Showdown

My course in the Law of Indigenous Peoples is not going smoothly. I’m finding that I am more and more dissatisfied with the class the more time I spend in it, and as a realization in the first months of the class, that is a bad omen concerning the rest of the semester.

It isn’t so much the course that bothers me. The topic holds a decent amount of potential to be of interest. Rather, it is the course-work and the professor that bother me.

The course-work is largely composed of readings from the two texts for the class, accompanied by assigned law review articles. Unfortunately, one of the textbooks was written so dryly that it is hard to concentrate on reading it, and the other book was written so awfully as to contain numerous theoretical errors. For instance, the second textbook confuses and conflates utilitarianism (an ethical theory that says that an action should be judged good or bad based on the aggregate amount of happiness and unhappiness it creates for all affected parties) with egoism (an ethical theory that says that an action is good or bad based on its expected effects to the self only), and conflates both of these distinct and differing concepts with legal positivism (the jurisprudential theory that states that law is only what legislatures say it is). Reading a book containing these types of errors is difficult for someone who understands the differing theories, because many of the statements the book makes (and the conclusions it draws from the faulty premises) are wrong.

Readings from the law review articles are scarcely better. One article, written by a professor, concerned the International Covenant on Economic, Social, and Cultural Rights (the ICESCR). Several times throughout the article, though, the author called the treaty the International Covenant on Educational, Social, and Cultural Rights. Since there is no such treaty, I can only conjecture that the author mistakenly wrote ‘educational’ instead of ‘economic.’ In one case, a citation to the treaty is footnoted, and the footnote gets the name correct, when the text of the article itself does not. How that managed to pass through the editing process is beyond me.

Another article sought to explain the legitimacy of tribal courts and the role of custom within Native American tribal courts. After going to great lengths to explain why tribal courts must be based upon tribal custom (to preserve the cultural identity and sovereignty of the tribe), the author of this new article exclusively cited Ronald Dworkin as support for the legitimacy of the tribal courts. Dworkin, far from being immersed in tribal custom, though, is an Anglo legal philosopher. Further, he supports a position called legal formalism, a jurisprudential position so thoroughly rejected that the case which best epitomizes that type of legal thinking (Lochner) is seen as standing for a bad period in American law. On top of this difficulty, the author then goes on to list indicia of legitimacy, but fails to realize that none of them are pulled from Dworkin, and better represent positivism in explaining the powers of sovereignty.

The professor for the course is difficult for me to work with. She seems to be a nice person, but teaches in a style completely foreign to me. Despite the fact that all of the students in her class are graduate students seeking a doctorate, she teaches us as if we were in junior high school. She actually divides us up into groups in many classes and has us discuss things separately before reporting back to the whole class concerning our group’s conclusions. I haven’t done this kind of thing since my 8th grade social studies class. She even has us number off (1, 2, 3, 1, 2…) down the line as she points to us to assign us into groups.

I could deal with that, I suppose, but on top of it, she injects one-sided normative content into her discussions. I’m not against professors having political or moral stances, or having them project those positions into their teaching. The professor of this class, though, is Native American, and has very strong emotional ties to her culture (and by extension, to other native cultures). However, many times, it appears as if teaching a particular lesson is a vehicle for teaching us her biases instead of teaching us the law in a given situation. For instance, we took twenty minutes out of a class one day for us to discuss where we fit on a cultural sensitivity continuum. Any attempt to suggest alternative views is promptly shut down (usually with a straw-man argument characterizing the alternative position), while any discussion, no matter how tangential, discussing cultural imperialism or the oppression of native peoples is indulged.

If a student has a legitimate legal question not directly answered by the text readings, heaven help the student if they expect an answer from the professor to their questions. Instead, the professor will suggest that the student could go ahead and research the question on his or her own (I've seen this happen now three times).

Despite the fact that the legal issues we investigate have more than one side to them, we only investigate issues from the perspective of indigenous groups. As an example, we examined the issue of whether an African country could forbid (at law) the practice of female circumcision (or female-genital mutilation) and still be consonant with the international human right to culture. Rather than admit that there are arguments that can be advanced in support of denying this particular cultural practice, we only heard arguments in favor of native groups engaging in their own traditions without interference or judgment.

European migrants to the Americas aren’t referred to as migrating, colonizing (admittedly a somewhat loaded term), or moving. We talk of Europeans ‘invading.’ Judging a cultural practice is strictly taboo, and if one was to believe the pronouncements made in class, nothing at all can be judged outside of its cultural context since nothing is objective.

Apart from being academically untenable, and highly questionable from an ethical and scientific standpoint, such discussions fail to take into account that each legal dispute has two (or more in the international context) parties, and that lawyers are needed to counter the arguments of indigenous peoples when they are wrong (since no party – not even one historically oppressed – is right in virtue of their identity alone).

To remedy this, I planned my paper topic as a counter to what I see as the one-sided teaching of the course. Abstracts for our papers were due this past week, and I chose a topic of interest to me. It seems as if medical researchers have discovered that the genes of indigenous populations are especially useful for crafting genetic cures or understanding the genetic bases of diseases. Because these groups have been genetically isolated from other populations for a long period of time, their genes frequently have specific mutations which can be studied. For instance, one isolated island group was found to have almost a 50% asthma incidence among the population, with a likely genetic link. Having access to their genetic material could substantially aid scientists seeking to understand the genetic basis of asthma, so as to help find a way to prevent or cure it. Another isolated indigenous population was found to have a genetic marker which conferred a genetic resistance to leukemia – the benefits of understanding this type of genetic material nearly can go without comment.

Despite the fact that all of the DNA samples so far gathered appear to have been taken voluntarily or with some form of compensation, indigenous communities across the globe are up in arms about the practice, claiming that it is simply another example of developed countries preying on developing communities. Many refuse to give up genetic material unless paid very high prices. They argue, cogently, that since the pharmaceutical companies stand to make billions off of cures drawn from their genes, they should be paid more. There is even a term invented to describe this practice, and the term contains loaded language that betrays the viewpoint of its creators: bio-colonialism.

In my paper, I seek to outline the current international agreement with the positions of the indigenous peoples, and then frame a way around the obstacles in the path of the medical researchers. Ambitious as it might be, I think I have a decent couple of arguments as to why the medical researchers ought not to be forced to pay communities large sums and why they should instead continue to be allowed to negotiate with individual people for samples of genetic material.

I have a feeling that the professor didn’t like my support of parties arrayed against the indigenous people, for only two days after I handed in my abstract, a revised copy of the syllabus for the class was mailed to the students in the course. At the end of the semester, we are all to present our papers to the class in a lecture format. Immediately prior to us doing so, however, the professor inserted a new lecture not present on the original syllabus. That lecture is entitled: “Biocolonialism: Stealing Indigenous Knowledge.” If that isn’t prejudicial language, I don’t know what is.

I’ve never been good at defense, so if push comes to shove, I may even accuse native peoples of simply being greedy at the expense of human lives. If that’s the way she wants to play her hand, that’s they way it’ll go. If she thinks I’ll back down now, she is sadly mistaken. Prejudice the class against my topic all you want, professor… I’m ready for the showdown.