Religious freedom claims by American Indian prisoners are disfavored in law and policy, even more so than other prisoner civil rights claims. This disfavor reflects the continuing influence of the cultural distance between traditional Indians and Christianity, a distance with an unfortunate history from the Indian point of view.

The salutary effects of Christian religion within prisons have been assumed for as long as prisons have existed, an assumption based upon scant evidence. Treating Indian religious expression as inferior to Christian religious expression within prisons is often allowed by law, but it is insupportable in policy without reference to the historical power relationship between Indians and the dominant culture.

Discipline of Transnational Corporations, submitted to a peer-reviewed journal

The origin of corporate persons is the utilitarian advantage of pooling capital without exposing investors to liability in contract or tort, let alone criminal liability. However, corporate persons must sue and be sued and, in the United States , can be held responsible when crimes are committed by individuals to benefit the corporation. American federalism has left most sanctioning of corporate misconduct to the states, with predictably dismal results. One proposed solution within the United States , federal chartering, holds promise for control of transnational corporations--an end lacking even theoretical means—by analogy: an international compact on transnational corporations.

From the Red Core to the Black Sky: Corporate Crime in the Transnational Matrix, submitted to a peer-reviewed journal

Popular culture has presented a series of what Harlan Ellison might call “dangerous visions” wherein man's creations become his master. This trope is as old as speculative fiction, but The Matrix adds a new twist in that machines are able to project an alternate reality that hides the role reversal between the creators and the created. The marketocracy, government by transnational corporations, has projected just such an alternate reality, rendering the power of nation-states and the people they represent illusory. The problems become whether individuals or nation-states need to "take the red pill" and what that would mean for criminal justice policy.

The Racial Paradox of Tribal Citizenship

Presented Nov. 4-5, 2004 at “The Shifting Borders of Race and Identity,” a conference at the University of Kansas and Haskell Indian Nations University.

American Indians, as tribal peoples, had little need to classify humans other than in an esoteric-exoteric manner, as members of the tribal community or not. Words for other “races” were usually either straightforward descriptions or loan words and they did not denote permanent outsider status. Race theory was brought to the Americas by European colonists and placed in the service of the colonial enterprise.

The most extreme intrusion of European race theory into tribal customs was the participation of the Cherokee and some other Southeastern tribes in the institution of chattel slavery. That participation leads to the legitimate claims of phenotypically African-American freedmen to tribal citizenship in formerly slave-holding tribes, and the race theory underlying chattel slavery leads to contemporary controversies surrounding those claims.

Not all “black Indians” are freedmen, since blacks as well as whites were adopted into tribal communities that had not learned racial ideology and even when tribal communities practiced chattel slavery the participation was never widespread enough to stop intermarriage even in the face of tribal anti-miscegenation laws. The disadvantages visited upon Indians by European race theory in the dominant society always stood in the way of applying the same disadvantages full force to African-Americans within tribal society. It is a social contradiction that lives to this day within several tribes.

Paradoxically, modern tribal governments have adopted two primary methods of determining citizenship, blood quantum and direct descent, that are both rooted in European race theory and extremely disadvantageous to long term cultural survival. Citizenship by blood quantum alone invites physical extinction while citizenship by direct descent alone invites cultural extinction. Moreover, policies designed to preserve racial purity are unlikely to prevail in public opinion or in law.

The otherwise curious legal distinction between Indian as ethnicity and Indian as nationality may offer an opportunity to return to an understanding of tribal citizenship that is both more viable and more traditional. Indian nations have the power to define tribal citizenship on their own terms, and a definition that is cultural rather than racial defuses the central argument currently deployed by opponents of tribal sovereignty.

While the power to define citizenship is an attribute tribal governments share with nation-states, this paper proposes that the “peoplehood” Indian nations seek to protect is not synonymous with statehood. Conceiving tribal sovereignty within the nation-state paradigm is pretentious and unrealistic and puts Indian nations in the position of reaching for nationhood at the precise time when the nation-state as the dominant organizational paradigm is being called into question.

Peoplehood as a cultural matrix is hard to theorize and will be harder to administer. However, Indian identity as race privilege is as doomed as other forms of race privilege not just because of its historical bad odor but because the idea of race is nothing more than a product of the colonial imagination. Indian identity as nationhood is possible only in the “domestic, dependent” iteration. Indian identity as peoplehood in a cultural sense presents formidable challenges to tribal governments, but the idea is likely to be supported by public opinion in the dominant society and---most important---is anchored in objective reality and the traditions of Indian people.

Making Peace With Crow Dog's Ghost: Racialized Prosecution in Federal Indian Law, submitted to a peer-reviewed journal

Sovereign Decisions: A Plan for Defeating Federal Review of Tribal Law Applications, submitted to a peer-reviewed journal