Narrating Law and Environmental Body Politics (in Times of War) in "Indigenous America/America"

Law & Society Review, Sep 2005 by Gooding, Susan Staiger

Taking Lawrence Friedman's History of American Law (1985) as his example, Peter Fitzpatrick recently remarked that the near-silence of the majority of scholars of American law and politics on the topic of so-called Indian law and indigenous America is no mere forgetting of one of America's margins. Having traced the "ground of modern law" to the scene of legality at the interface of native and nonnative relations in the United States, Fitzpatrick suggested this silence is a symptom of "the occidental strategy of marginalizing the foundational" (Fitzpatrick 2001:175). Arguing further that such silence is a profound sign of "the potency of the insignificant" in U.S. imperial politics, Fitzpatrick went on to discuss the ways the scene of legality at this relational interface, which I refer to here as "indigenous America/America," inhabited the metaphysics and legal discourses of America's war in the Philippines (Fitzpatrick 2001:175). Others have shown the same with regard to Vietnam (Drinnon 1980). Now we are witness to the same forces at work in Iraq.

Fitzpatrick's comments and these gestures toward war begin to surround the text before us, Worship and Wilderness: Culture, Religion, and Law in Public Lands Management, with the sort of contextualization it demands. Indeed, wherever we use the term indigenous peoples, as Burton does here off and on, post-World War II international law discourses are immediately invoked and must be brought into some account. It is against this background, and three decades of dogged official U.S. resistance to recognizing Native Americans as "indigenous peoples," that Burton's extended introductory proposal that we use "First Natives" as our master term in the United States so as to make room for immigrant senses of nativity can be read as an indicator of this work's decontextualized politics of narration.

I will return to this theme of war, but it is important to note by way of introduction that Fitzpatrick's remarks also begin to indicate a framework by which we can discuss Worship and Wilderness, for there is surely no more profound geography from which to interrogate the "potency of the insignificant" in indigenous America/ America than the interface of religion, law, and environmental body politics. It is, moreover, a form of precisely the right question that Burton puts to this geography-namely, the question of the obscured, more-than-raced "differences" that are at stake in the countless, daily mediations of public, so-called natural resources in which native claims are articulated in religiously inflected terms that reference myth-historic geographies and mundane-ceremonial regulatory regimes that persist across the United States against all historical odds.

From the moment of its enunciation here, however, this question suffers under the force of an overwhelming desire to intervene in "whiteness" by revealing that nonnatives too have religiously formed interests at stake in such encounters. While both the attempt to intervene in "whiteness" and to address nonnative religious imaginaries are tremendously important tasks in the project of unearthing suppressed histories indigenous America/America, I suggest the formulation of this problematic takes shape here under the force of national ideologies that leave the geography of more-than-raced "difference" Burton traverses standing in excess of his terms and frame of narration. In responding to Worship and Wilderness, I will gesture to these excesses, to a critical framework concerning law as a site of colonial-postcolonial encounter that they entail, and to a more-than-raced history of law and environmental body politics that Burton's rendering calls up but obscures.

In discussing these issues, I suggest an analogy for reading that this work invites by way of its terms, strategies, and geopolitical scene of narration-Lewis and Clark's imperial trek of "discovery" in pursuit of a fabled Northwest Passage to the "Orient." Not only does Worship and Wilderness emerge from deep within the history of colonial America and travel a route over the whole of the American West with the Pacific theater as the final destination of its gaze-it is rendered as a journey of "discovery." Gazing out across contemporary contests over public lands in the American West involving indigenous Americans, in his first pages Burton argues that while this appears as a landscape marked by disputes waged between "the cultural and spiritual interests of American Indian tribes on the one hand and the recreational, scientific, or resource-extractive interests of dominant society on the other ... the real situation ... [is] far more complex and multidimensional" (p. 3). Arguing this "real situation" requires one to take some distance from "conventional categories" and "either a standard legal or an anthropological approach," and intending to set off on a course of his own Burton announces, "What I have discovered over the course of this research is cultural coevolution" (p. 6; emphasis in original).