived a reser- vation law enforcement "hiatus" did not disappear. An opportunity for the state to claim lawful exercise of ju- risdiction on the reservations was opened by the U.S. Supreme Court in Washington v. Yakima Indian Na- tion, 439 US 463 (1979). In a highly detailed and techni- cal semantic analysis of PL 280, the court held that a disclaimer state such as Washington (and, implicitly, South Dakota) that had not been delegated jurisdiction by Congress in 195 3 could assume jurisdiction according to a scheme of its own choosing; that is, it was not necessary for a disclaimer state to assume total jurisdic- tion. A state might validly opt for partial jurisdiction as long as the scheme was consistent with the overall congressional intent behind PL 280-assimilating Indians into the general population, responding to a hiatus in reservation law enforcement, and shifting financial responsibility for Indian reservations from the federal to the state government. One arguable implication of the Washington decision was that the South Dakota Su- preme Court decision in Hankins might have been erro- neous; that is, South Dakota might unwittingly have had jurisdiction continuously since I 961. At least this was the way that the South Dakota Attorney General's Office interpreted the Washington decision. The question was put to the test in 1985.'~ A member
even though it was inconsistent with federal statute and case law (Kills Plenty v United States, 133 F zd 292 [8th Cir, 19431; United States v Black Spotted Horse, 282 F 349 [U.S. District Court, 19221; 62 Stat. 757).
18. In fact, the question was tested as early as 1979, when South Dakota Department of Criminal Investigation officers arrested a
of the Rosebud Sioux Tribe was arrested by a state high-
way patrol officer for operating an overweight truck, a
misdemeanor, on U.S. Highway 18 within Rosebud Res-
ervation and charged in state circuit court. The defen-
dant's attorney filed a motion to dismiss, arguing that
the state had no jurisdiction in the case (Criminal Case
File 1985). She also wrote to the tribal president, seeking
an amicus brief: "It is my understanding that the Attor-
ney General of the State of South Dakota has histori-
cally and remains anxious to assert State jurisdiction
over State highways and roadways extending within the
bounds of Indian reservations." It was "apparent that
the question of whether or not the State has such au-
thority does not currently have a clear answer under
law." Answering that question would entail expense be-
yond the resources of the defendant, and the attorney
suggested that it was a question of critical importance
to the tribe (Attorney 1985). The tribe did not intervene
at the time, and the circuit court judge held, in confor-
mity with the opinion of the attorney general, that the
state did indeed have highway jurisdiction on reserva-
tions owing to the U.S. Supreme Court's implicit over-
turning of the Hankins decision in its Washington deci-
sion (Criminal Case File 1985).
Further pressure to take action was put on the Rose- bud Sioux Tribe in late 1985 when the president of the Oglala Sioux Tribe (Pine Ridge Reservation) reported a dispute between the tribe and the state attorney general. The attorney general was refusing to recognize Oglala Sioux tribal license plates and insisted that they would be invalid even on the reservation, since "it is clear that the State of South Dakota has jurisdiction over high- ways through the reservation" (Attorney General 1985). The Oglala vresident alerted the Rosebud Sioux Tribal
Council to this "emergency situation" and requested that Rosebud join the Oglala in suing South Dakota in federal court (President 1986). After careful consider- ation by the tribal council and its attorney (Rosebud Sioux Tribal Council 1986a, b; Tribal Attorney 1986)) a complaint was filed against South Dakota in federal dis- trict court in 1986.'~ The suit sought a declaratory judg- ment and permanent injunction to "restrain and pro- hibit South Dakota from exercising jurisdiction over Indians within the Rosebud Indian ~eservation" (Rose- bud Sioux Tribe I 986).
The central question-in the case was the highly tech- nical one of whether the 1961 act by which South Da- kota assumed highway jurisdiction was still effective even though it had been struck down by the Hankins decision. The state argued that the Supreme Court's Washington decision indicated that the Hankins court had been in error and that therefore the 1961 law was still in effect and South Dakota could now exercise res-
tribal member in Todd County (Criminal Case File 1980). There were also other scattered cases in which the state exercised its claimed jurisdiction over reservation highways, but the question did not reach the federal courts until 1986.
19. The Oglala Sioux Tribe and the Cheyenne River Sioux Tribe joined the Rosebud Sioux Tribe as plaintiff-intervenors in the case.
ervation highway jurisdiction under its authority (State of South Dakota 1988). The tribes argued that the Han- kins ruling had invalidated the I96I law even if Hankins had been wrongly decided, which the tribes did not con- cede (Rosebud Sioux Tribe 1988).~O When the federal dis- trict court rendered its decision in Rosebud Sioux Tribe v South Dakota, 709 F Supp 1502 (U.S. District Court, 1989)~it held that analysis of the Washington decision revealed that the South Dakota Supreme Court had "misinterpreted" PL 280 in its Hankins decision in as- suming that partial jurisdiction was invalid; partial ju- risdiction was valid as long as the arrangement was con- sistent with the congressional intent behind PL 280, which, the court held, South Dakota's 1961 legislation was. Furthermore, the South Dakota Supreme Court had recently overruled the Hankins decision (State v Onihan, 427 NW zd 365 [South Dakota Supreme Court, 19881)) thus implying that the 1961 law had never been validly struck down: South Dakota's 1961 jurisdiction law remained "an effective state statute." The court held that the Rosebud Sioux Tribe and the state of South Dakota had concurrent jurisdiction over members of the tribe on reservation highways (Rosebud Sioux Tribe v. South Dakota, 709 F Supp 1502, 1509).
As would be expected, many Lakota people were dis- appointed with the decision, to say the least. A member of the tribe wrote to the Todd County Tribune, pub- lished by a non-Indian couple on the reservation, arguing that the district court was clearly prejudiced against South Dakota Indians: "The blind lady of justice is no longer blind; she is dead" (Todd Country Tribune 1989). A tribal official commented at a meeting at which state officials were present (Rosebud Sioux Tribal Council 1989b) that the decision
violates congressional law, it violates treaties, it vio- lates statutes, everything that's in place. There is no possible way in this world that [the judge] could have ruled the way that he did. . . . I don't believe [the judge] has the authority to make a decision on a sovereign nation, such as us and any other tribe be- cause we are . . . governed by treaty. . . . The judge up there . . . he's sitting on a pedestal up there. . . .
20. The tribes argued that, while Washington might have validated the partial jurisdiction scheme of Washington State, the 1961 South Dakota law differed in that, in assuming jurisdiction over highways, the state was assuming only that area of jurisdiction that was "lucrative" (because of traffic fines). This was not consis- tent with the congressional intent behind PL 280, which, among other things, was to shift the financial burdens for Indian jurisdic- tion to the states. Moreover, even if the Hankins decision had been wrongly decided, it had had the effect of nullifying the 1961 law. It had not been overruled before Congress had amended PL 280 in 1968 through the Indian Civil Rights Act, which provided for the assumption of state jurisdiction only with the consent of tribes (25
U.S.C. Sects. 1301 et seq.). Thus, even if Washington had shown Hankins to be flawed, South Dakota could not simply now assume jurisdiction without the tribe's consent. Nonconsensual assump- tion of jurisdiction would have been possible before the passage of the Indian Civil Rights Act but not after it (Rosebud Sioux Tribe 1988).
BIOLSI Bringing the Law Back In I 549
he's telling everybody to go to hell. . . . It's quite ob- tempt of court (U.S. District Court 1989)) but tribal of-
vious how he feels about the tribes of this stat^. ficers had been understandably concerned about spend-
Two weeks after the decision was handed down, the Rosebud Sioux tribal president issued an executive or- der: "In recognition of the 1851 and 1868 Treaties and the fact that the congress of the United States has never diminished the current boundaries of the Rosebud Sioux Reservation, I am hereby ordering that the State High- way Patrol not be allowed on any highways within the Rosebud Reservation boundaries" (Rosebud Sioux Tribal President 1989~). Three days later a copy of the order was received by the superintendent of the state highway patrol, and four days later the Attorney General's Office filed a motion in federal district court for an order to show cause why the Rosebud Sioux Tribal Council and its president should not be "punished for contempt of court" (State of South Dakota 1989~). The president is- sued a second executive order, rescinding the ban on the highway patrol (Rosebud Sioux Tribal President I989 b). At a special meeting, however, the Rosebud Sioux Tribal Council considered the rescission. After some discus- sion, the floor was given to a tribal member (Rosebud Sioux Tribal Council 1989a), who said:
I always heard the word "sovereignty," but I've never seen an expression of it. I've worked for tribal government for a number of years, and . . . I always see the infringement of state regulation, federal regu- lation, and I don't see the tribe really taking a strong stand and saying "tribal regulation." There was a time when we controlled the whole state of South Dakota . . . and more. And I think that if the council doesn't stand strong, we're not even going to have Todd County. . . . when is it going to stop, when are we going to [quit] giving it away? . . . And if there is a threat of contempt of court, it shouldn't scare a person. I think that as elected leaders, . . . you have taken a[n] oath of office to defend the members of this tribe. And I know there are other council mem- bers of other tribes that sat in jail for fighting for fishing rights. And I think if it means you have to be jailed to hang onto our jurisdiction, it has to be that way [audience approves]. Because you are the lead- ers. . . . I really want to encourage you as the elected governing body of this tribe to stand your ground against the state, irregardless of threats of contempt of court, or whatever else [applause].
The council voted unanimously to reinstate the ban on the highway patrol's entering the reservation (Rosebud Sioux Tribal Council 1989~). The state responded by fil- ing a second motion for a show-cause order and a motion for expedited discovery21 (State of South Dakota 1989b, c).In the end the judge held that there had been no con-
21. An order for expedited discovery, if granted by the court, would have compelled the tribal officials, through their attorneys, to sup- ply written answers and perhaps documents in response to written interrogatories posed by the other side and designed to discover evidence of contempt.
ing time in jail.
Both the tribes22 and the state appealed the district
court decision to the Eighth Circuit Court of Appeals.
The appeals panel of three judges rendered its decision
in 1990 based, as was the district court's, on a highly
technical legal analysis. While the district court had ac-
cepted the state's position, however, the appeals court
accepted the tribes' analysis: "We find that the district
court erred. Absent tribal consent, we hold the State of
South Dakota has no jurisdiction over highways running
through Indian lands in the state." The appeals court
found that the 1961 South Dakota law was not consis-
tent with the congressional intent behind PL 280, and
therefore jurisdiction had not been validly assumed by
South Dakota in 1961 (Rosebud Sioux Tribe v South
Dakota, 900 F zd 1164, 1172 [8th Cir, 1990]).~~
Sioux Nation won. In fact, all tribes won," remarked the
man who had been tribal president at the time the suit
was filed (Todd County Tribune 19goa). Members of the
Rosebud Sioux Tribe held a victory celebration in Ghost
Hawk Park on the reservation (Todd County Tribune
Tribal Jurisdiction over Non-Indians
While Lakota resistance to state jurisdiction goes back as far as active attempts by the State of South Dakota to assert jurisdiction (the 1950s)~ assertions of Rosebud Sioux tribal jurisdiction over resident whites is more recent. It was only during the 1970s and 1980s that tribal governments began to contemplate having territorial ju- risdiction over "everyone," including non-Indians, in In- dian country, not simply personal jurisdiction over tribal members.
The most concerted struggle around tribal jurisdiction over non-Indians on Rosebud Reservation was the City of Mission Liquor Store case. Mission opened a munici- pal liquor store to raise revenue in 1956. Although sta- tistics are not reliable and opinions vary, it has been generally recognized that most of the liquor store's cli- entele had been Indian people from the surrounding area. While Mission is in the middle of Rosebud Reservation, and Congress had long ago forbidden the sale of liquor
In the appeal, the Rosebud, Cheyenne River, and Oglala Sioux tribes were joined by the Standing Rock Sioux Tribe as a third plaintiff-intervenor.
The court found the 1961 South Dakota law inconsistent with the congressional intent in that it assumed only the self-financing aspect of jurisdiction. Thus, South Dakota did not, as a matter of law, have jurisdiction when Congress prohibited future unilateral assumptions of jurisdiction by states in the 1968 Indian Civil Rights Act, and even if the Supreme Court's Washington decision [and the South Dakota Supreme Court's Onihan decision) did sug- gest that Hankins was wrong, the Indian Civil Rights Act should be read in 1990 to prohibit "nonconsensual assumptions of juris- diction, through any means," such as the retroactive application of a new interpretation of a 30-year-old statute (Rosebud Sioux Tribe v South Dakota, 900 F zd 1164, 1172).
in Indian country, it was assumed that the sale of liquor in Mission was made legal by a 1948 act of Congress exempting "fee patented lands in non-Indian communi- ties" within reservations from federal Indian liquor law (18 U.S.C. Sect. 1154[c]).
By the 1960s the city liquor store was facing opposi- tion from Indian people. The reader should picture a non-Indian town in the middle of an Indian reservation which raised a good portion of its revenue from selling alcohol to Indian people, many of whom were clinically alcoholic.24 Many liquor store customers got themselves quickly intoxicated, and some then became involved in various kinds of petty trouble within the city limits and were incarcerated in the city jailez5 At this time it was lawful for prisoners in the city jail to be fed only bread and water as long as they were given a full meal every fourth day (Rosebud Sioux Herald 1963). Some tribal members convicted of crimes committed while intoxi- cated were sent to the state penitentiary. In 1964 the Rosebud Sioux Herald, edited by a tribal member, ran an article entitled "Booze Store Makes Money," which reported that "the city liquor store of Mission, located in the heart of the reservation, sold nearly $134,500 worth of alcoholic beverages in the past year" (Rosebud Sioux Herald 1964). Because of liquor store revenue, there was no city sales or property tax in Mission, but the tribal government did not benefit in any way from the revenue generated from liquor sales. The only bene- fit for Indian people from this revenue that the city could point to was that Indians used the paved streets and other municipal amenities it paid for. The injustice of this situation was no doubt brought home to many Indian (and perhaps non-Indian) people in 1962 when a 24-year-old Indian soldier home on leave was arrested for disturbing the peace, probably intoxicated with li- quor bought in the Mission Liquor Store, and hung him- self in his jail cell (Todd County Tribune 1962).
In the meantime, Congress had changed Indian liquor law in order to allow individual tribes the option of alco- hol sales on reservations. In 1953 the U.S. Code was amended to allow the sale of alcohol in Indian country if in conformity with a duly adopted tribal liquor ordi- nance (18 U.S.C. Sect. 1161). The Rosebud Sioux Tribe adopted liquor ordinances in 1971 and 1977, which were approved by the secretary of the interior and published in the Federal ~egister.~~
The ordinances provided, among other things, for the licensing by the tribe of all liquor dealers, including non-Indians, on the reservation (Rosebud Sioux Tribe I978).
In 1983 the Mission Liquor Store had the third-highest sales of any municipal liquor store in the state, following only Brookings, where South Dakota State University is located, and Pierre, the state capital (Todd County Tribune 1983).
As mentioned in n. 17, before 1964 city and county officials exercised jurisdiction over tribal members within the City of Mis- sion and on highways in Todd County, even though its legality was questionable at best.
The rationale for this was that tribal jurisdiction over liquor sales was technically a delegation of authority to tribes from Con- gress and not an inherent right of sovereignty.
The city liquor store and other non-Indian liquor out- lets in and near Mission ignored the tribal ordinance, however, because it was still assumed-by many non- Indians, at least-that Mission was a "non-Indian com- munity" exempted from federal Indian liquor law and thus from the tribal liquor ordinance. The tribe and the BIA agency, however, considered this exemption ques- tionable given the Indian population geographically sur- rounding and patronizing the liquor store, and in 1979 the tribal liquor commission "gave notice to all estab- lishments within the Rosebud Reservation that they would have to comply with the tribal law by purchasing a tribal license" (Liquor Commission 1979)." The city's attorney advised the city council that in his opinion "the City is not legally required to submit this applica- tion [for a tribal liquor license] and that it should not do so" (City Attorney 1979)~ and the city did not. In May the Rosebud Sioux Tribal Council discussed the situa- tion. A tribal attorney argued, "The people that are op- erating in Mission . . . refuse to have tribal license[s] and they just snub their noses at us." The council voted unanimously "that BIA be requested to take whatever action necessary to insure that the tribal liquor Ordi- nance as posted in the Federal register is enforce[d] by their people" (Rosebud Sioux Tribal Council 1979). Shortly thereafter the chair of the tribal liquor commis- sion wrote to the BIA superintendent requesting federal intervention to bring the liquor store and other estab- lishments into compliance with the tribal liquor ordi- nance (Liquor Commission 1979). The U.S. attorney, who was a member of the Rosebud Sioux Tribe, filed a complaint against the City of Mission and the Mission Golf Club in 1980 in federal district court, arguing that the city and the golf club were selling alcohol on Rose- bud Reservation without tribal licenses and thus in vio- lation of federal law (United States 1980).~~
The central legal question in the case was the highly abstract one of whether Mission was a "non-Indian com- munity" and thus exempt from federal Indian liquor law and the tribal liquor ordinance. The answer hinged on exactly how "community" was to be defined and on the racial composition of the community in question.29 The
The establishments involved, in addition to the city liquor store, included a bar and a convenience store in Mission and the Mission Golf Club, outside the city limits.
The separate suits against the club and the city filed in 1980 were consolidated by the U.S. District Court as United States v Mission Golf Course and City of Mission.
The United States, on the basis of federal court precedent (United States vMazurie, 419 US 544 [U.S. Supreme Court, 19751, and United States v Morgan, 614 F zd 166 [8th Cir, 1g80]), an- swered the question with two arguments: (I)the City of Mission within its corporate limits is not a community but part of a larger community encompassing the surrounding area (including the Indian housing area of Antelope just to the east), and (2)when this larger community is examined, its essentially Indian character is clear (United States 1982, U.S. District Court 1982). The city ar- gued that it was incorporated under South Dakota law and was legally, administratively, socially, and culturally a distinct non- Indian community, defined by its corporate limits, within the res- ervation. It also charged that extending the jurisdiction of the tribal
BIOLSI Bringing the Law Back In I 551
district court rendered its decision in October 1982 on
the basis of a technical analysis of the legal definition
of "community" and a close reading of the racial compo-
nents of the surrounding areal3' concluding: "The Court
has little difficulty in finding from the evidence . . . that
defendants City of Mission and the Mission Golf Course
are not located within non-Indian communities"
(United States v Mission Golf Course and City of Mis-
sion, 548 F Supp 1177, 1183, [U.S. District Court, 19821).
Thus, both the Mission Liquor Store and the Mission
Golf Course were in Indian country and were not ex-
empt from federal and tribal liquor law, and they were
enjoined by the court from the sale of alcohol except in
conformity with the tribal liquor code.31
Residents of Mission were predictably upset. The
Todd County Tribune editorialized about the loss of
"the right to govern" inherent in the district court's
holding and about tax monies being used by the U.S.
attorney to file a suit on behalf of "some people it serves
against other people it serves" (Todd County Tribune
1982~).The city council retained a new attorney who
advised that an appeal would cost $zo,ooo and would
have only a 50% chance of success. The council never-
theless Soted to pursue the appeal (City of Mission
1982b, C; Todd County Tribune 1982b, c), and the
Eighth Circuit Court of Appeals upheld the district
court's finding without comment (U.S. Court of Appeals
The city applied for a tribal liquor license under pro-
test (Todd County Tribune 1983). While the application
was pending, the city and the tribe negotiated over an
agreement which would have allowed the tribe to share
in the proceeds of the liquor store. In August 1984 the
tribal president and several members of the tribe at-
tended a city council meeting. The tribal president ex-
plained that the tribe had to concern itself with the so-
liquor ordinance over Mission was a violation of equal protection and due process, since non-Indians cannot run for tribal office or vote in tribal elections (City of Mission 1982a, U.S. District Court 1982).
The court rejected the city's contention that the "community" to be examined was the City of Mission itself, defined by its legal boundaries. In every case dealing with the phrase "non-Indian com- munity" in the U.S. Code, the "surrounding territory" was exam- ined, the Supreme Court going so far in the Mazurie case as to examine the area within 20 square miles, disregarding legal bound- aries (United States v Mission Golf Course and City of Mission, 1183). The opinion made a detailed factual analysis (based on the United States's brief and exhibits and the trial testimony) of the proportions of Indian and non-Indian population in Todd County and Mission since 1940, the proportions of businesses owned by Indians and non-Indians in Mission, the Indian proportions of the clienteles of Mission businesses in general and of the liquor store in particular, the racial composition of the city council and the Todd County school board, and other facts.
The opinion also rejected the city's argument that tribal juris- diction over it would violate the rights of equal protection and due process. The opinion questioned whether a city, as opposed to an individual citizen, had standing to raise such a complaint and pointed out that, in any event, the tribal liquor ordinance did not specifically state that non-Indians could not serve on the liquor commission.
cial problems created for it by alcohol and therefore needed a percentage of the liquor store proceeds for alco- hol programs. One of the other tribal members attending "explained in his opinion that by selling alcohol the City provides the vehicle to alcoholism and it is time they accept responsibility of that vehicle by spreading the profit around for such programs as alcohol treat- ment. He stated that too much money has been made on the misery of people and that the tribe inherits the problems of alcoholism." The tribal president suggested a 50% cut for the tribe from the liquor store's net profit (City of Mission 1984). The city rejected this idea, and the tribal council unanimously adopted a motion stating that the "Rosebud Sioux Tribe is of the opinion that no sale of alcoholic beverages should be permitted on the Rosebud Indian Reservation" (Rosebud Sioux Tribal Council 1984a, Todd County Tribune 1984~).
In September the tribal liquor commission held a hearing on license applications. It lasted three hours and was attended by 140 persons. Several tribal members testified against the sale of liquor on the reservation in principle. Others spoke specifically about Mission (Li- quor Commission 1984~):
One only has to look at the special education classes on the reservation to see that they are filled with children who have been harmed psychologically, physically, mentally, and emotionally as alcoholic fe- tal babies. This is Indian country. The Indian people are trying to deal with the problem of alcohol but are no[t] being allowed to do that. There needs to be many, many thousands of dollars put into the com- munity to rehabilitate alcoholics and the problems that they have caused. We need family counseling, houses for Indians, halfway houses, senior citizens' center, and other services to provide for Indian peo- ple. The non-Indians are not interested in working with the Tribe or the Indian people. . . . In short, u . . . we need to save human beings, not lights, streets, or other things that the City of Mission uses as an ex- cuse to sell liquor and kill Indian people.
The city was denied a liquor license. The tribal liquor commissioners cited the public hearings on the license and the Rosebud Sioux Tribal Council resolution op- posed to the sale of alcohol on the reservation. The cen- tral consideration in the denial was the "rampant alco- holism among Indian people" (Liquor Commission 1984b).~~
The liquor store remained open, however, and the Rosebud Sioux Tribal Council unanimously moved "that the Chairman, and the [BIA] Supt., get together on the phone with the Tribal Attorney and the U.S. Attor- ney and effect the closing of the Mission Liquor Store and the Golf Club immediately" (Rosebud Sioux Tribal
32. The city council voted to appeal the decision in the Rosebud Sioux Tribal Court (Todd County Tribune 1984~) but was told by its attorney, "I am not spending a great deal of time in preparing legal citations and the like sinc: I believe each one of us knows the outcome of this matter" (City Attorney 1984b). Indeed, the city lost the case in tribal court (Rosebud Sioux Tribal Court 1984-85).
Council I984b). The BIA had already contacted the U.S. attorney in Sioux Falls to ask if arrests should be made for the illegal sale of alcohol (City Attorney 1984a). The mayor "commented . . . that he would not submit to the tribal authority but would [only] comply with a U.S. Marshal closing the liquor store" (Todd County Tribune 1g84b). After the mayor had spoken with the U.S. attorney, Mission finally closed its liquor store (Todd County Tribune 1984~).
Legal Rights and Political Struggle
The question I have posed here is how the struggles over legal rights described above structure and locate the po- litical fronts of the Lakota people in their pursuit of jus- tice. There are two connected ways in which federal In- dian law has shaped (and constrained) political space for Native Americans, their allies, and their opponents. One way is by defining what particular social relations are most immediately experienced as actionable injustice and therefore receive political attention and serve as the focus of struggle. This hegemonic process is here called the "specificity of rights struggle." The other, closely linked way in which law shapes political space is by siting struggle between particular (legally constituted) classes of interested parties in particular and determi- nate places within the social formation. This process is here called the "geography of rights struggle." Both of these linked subpolitical processes are responsible for producing and reproducing particular political fronts in Indian-white conflict.
THE SPECIFICITY OF RIGHTS STRUGGLE
It was Native American activists-including AIM mem- bers and their attorneys-and media coverage of activ- ism that first brought the new, nationalist concept of sovereignty forcefully to Lakota reservations in the 1970s (see Burnette and Koster 1973, Deloria 1985). Sov- ereignty has since become a critical political issue for the tribal governments and a household word among La- kota people.33 Minimally it refers to special jurisdic- tional arrangements: tribal members' exemption from state law on the reservation and the right of the tribal government to regulate the conduct of non-Indians on the re~ervation.~~
While jurisdiction was a concern and
Both the English term and the concept of sovereignty entered Lakota discourse through tribal officials, local activists, lawyers, and local media coverage of and widespread interest in celebrated court cases in the 1970s and 1980s. One elderly Lakota man, with recognized knowledge of treaty rights, who hosted a Lakotalanguage program on the local radio station (KINI, St. Francis, S.D., and Crookston, Nebr.) until 1992, told me that since there is no Lakota word for sovereignty, he would simply use the English word when discussing the matter in Lakota on the radio. The concepts of sovereignty and independent nation are, he told me, "a recent thing."
Depending on whom one asks, sovereignty also refers to more (culturally) nationalist and "radical" imagined communities.
even a target of political mobilization among Lakota people before the 1970s (see Clow 1981)~ it was the con- cept of sovereignty that crystallized political struggle and focused it squarely on jurisdiction. The jurisdic- tional question has become the central political front in the struggle for empowerment by Lakota people of all political stripes: "activists," "traditionalists," tribal of- ficials, and just plain folks. Sovereignty is recurrently invoked in meetings and in political campaigns, and it always implies the background notion of ongoing strug- gle against injustice and the (non-Indian) forces opposed to Lakota sovereignty-much as the concept of "democ- racy" in the wider society implies the background no- tion of constant vigilance against antidemocratic forces. In 1991 I asked a self-conscious Lakota activist about the "biggest issues" in Indian-white relations. She an- swered, "In South Dakota? . . . We're continuously in battle against the state for jurisdiction issues, sovereignty. . . .they just won't acknowledge that we're sover- eign." Sovereignty, understood as the right to govern res- ident non-Indians and the right to be free from state
jurisdiction on the reservation, is so much a front in the struggle for empowerment that the mere presence of the Todd or City of Mission government-subdivisions of the state government-is seen as "an outpost for encroachment upon tribal sovereignty." It should therefore not be at all surprising that the high- way jurisdiction case and the liquor store case-both cases over jurisdiction-were not just lawsuits but pop- ular political struggles for the Lakota people of Rosebud ~esebation. -~
But indigenous sovereignty is not simply invented by Lakota people and pressed as a claim in a court, which then more or less comes to terms with the claim as pressed. Sovereignty is a more complex claim, implicat- ing not only indigenous resistance but also the presence of the nation-state's legal apparatus. Although it is clearly in part generated out of the grassroots struggles for empowerment of Lakota people and their allies and represents authentic Lakota agendas, sovereignty is also linked in multiple ways to the state. Sovereignty, after all, is a reading of legal texts, and the practical political effectiveness of the claim of sovereignty, its usefulness for Lakota people, derives ultimately from its admissi- bility in legal contexts. In short, the rights of sovereignty are as much produced by the state legal apparatus (the courts and legislatures-law's "empire" or, perhaps more accurate, empire's law) as they are claimed by La- kota people. Not surprisingly, what rights turn out to be produced and claimable are quite specific. In the history summarized above, the rights involved were tribal mem- bers' rights not to be subjected to state jurisdiction within Indian country and the tribal government's right to regulate liquor sales (and perhaps other non-Indian activities) in Indian country. Both of these rights are al- lowed to tribes and tribal members in federal statute and case law and are claimed by Lakota people as inherent
35. Todd County was organized under state law in 1982
rights (even if from the Lakota point of view they do not
exhaust the vision of sovereignty).
The rights of sovereignty are extremely particular,
sometimes even merely "technical" rights when consid-
ered against the background of the social reality faced
by Lakota people. These rights offer only narrow protec-
tions, around which escape egregious forms of oppres-
sion-forms of oppression that are directly linked to the
positioning of the Lakota people in the history of the
larger social formation. In other words, the political
front does not seem to have been determined by the
social reality of the Lakota situation. The site of struggle
might have been somewhere else were it not for the
regulating power of law. There is a great deal of slippage
between the totality of Lakota disempowerment and the
remedies sought in Lakota political action as orches-
trated by legal entitlements. If we were to take what has
been called a "victim perspective" (Freeman 198x98) on
the situation of the Lakota, a perspective that starts with
the concrete social situation of the subaltern and not
with the violation of specific legal rights as defined in
law, we would need to start with the historical and
structural origins of the disempowerment of the Lakota
people. The disempowerment of the Lakota and other
Native American ~eo~les
is not a historical accident or the product of indhiiual acts of "discrimination" or in- dividual violations of Indian rights but rather the result of systemic social processes. These processes include the historic expropriation and political colonization (en- tailing racialist discourses of wardship [see Biolsi I99s]) of reservation Native Americans, the transfer of surplus from "satellite" to "metropolis," the effects of the capi- tal-intensification of agriculture in displacing labor and disrupting community in rural hinterlands, the inability of the capitalist mode of production to generate full em- ployment and the associated reproduction of a "reserve army" of labor, and the accelerating tendency of capi- tal-particularly in its "late" form-to be increasingly unattached to place (witness the proliferation of multi- national corporations) and the resulting differentiation of the fortunes of human communities across space (see Albers 1982; Jorgensen 1971, 1972, 1978; Moore 1993; Ruffing 1979; Sider 1993; Stanley 1978; Weiss 1984).
Not surprisingly, in this context, the Lakota people face a serious public health crisis in the form of perva- sive alcoholism and an alarming incidence of fetal alco- hol syndrome (FAS). According to a 1983 tribal resolu- tion (in the midst of the Mission Liquor Store suit), 67% of the tribal population were "alcohol abusers" and 27% were "chronic alcoholics" (Rosebud Sioux Tribal Coun- cil 1983). One of the tribe's motives for pursuing the liquor store case was the desire to do something about alcoholism and FAS on the reservation. As we have seen, witnesses brought up the devastating effects of alcohol when they testified at the liquor commission hearings. When the liquor store was finally closed, however, the effect on the alcohol crisis was insignificant. Off-reservation stores and reservation bootleggers easily met the demand. In fact, the mayor of Mission himself was arrested for bootlegging a few months later (Todd
BIOLSI Bringing the Law Back In 1 553
County Tribune 198s~). In 1986, more than a year after
the store was closed, the tribal council still identified
alcohol abuse as "the number one health problem" on
the reservation (Rosebud Sioux Tribal Council 1986~).
The point is that being free from alcoholism is not a
right Indian people have been allowed by the law-
alcoholism is "nonactionable experience" (MacKinnon
1982:70s)-and it is therefore not a right they could
press in court or realistically demand in any political
forum. While alcoholism is a substantive problem faced
by Lakota people and something they are in fact socially
mobilized about,36 it is not definable as a political prob-
lem within the prevailing universe of discourse on social
justice for Native Americans; it is not definable as a
problem of injustice about which the federal govern-
ment or the larger society has a responsibility to do
something. Alcoholism is a site of personal and even
social struggle but not of political strugglee3' The liquor
store case was the closest the Lakota people of Rosebud
Reservation came to politicizing alcoholism, but the po-
litical struggle ended with the assertion of tribal juris-
diction over the Mission Liauor Store.
To engage in a bit of co;nterfactual history, let us
imagine that in addition to the right of sovereignty-
understood narrowly as technical jurisdictional arrange-
ments-Lakota people also had the right to be free from
This right could be based on the recogni-
tion that alcoholism and other addictions or dependen-
are closely connected to class and racial situation in a class- and race-stratified societv and are therefore inherently social problems requiring social solutions, that is, that the wider social order is inescapably impli- cated in Indian alcoholi~m.~~
Put differently and more bluntly, the disempowerment of Native Americans in all its concrete manifestations is structurally and histor- ically-that is, directly-linked to white privilege. Un- der this thinking, the prevalence of alcoholism on the reservation would enter into the way people-Indian and non-Indian-pursue justice and fight injustice, and people could reasonably demand that the wider society take the necessary steps and expend the necessary re- sources to address the problem. The response might not be predictable, but at least the (political) argument
Alcoholics Anonymous meetings and sobriety dances and walks are common on Rosebud Reservation, discourses on alcohol problems often emerge in traditional Lakota and Christian reli- gious contexts, and Sinte Gleska University, a tribal institution on the reservation, and its students are outspoken proponents of sobriety.
Thus, in Aberle's (1992) terminology for social movements, Lakota mobilization over alcohol takes the form of redemptive movements focused on the individual, not transformative movements focused on more "totalizing" targets such as the social sys- tem.
In fairness to Lakota political visions, it is clear that when Lakota people imagine a sovereign community, they do imagine a nation free from poverty and its effects.
Sugar and the English working class come to mind here also (Mintz 1986).
On the connections between alcoholism and colonial or racial oppression, see Dozier 1984 (1966) and Singer et al. (1992).
would be admissible in the universe of ~olitical dis-
course. Alcoholism would be a political front.
But freedom from poverty, systemic racial inequality, and alcoholism are not rights Lakota people have been allowed in law and thus are not claimable rights in the practical political action of Lakota people or their allies. And it is unlikely that Indian people would ever be al- lowed such rights in law even if they came to claim and fight for them because of the counterhegemonic impli- cations this would have for the reproduction of the so- cial formation. If Indian people have a right to be free from poverty, racial oppression, and chemical colonial- ism, then do not inner-city African-Americans also have that right? The implications of trying to answer that disquieting question would be disruptive of the social order, to say the least, because seriously addressing such imaginable universal "rights" would necessarily call into question the basic cultural presuppositions under- girding, and thus the "legitimacy" of, the social rela- tions of capitalism itself-in a phrase, the liberal prem- ise of radically formal equality. Recognizing that poverty and affluence in general are historically and structurally linked-that is, that the affluence of some depends upon the disempowerment of others-would be profoundly radical, and it would be a long way from "civil rights" as they are currently-perhaps necessarily, if capitalism is to survive in its present form-conceived. "Sovereignty" can be given to Indian tribes in law because Indians are a "special case" (see Castile 1992, 1993)~ but freedom from poverty, substantive rac- ism, and addiction cannot be allowed by law41 to one group alone without foregrounding profound general contradictions in the social order.
The point is that the kinds of rights the federal Indian law apparatus has given to Indian people or allowed In- dian people to demand are very specific. They involve jurisdictional arrangements and have direct bearing on only some of the modes of oppression that Indian people face on a daily basis. With substitution of a few words, what Freeman says of federal civil rights law is applica- ble to federal Indian law: "As surely as the law has out- lawed racial discrimination, it has affirmed that Black Americans can be without jobs, have their children in all-black, poorly funded schools, have no opportunities for decent housing, and have very little political power, without any violation of antidiscrimination law" (Free- man 1982a; 210).~~
AS surely as Indian tribes are held in law to be sovereign entities with special jurisdictional rights, it is affirmed that Indian people can live in pov- erty and powerlessness without any violation of their
Of course, such freedoms are systematically given to some groups and not others by the operation of the economy, but this (systemic) inequality is (mis)construed as the outcome of personal adequacy or inadequacy and personal luck.
Freeman envisions a substantive justice based on a "victim perspective" which would require "results" in terms of "significant change in the conditions of life that one associates with the past practices of discrimination-segregated schools, lack of jobs, the least desirable jobs, lack of political power" [1982:98).
There is another reason Lakota people are not likely to be given or to demand the right of freedom from pov- erty and its effects. The rights of sovereignty are easily construed-by those who would maintain the status quo, not by most Indian people-as inconsistent with claims to "social justice" within the larger social forma- tion. Claiming sovereignty in a postcolonial context is a matter of imagining and asserting (nationalj political boundaries (see Levin 1993), and the emergence of sover- eign status for (autonomous) indigenous nations must inescapably result in the undermining of "legitimate" claims they can make, legally and politically, as Ameri- can citizens entitled to a concrete piece of the larger American "pie," that is, claims on the social surplus (on the dependence of Rosebud Reservation upon the social surplus, see Biolsi 1993). "Independence" for native nations, as an ideological vision, is politically incompat- ible-again, not from the perspective of native activ- ists-with economic subsidization of tribal -governments and of reservation economies and social programs by the United States. "Foreign aid" and the continuity of support under the rubric of historical "treaty rights" might legitimate some minimal support for reservation economies and tribal programs in the face of an emerg- ing independent-nation status for Native Americans, but the pursuit of sovereignty-as it is orchestrated by the federal Indian law apparatus-clearly has inherent contradictions for the pursuit of a broader empowerment and social justice for and by Native Americans. Non-Indians are, in fact, quite fond of pointing out to Lakota people the incompatibility of tribal sovereignty and federal subsidization. In 1985, for example, the Todd County Tribune (1g8~b) editorialized about conversations with an anonymous Indian "gentleman from Ante- lope" who was
trying to tell people . . . that the Rosebud Sioux Tribe is EITHER a ward of the federal government, subject to federal law and inheritor of the U.S. Gov- ernment's treaty promises of free health, free educa- tion, free welfare, free housing, ad infinitum
-OR it should abrogate its treaties with the U.S. Govern- ment, declare itself a sovereign nation, pass its own laws and levy taxes with an eye toward self suffi- ciency without federal or state monies.
BUT NOT BOTH. To suggest that sovereignty as a political front has limits is decidedly not to say that the successes of the Lakota people in the federal courts are hollow victories or that sovereignty is a wrong-headed political course of action. Far from it. In 1993 I interviewed a Lakota man on Rosebud who had been active in the highway juris- diction case. With the tape recorder running, I asked him why he had been willing to go to jail for contempt of court simply to keep the highway patrol off the reserva- tion. It was easy, I said, to understand in principle why African-Americans might go to jail or even risk injury or death in order to vote, go to a state university, or ride in the front of a bus, but how did preventing state
jurisdiction serve justice for Lakota people? The man asked me to turn off my tape recorder, and then he pro- ceeded to tell me of the fear he and other Lakota people had of non-Indian police officers and of the abuse he had personally experienced at the hands of some of them. In the post-Rodney King period, it is difficult to imagine a more concrete and immediate form of justice than that of providing protection against such personal insecurity for people of color. In addition to fear of police miscon- duct, there is the question of how Lakota people can expect to fare in the state judicial system. In 1985 the South Dakota Supreme Court upheld the decision of a state circuit court in Winner, S.D. (20miles east of Rose- bud Reservation), sentencing a Lakota man to five years in the penitentiary on a finding of his being a habitual offender after he was arrested for entering an unlocked car while intoxicated and stealing and eating a can of beans (377 NW zd 141). In 1988 the state Supreme Court had no choice but to reverse the "~re~osterous"
decision of the same circuit court when it held an 11-year-old Lakota girl guilty of second-degree burglary and found her to be a juvenile delinquent for eating a chocolate Easter egg taken from a store without paying for it (Matter of T./.E., 426 NW zd 23, 26 [South Dakota Supreme Court, 19881)~~~
43. There are other cases of a zealous state judicial system villainiz- ing and punishing Lakota defendants beyond what seems just. In 1958 a member of the Rosebud Sioux Tribe was arrested and charged with third-degree burglary for breaking into a store in Mis- sion: "he was caught in the store by the owner but escaped out the back door taking with him some check blanks which he threw away in the alley behind the store. The Defendant was intoxicated at the time of the commission of this offense." According to the official statement filed by the state's attorney, the defendant's "habits" were "bad," his "reputation" was "irresponsible," and he "[ran] around with men and women of questionable character." The trial was held in the circuit court in Winner, and the judge questioned the defendant as follows:
Q The court informs you that you are entitled to be represented here by counsel. In other words, you are entitled to have a lawyer here to represent you at this time, and the court would give you time to obtain the services of a lawyer if you want one. Do you want a lawyer? A No sir. Q The court further informs you that if you do not have money or property with which to hire a lawyer, the court would appoint a lawyer at public expense to represent you. The court again inquires, do you want a lawyer? A No sir.
Q Have you ever been arrested before?
A Yes sir.
Q How many times?
A Quite a few times.
Q Have you ever been arrested for a felony?
A Yes sir.
Q For what?
A Same thing.
Q How much sentence did you receive at that time?
A Four years.
Q What is your plea, "Guilty" or "Not Guilty"?
BIOLSI Bringing the Law Back In 1 555
In other words, the rights of sovereignty are in fact
"substantive" and enabling. Having them makes a very
concrete, if limited, difference in the daily lives of Indian
people. Because of the exceptional nature of these rights
in the context of the powerful liberal paradigm of formal
equality, and because of the fact that there are powerful
interests and forces arrayed to do away with them, the
rights of sovereignty are always at risk and are always
being challenged, both in the courts and in the legisla-
tures. Thus, it is not because of "false consciousness"
that Lakota people find challenges to sovereignty the
most immediate form of oppression and struggling for
sovereignty the most critical avenue of empowerment.
But the rights of sovereignty-again, as ordered in the
federal Indian law apparatus, not necessarily as envi-
sioned by Lakota people-are self-limiting. Indeed, it is
difficult to imagine why sovereignty would be given
such a legitimate, if contestable, place in American law,
recognized-even if not the way Indian people would
"recognize" it if they were really authorized to-
repeatedly by Congress, the courts, and even presi-
dent~,~~if it were not inherently limiting and deradical
izing, in a word, hegemonic.
It is now widely recognized by scholars interested in
class, race, and gender that while the constitutional
rights of "equal protection" and "private property" pro-
vide certain protections for the subaltern against the
abuse of power, they also make it impossible to allow
concrete differences in class, race, and gender position-
ing in the social formation to be admitted into court.
"Equality before the law" depoliticizes law and de-
classes, de-racializes, and de-genders the legal and politi-
cal fronts of struggle (Balbus 1977; Corrigan and Sayer
1981; Stubbs 1986:86; Thompson 197~).~~
Q What were the circumstances surrounding this burglary?
A I was just intoxicated is all I have to say.
Q You were drunk?
Q What did you take?
A I didn't take very much. I don't know what I took.
. . .
Q How many years did you serve in the penitentiary for the first
A Thirty-four months.
Q You didn't learn much by that, did you?
A It doesn't seem like it.
Q Breaking into buildings is something that society will not
stand for, do you understand that?
A Yes sir.
Q Do you have any reason to show why the court should not
pronounce sentence on you at this time?
A No sir.
Q Anything you want to say to the court on your own behalf?
A No sir.
He was sentenced to 18 months in the penitentiary (Criminal Case 1958).
For example, in March 1992 President Bush affirmed "the right of Indian tribes to exist as sovereign entities" (Indian News 1992:I)
Some scholars have been debating the political effectiveness of rights strategies for minorities (Chase 1984, Crenshaw 1988, Freeman 1988, Gabel 1984, Hunt 1990, Olsen 1984, Scheingold 1974, Schneider 1986, Sparer 1984, Tushnet 1984, Williams 1987).
equality and property rights amount to a "coded denial of experience" [Corrigan and Sayer 1981:33), so does "sovereignty" as constructed in federal Indian law. By the logic of Indian self-determination and autonomous nationhood, the more tribal sovereignty is formally real- ized under federal Indian law, the more difficult it is for Lakota people to make credible legal and political claims regarding the full range of daily forms of oppression they are subjected to.46 TO the extent that tribal sovereignty is achieved as a legal fact and a political arrangement, articulating local problems as connected to larger-ultimately, continental and global-social processes be- comes more difficult. Indeed, the logic of sovereignty threatens to challenge the vision that sees local prob- lems as part of the functioning of a larger social forma- tion.
THE GEOGRAPHY OF RIGHTS STRUGGLE
In his I975 inaugural s~eech~
South Dakota governor Richard Knei~'poke of the problem of Indianmwhiterelations in his state:
Whether it is right or wrong-fair or unfair-the
eyes of the worid are On So'th Dakota and history
seems have chosen us as a testing ground for the
ingenuity of man and his democratic institutions to
resolve a most complex and emotional situation.
How we respond to that test . , , can make South
Dakota a model for the world-or it can make our
name synonymous with intolerance.
To outsiders, South Dakota does seem to have become synonymous with intolerance. There is a pattern in American middle-class discourse-as anyone who has taught college courses on Native Americans can attest- wherein the assignment of guilt for oppression of Indian people is attributed either to the past or to "those" white people living in the vicinity of Indian people. If South Dakota did not exist, it would almost have to be invented to provide middle-class Americans with partic- ular, localized "racists" oppressing ~ndians.~'
During the mid-I 970s~ when civil unrest on South Dakota Indian reservations was making international headlines, the governor received correspondence from out of state re-
My intention is not to question sovereignty as a political strat- egy for Indian people but rather to critique the hegemonic power of the legal apparatus of the nation-state in limiting what sover- eignty is allowed to encompass. Certainly there are very practical and strategic reasons for Native Americans to pursue concrete ju- risdictional rights rather than more abstract "social justice," not the least of which is the importance of special jurisdictional ar- rangements in facilitating the development and tribal control of energy and water resources and gaming industries in reservation economies.
My point is not that Lakota people are not subjected to racism or that whites do not benefit from this oppression but rather that there is no reason to believe that there is a higher concentration of racists (understood as white individuals with racial prejudices against people of color) in South Dakota than there is in any other place in the country and that the racism experienced by Lakota people goes beyond the acts of individuals with prejudices.
garding the state's treatment of Native Americans. Here are some examples:
I sincerely hope that you can forego any "political" crap and find it in your heart to try to help these peo- ple that have been inhumanely treated and subjected to treatment that I am afraid and ashamed of.
. . . The time is closely approaching where the In- dians, as a people, I fear will be morally right in their civil disobedience against the practices of your state.
. . . I do feel strongly about this Governor. So much so that I have decided to cancel my vacation in South Dakota. . . . I cannot "enjoy" myself in an atmosphere that is contrary to Christian values and humanitarian justice. [Indiana Catholic Priest 19741
Why have they [Native Americans in your state] been neglected? Their lands were taken from them and now they are in poverty. They deserve better treatment then they are receiving. what are you as Governor doing to relieve these poverty peaple? May God forgive you. IVirginia Correspondent
Even California Governor Jerry Brown criticized South Dakota race relations when he refused to extradite Den- nis Banks to South Dakota for trial because of there against the American Indian Movement (AIM) and its leaders,, 1987).
This outlook on the part of non-Indians outside of South Dakota-and even in eastern South Dakota to- ward whites "West River" [west of the Missouri and near the reservations)-is not inconsistent with the way in which Lakota people see the situation. Lakota activ- ists commonly describe their struggle as one against lo- cal South Dakotans or those in state government who oppose tribal sovereignty, and they often see non-Indians from outside South Dakota-or from eastern South Da- kota-as potential allies, fellow travelers, or, at least, resources.48 This is, of course, not merely a mystified representation of guilt and innocence but the concrete effect of a configuration of opposed political interests made inevitable by the nature of jurisdictional disputes. The governor's response (1974) to the Indiana priest is instructive:
We have racial intolerance in South Dakota as you do in Indiana and everywhere else in the world where peoples of differing races live together. . . .
[But, o]ur problem in South Dakota is . . . complicated by a very complex legal situation involving
48. It is not uncommon to hear Lakota people refer to South Dakota as a "redneck state" or as the "Mississippi of the North." There is also an old joke from Rosebud about "a Sioux Indian who died and went straight to heaven, where he knocked on the gates":
St. Peter: who's there?
Sioux: a Sioux Indian from Rosebud.
St. Peter: come right on in-you've had enough hell in South
Dakota. [Rosebud Sioux Herald 19641
treaty rights, reservation boundarie~,~~
responsibilities and rights of citizenship and other forms of juris- diction.
What the governor is trying to explain is that Indian- white conflict in South Dakota is ultimately driven by federal Indian law which defines jurisdiction as the pri- mary terrain on which justice may be pursued for Native Americans. Jurisdictional disputes are inevitable given the anomalous nature of Native American rights in the larger empire of formal legal equality; Indian jurisdic- tional rights are thus bound to generate unending litiga- tion, the outcome of which will always be unpredictable and will often depend upon an essentially arbitrary and technical judicial answer to a highly abstract legal ques- tion (such as whether South Dakota legally had highway jurisdiction even though its Supreme Court had said it did not and whether the City of Mission was a "non- Indian community"). Jurisdictional disputes are also al- ways zero-sum local games, in which the gains of Indian people can only be at the expense of their local non- Indian neighbors and vice versa. Congress, after all, did (and does) make "two promises" in places like South Dakota, one to Indian people to protect tribal sovereignty and one-perhaps implicit but nonetheless real-to non-Indians that tribes would disappear or at least not claim territorial governing authority over non- Indian homesteaders and their descendants (Furber I99I). These conflicting politico-legal "promises" directly underwrite two opposed interests, and a better legal mechanism for structurally generating ongoing lo- cal "racial tension"50 would be difficult to design.
One of the outcomes of the local Indian-white politi- cal struggle generated out of federal Indian law is that alternative social configurations of alliance and struggle are ruled out of court, as it were. There are many com- monalities between Indians and whites in places like Todd County, commonalities that could conceivably be much more compelling than the assumed differences be- tween them. Indian and white people are coparticipants in rural economies marginalized by a global capitalism that disadvantages both "races" on a regional basis (see, for example, Biolsi 1993; Jorgensen 1971, 1972; Hoover 1988; Klein 1993; Sider 1993). While Indian-white differ- ences are a potential separator, class situation is a poten- tially strong unifier: in Todd County in 1989, while per capita income was $IO,ISO for whites compared with
At the time South Dakota was involved in a series of lawsuits in federal courts concerning reservation boundaries (Condon v Erickson, 459 F zd 663 18th Cir, 19721, DeCoteau v District County Court, 420 US 425 119751, Feather v Erickson, 489 F zd 99 18th Cir, 19741, Rosebud Sioux Tribe v Kneip, 375 F Supp 1065 [U.S. District Court for South Dakota, 19741). In one case, 22 members of the tribe were released from the state penitentiary when it was deter- mined that their alleged crimes had taken place in Indian country, where the state had no criminal jurisdiction over Indians [Feather v Erickson, 1065; Task Force Attorney 1974).
The quotation marks here are intended to highlight the fact that Indian-white conflict is driven not by "racial bigotry" but by opposed politico-legal claims.
BIOLSI Bringing the Law Back In 1 557
$4,005 for Indians, 19% of the white households had incomes below $~o,ooo (U.S. Department of Commerce 1992). Certainly these poor white rural families must have a great deal in common with poor Lakota families. Is it not appropriate for anthropologists to wonder aloud why Indian and non-Indian people in "satellite" regions like South Dakota do not seriously entertain what they have in common against ~owerful interests in other places (or maybe even locally)? Indeed, it is surprising that this has not happened. In 1924 the non-Indian editor of the Todd County Tribune wrote that the governor "is well within the facts when he declares that the East does not feel any common interests with the West and that the tendency of all laws passed by Congress in the past has been 'to create a more prosperous East at the expense of the agricultural West.'" "Here in South Dakota," the editor went on, "farmers, bankers, merchants, in short- all, are feeling the effects of the financial stringency. The East is rolling in prosperity and wealth! . . . Fifty years of careful legislation has brought this about" (Todd County Tribune 1924~). Practically paraphrasing the notion of colonial surplus extraction, the editor wrote: "I don't pretend to be a shark at financial matters, but I have heard men say that if the money sent East to buy automobiles and coal had been paid to manufactur- ers and miners within our own and sister states hard cash wouldn't be so scarce here" (Todd County Tribune 192421). One would think that this kind of regionally based populist thinking would call into question the po- litical boundary between Indians and whites in South ~akota.~~
Yet the Indian-white boundary is alive and well on Rosebud Reservation. No one ever forgets that the boundary is there, and, although Indians and non-Indians are often friends, lovers, spouses, co-workers, classmates, teammates, fellow parishioners, and mem- bers of the same political party (all of this to a much greater extent than would ever be found in American black-white interaction), there is widespread recogni- tion that "the Indian" and "the white man" are distinct and have different, even opposed, interests. This is true even in cases where there are no apparent cultural or linguistic differences between the individuals involved. There are many variations of discourse on the social boundary, both among Indians and among non-Indians, but no one I have spoken with believes that the bound- ary is insignificant or will soon disappear.
The geography of struggle orchestrated by federal In- dian law has consequences not only for people in South Dakota but also ultimately for ideological formations in
51. This is not by any means to suggest that all Indian and non- Indian people in "satellized" regions have the same class position or the same political-economic interests or that some whites are not advantaged relative to most Indians and may not ultimately depend upon the oppression of Indians. The use of Mission Liquor Store revenue from Indian customers to underwrite a tax break for white city residents is a case in point. Nevertheless, many white people in Mission, Todd County, and South Dakota have much in common with many Lakota people in terms of economic oppres- sion.
American society, as is clear from the statements of whites outside South Dakota noted above. This is not unlike the "perpetrator perspective" in antidiscrimina- tion law, which identifies racism as the "action of indi- viduals" (Freeman I 98221: 99):
The perpetrator perspective, which is the principal model of contemporary of antidiscrimination law, as- sumes that apart from the misguided conduct of par- ticular actors the rest of society is working. . . . All we need to do is root out the villains. Having done so, we can say with confidence that it was all their fault. A corollary of this fault notion is that those who . . . are not labeled perpetrators have every rea- son to believe in their own innocence and their sepa- ration from the problem. If one is not a perpetrator, one must be just an innocent societal bystander. And why should one be called to account or impli- cated at all in the business of eradicating the past?
During the 1970s the South Dakota governor was con- vinced that South Dakota whites are no more or less racist and are ultimately no more or less responsible for the oppression of South Dakota Indian people than are white people living in other states, far from South Da- kota reservations. But federal Indian law and the politi- cal struggles it calls into being and contains allow non- South Dakotans to draw a bright line in their historical imagination between themselves and the guilty par- ties-"rednecksH-in rural South Dakota.
I have argued that federal Indian law has a critical role in constructing and shaping political struggle between Lakota and non-Indian people on Rosebud Reservation. This argument would apply to a greater or lesser extent to other reservations in the United States. Federal law has this effect through its active constitution of Indian and (non-Indian) political subjects-with particular in- herent tensions and contradictions-by the allocation of rights in law. It is through this constitution of legal subjectivity (with specific legal entitlements and associ- ated threats to those entitlements) that the law regulates the political fronts in Indian struggles for empowerment. These struggles have a specific content (involv- ing some demands and not others), shaped by a process here called the specificity of rights struggle, and a spe- cific locus (involving some opponents and not others), shaped by a process here called the geography of rights struggle. While federal Indian law has been a decidedly effective instrumentality for the empowerment (and dis- empowerment) of Native Americans, it has also limited and constrained the lines along which empowerment within the larger social formation has been allowed to advance.
In other words, I have shown that law is one of the fundamental modes through which the state rules and hegemony is established in civil society. The "law" that is meant here is not the "armed soldiery, guns, cannon,
policemen, ball and chain, jails and guards and all the cruel equipment of war that has come out of the night of life" (Standing Bear 1978 :1z6)-although the Lakota have seen enough of that side of law-but rather a "coded denial of experience." The state, as Corrigan and Sayer remind us, states; in fact, it "never stops talk- ing" in a language that "regulate[s], in empirically speci- fiable ways, much-very much, by the twentieth cen- tury-of social life" (Corrigan and Sayer 1985:3). And the law, as it has been described here, is that language of control. It is a resource for direct empowerment and disempowerment, but it is also a structured and orches- trated field of powerfully contained struggle, a field that mediates-and displaces-the contradictions of the so- cial totality. The law establishes rights games with rules and boundaries that are difficult to get around. Because winning the game pays off, even if in limited ways, and because losing the game can be costly, the subaltern have good material reasons to stay in the game and to play it with all their will. The power of law to orches- trate, mediate, and contain struggle should not be under- estimated. During the incident at Wounded Knee, on Pine Ridge Reservation, the Oglala Lakota and AIM ac- tivist Russell Means (quoted in Akwesasne Notes I974: 136)) identified as one of the "extremists" by the FBI (see Churchill and Vander Wall I 988; Matthiessen 1991), had this to say:
We haven't demanded any radical changes here, only
that the United States government live up to its
own laws. It is precedent-setting that a group of "rad-
icals," who in the minds of some are acting outside
the law, are just in turn asking the law to live up to
its own. We're not asking for any radical changes.
We're just asking for the law to be equitably ap-
Indeed, since what AIM was demanding was readable in the laws written by Congress and interpreted by the fed- eral courts, in a real sense it was not radical, or at least it was a (legally) contained radicali~m.~~
So, to bring the law back in is not merely to include something we happen to have ignored, to fill a "gap," simply to describe the social totality in a more empiri- cally "complete" form. The point is rather that law has a fundamental role in the dynamic constitution of soci- ety-in generating social tensions, laying out spaces for social identities, and orchestrating political struggles over rights. The political is always, at least in part, also legal. Without bringing the law back into our analysis of modern social life and power relations we will mis- construe what we look at as anthropologists in profound ways. If it is never possible for the individual political subject in modern civil society to escape the operation of the state in the form of the law and its obligatory categories and "rights," we should not allow law to es-
52. Perhaps it is not so much that the AIM reading of the treaties was not radical but that the reading became judicially "deradica- lized" as it was channeled through the federal Indian law apparatus (on judicial deradicalization, see Klare 1978).
B I OLSI Bringing the Law Back In I 559
cape the anthropological grasp. If law is a central consti- tuting axis of social life, its categories and contradic- tions should be a central constituent concern of our discipline. A concern with law should be always already at the core of anthropology, just as law is always already present in social life. One of the most crucial promises of anthropology since the late 1960s has been that of an insight into power and inequality. Bringing the law back into our analysis will help us to speak to power relations in insightful ways that make a difference.
Department of Anthropology, University of Alberta,
Edmonton, Alberta, Canada T6G zH4. 15 IV 95
I am glad to see an article that illustrates the centrality to anthropology of the study of law. Here I will focus on certain of Biolsi's findings and warn against generalizing from a single case. By reexamining the use of sovereignty discourse and the relationship between legal dis- course and cleavages within a society in the light of comparative information, I hope to underline Biolsi's point that in analyzing law as a system creating social meaning it is important to have reference to specific local contexts.
As Biolsi describes it, Lakota sovereignty discourse is encapsulated within the American legal system. This may be the case among Lakota, perhaps because their discourse begins by conceding ultimate sovereignty to the United States and relies on the legitimacy of Ameri- can federal law for its framing. It is not the case, how- ever, every time sovereignty discourse is used by indige- nous peoples. Often, as for example among many First Nations in Canada, it is used to contest the right of the nation-state to legitimate underlying title and jurisdic- tion. Here sovereignty discourse arises not from the state but from a source not referenced to it (such as a gift from the Creator). Since it does not begin by assuming assimilation into the country's legal regime, it repre- sents an opportunity to resist encapsulation.
Biolsi asserts that the legal system is important be- cause it separates those who might otherwise form a class alliance. While this may be appropriate for Lakota, it is often colonialism and not class that is central to the construction of social cleavages. Nation-states such as Canada and the United States legitimate their sover- eignty by legal theories that rely on the presumption either that the rights of the colonists, as culturally or racially superior, supersede those of the indigenous pop- ulation or that conquest is justified when it is the result of a colonial war against indigenous people (Asch 1993~).Despite formal separation from a "mother coun- try," they cling to a legal hegemony based upon the pre- sumably self-evident superiority of a system derived from the history and culture of the colonizing power-a
system constructed by the colonizers according to their
rules and their genius. Understanding the legal system,
then, may make it apparent that it is the gulf between
colonizer and colonized and not class interests that
shapes the identification of potential allies.
But what is the class position of indigenous people,
and how is it linked to the legal system? Biolsi suggests
that it is appropriate to use a dollar figure for income to
identify class position for Lakota and non-Lakota alike.
However, it is not necessarily appropriate in the case of
some northern Dene hunter-trappers, who may earn a
cash income that falls below the Canadian average but
as successful primary producers are content materially
because a main source of nourishment, both culturally
and physically, derives from bush products. Indeed, from
this point of view the natural class ally of the indigenous
hunter is the small farmer or rancher. The problem is
that these parties are often at odds over how to make
use of the same land for primary production. Typically
this conflict has been resolved through recourse to a le-
gal regime constructed for the benefit of one party alone
and used from the outset to ensure the expropriation of
the other party's right to use that land. Sometimes an
analysis of the logic of the legal system can reveal that
a hegemonic division of power between colonizer and
colonized may be at least as central to the economic
logic of the country or region as that which may also
exist between classes.
In sum, Biolsi's argument would have been strength- ened greatly had he introduced comparative information to illuminate the transformative potential of a critique of law based on the sovereignty discourse and on the role an examination of the history of colonialist law could play in furthering an understanding of class rela- tions.
VIOLA A. BURNETTE
1963 Centennial Drive, Louisville, Colo. 80027, U.S.A.
I4 IV 95
Biolsi suggests that law-specifically, federal Indian law-shapes political "fronts" for the Lakota people. He mentions in passing that the Lakota have a different view of the sovereignty they have been allowed by fed- eral Indian law. I would like to suggest that the Lakota view follows natural law and that a return of the people to a more traditional outlook is possible and likely.
For the Lakota, rules of "law" were only a part of the fabric of society. Spirituality, society, government, and dispute resolution were all interwoven, inseparable one from the other. Rules had no meaning in and of them- selves, and their value lay only in their contribution to the survival of the nation (oyate).Law did not exist sim- ply to ensure compliance of the people or to bolster the power of the leadership as it does in the dominant soci- ety today.
In Lakota society all persons were equal in every re- spect. Each person was entitled to the necessities of life, personal respect, and a place in society. Each person was equally responsible for his or her family and for the well- being of the tribe as a whole. The survival of each indi- vidual was directly linked to the survival of the tribe. The only "law" was the rules that regulated familial and tribal relationships and promoted the survival of all.
The apparent destruction of Lakota society occurred not with the subjugation of the people but with the pro- hibition of the practice of the traditional religion and the concurrent loss of accepted lifeways. The physical subjection of the people was followed by the imposition of written legal standards, including a specific form of government. This government protected the power of certain people over others, in direct opposition to the traditional way of regulating behavior. The Lakota did not understand the relationship between hierarchy and power. Oppression of and by governments, federal, state, and tribal, is pervasive on the reservation, and Lakota people are by habit in continual struggle against it. They are sensitive to the fact that the boundaries of the reser- vation are physical features that contain within them the intangible bonds of the Lakota. These days it is com- mon to hear discussions about the return to traditional ways of governing.
With the inception of the American Indian Movement in the '60s~ Lakota people began to transcend the condi- tion of total oppression that had ruled their lives since they first had to make the choice between obeying the white man and not eating. They are slowly trying to ascertain whether the danger is still present, and sover- eignty is their shield. It gives them the opportunity to stop the oppressor at the borders of the reservation. It is true that ideas about tribal sovereignty have come from the dominant society through litigation. Because of their oppression, only the generosity of the oppressor would allow such ideas to flourish among the Lalzota. The La- kota have been quick to accept the idea, and being recog- nized as a sovereign nation has encouraged the revital- ization of the Lakota way of life.
Some Lakota tribes have refused to pass laws allowing a tribal member to be extradited by any state court to protect members against what is seen as an antagonistic and unjust government. Protection of tribal members extends to protection against "unjust" repossession of goods bought on installments. Some tribes are beginning to realize that such protection may be preventing busi- ness exchanges between members and outsiders and that laws invoking such protection must necessarily be lim- ited. However, the tension between the need to protect and businesses' need to protect their interests is still being tested in Indian country.
Biolsi would have us believe that federal Indian law has empowered Indian people and added to their strengths. If there is any "empowerment" of Indian peo- ple inherent in white man's law, it has only been to replace a modicum of the power that was lost to the oppressor. Moreover, what Biolsi terms Indian law's "pursuit of justice for Indian people" has all too often resulted in the loss of land and other vestiges of power. He neglects to mention that the Dawes Act divided up the Great Sioux Nation into allotments which were then assigned to heads of households. Once all the as- signments had been made to Lakota families, it was 'ldi~c~~ered"
that there were more allotments than fam- ilies. The unassigned land was declared "surplus" and opened up for settlement by homesteaders. The Lakota lost 68 million acres of land in this particular quest for justice. Such pursuits have always been to the advantage of the oppressor. The Lakota wrap themselves in the cloak of sovereignty to prevent further loss of power and to create an environment of acceptance and growth for the Lakota way of life.
VINE DELORIA JR.
Department of History, University of Colorado,
Boulder, Colo. 80301, U.S.A.5 IV 95
"Law" should indeed move to a more prominent place in modern anthropological concerns-but what do we really mean by law?The Indian reliance on treaties and federal statutes reflects a concern with the moral basis of law, an element that has long since been abandoned in American jurisprudence. Thus Indians of all stripes expect federal officials from the president to the local agent to view existing law-and its enforcement-as if it were a personal pledge from one discernible entity to another. Since the American legal system is wholly combative, concerned only with winning cases, a natu- ral area of investigation for anthropologists might be to take another look at custom.
The Sioux and many other tribes referred to their way of governing themselves as wouncage, "our way of doing things," with the corresponding admission that other people had their own ways. The homogeneity of the In- dian nations made this concept feasible. The Indian as- sumption, at least in the early reservation days, was that whites also shared a vast universe of proper behavior that enabled them to govern themselves and become powerful. The combination of church and state as the dominant forces that destroyed the old way of doing things made it seem as if theology always stood in a judgmental posture to ensure the establishment of jus- tice. The Indian focus, therefore, was always on the treaty as both the symbolic document of the relation- ship with whites and the source of protection in an insti- tutional world.
Time has radically changed the manner in which law functions. With each extension of "rights" to identifi- able subgroups of the general citizenry, Americans share fewer and fewer customs and beliefs. The recent Repub- lican upsurge is based upon reviving the old Anglo- Saxon homogeneity which was forced on the white citi- zens of our country. But that commonality, whether forced or not, no longer exists, and when subgroups find themselves locked in combat in either legislature or courts, law becomes a process by which the differences between groups are articulated and emphasized.
In the American experience the development of law is a process whereby unarticulated customs, beliefs that are rarely challenged, are made objective and codified,
BIOLSI Bringing the Law Back In I 561
killing the sense of commonality once enjoyed by every-
one and creating the loopholes in interpretation that
will be used to tear the social fabric further. Alexis de
Tocqueville observed that hardly an issue arises in
American society that people do not believe is capable
of solution by litigation. A glance at federal Indian water
law, tax law, jurisdictional law, almost any subcategory
of federal Indian law that can be named is replete with
codification that only encourages further litigation and
Biolsi's suggestion that new commonalities-the ru
ral poor, etc.-should be studied is a good one. Some
common ground with a new set of principles must be
devised to move beyond the deadlock which he de-
scribes and documents. History has nearly vanished
from law, culture is being torn apart by law, religion
stands outside law for the most part. Without a context
in which law can function, it is a farce and resolves
issues by brute force. We cannot afford to allow this
situation to continue. We must create a new way-our
way-of securing justice that gives satisfaction to our
ROBERT M. HAYDEN
Department of Anthropology, University of
Pittsburgh, Pittsburgh, Pa. 15260, U.S.A. 21 111 95
Biolsi combines a few references to recent work on law and subjectivity with a large number of references to the literature, by now pass6 in academic law, on critical le-
eal studies. The result is an inconsistent article, with much of it reading like a law-review analysis of cases (although disparaging "technical" reasoning in legal de- cision making) tied very loosely to anthropological the- ory to make mutually incompatible arguments appar- ently based on conflicting premises.
The argument that law defines subjectivity in modern societies turns Radcliffe-Brown on his head; but then, Radcliffe-Brown was not writing about modern, state- level societies. It would indeed be interesting to pursue this argument with regard to Native Americans, but to do so profitably would require attention to a number of factors not considered by Biolsi and a level of sophistica- tion in political and social theory that is sadly lacking in this piece.
The most glaring inconsistency and lack of theoretical sophistication is revealed by Biolsi's statement of the question posed by his article as how "struggles over legal rights . . . structure and locate the political fronts of the Lakota people in their pursuit of justice." This question glosses over two problematical issues, one being the identity of "the Lakota people" and the other being the meaning of "justice." According to Biolsi, "the Lakota people" engage in "struggles for empowerment" and have "authentic Lakota agendas," but the identification of this group cannot be unproblematical because Indians and non-Indians are often "lovers" and "spouses" as well as "friends, co-workers, classmates, teammates," and so on. Biolsi asserts that the boundary between Indi-
ans and non-Indians is a consequence of federal Indian law, which rules out "alternative social configurations of alliance and struggle"-this is the meaning of his last substantive section, on "the geography of struggle." But to view matters in this way rules out almost everything that has gone before with regard to "the Lakota people's pursuit of justice." Who are "the Lalzota people," and how do they, and we, know this? Actually, who is viewed as Lakota and who views him- or herself as La- kota may depend on what is involved: claims against the reservation government or the federal government, for affirmative action or other benefits or with regard to a baby given to non-Indians for adoption or in the con- text of a healing ritual or a powwow-the list is poten- tially as close to infinite as the social and legal configu- rations in which the question might be asked. Further, the claim of being Lakota may be rejected by reservation authorities, leading to the possibility of interesting involvement of law as to who has the power to deter- mine tribal status when. The category is thus problem- atical in application.
The simplistic view of the definition of social catego- ries runs into an extraordinary lack of sophistication in political and social theory in the sections of the article that deal with "empowerment" through the recognition of "rights" to "freedom from poverty, systemic racial inequality, and alcoholism." The problem is not simply that "if Indian people have the right to be free from poverty, racial oppression, and chemical colonialism, then do not inner-city African-Americans also have that right?" Instead, the problems are which Indian people and how one ensures such a "right." Essentially, Biolsi demands paternalism, protecting Indians from demon rum, from which they cannot, apparently, protect them- selves-rather a novel view of "empowerment." But which Indians? Do we define those who need protec- tion? Or do we permit Indians to "opt out" of the regime of prohibition? If they do so, are they then opting out of being Lakota, or only rejecting an "authentic" Lakota agenda? Do we permit tribal governments to define who is Indian for this purpose? Do we then enforce a tribal prohibition on the sale of alcohol to Indians outside of tribal jurisdiction? If we do so, can a tribal member as- sert a right to equal protection under the 14th Amend- ment to the U.S. Constitution to gain an injunction against the enforcement of the tribal order off the reser- vation? Can the tribal authorities prohibit consumption of alcohol by non-Indians within 50 miles of the reserva- tion as a necessary and proper means of effecting the right to freedom from alcoholism of the Indian people? Can Biolsi answer this set of questions in a way that is consistent with all parts of his paper, to say nothing of being consistent with any school of political theory?
Clearly, law is central to all these questions, and I can agree with most of Biolsi's last line: "bringing the law back into our analysis will help us to speak to power relations." However, for us to do so "in insightful ways that make a difference" will require much greater so- phistication in the use of theory, both anthropological (e.g., who are the Lakotas, by whose standards, under what circumstances?) and political (e.g., how do we ad- dress social problems by means both legitimate and ef- fective?).
360 Ridge Ave., Evanston, Ill. 60202, U.S.A. 12 IV 95
Biolsi's sophisticated paper contributes both to our un- derstanding of the struggles of the Lakota of Rosebud Reservation and to recent anthropological theory on the nature and practice of power, domination, and resis- tance. "Bringing the law back in" offers a way to under- stand postmodern subjects engaged in struggles for indi- vidual and group identity, autonomy, and rights. It also enables us to frame questions and analyses in new and innovative ways. As Biolsi points out, it is (or should be) impossible to separate the subject from the state.
The Lakota's struggle with South Dakota and the fed- eral government is fraught with the contradictions and paradoxes that characterize legal processes and practices generally. Law is deeply enmeshed in "regulation"; it places subjects in legal categories and then attributes or denies them rights. At its convenience, law freezes the productive process that is central to identity. It denies that "identity" should be thought about "as a 'produc- tion,' which is never complete, always in process, and always constituted within, not outside, representation" (Hall 19go:zzz). At the same time, legal identities and rights are capable of transformation, sometimes with dramatic consequences.
In its regulating effect, of course, law functions as a mechanism of social control, and it does so in ways that are often oppressive. Biolsi demonstrates concretely how the law that applies to the Lakota defines the terms of their political struggle, including what issues and what agents can be involved and even what is meant by "empowerment." Doctrinal struggles with state and federal courts push the Lakota in certain directions but not others. Federal Indian law, for example, defines "what particular social relations are most immediately experienced as actionable injustice," part of the hege- monic process Biolsi calls "the specificity of rights struggle." In this case, the struggle has entailed lawsuits over reservation boundaries, the right to keep state po- lice off reservation roads, and the authority to control who can sell alcohol. The language of legal contest names as "contenders," however, only certain interested parties (local Indians, local non-Indians), exploiting a second hegemonic process that Biolsi calls "the geogra- phy of rights struggle." The geography makes it impossi- ble, for example, to name as defendants "all non-Indian American people." Similarly, it is impossible for the La- kota to frame as a test case such underlying and funda- mental issues as racism, alcoholism, and economic mar- ginalization. In these ways, law contributes to and advances hegemony.
Still, law and legal processes are not only reproduc- tive and oppressive. As several researchers have pointed
out (e.g., Thompson 1975, Hay 1975, Starr and Collier 1989b, Merry 1990, White 1991, Yngvesson 1993, Laza- rus-Black and Hirsch 1994b), struggles by subordinated people in courts involve campaigns against myriad forms of domination. When the Lakota go to court they are "sovereignt1 (even if "sovereignty1' is a cultural pro- duction of the state); state police are kept off reservation roads, and Mission's liquor store is closed. Moreover, the tribe's recent victory in gaining jurisdiction over res- ident whites was "unthinkable" 50 years ago. In addi- tion, although law shapes and constrains political ef- forts, men and women use legal arenas in creative, compelling, and empowering ways that often elude law- makers' intentions. For example, exploring court use as a form of oppositional practice, Susan Hirsch and I found (1994b:11, 12) that
litigants not only deploy legal symbols as opposi- tional resources, they also inventively manipulate context. Legal institutions are important sites for public performances of resistance by individuals and groups. Telling one's story in court, particularly a story of oppression, can be an important act of resis- tance. . . . Recent scholarship on women's responses to subordination demonstrates that resistance is mounted in and through legal institutions, in and through hegemonic legal identities.
Sensitive to state law and issues of class and race, Biolsi leaves us wanting to know more about the meaning and place of the tribal court in the Lakota's political strug- gles both among themselves and with non-Indians and of the ways in which those struggles are informed by gender organization.
Biolsi's account of the Lakotals struggle for identity as a people and a nation not only captures succinctly the complex issues that color meaning and process in Indian and non-Indian legal relations but also maps theo- retically the constituent role of law and the state within civil society. It succeeds in treating law "as a mode of constituting social relations" and the state as a "culture- making process" and demonstrates that law is discre- tionary in its power but rarely discrete.
Concordia University, Montreal, Que., Canada H3G rM8. 18 IV 95
My reaction to this paper may come as a shock to its author. From my standpoint, the data presented on In- dian-white relations on Rosebud Reservation lead to a remarkable validation of the Marxist thesis that society is patterned not by law but, in the last instance, by the interplay between the productive forces and the social relations of production. They also confirm that law is located in the superstructure and that it limits the abil- ity of actors to grasp the deeper level at which their lives are actually determined (for a detailed explanation of this position, see Balibar's  discussion of the pro-
BIOLSI Bringing the Law Back In 1 563
ductive forces within the framework of the distinction
between formal and real subsumption of labour, Legros
[1977, 19791 on economic base, mode of production, and
social formation, and Althusser  on the state and
ideological apparatuses and the constitution of subjects'
worldviews. If the data do validate this approach, then
they seem to be in contradiction with the position Biolsi
takes in his introduction: that of the centrality and the
constitutive role of law in society. Can this inconsis-
tency be resolved? I believe it can if Biolsi makes it clear
that what is being "constituted by law" is not society
but only actors1 subjectivity (in the present case, a sub-
jectivity which is "estranged" from the possibility of
recognizing the actual societal constraints under which
The substantiation of the Marxist approach by Biolsi's work is particularly evident in the section "The Speci- ficity of Rights Struggle." Here Biolsi clearly states that the disempowerment of the Lakota is not, among other things, the product of individual violations of their rights but rather the outcome of their expropriation and political colonization, of the transfer of surplus from "satellite" to "metropolis," and, I underline, of the ef- fects of the capital-intensification of agriculture in dis- placing labour and disrupting rural communities, the in- ability of capitalism to generate full employment, and the contemporary tendency of capital to be unattached to place and the resulting differentiation of the fortunes of communities across space. I insist on the intensification of agriculture because, ultimately, this has to do with the industrialization of the productive forces, which leads to much lower labour costs per unit and, correlatively, sets the market price of the products of small-scale agricultural and craft labour (except for crafts sold as art) below their actual labour costs, eventu- ally leading to the obsolescence of such production and of the people trapped in it (again, see Balibar 1970). If this is so, then, in this part of the paper the society is constituted not by law but rather by the constraints resulting: from the combination of the dominant indus- trial provductive forces with the dominant capitalist rela- tions of production. The same section presents the social effects of the legal sphere in a manner as consistent with Marxism as the above position on ultimate determi- nants. Lakota's struggles are portrayed as almost entirely focused on legal rights and on native sovereignty
as defined and circumscribed bv the state and the courts, with the result that "the [Lative] political front does not seem to have been determined by the social reality of the Lakota situation" and "the site of struggle might have been somewhere else were it not for the regulating power of law." In other words, the focus on law and existing legal rights steers Lakota subjectivity toward misperception of the source of their actual diffi- culties. That such a misperception in fact occurs is fur- ther evidenced by the structure of Biolsi's own discourse. Under the revealing: rubric "counterfactual historv." it is
he who has to imaiine for readers what type of struggle would better match the Lakota's situation.
Now, in what ways does this contradict Biolsi's initial position on the status of the legal realm in society? In the beginning of the introduction we are told that law plays a "critical role . . . in the very constitution of soci- ety, that is, in instituting the historically particular grounding preconditions for social life. . . . Law-the 'voice' of the state-is not just a negative constraint on action, an instrument of domination manipulated by the ruling class, an empty ideological mystification, or an epiphenomena1 part of the 'superstructure.' "Obviously, these statements are incongruent with the idea that the actual Lakota social situation is "rather" the product of the dominant capitalist economic base (industrial tech- nology and capitalist relations of production combined). The solution? Biolsi seems to provide it himself by other phrases such as "law is generative of subjectivity," "It is not possible to think of subjectivity. . . without seeing law . . . as one of the basic, constitutive axes of social self and other," etc. This part of his text allows us to relocate the sphere of law in which Biolsi's data in fact place it, that is, in the superstructure, where one of its roles is to contribute to the constitution of subjects who are impeded in raising questions about the actual locus of the overall system of inequalities between whites and Indians. To place law in the superstructure does not make it an epiphenomenon. Indeed, Biolsi's concern about this seems quaint. Marxist scholarship has long recognized that superstructures have a material exis- tence and that as such they have the fundamental role in the constitution of people's subjectivity (see Althus- ser 1971).
This is no reason, however, to say that law plays the "critical role in the very constitution of society" (if Bi- olsi could change the law to fit his counterfactual his- tory he would still not solve the Lakota's difficulties, for he would not have touched the problems created by the productivity differential between industrial capital- ism and Lakota's production forms), that "law is a di- mension . . . of all modern social relations" (it is not so in those social relations which are directly determined by the relative productivity of today's coexisting forms of productive forces), or, finally, that law should be not a "subdiscipline 'apart from' social anthropology, but a theory-building 'part of' social anthropology." The rea- son for the latter should be evident. The economic base determines in the last instance which of the superstruc- tures plays the dominant role in the production of a subjectivity fitted to the economic structure. In some cases the economic base assigns the chief role to law (as in the case of the colonization of the Lakota), but in other cases it assigns it to religion, in still others to schooling, etc. (see Legros 1977, Althusser 1971). Hence, law may be central in some cases but not in all.
I hasten to add that Biolsi may simply have trapped himself by a loose use of the term "society." How- ever, comments are intended to call for clarifications. I hope that this will contribute to a further tightening of the logic of an otherwise very lucid and remarkable analysis.
SALLY ENGLE MERRY
Department of Anthropology, Wellesley College,
Wellesley, Mass, 02181,U.S.A. 16 IV 95
Why has law moved to the margins of the social phe-
nomena important to contemporary social anthropol-
ogy? As Biolsi points out, law was central to the analysis
of social organization in the 1940s and 1950s. Before
that, Malinowski argued that the principle of reciproc-
ity, which he identified as law, was fundamental to the
analysis of social order. As structural-functionalism was
replaced in the 1950s and 1960s by a concern for social
organization in looser and more ephemeral social group-
ings and by models of social structure as the sum total
of individual actions rather than the product of rules,
rules were no longer understood as constitutive of the
social order. Consequently, the institutional power of
law to construct social relationships was ignored or
This analytic amnesia is particularly puzzling consid- ering the centrality of law to contemporary political de- bate and contestation. In the ~ggos, law is a fundamen- tal terrain for social analysis and argument in such diverse areas as human rights, reproduction, welfare pol- icies, crime, indigenous peoples, immigration and citi- zenship, domestic violence, and racial justice. The law is both the language of debate and the institutional locus for many of these struggles. Decisions about who can terminate a life and when, who can be denied entrv to a nation and who cannot, and who may use violence against whom and under what conditions are made through law.
I agree with Biolsi that the neglect of law as an ana- lytic category derives from its linkage to structural- functionalism. In this paradigm there was a simple and direct relationship between rules and practices. Al- though we have appropriately critiqued this relation- ship, we have not addressed the question of how law exercises social power in contemporary society. We rec- ognize that society is not the harmonious and integrated entity imagined in the days of structural-functionalism but is instead contested, changing, and organized by practices which distribute power and authority. Law is an important way in which power and authority are de- fined and distributed, subordinate statuses constituted and legitimated. But law also provides a discourse and an institution for resisting subordination. Instead of viewing law only as a mode of maintaining social order, we should see it as a central site for defining the cultural meanings of justice and inequality and a location within which power is imposed and contested. It offers a core rather than a marginal vantage point on social processes concerned with power and resistance.
Biolsi's argument about the centrality of law to under- standing the political situation and the struggles of the Lakota represents this kind of analysis. He demonstrates that the law is central to Lakota's efforts to achieve power and contest their subordination. The law frames their political struggle, providing the basis for claims in the language of tribal sovereignty. Yet, as he points out, the rights offered under this rubric are narrow and are part of the hegemony of the liberal state. They do not reach to the economic and social subordination ex- perienced by Lakota people or their collective victimiza- tion by chemical dependency. The rights promise some jurisdictional sovereignty but not amelioration of eco- nomic and social inequalities. Moreover, the legal struc- ture of the tribal situation pits Lakota and local whites against one another on the basis of race while hindering the recognition of shared interests based on poverty and regional marginalization. Thus, the law shapes political struggles over power and identity by $efining the de- mands that can be made and the people called upon to respond to them.
Careful ethnographic explorations such as this one of the way in which law shapes social life reveal leniency and flexibility rather than domination. They point to practices of evasion and subversion-reinterpretation of the meanings of statutes, offenses, and penalties and the determination of which people are dangerous and which are not-rather than strict compliance with the law. Of- ficials lose papers, fill out forms incorrectly, sleep late- rendering the imposition of law a fragile and discre- tionary process. And court decisions are sometimes contradictory or uncertain, as they are here. At the same time, these studies reveal that the law is powerful and pervasive in cultural terms as it delineates the frame- work of rights and remedies within which struggles can take place. Laws not only impose penalties but create identities and relationships such as citizen or criminal. Race and gender often constitute the basis of legal dis- tinctions as Lakota identity does on Rosebud. Thus, the law has an extraordinary cultural power and presence not because rules determine social behavior but because rules define the terrain upon which political struggles take place.
Program in Anthropology, City University of New York Graduate Center, 33 W. 4zd St., New York,
N.Y. 10036-8099,U.S.A. I 5 IV 95
Biolsi's essay raises insightful and important points about law as the denial of experience and as constitutive of forms of struggle. To these crucial points I would raise for discussion two further issues implicit in it.
I. We need to consider the role of law in constituting, denying, and transforming relations among and between Native American peoples. Law can presume/impose a unity (X or Y people sui,lg for "their" rights to -I and at the same time (and perhaps as a direct result of the imposition of unity) create or greatly intensify fun- damental splits within a group, as when mineral rights or fishing rights or poverty programs or the ways in which tribal councils were imposed upon native peoples have exacerbated class tensions and oppressions on a reservation. Similarly, national and state legislation such as the "recognition" process can call forth unified action among separate native peoples and also create
BIOLSI Bringing the Law Back In 1 565
fundamental splits between those with and those with- out access to particular rights. These simultaneous pro- cesses of unification and division, tightly interwoven with native people's own agendas, often have a history running back through early contact. What seems special about the period since World War I1 is the increasing predominance of class as the major division on reserva- tions, and in this process law has played a key role.
2. It would be useful to consider the strategic implica- tions of this article. The key point here is that "by the logic of Indian self-determination, . . . the more tribal sovereignty is formally realized under federal Indian law, the more difficult it is for Lakota people to make credible legal and political claims regarding the full range of daily forms of oppression they are subject to." Looking, for instance, at the havoc wrought upon Lakota people by the regime of Dick Wilson and recognizing the extent to which some native people become agentic- even creatively agentic-in these daily forms of oppres- sion enables us to begin to think about how to work within and against the forms of native inequality created and constrained by the laws of the dominant society.
Indiana University Law School, Indianapolis, Ind. 46202-5194,U.S.A. I v 95
Arguing that "law is a fundamental constituting axis of modern social life," Biolsi uses a case study of two "sovereignty" conflicts of Lakota Sioux living on the Rosebud Reservation in South Dakota to chide cultural anthropologists for not making law a central dimension of empirical study. He never defines law, but the law which interests him is clearly state law-the power of rulers to control the subaltern. Even the article's title, a knock-off of an early essay by Theda Skocpol, "Bringing the State Back In" (1985), points to the importance of state law.
Locating the Lakota Sioux's struggles under the um- brella of law, Biolsi analyzes how U.S. Indian law inter- sects with and shapes tribal goals for autonomy on the reservation. He makes good use of trial transcripts, al- though he has a tendency to characterize all court deci- sions as turning on "highly technical analysis." Of course they do; law is technical. Under an enabling stat- ute, a current legal problem must be examined in terms of its constitutive parts, its relationship to past legal decisions and treaties, etc., and the resulting legal. anal- ysis is going to be complex-mirroring the increasing complexity of today's society. Given nearly 200 years of history between some Native American groups and the
U.S. government and treaties and agreements going back half that far, how could legal decisions be simple?
Biolsi discusses two disputes between the Indians and the federal government. The first is who has jurisdiction over the highways on the reservationj the second con- cerns whether the liquor store, owned by a non-Indian in a mixed Indian-white town on the reservation, will conform to the new tribal law which requires the pur-
chase of a tribal liquor license. Law, Biolsi says, is not
merely a command-and-control model, but, citing Corri-
gan and Sayer (1985:3), he adds that it is a "coded denial
of experience." He uses the latter phrase several times
without providing an interpretation of it. Does it mean
that by defining and solving some issues, law denies
other proposed definitions and issues? Does it mean that
court decisions validate certain conceptions and solu-
tions and negate others? Does it mean that in the con-
text of a courtroom, legal decisions may reconstruct and
give life to events which did not happen and thus deny
a person's experience of what did happen? Or does it
merely mean that law creates winners and losers? I won-
der how the liauor store owners felt when thev heard
that the ~akot; Sioux tribal council in 1979 had voted
unanimously "that BIA be requested to take whatever
action necessarv to insure that the tribal liauor Ordi-
nance as posted in the Federal register is enforced." This
dispute was well chosen to illustrate conflicting inter-
ests and differing realms of power.
Alcoholism is a central ~roblem on the reservation.
and this is why the tribalcouncil wanted jurisdictioi
over the liquor store. Biolsi provides a metaphysical ar-
gument concerning alcoholism and law. Because he
views law primarily as providing or taking away rights,
he argues that the Lakota should have a legal right to be
free from alcoholsm. But, he writes, quoting MacKin-
non (I982: 705 ), "alcoholism is 'nonactionable experi-
ence."' It is not something which the federal govern-
ment or the larger society has a responsibility to do
something about. "The liquor store case was the closest
the Lakota people of Rosebud Reservation came to polit-
icizing alcoholism, but the political struggle ended with
the assertion of tribal jurisdiction over the Mission Li-
Biolsi suggests that the right to be alcohol-free "could be based on the recognition that alcoholism and other addictions . . . are closely connected to class and racial situation in a class- and race-stratified societv." Grant- ing that alcoholism is a pervasive affliction o* Rosebud Reservation, why should law be invoked to handle it? America's experience with prohibition was a misadven- ture with disastrous consequences when law was used to address a pervasive social problem. There are other "centrally constitutive institutions" in Native Ameri- can and U.S. culture which minht be more effective than
legal remedies in controlling alcoholism, such as reli- gion or curing ceremonies or millennia1 cuIts.
I wonder also why he insists on a "rights paradigm," as if it had no history of use by cultural anthropologists. Most legal anthropologists working today have been ex- ploring new ways to view the struggles of marginalized groups, because the "rights paradigm" of the law profes- sors of the 1960s is too rigid a framework (see, for exam- ple, Greenhouse I 98 6, Lazarus-Black and Hirsch I994, Moore 1986, Merry 1990, Nader 1989, Parnell 1988, Starr 1992, and Starr and Collier 1989b).
Still, Biolsi recognizes that sovereignty for Native Americans is not a politically stable issue, nor is it a legally settled right. He suggests that "cases are. . . close
calls, and decisions one way or the other often hang by
a highly technical thread and are subject to reversal on
appeal." I am surprised that with his clear call to make
law central to the analysis he has not attempted to un-
pack "the technical" in these cases. Could the technical
be where politics enters the process? Could political ma-
neuvering and political interventions account for the
seesawing of opinions between the federal trial and the
That Native Americans are being more successful in their struggles for self-reliance could have been analyzed outside the legal realm. It is cultural attitudes that have changed. he ye is a sense that we as a society have to right past wrongs. This has played a major role in affir- mative action toward blacks, women, and other minori- ties. It probably plays a role in the greater sympathy with which Indian claims and issues are considered to- day. For example, the Indian Child Welfare Act of 1978 was surely passed in a changed climate of opinion as Congress came to understand the abusive practices of child welfare workers that had resulted in the separation of large numbers of Indian children from their families and tribes.
Considered as a whole, this is a captivating cultural study of a most important topic-Native American sov- ereignty. That Biolsi wants to bring law into a political analysis is indeed a hopeful sign for the future of the anthropology of law. His work is a welcome addition to the growing number of empirical studies in cultural anthropology which interpret relationships between groups along the dimensions of power, culture, history, and the law.
Portland, Ore., U.S.A. zo v 95
In the interest of facilitating productive scholarly dia- logue among colleagues, I will confine my reply to an- swering substantive criticisms in the commentaries.
I. Local knowledge and hegemony. Asch points out that sovereignty discourse by indigenous peoples does not necessarily involve hegemonic encapsulation by a state apparatus and that the struggle for sovereignty by First Nations in Canada is based not on state-law but on "a source not referenced" to the state. He sees merely an analogy between the cultural content of indigenous struggles and the Western legal concept of sovereignty (Asch 1993b:34) rather than any hegemonic effect of state-law on indigenous political ideologies. The point of my article is not to suggest that any particular politi- cal discourse-sovereignty, in this case-is necessarily hegemonic wherever it is found. Political ideologies can "travel" and come to mean and do very different things in different national, or transnational, contexts (see Fox 1992). It is important to keep in mind, however, that the ways of life of indigenous peoples everywhere have been shaped and encapsulated by national and global po- litical-economic forces for centuries (even when the ef- fect of these forces has been the preservation of "tradi- tional" ways of life), that they now live in nation-states and are administered by bureaucracies whose operations penetrate their daily lives, and that whatever struggles they pursue in national politics and the courts are neces- sarily governed by frameworks and ground rules they did not author. In short, we need to be very careful in asserting that an indigenous struggle is in no way encap- sulated.
2. Hegemony and the standpoint of the subaltern.
Hayden critiques my article from a direction exactly op- posite to that of Asch. He insists that I make too much of supposedly authentic Lakota agendas and that I fail to see the contradiction in assuming an unproblematic and stable concept of "the Lakota people" while at the same time asserting that law constructs political sub- jects. In fact, I think, the thrust of my article is not to celebrate or romanticize the resistance of the Lakota but to point to hegemony, and that is precisely why Asch is critical. It seems important to me, however, to recognize that readings of laws by subaltern intellectuals are going to be different-sometimes profoundly different-from readings by the state's intellectuals and that subaltern readings may actually influence the evolution of state- law in complex ways. While the category of "the Lakota people" may have fuzzy boundaries and be a histori- cal product subject to reproduction by legal and other social processes, being Lakota entails a material stand- point (in Lukacs's  sense) for most Lakota people, and this is bound to influence how things-including laws and rights-look from the perspective of Lakota people. "Race" and "racial" difference need to be de- essentialized in our analyses, but this does not mean that race is merely a discursively produced sign, a figure of speech with no social content. Race, because of racial oppression and racial privilege, matters in the concrete situations and social vantage points of political subjects (Omi and Winant 1986, Sacks 1989, West 1993). This is not to say that subaltern readings of law by people of color or anyone else are produced autonomously from the hegemony of the state-law apparatus, but they may entail situated knowledges or "penetrations" (Willis 1977) that we would be wise to pay attention to in un- derstanding the dynamics and contradictions of state- law, rights discourses, and political struggle in nation- states. Hegemonies are always dynamic.
3. Class solidarity and colonialism. Asch's argument regarding class and colonialism seems to me to be con- sistent with my point. He tells us that the local white farmer or rancher is "the natural class ally" of the Dene hunter-trapper in Canada but that the colonial apparatus which has historically advantaged whites at the expense of natives prevents any alliance and divides political in- terests along racial lines. Precisely. And what is the ba- sis of the colonial apparatus that divides native and non- native who otherwise might be regional allies on the basis of similar class situations? Law (see Asch 199za,
BIOLSI Bringing the Law Back In 1 567
1993a, and Macklem 1993 on how colonial relations of domination are legally constructed).
Social justice and alcoholism. Both Hayden and Starr appear to think I was arguing for "prohibition" as a social response to Lakota alcoholism or that I think some other kind of special right or specific law is the solution. My argument was that Native American alco- holism is a social experience that must be attacked so- cially-in the deprivations inherent in a racially and class-ordered society that give rise to alcoholism and other chemical dependencies. Attacking Native Ameri- can alcoholism means attacking racial and class hierar- chy and, ultimately, white privilege. Obviously, I would never suggest that "prohibition" for Native Americans or any other "paternalistic" means would be effective. An effective solution would necessarily involve much more radical criticism of the prevailing social order than can be found in available legal rights discourse, and that is precisely why I believe that law is hegemonic in its effects on how Native Americans think about alco- holism.
What does "coded denial of experience" mean! Starr asks for a clarification of what I mean by the use of Corrigan and Sayer's depiction of law as a "coded de- nial of experience." By the phrase I intend a recognition of law's silences. A "color-blind" law, for example, while inscribing formal "racial equality" in the legal realm, is willfully silent on substantive racial inequali- ties and ensures that racial inequality will remain inad- missible in legal questions. A "gender-neutral" law will ensure that women will not be able to bring their con- crete experience as women in a sexist society into court. Likewise. Native American iurisdictional rights ensure that 1ndian people will not be able to addrels-or even recognize-most of their oppression through law and le- gal rights discourse. Law, through its silences, effec- tively rules much of the concrete experience of disem- powered people out of court and out of their practical consciousness of arguable political rights.
Technicalization of "justice." Both Hayden and Starr mention my reference to the technicality of federal Indian law. My point is not a stylistic critique of legal discourse. Rather, technicalization of rights questions is critical in the hegemonic and orchestrating effects of law that I am seeking to show. Technicalization in fed- eral Indian law ensures that (I)rights questions will be very narrowly drawn and will be at a significant remove from moral or political imagination involving a more inclusive social justice and (2)rights will never be deci- sively settled and litigation will be ongoing. The effects of technicalization, in the case at hand, are therefore that Lakota political energies and political imaginations are repeatedly absorbed by specific and narrow struggles against specific and narrow opponents on political ter- rain orchestrated by federal Indian law.
Can capitalist social relations exist independently of law! Legros argues that my article is inconsistent with a Marxist interpretation because I fail to see that law is merely superstructural while society is consti- tuted by the forces and relations of capitalist production.
My response is that it is difficult to envision how capi- talist social relations can exist independently of legal categories. The wage-laborlcapital relation and the ap- propriation of surplus value are founded upon the exis- tence of private property as a complex, historically con- stituted legal construct. Surely the capitalist mode of production constitutes capitalist society, but law helps to constitute the capitalist mode of production by set- ting out the institutional conditions of possibility for capitalist social relations, as the quote from Robert Gor- don early in my article suggests. Law is always already present in capitalist social relations, both historically (as Marx 119771 showed in his analysis of primitive accumu- lation) and, of course, structurally. If we have to speak of "levels" of a social formation, it seems inescapable that law is in the "infrastructure." But, of course, this kind of debate only arises when we insist on carving up the concept of a social formation into levels.
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