Re-Notioning the Legacy Left from Early Conceptualizations on Tribalism: Negotiating an Understandingof the Dynamics of Indigenous Identity Constructs in Federal and State Courtrooms


  • Scott Ketchum


Infederal and state courts, ethnographic research has been used as an instrumentfor justifying the erasure of American Indian cultural identities. This is nota new trend. The legal theft of American Indian homelands was justified throughthe application of social science theory as a qualified source of testimony onthe Indian as subject. In the Supreme Court case Tee-Hit-Ton Indians v.United States 348 U.S. 272 (1955), the court was asked to decide if membersof the Tee-Hit-Ton, a subgroup of the Tlingit, had property ownership over thetimber on their land, as they sought compensation from the sale of timber (Getches and Wilkinson 1984). In the court proceedings, ethnographic evidencerevealed the Tlingit both as having a different concept of property ownershipfrom nomadic tribes, and as a predominately sedentary people. In its verdict,the Supreme Court described them as, sufficiently, fitting the U.S. legaldefinition of a “tribe” or a group of people who possess the right of occupancyin lands under the permission of the federal government. The Supreme Courtruled against the Tee-Hit-Ton lawsuit partly due to the ethnographic work ofAurel Krause, a German geographer.

Thecourts decided communally owned land did not allow for a conceptualization ofprivate-property, and that communal lands were subject to the tenets ofinternational law for discovering nations, which gave the discovering nationownership of any unenclosed and undeveloped land. Even if the discoveringnation did not improve the territory, their claim was still considered tosupplant any aboriginal claim. This distinction between communally-owned andprivately-owned land arose because indigenous and tribal law in the UnitedStates was formulated by a colonial consciousness. Colonial Consciousness functionsthrough an apparatus of power, described best as governmentality, a term MichelFoucault articulated in his lectures on Security, Territory, and Population,where he described the “governmentalization” of the state (Foucault1994:244). In the name of the state, the colonial consciousness puttribal cultures on the periphery with regard to the culture of the state, aslegalized other—the uncivilized—and therefore having no legitimate claim foreither rights or recognition in the political realm.

Author Biography

Scott Ketchum


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