Hostname: page-component-6587cd75c8-6qszs Total loading time: 0 Render date: 2025-04-23T17:35:41.091Z Has data issue: false hasContentIssue false
  • English
  • Français

In the Name of Equal Rights: “Special” Rights and the Politics of Resentment in Post–Civil Rights America

Published online by Cambridge University Press:  01 January 2024

Jeffrey R. Dudas
Get access Rights & Permissions [Opens in a new window]

Abstract

This article explores the character of conservative legal activism in post–civil rights America, arguing that this activism is motivated by two related factors: (1) resentment over the increased political participation of historically marginalized Americans and (2) principled allegations that these historically marginalized Americans are making illegitimate claims for “special,” not equal, rights. I argue that the allegation of special rights is tied to the activists' resentment in multiple and complex ways. On the one hand, the allegation that the rights claims of the historically marginalized are illegitimate claims for special rights is itself an expression of resentment. Like arguments that oppose redistributive social change by relying upon discourses of color blindness, states' rights, evangelical Christianity, and community harmony, special rights talk channels resentment into recognizable and intelligible forms. But, on the other hand, the use of special rights talk is not simply cover for an underlying, fully formed resentment. Instead, the allegation of special rights propels and amplifies activists' resentment, transforming it from one that is based primarily upon competing self-interests into one that is concerned with values, morality, and national identity. Special rights talk thus partially constitutes resentment; it hardens the resolve of opponents of redistributive social change, encouraging them to understand themselves as defenders not only of their own self-interests but also, primarily even, as defenders of the core American values and ideals that are promoted by equal rights and assaulted by special rights. Thus convinced that their opposition is authorized by American tradition, conservative legal activists redouble their counter-mobilization efforts, leading to an exacerbation of already tense conflicts. A case study of the nationwide anti-treaty-rights movement grounds this analysis.

Type
Native American Fishing Rights in the Northwest
Information
Law & Society Review , Volume 39 , Issue 4 , December 2005 , pp. 723 - 758
Copyright
© 2005 Law and Society Association.

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Article purchase

Temporarily unavailable

Footnotes

I am grateful to Michael McCann, Stuart Scheingold, Christine DiStefano, David Olson, and Jon Goldberg-Hiller, each of whom offered valuable comments on previous versions of the work presented here. Tom Burke and Susan Burgess offered very useful comments and encouragement on the initial draft of this article. Mary Dudas helped me sharpen the argument at crucial points in its development. Finally, I thank Herbert Kritzer and the anonymous reviewers of the Law & Society Review for their thoughtful suggestions and their help in bringing this work to publication.

References

References

American Association of Retired Persons (2004) “Civil Rights and Race Relations Survey 2004,” http://roperweb.ropercenter.uconn.edu (accessed 16 April 2004).Google Scholar
American Friends Service Committee (1970) Uncommon Controversy: An Inquiry into the Treaty-Protected Fishing Rights of the Muckleshoot, Puyallup, and Nisqually Indians of the Puget Sound. Washington, D.C.: National Congress of American Indians.Google Scholar
Aubert, Vilhelm (1963) “Competition and Dissensus: Two Types of Conflict and of Conflict Resolution,” 7 J. of Conflict Resolution 26–42.CrossRefGoogle Scholar
Benson, John J. (2002) “What America's Bill of Rights Is All About,” Patriot Ledger, 20 Aug., p. 14.Google Scholar
Berger, Peter L., & Luckmann, Thomas (1966) The Social Construction of Reality: A Treatise in the Sociology of Knowledge. Garden City, NY: Doubleday.Google Scholar
Berkhofer, Robert F. Jr. (1978) The White Man's Indian: Images of the American Indian From Columbus to Present. New York: Vintage Books.Google Scholar
Biolsi, Thomas (2001) Deadliest Enemies: Law and the Making of Race Relations On and Off Rosebud Reservation. Berkeley: Univ. of California Press.Google Scholar
Bobo, Laurence (1999) “Prejudice as Group Position: Micro-Foundations of a Sociological Approach to Racism and Race Relations,” 55 J. of Social Issues 445–72.CrossRefGoogle Scholar
Bordewich, Francis (1996) Killing the White Man's Indian: Reinventing Native Americans at the End of the Twentieth Century. New York: Doubleday.Google Scholar
Brigham, John (1988) “Right, Rage, and Remedy: Forms of Law in Political Discourse,” 2 Studies in American Political Development 303–16.Google Scholar
Brigham, John (1996) The Constitution of Interests: Beyond the Politics of Rights. New York: New York Univ. Press.Google Scholar
Brown, Johanna J. (1994) “Treaty Rights: Twenty Years after the Boldt Decision,” 10 Wicasa Law Rev. 1.Google Scholar
Bruun, Rita (1982) “The Boldt Decision: Legal Victory, Political Defeat,” 4 Law & Policy Q. 271–92.Google Scholar
Carstensen, Fred, et al. (2000) The Economic Impact of the Mashantucket Pequot Tribal Nation Operations on Connecticut. Storrs: Connecticut Center for Economic Analysis.Google Scholar
Carter, Daniel T. (1995) The Politics of Rage: George Wallace, the Origins of the New Conservatism, and the Transformation of American Politics. New York: Simon & Schuster.Google Scholar
Carter, Daniel T. (1996) From George Wallace to Newt Gingrich: Race in the Conservative Counterrevolution, 1963–1994. Baton Rouge: Louisiana State Univ. Press.Google Scholar
Carter, Leif H., & Burke, Thomas F. (2002) Reason in Law, 6th ed. New York: Longman.Google Scholar
Cashman, Sean Dennis (1993) America in the Gilded Age: From the Death of Lincoln to the Rise of Theodore Roosevelt, 3rd ed. New York: New York Univ. Press.Google Scholar
Cohen, Fay G. (1986) Treaties on Trial: The Continuing Controversy over Northwest Indian Fishing Rights. Seattle: Univ. of Washington Press.Google Scholar
Connolly, William E. (1991) Identity/Difference: Democratic Negotiations of Political Paradox. Ithaca: Cornell Univ. Press.Google Scholar
Cornell, Stephen, & Kalt, Joseph P. (1995) “Successful Economic Development and Heterogeneity of Government Form on American Indian Reservations,” http://www.ksg.harvard.edu/hpaied/pubs/pub_008.htm (accessed 8 March 2005).Google Scholar
Crenshaw, Kimberlé W. (1988) “Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law,” 101 Harvard Law Rev. 1331–87.CrossRefGoogle Scholar
De La Cruz, Joseph (1984) “Defending Our Inalienable Rights: We Cannot Fail Our Children,” http://www.cwis.org/fwdp/Americas/joe.txt (accessed 8 March 2005).Google Scholar
Deloria, Vine Jr. (1977) Indians of the Pacific Northwest: From the Coming of the White Man to the Present Day. New York: Doubleday.Google Scholar
Dudas, Jeffrey R. (2001) “Of Savages & Sovereigns: Tribal Self-Administration and the Legal Construction of Dependence,” 23 Studies in Law, Politics, and Society 3–44.Google Scholar
Dudas, Jeffrey R. (2003) “Rights, Resentment, and Social Change: Treaty Rights in Contemporary America.” Ph.D. dissertation, Department of Political Science, University of Washington, Seattle.Google Scholar
Edelman, Murray (1964) The Symbolic Uses of Politics. Chicago: Univ. of Chicago Press.Google Scholar
Edelman, Murray (1988) Constructing the Political Spectacle. Chicago: Univ. of Chicago Press.Google Scholar
Edsall, Thomas B., & Edsall, Mary D. (1992) Chain Reaction: The Impact of Race, Rights, and Taxes on American Politics. New York: W. W. Norton.Google Scholar
Engel, David M., & Munger, Frank W. (2003) Rights of Inclusion: Law and Identity in the Life Stories of Americans with Disabilities. Chicago: Univ. of Chicago Press.CrossRefGoogle Scholar
Epp, Charles R. (1998) The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective. Chicago: Univ. of Chicago Press.CrossRefGoogle Scholar
Evans, Michael K. (2002) The Economic Impact of the Indian Gaming Industry in Wisconsin and Potential Impact of Modified Compact Terms. Boca Raton: Evans, Carroll, and Associates.Google Scholar
Fernando, Andy (1986) “Introd.,” to Treaties on Trial: The Continuing Controversy over Northwest Indian Fishing Rights, by Cohen, Fay G. Seattle: Univ. of Washington Press.Google Scholar
Fish, Stanley (1994) There's No Such Thing as Free Speech (And It's a Good Thing Too). New York: Oxford Univ. Press.Google Scholar
Frank, Thomas (2004) What's the Matter with Kansas? How Conservatives Won the Heart of America. New York: Metropolitan Books.Google Scholar
Gaasholt, Øystein, & Cohen, Fay (1980) “In the Wake of the Boldt Decision: A Sociological Study,” 6 American Indian J. 9–16.Google Scholar
Gallup Organization (2003) “Civil Rights and Race Relations Survey,” http://roperweb.ropercenter.uconn.edu (accessed 16 April 2004).Google Scholar
Gerstle, Gary (2001) American Crucible: Race and Nation in the Twentieth Century. Princeton: Princeton Univ. Press.Google Scholar
Gerstmann, Evan (1999) The Constitutional Underclass: Gays, Lesbians, and the Failure of Class-Based Equal Protection. Chicago: Univ. of Chicago Press.Google Scholar
Gilliom, John (2001) Overseers of the Poor: Surveillance, Resistance, and the Limits of Privacy. Chicago: Univ. of Chicago Press.Google Scholar
Goldberg-Hiller, Jonathon (2002) The Limits to Union: Same-Sex Marriage and The Politics of Civil Rights. Ann Arbor: Univ. of Michigan Press.CrossRefGoogle Scholar
Goldberg-Hiller, Jonathon, & Milner, Neal (2003) “Rights as Excess: Understanding the Politics of Special Rights,” 29 Law and Social Inquiry 1075–118.Google Scholar
Gray, Howard (1977) “Interview with Howard Gray,” 77 Yakima Nation Rev. 13–4.Google Scholar
Greenhouse, Carol J., et al. (1994) Law and Community in Three American Towns. Ithaca: Cornell Univ. Press.CrossRefGoogle Scholar
Grossman, Zach (1992) Treaty Rights and Responding to Anti-Indian Activity. Olympia, WA: Center for World Indigenous Studies.Google Scholar
Harding, Sandra (1999) Is Science Multi-Cultural? Postcolonialisms, Feminisms, and Epistemologies. Bloomington and Indianapolis: Indiana Univ. Press.Google Scholar
Hardisty, Jean (2000) Mobilizing Resentment: Conservative Resurgence from the John Birch Society to the Promise Keepers. Boston: Beacon Press.Google Scholar
Hatcher, Laura J. (forthcoming) Economic Libertarians, Property and Institutions: Linking Activism, Ideas, and Identities among Property Rights Advocates,” in Sarat, A. & Scheingold, S. A., eds., From Fate to Responsibility: Cause Lawyers and the Worlds They Make. Stanford: Stanford Univ. Press.Google Scholar
Henson, Eric, & Taylor, Jonathan B. (2002) “Native America at the New Millennium,” http://www.ksg.harvard.edu/hpaied/pubs/pub_004.htm (accessed 8 March 2005).Google Scholar
Herman, Didi (1997) The Anti-Gay Agenda: Orthodox Vision and the Christian Right. Chicago: Univ. of Chicago Press.CrossRefGoogle Scholar
Hooks, Bell (2003) Rock My Soul: Black People and Self-Esteem. New York: Atria Books.Google Scholar
Johansen, Bruce E. (2000) The New Terminators: A Guide to the Anti-Sovereignty Movement. Olympia, Washington: Center for World Indigenous Studies.Google Scholar
King, Cheryl Simrell, & Kanzler, Casey (2002) Background to Dream: Impacts of Tribal Gaming in Washington State. Washington: First American Education Project.Google Scholar
Klinkner, Philip A., & Smith, Rogers M. (1999) The Unsteady March: The Rise and Decline of Racial Equality in America. Chicago, Illinois: University of Chicago Press.Google Scholar
Lawrence, Charles (1987) “The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism,” 39 Stanford Law Rev. 317–88.Google Scholar
McCann, Michael W. (1994) Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization. Chicago: Univ. of Chicago Press.Google Scholar
McCann, Michael W. (1996) “Causal versus Constitutive Explanations (or, On the Difficulty of Being So Positive …,” 21 Law and Social Inquiry 457–82.Google Scholar
McCann, Michael W., & Dudas, Jeffrey R. (forthcoming)“Retrenchment and Resurgence: Mapping the Changing Context of Movement Lawyering in the United States,” in Scheingold, S. & Sarat, A., eds., Cause Lawyering and Social Movements. Stanford: Stanford Univ. Press.Google Scholar
McLeod, Kenneth Kenneth McLeod Papers, 1934–1985. Seattle: Special Collections, University of Washington Libraries.Google Scholar
McWhorter, John H. (2000) Losing the Race: Self-Sabotage in Black America. New York: Free Press.Google Scholar
Milner, Neal (1986) “The Dilemmas of Legal Mobilization: Ideologies and Strategies of Mental Patient Liberation,” 8 Law and Policy 105–29.CrossRefGoogle ScholarPubMed
Morris, Betty (1983) “Testimony Presented Before the State Government Committee, Olympia, Washington,” March 22. In McLeod, Kenneth, Kenneth McLeod Papers, 1934–1985. Seattle: Special Collections, University of Washington Libraries.Google Scholar
National Indian Gaming Association (2001) “Gaming Facts,” http://www.indiangaming.org/library/index.html (accessed 8 March 2005).Google Scholar
Nesper, Larry (2002) The Walleye War: The Struggle for Ojibwe Spearfishing and Treaty Rights. Lincoln: Univ. of Nebraska Press.Google Scholar
Outdoor Life (1984) “The Threatening Indian Problem,” 3 (March).Google Scholar
Passavant, Paul A. (2002) No Escape: Freedom of Speech and the Paradox of Rights. New York: New York Univ. Press.Google Scholar
Perlstein, Rick (2001) Before the Storm: Barry Goldwater and the Unmaking of the American Consensus. New York: Hill and Wang.Google Scholar
Pew Research Center (2000) “People & The Press Campaign 2000 Typology Survey,” http://roperweb.ropercenter.uconn.edu (accessed 16 April 2004).Google Scholar
Phillips, Kevin (2002) Wealth and Democracy: A Political History of the American Rich. New York: Broadway Books.Google Scholar
Reeves, NancyAssociates (1996) The Economic Impact of Grand Casino Mille Lacs and Grand Casino Hinckley on Their Surrounding Areas. Minneapolis: Nancy Reeves and Associates.Google Scholar
Richendifer, Blair (1977) “Statement to the United States Commission on Civil Rights,” Hearing Before the United States Commission on Civil Rights: American Indian Issues in the State of Washington: Hearing Held in Seattle, Washington, October 19–20. Washington, D.C.: The Commission.Google Scholar
Rogin, Michael P. (1987) Ronald Reagan, the Movie: and Other Episodes in Political Demonology. Berkeley: Univ. of California Press.Google Scholar
Schacter, Jane S. (1994) “The Gay Civil Rights Debate in the States: Decoding the Discourse of Equivalents,” 29 Harvard Civil Rights-Civil Liberties Law Rev. 283–317.Google Scholar
Schacter, Jane S. (1997) “Skepticism, Culture, and the Gay Rights Debate in a Post-Civil-Rights Era,” 110 Harvard Law Rev. 684–731.CrossRefGoogle Scholar
Schattschneider, E. E. (1960) The Semisovereign People: A Realist's View of Democracy in America. Hinsdale, IL: Dryden Press.Google Scholar
Scheingold, Stuart A. (1974) The Politics of Rights: Lawyers, Public Policy, and Political Change. New Haven: Yale Univ. Press.Google Scholar
Scheingold, Stuart A. (1989) “Constitutional Rights and Social Change,” in McCann, M. W. & Houseman, G., eds., Judging the Constitution. Glenview, IL: Scott, Foresman/Little, Brown.Google Scholar
Silverstein, Helena (1996) Unleashing Rights: Law, Meaning, and the Animal Rights Movement. Ann Arbor: Univ. of Michigan Press.CrossRefGoogle Scholar
Smith, Rogers (1997) Civic Ideals: Conflicting Visions of Citizenship in U.S. History. New Haven and London: Yale Univ. Press.Google Scholar
Steele, Shelby (1998) A Dream Deferred: The Second Betrayal of Black Freedom in America. New York: Harper Collins.Google Scholar
Steinberg, Marc W. (1999) “The Talk and Back Talk of Collective Action: A Dialogic Analysis of Repertoires of Discourse among Nineteenth-Century English Cotton Spinners,” 105 American J. of Sociology 736–80.CrossRefGoogle Scholar
Steinman, Erich (2005) “Legitimizing American Indian Sovereignty: Mobilizing the Constitutive Power of Law Through Institutional Entrepreneurship,” 39 Law & Society Rev. 759–91.CrossRefGoogle Scholar
Taylor, Charles (1987) “Interpretation and the Sciences of Man,” in Rabinow, P. & Sullivan, W., eds., Interpretive Social Science: A Second Look. Berkeley: Univ. of California Press.Google Scholar
Taylor, Jonathan B., et al. (2002) “Public Policy Analysis of Indian Gaming in Massachusetts,” http://www.ksg.harvard.edu/hpaied/docs/MA%20Indian%20Gaming%20-%20ALL.pdf (accessed 8 March 2005).Google Scholar
Taylor, Joseph E. III (1999) Making Salmon: An Environmental History of the Northwest Fisheries Crisis. Seattle: Univ. of Washington Press.Google Scholar
Thernstrom, Stephan, & Thernstrom, Abigail (1997) American in Black and White: One Nation, Indivisible. New York: Simon & Schuster.Google Scholar
Thompson, Hunter S. (1979) The Great Shark Hunt. New York: Simon & Schuster.Google Scholar
United States Commission on Civil Rights (1977) Hearing Before the United States Commission on Civil Rights: American Indian Issues in the State of Washington: Hearing Held in Seattle, Washington, October 19–20. Washington, D.C.: The Commission.Google Scholar
United States Commission on Civil Rights (1978) American Indian Fishing Rights in the State of Washington: Hearing Held in Seattle, Washington, August 25. Washington, D.C.: The Commission.Google Scholar
United States Commission on Civil Rights (1981) Indian Tribes: A Continuing Quest for Survival. Washington, D.C.: The Commission.Google Scholar
United States Commission on Civil Rights (1989) Discrimination Against Chippewa Indians in Northern Wisconsin. Washington, D.C.: The Commission.Google Scholar
Washington State Department of Fisheries (1951–1990) Fisheries Statistical Report. Olympia, WA: Washington State Department of Fisheries.Google Scholar
Washington State Department of Fisheries, U.S. Fish and Wildlife Service, and Washington Department of Game (1973) Joint Statement Regarding the Biology, Status, Management, and Harvest of the Salmon and Steelhead Resources of the Puget Sound and Olympic Peninsular Drainage Areas of Western Washington. Tacoma, WA: United States District Court, Western District of Washington.Google Scholar
Watkins, T. H. (1993) The Great Depression: America in the 1930's. Boston: Back Bay Books.Google Scholar
Wilkins, David (2002) American Indian Politics and the American Political System. Lanham, MD: Rowman and Littlefield.Google Scholar
Wilkinson, Charles (2000) Messages From Frank's Landing: A Story of Salmon, Treaties, and the Indian Way. Seattle: Univ. of Washington Press.Google Scholar
Williams, Patricia J. (1991) The Alchemy of Race and Rights: Diary of a Law Professor. Cambridge: Harvard Univ. Press.Google Scholar
Wills, Garry (1970) Nixon Agonistes: The Crisis of the Self-Made Man. New York: Houghton Mifflin.Google Scholar
Wills, Garry (1987) Reagan's America: Innocents at Home. New York: Penguin Books.Google Scholar
Wood, Gordon S. (1969) The Creation of the American Republic, 1776–1787. Chapel Hill, NC: Univ. of North Carolina Press.Google Scholar
Yin, Robert K. (1994) Case Study Research: Design & Methods. Thousand Oaks, CA: Sage Publications.Google Scholar
Zemans, Francis K. (1983) “Legal Mobilization: The Neglected Role of the Law in the Political System,” 77 American Political Science Rev. 690–703.CrossRefGoogle Scholar

Cases Cited

Morton v. Mancari, 417 U.S. 535 (1974).Google Scholar
Puget Sound Gillnetters Association v. Donald Moos, 88 Wn.2d 677 (1976).Google Scholar
United States v. Washington, 384 F. Supp. 312 (1974).Google Scholar
Washington, et. al. v. Washington State Commercial Passenger Fishing Vessel Association, et al., 443 U.S. 658 (1979).Google Scholar
Washington State Commercial Passenger Fishing Vessel Association v. Thor Tollefson, 89 Wn.2d 276 (1977).Google Scholar