Decolonizing Indigenous Cultural Protection

In 2016, the Standing Rock Sioux and legions of their allies protested the construction of the Dakota Access Pipeline, which would carry Bakken crude oil from North Dakota to Illinois, crossing underneath Lake Oahe, the reservation's water source. Tribal members opposed the pipeline over fears of water pollution and climate impacts; it also crossed their ancestral lands, and they argued that the U.S. Army Corps of Engineers had not adequately surveyed the burial grounds in its path. But because the pipeline wasn't on tribal lands or under tribal jurisdiction, there were few legal options. As Indian law attorneys Hillary Hoffmann and Monte Mills write in their new book, A Third Way: Decolonizing the Laws of Indigenous Cultural Protection, after almost 200 years of treaties, court cases and federal infringement, "The tribe had lost almost every source of legal authority to regulate or stop it." The pipeline was ultimately constructed, though its legality is still in court over potential environmental violations.

The battle over the Dakota Access Pipeline exemplifies how difficult it can be for tribal nations to assert their sovereignty within the existing legal structure to protect culturally important land, water, wildlife and ancestral objects. Over the last decade, however, Hoffmann and Mills argue that a new era of Indian law has emerged that protects Indigenous cultures based on Indigenous value systems. This "third way" -- neither solely Indigenous nor European, but rather both -- shows tribal nations working within those legal constraints in novel ways, or changing them altogether, to better reflect their values. This could mean different outcomes in future cultural protection conflicts.

In A Third Way, Hillary Hoffmann and Monte Mills share what they've learned over their combined 31 years of teaching Indian law and working with tribal nations. They explore the myriad ways Indigenous people are decolonizing laws around cultural protection. The book details the history, context, and future of the ongoing legal fight to protect indigenous cultures. At the federal level, this fight is shaped by the assumptions that led to current federal cultural protection laws, which many tribes and their allies are now reframing to better meet their cultural and sovereign priorities. At the state level, centuries of antipathy toward tribes are beginning to give way to collaborative and cooperative efforts that better reflect indigenous interests. Most critically, tribes themselves are building laws and legal structures that reflect and invigorate their own cultural values. Taken together, and evidenced by the recent worldwide support for indigenous cultural movements, events of the last decade signal a new era for indigenous cultural protection. I highly recommend this important book to anyone interested in the legal reforms that will guide progress toward protecting indigenous cultures.