Justin Richland

The relationship between Native American Tribes and the U.S. government is a complicated one. When non-native government agencies and public institutions enact policy that impacts Tribal people and resources, federal law requires “meaningful consultation.” What exactly this looks like varies widely, says Justin Richland, UCI anthropology professor. In his new book, Cooperation without Submission, Richland, an associate justice of the Hopi Appellate Court, dove deeply into the language used in more than 80 hours of meetings between Tribal leaders and government agencies. His work paints a picture of two very different strategies as Tribes employ language that demonstrates a commitment to nation-to-nation interdependency, while federal agencies operate on an assumption that federal law is overarching. Richland recently sat down with Hannah McElgunn at the Communication-Media-Performance (CaMP) Anthropology blog to talk about the findings. Read on below, and mark your calendar for Jan. 27 for a virtual book launch event, sponsored by the UCI Law Center for Empirical Research on the Legal Profession (CERLP), the UCI Department of Anthropology, and the American Bar Foundation (ABF) (registration required). 

Cooperation Without Submission brings together cases drawn from a wide range of contexts including the U.S. tax code, Hopi Tribal consultation engagements with the U.S. Forest Service, and a hearing between an anonymized Tribal nation and the U.S. Office of Federal Acknowledgement. What was the process like of piecing together the different elements of this book?

Is happenstance a process? I am only half serious…but I am half. I agree with Marilyn Strathern when she argues that ethnography involves the purposeful effort to generate more data than one is cognizant of at the time one is in the field. This seems to me consistent with most anthropologists’ commitment to a kind of humanistic empiricism; to not decide in advance what data are relevant to our hypotheses, but rather to have one’s own claims be open to the observable acts and interpretations of the people with whom we engage, wherever they may lead. And so, happenstance always plays a role.

In this case, it was a combination of happenstance but also a terrible creative block that led me to the final formation of this book. I struggled with settling on a second project, even as I was taking on projects that involved different elements of Tribal governance and often involved different Tribal nations and national organizations. I was involved in a lot of important efforts by Native Nation advocates to influence U.S. law and policy, but none to which I felt I could give the singular attention they deserved.

Then, in 2016, the #NoDAPL/Mni Wiconi protest the Dakota Access pipeline construction across Standing Rock Sioux Nation’s territory exploded in the news. I followed the confrontations between protesters, police and private security forces. But I also learned that the confrontations erupted when an ongoing legal battle had boiled over after a U.S. court denied the Standing Rock Nation’s injunction to stop a federal agency from issuing a permit to complete construction. The Nation had sought the injunction because, they contended, the agency had failed to follow laws requiring meaningful Tribal consultation before issuing its permit. The U.S. countered that Tribal Nations had been consulted over a hundred times. It was this conflict that resonated with something I had experienced in my own work, and a sentiment that I had heard over and over from my Indigenous colleagues. They complained that while agency officials were often ready to hold so-called listening sessions with them, it was almost always the case that Native advocates left those meetings feeling like their concerns weren’t heard or otherwise meaningfully engaged. At the same time, despite this repeated refrain of frustration, I also learned, that many Native Nation representatives entered these meetings expecting to have their aims frustrated. And yet they undertook them anyway. This is what interested me most, and it led me to think about how Native Nation-U.S. engagements might reflect an enduring Indigenous stance in which insisting on taking these meetings were acts of self-determination in the face of settler colonization that defied easy explanation along binaries of resistance/complicity.

It was while working through this that I recalled the words of my Hopi mentor Emory Sekaquaptewa, who once said, “In Hopi, culture teaches us cooperation without submission.” I wondered if the Native leaders’ engagements with non-native agencies and institutions are, refusals to capitulate to U.S. settler colonialism, but enacted in a mode of provisional cooperation, rather than overt resistance. It is this possibility I explore in the book.

At several points in Cooperation Without Submission, you detail the way in which the United States and its agents approach Tribal norms, knowledge, and practices as objects to be evaluated or judged rather than logics of a sovereign governance system. But you also bring up a parallel distinction early on when discussing your own positionality, noting that you “deploy an Indigenous theory of sociopolitical action not as an object of analysis but as the analytic framework itself.” How did you seek to do this? Were there moments when the distinction felt slippery or difficult to enact?

The conceit of this book is that to begin to grasp how Native Nations navigate the inherent contradictions of insisting on their sovereignty while also doing the everyday work of self-governance under conditions of settler colonialism, it necessitates taking Native actors literally at their word. That is, we ought to not only begin our analyses with the normative insights and perspectives that Native Nation officials take to their meetings with their U.S. counterparts, but also how those norms are shaped by and shaping the unfolding interactions and institutions through which these meetings are accomplished. Only by asking after what parties to these engagements are up to when they undertake them, and the consequences (both interactionally and sociostructurally) they seem to anticipate emanating from them, can we start to get at an analysis of the Native Nation – U.S. relations that start from the norms, knowledge and relations that Indigenous actors bring to them. In the book (and elsewhere) I have called these effects of political and legal speech activity, Indigenous jurisdictions, because I want to foreground how authority is announced and announced as enduring, in the details of rather mundane institutional discourses that seem to be about other things entirely.

We can then layer on to Indigenous jurisdictions the fact that this regulatory regime of meaningful Tribal consultation is claimed to be at the heart of official government-to-government relationships between Native Nations and the U.S., and the question of the meaning of “meaningful” for Native Nations party to these engagements is not just a matter of academic interest, but foundational legal consequence. Heeding the words of my Indigenous colleagues, I argue that meaningful Tribal consultation thus requires something beyond dialogue; it is a mode of engagement that is more than a “listening session.” Namely it requires engagement that takes Indigenous norms, knowledge and relations not as the data for regulatory actors to weigh, but as the measuring sticks against which regulatory decisions impacting Native interests are to be judged. This seems to be the meaning that Native actors are bringing to these consultations. Alas, too often this is not what their non-native counterparts understand these meetings to consist in, and the results are the frustrations I describe above.

You ask if this was a slippery or difficult distinction sometimes. Yes, of course, largely because writing in the usual genres of anthropological and sociolegal scholarship tracks with the same evaluative logics used by the U.S. officials who see consultations as information gathering events, rather than as acts of governmental co-management. And so the descriptions made in this book involved normative judgments on my part, ones that treat Indigenous normativity, epistemology and relationality as objects of my inquiry. I try to foreground this inherent problem by insisting that my descriptions are necessarily imperfect, and thus open for reinterpretation by the Native people whose actions I was representing. Hopefully then the claims in this book are seen as provisional and thus always pointing beyond themselves to the ways in which Native Nations and their actors are themselves bringing their words to bear on the world.

Your thinking about limits, refusal, and recognition draws on work by Glen Coulthard and Audra Simpson, but also departs from it, especially from a methodological point of view. What do you think a linguistic anthropological approach can add to the wider discussion of these issues?

Justin Richland: Limits, refusal and the problems of recognition are central to the ways in which I am understanding how Native actors engage their non-native counterparts in U.S. agencies and institutions funded by them. And I am indebted to the tremendously influential work of Simpson, Coulthard, and many others (including Jodi Byrd, Vine and Phil Deloria, Scott Lyons, Gerald Vizenor among others) for helping me think through how cooperation without submission could be understood in terms of refusal and problems of recognition. Standing on their shoulders has allowed me to see how refusal and recognition emerge in the details of the interactions and texts that constitute them, but in surprising and often seemingly contradictory ways. It is precisely there, methodologically, I think that linguistic anthropology gives me some purchase for understanding how engagements that might on their face seem capitulatory, are also, simultaneously, meaningful acts of push back, refusal, or limit. Linguistic anthropological methods and theories, and in particular our commitments to understanding the situated meaning of speech activity and textual forms in the details of their actual accomplishment, gives us a way of understanding how, despite (or maybe because of) the constraints imposed by certain structures of interaction and social action, social actors are nonetheless able to produce meanings and make claims that have powerful, multivalent effects, some that even have a relation of irony to each other. Thus a Hopi leader engaging U.S. officials can in one moment refuse to share with them a sacred item of considerable esoteric significance to him and the other Hopi in the room, but then moments later reverse course, and freely pass the item around. Only by reflecting on their discursive and semiotic accomplishment can we begin to appreciate how this sequence of actions – rather than signs of hesitation or a caving to settler colonial expectations – are significant performances of Hopi political authority, and, at the same time, enactments of cultural knowledge, normative responsibilities and the inauguration of relations now interpolating the U.S. officials with whom the object was shared. Without understanding the semiotics of these kind of actions, and the pragmatic details by which they emerge in real time, the way these acts are simultaneously signs of accommodation and coordination, can also be acts of refusal, and limit. It is this I am calling Indigenous juris-dictions of “cooperation without submission.”

I found some of the most interesting nuggets in this book to be the historical discursive contexts you provided for terms that have become familiar to anthropologists working with Indigenous communities who engage with the U.S. government. I’m thinking in particular of the discursive gymnastics around Chief Justice John Marshall’s term “domestic dependent nations” that you detail in chapter two. Did you come across any surprising, unexpected, or overlooked historical details in your research for this book that have stuck with you?

I’m not sure if this answers your question, but perhaps the most disheartening aspect of the work I do is recognizing how ignorant most non-natives (including me) still are about everyday Indigenous life in the U.S. and elsewhere. The challenges posed by misrepresentations of Native peoples in our public culture are not just that they are inherently racist, or otherwise hurtful, which they certainly are. To me, what is also bad is just how much they make actual Native Nations and their lives utterly unrecognizable. So, when I was thinking about how to answer your question, my first reaction was to say how pleasantly surprising it was to me to find so many examples of Indigenous leaders responding to U.S. settler colonial policies and laws with an enormous degree of political savvy. But then, almost immediately, I felt ashamed because one would think that after nearly three decades of working with Native Nations and their advocates, I would have gained an appreciation for the ways in which Indigenous political agency is so often overlooked in studies of Native-U.S. relations, past and present. And yet, here I am, surprised to find out that Quanah Parker and Lone Wolf had already gone to Washington D.C. and spoke with federal officials there who warned them of what the Jerome Commission was after. Likewise, why was I surprised to find out that Cherokee leaders had hired some of the best legal minds of the day in their effort to stop Georgia from unilaterally imposing its laws on them, and even solicited the assistance of non-native allies to subject themselves to Georgia incarceration so that Chief Justice Marshall would have two different kinds of legal controversies with which to articulate the government-to-government relations between the Cherokee, Georgia and the federal government. This is all incredibly skilled legal and political maneuvering, stuff that I have seen often in my current work with Native Nations, but which is still surprising to me when I uncover it historically. And this is what makes me ashamed. I am still surprised, I think, because I continue to labor under misconceptions of Indigenous political naivete and susceptibility to U.S. double dealing that emanate from the prejudicial and racialized views of Indigenous history that are so deeply engrained in how we learn about Native – U.S. relations. And if someone like me, who has had the honor of working so closely with Native Nation leaders and advocates for so long, still can’t seem to throw off these misconceptions, what must it be like for others who have not had my good fortune? I fear there is still a lot of work to do to correct these enduring misunderstandings. I only hope that Cooperation Without Submission is one more small step in rectifying the norms, knowledge, and relations with which we non-natives engage Native Nations and their citizens.

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