Sovereignty and Slime

The interplay between law and language is fascinating. “Blood quantum” started without the modern racist connotations in early English cases involving inheritance from a particular person rather than from a racially defined category of persons. The earliest written form of the verb “to slime” appears in Susquehanna Fertilizer v. Malone, a Maryland air pollution case from 1890. Before discovering that, I thought slime became a verb in the movie Ghostbusters.

Indians may be struck by the fact of slime legally mentioned it in the same year as what the American Indian Movement has caused us to call Wounded Knee I, a massacre of non-combatants after photography, that spelled the end of the physical extermination as Indian policy.

By the time Wounded Knee II came around in 1973, the gut issue had become economic dead zones on reservations. “Sovereignty” is window dressing when we understand that the federal government will never and should never fund anything it does not control. “Self-determination” will be defined by what the colonists allow to any tribal government that cannot offer tribal citizens self-sufficiency.

That the colonists made us dependent on purpose does not change the fact of the matter. Extractive industries don’t help, because the profits do not stay on the reservations while the slime does. Casinos are good if they bring in outside money and leave no slime, physical or moral.

The anti-slime movement has fallen on hard times in the US. Clean water and clean air used to be bipartisan goals. The Environmental Protection Agency was created on the watch of Republican Richard Nixon. The National Park System was a creation of the Republican Theodore Roosevelt.

In our day, concern for the environment equals socialism and the GOP will have none of it.

As shocking, environmentalists in the US appear to have gone crazy. Climate change is probably the most important challenge facing us, and it will make you crazy when you see the same dialog repeated, publicly and privately:

1. The climate isn't changing.

2. It may be changing, but it's part of a natural cycle that has nothing to do with humans.

3. It may be changing, and humans may be at least partially responsible, but we can't do anything about it.

The umpteenth time you hear that, it's crazy-making.

People with decent values in the US have gone crazy thinking they can make Canada quit making oil from bitumen by killing one (private) pipeline. Indians are excused from this criticism because they are merely expressing solidarity with Canadian First Nations.

Chaining themselves to the White House fence to "force" the President to make a decision he has no more authority to make than the one Congress tried to force him to make without an environmental impact statement, is simply crazy when it’s time to have a serious conversation about cap and trade.

Why now?

Mr. Obama has wrapped his mind about the fact that presence on his agenda is still a kiss of death in the House of Representatives without regard to the national interest. Therefore, he will do as much as he can in the executive branch.

He can force cap and trade from the executive branch by fairly simple means. The Supreme Court has held that the EPA has authority to cap CO2 and, if they do, Congress will have their chain pulled from Wall Street to allow trading.

Cap and trade is a bum idea in the same sense that making Romneycare national was a bum idea.

Like expanding health care with for-profit private insurance companies, cap and trade was born in right wing think tanks. More important, it has not worked. The cap has been unavailing in Europe while the trade has given birth to a million carbon capture scams that have taken in well meaning people and made lots of money for the scamsters.

If doing nothing is off the table, the other option is a carbon tax, which would yield enough money to mitigate the impact of the tax on people of limited means as well as mitigate the results of climate change—fires, flooding, drought, superstorms.

Australia has gone that way, but results have not yet been studied.

The theory is simple enough.

The EPA has established the science behind CO2 as a pollutant. This is what confers the authority for the "cap" part of cap and trade.

Having established that CO2 does harm, the government can use the criminal law to ban it or use the tax law to force those who release it into the atmosphere to internalize the price of mitigation rather than put it off on the commons. Think of how much a carbon tax would change the economics of making petroleum from bitumen!

The Republican House of Representatives, where tax bills must originate, has still never met a tax it liked, in spite of the arguments from conservative values: (1) people have a duty to clean up their own messes and "corporations are people, my friend" and (2) the government is not as well fixed to mandate low carbon technology as the private sector is to discover and perfect it.

If the US is stuck with cap and trade because taxing carbon is unthinkable, the US national interest is poorly served but tribal governments are handed a gold mine in the form of endless methods of sequestering carbon.

Will we see the day when urban Indian communities are self-supporting with casinos and rural Indian communities are self-supporting by selling legitimate carbon credits? Should that happen, the law will have changed language again in that “Indian sovereignty” will no longer be an oxymoron.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.