Identities

Yale Journal of Law & the Humanities Volume 3 Issue 1 Yale Journal of Law & the Humanities Article 6 January 1991 Identities Martha Minow Follow this and additional works at: https://digitalcommons.law.yale.edu/yjlh Part of the History Commons, and the Law Commons Recommended Citation Martha Minow, Identities, 3 Yale J.L. & Human. (1991). Available at: https://digitalcommons.law.yale.edu/yjlh/vol3/iss1/6 This Article is brought to you for free and open access by Yale Law School Legal Scholarship Repository. It has been accepted for inclusion in Yale Journal of Law & the Humanities by an authorized editor of Yale Law School Legal Scholarship Repository. For more information, please contact . Minow: Identities Identities Martha Minow* "We were different/We knew we were different/We were told we were different," 1 stated Chief Flying Eagle of the Mashpee Wampanoag Indians in the course of a trial over their tribal status. The plaintiffs, the Mashpee Indians, asked for a determination that the residents of "Cape Cod's Indian Town" were direct descendants of Native Americans known as the Mashpee, had lived continuously as a tribe, and thus were entitled to regain control of the land in their town despite repeated sales to non-Indians. The defendant, the State of Massachusetts, argued that these people simply were a group with some Indian and some non-Indian ancestors; they had essentially assimilated into mainstream American life through intermarriage and acculturation and thus had no special claim to the land.2 The tribe's Medicine Man at the time of the trial was named William James. This small detail exemplified the difficulty of the case. Given the same name as one of the most distinguished American philosophers, how could this Medicine Man demonstrate the distinctive identity of his tribe? What would the other William James, the philosopher, say to this question? As a founding parent of pragmatism, that James would reject any approach to the riddle of identity that sought the essence of a person or a group. Rather than search for essences or intrinsic qualities of people or concepts, the pragmatists looked to purposes and effects, consequences and functions.3 Similarly, the pragmatists preferred not to assess foundations of knowledge. Instead, they urged the questions: what works, and * I would like to thank the students and faculty at the University of Toronto Faculty of Law who explored many of the themes presented here in my course, "Knowing, Reasoning, and Judging," and Elizabeth V. Spelman who taught an earlier version of this course with me at Harvard Law School. Joe Singer, Kate Bartlett, Duncan Kennedy, Avi Soifer, and Carol Weisbrod each gave me insightful comments on an earlier draft. 1. James Clifford, The Predicaments of Culture 281 (1988) (quoting Earl Mills, Chief Flying Eagle). 2. See Paul Brodeur, Restitution: The Land Claims of the Mashpee, Passamaquoddy, and Penobscot Indians of New England (1985); James Clifford, The Predicament of Culture 8-9, 277346 (1988); Francis Hutchins' Mashpee: The Story of Cape Cod's Indian Town (1979). 3. See Israel Scheffier, Four Pragmatists: A Critical Introduction to Peirce, James, Mead, and Dewey 110-121, 204-220 (1986). Published by Yale Law School Legal Scholarship Repository, 1991 1 Yale Journal of Law & the Humanities, Vol. 3, Iss. 1 [1991], Art. 6 Yale Journal of Law & the Humanities [Vol. 3: 97 for whom.4 No pragmatist spirit guided the federal district court reviewing the claims of the Mashpee Indians.5 The judge thought that the identity question was answerable by expert historians and anthropologists. He ruled against the Mashpees when a jury found the Mashpee were a tribe at some points in history but not continuously until the present.6 Of course, in a crude sense, the decision was pragmatic. It "worked" for the white owners of the disputed lands and for the dominant legal system generally, which has repeatedly undermined Indian rights.7 But missing from the trial-and from many legal treatments of questions of identity-was an acknowledgment that the cultural, gender, racial, and ethnic identities of a person are not simply intrinsic to that person, but depend upon that person's self-understanding in conjunction with communal understandings.' The clash between a person's internal and external senses of self can lead to the abandonment of the internal sense. 9 People may find meaning and opportunity for self-expression in the tensions between and among who they themselves think they are and what others think of them. This tension is especially complex because people so often establish who they are by constructing a sense of the place and identity of others around them. Each individual has different degrees of control over these tensions, and different kinds of power over their self-definition. Relationships between people shape identities which depend on negotiations and interactions between oneself and others.' 0 The relative power 4. See Hilary Putnam, A Reconsideration of Dewey on Democracy, 63 So. Cal. L. Rev. 1671 (1990); Marion Smiley, Pragmatism as Political Theory, 63 So. Cal. L. Rev. See generally Cornel West, The American Evasion of Philosophy (1981). 5. See Martha Minow, Making All the Difference 350-372, (1990). 6. See Clifford, supra, at 335 (the jury found that the group did not constitute a tribe as of July 22, 1790, June 23, 1869, May 38, 1870, and August 26, 1976, although the jury did find them a tribe as of March 31, 1834 and March 3, 1842). 7. See Joseph William Singer, Property and Coercion in Federal Indian Law: The Conflict Between Criticaland Complacent Pragmatism, 63 So. Cal. L. Rev. 1821 (1990). 8. Angela Harris suggests "that we are not born with a 'self,' but rather are composed of a welter of partial, sometimes contradictory, or even antithetical 'selves.' A unified identity, if such can ever exist, is a product of will, not a common destiny or natural birthright." Harris, Race and Essentialism in Feminist Legal Theory, 42 Stan. L. Rev. 584 (1990). 9. Some psychoanalytic literature acknowledges this pattern, see Alice Miller, The Drama of the Gifted Child (1981), but most psychological work on identity lacks attention to the multiple relationships and social contexts within which people forge their senses of self. For discussions of both this limitation and efforts to include social dimensions to psychological explorations of identity, see Changing the Subject: Psychology, Social Regulation and Subjectivity (Julian Henriques, Wendy Hollway, Cathy Urwin, Couze Veen & Valerie Walkerdine 1984); Children of Social Worlds (Martin Richards and Paul Light eds. 1986); Culture Theory: Essays on Mind, Self, and Emotion (Richard Shweder and Robert Levine eds. 1984). 10. This approach bears some affinities to the view advocated by some under the term "positionality." Both the emphasis on the negotiated, interactive quality of relationships and a focus on the social and cultura (...truncated)