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Can Cowboys Become Indians: The Protection of At Risk Communities As Remnants of an Endangered Culture
Land Use & Environmental Law Review (2000)
  • A. Dan Tarlock, Chicago-Kent College of Law
Abstract

"Can Cowboys Become Indians? Protecting Western Communities as Endangered Cultural Remnants" examines and evaluates the claims being asserted by small, rural western communities stressed by rapid growth that they are entitled to some form of protection as an endangered remnant culture. It places the economic and cultural stresses faced by these communities in the context of the current western population boom and accompanying shifts in land use and water allocation. The pace of landscape change and the reallocation of water to urban and environmental uses causes considerable, but unquantified, social and economic disruption. There are some legal mechanisms in place to respond to these shifts in resource use, but they do not adequately address the non-Constitutional claims that these communities represent endangered cultures which should be preserved. Community cultural claims, therefore, receive little recognition in the laws that restrain changes in the use of natural resources and have been largely ignored in the on-going efforts to balance population growth and environmental conservation. In short, the social costs of economic "progress" have long been considered damnum absque injuria. The basic argument of this article is that at-risk communities have a legitimate basis to be protected from markets that threaten to destroy a unique culture. Although these communities are not conventional religious groups or aboriginals subject to a high risk of oppression by the dominant culture, recent developments in post-modern legal and cultural theory make these claims more plausible than one might initially suspect because they posit that culture is a contingent and evolving construct. Few communities would neither self-identify with the surrounding conventional minority cultures--Native American and Hispanic--which they once oppressed, nor assume the non-exclusive group rights which these minorities "enjoy." However, at-risk communities are both rhetorically and practically exploring ways to claim the perceived benefit of Native American Tribes--resource inalienability and the recognition of group cultural practices as a legitimate component of property rights. The initial effort often ranges from the comic to the ineffective, but as the convergence between the "preservation" efforts of at-risk communities and the efforts of environmentalists to define and maintain an ecological baseline in the non-urban West becomes clear, the cultural claims of at-risk communities will take on a greater legitimacy, especially in post-modern cultural theory. These communities must be factored into efforts to re-envision the western landscape and the legal institutions that will develop to manage and sustain this vision. Protection could take the form of greater recognition of group third-party interests in land and water allocation decisions, group property rights on the Native American model and voluntary efforts to recollectivize property rights.

Disciplines
Publication Date
March, 2000
Citation Information
Can Cowboys Become Indians: The Protection of At Risk Communities As Remnants of an Endangered Culture, 31 Land Use & Environmental Law Review 229 (2000).