Excerpted From: Erin Shields, Countering Epistemic Injustice in the Law: Centering an Indigenous Relationship to Land, 70 UCLA Law Review 206 (June, 2023) (300 Footnotes) (Full Document)


ErnShield.jpegThis paper argues that Indigenous peoples are subject to epistemic injustice in the law, particularly in regard to many Indigenous groups' worldviews and relationship to land. Many Indigenous cultures share a sacred connection to the traditional homelands they lived on and with-- sometimes for thousands of years before colonization interrupted this relationship. The colonial imposition of a Western system of property law upon Indigenous peoples' relationship with their land, which was used to justify the violent dispossession of Indigenous lands, imposes a hermeneutic gap that makes Indigenous claims about the cultural and spiritual importance of land unintelligible in the legal system. Without addressing the epistemic dimension of this colonial harm, the legal system will never be able to address claims for justice brought by Indigenous peoples.

Though the ideas in this paper may be applicable to other Indigenous cultures, this paper focuses largely on Indigenous peoples in the United States and Canada. This is because these countries share a similar culture, colonial history, and legal framework, which allows us to make useful comparisons in order to reach a broader understanding of the colonial harms discussed in this Article.

In Part I, I outline similarities between Indigenous cultures in what is now known as the United States and Canada with respect to their relationships with land. In Part II, I summarize the philosopher Miranda Fricker's concept of epistemic injustice, or an injustice that affects a person's ability to be believed or understood in their capacity as a knower or subject of knowledge. I show how the concept of hermeneutic injustice is particularly relevant to Indigenous peoples who have been systematically marginalized from dominant meaning-making institutions for centuries. This marginalization creates a gap in the shared pool of society's hermeneutical resources--or, the collective pool of available knowledge and shared understanding of concepts such as land, property, or religion, which is affected by political determinations about whose knowledge is considered useful or credible--so that it is more difficult for Indigenous peoples to express certain harms to members of the dominant society.

In Part III, I analyze how the legal system has imposed a Western understanding of property onto Indigenous peoples' understandings of land, which in effect invalidates and undermines Indigenous rights over land. I argue that the “neutral” workings of the legal system obscure the ways that Indigenous peoples have been excluded from recognition. Modern property law in particular continues to recognize only limited rights in land for Indigenous peoples. In Part IV, I examine religious protection for sacred sites and how the United States and Canada have largely failed to protect Indigenous sacred sites under religious freedom doctrine. Spiritual claims to land are interpreted as property claims, which limits the resolution of these claims in laws protecting religion. Neutral laws contain a hermeneutic gap regarding land-based spiritualties, which excludes sacred sites from protection. In Part V, I provide some ideas about how the legal system can better accommodate Indigenous relationships with land, but ultimately conclude that solutions will need to be defined by Indigenous peoples themselves.

While this paper analyzes epistemic injustice within the legal system, the project of remedying epistemic injustices caused by settler-colonialism is much bigger than what can be achieved through legal reforms alone. The solutions I explore at the end of this paper are not a complete fix, but some of these epistemic approaches could lead to relatively more just outcomes in the legal system. As Fricker notes, epistemic injustice stems from the unequal distribution of power and addressing inequality will require much more widespread institutional reform.

I also do not intend to exonerate legal actors' accountability for their actions. Some of the judges cited in this paper have explicit prejudices against Indigenous peoples or explicit desires to uphold the colonial power structure. The legal system, however, can often obscure its own perpetuation of injustice through its appearance of neutrality. Without critical attention to the ways in which supposedly neutral principles contain embedded biases, a legal actor does not need to carry an explicit prejudice or bias in order for their decisions to perpetuate the biases embedded within those legal principles.

[. . .]

Indigenous peoples in Canada and the United States have vastly different cultures and religions but share a particular relationship to land. This relationship shares aspects of culture, history, community, religion, and ethics; it creates obligations that are rooted in thousands of years of experience with the land. In cases like Johnson v. McIntosh, the U.S. Supreme Court ratified the state's colonial policy toward Indigenous peoples. In one fell swoop, the Court invalidated traditional Indigenous relationships to land and justified the vesting of property rights in the state by providing Indigenous peoples with “civilization” and Christianity as “compensation.” Due to the perpetuation of these ideas and the systemic hermeneutic marginalization of Indigenous peoples, actors within the Canadian and American legal systems still poorly conceptualize Indigenous relationships to land. Thus, when Indigenous peoples try to assert a relationship to land that exists outside the bounds of the frameworks of property or Christianity, they inevitably end up back inside these frameworks. This is an epistemic injustice.

The epistemic consequences of colonialism are felt within the legal system today, even as the state and its institutions try to distance themselves from their colonial pasts. Even when the legal system attempts to act neutrally, it cannot escape the hermeneutic gaps that are foundational to its jurisprudence regarding Indigenous peoples. Fixing this problem will require the de-marginalization of the hermeneutically marginalized, which requires a shift in the unequal relations of power between groups and also the redistribution of power in a more equitable way. In the interests of justice, it is therefore paramount that countries with colonial histories attend to the gaps in the shared pool of hermeneutical resources in order to recognize and attend to harms stemming from these histories.

 UCLA School of Law, J.D. 2020.