Legally Mediated Identity: The National Environmental Policy Act and the Bureaucratic Construction of Interests

Abstract

In representing the interests of a group, law may simultaneously construct the subject holding those interests. When groups question the implications of an imposed subjectivity, the politics of identity may become a forum for resistance. I examine law's potential to shape identity, based on a controversial decision affecting Yavapai residents of the Fort McDowell Reservation in Arizona. A proposed dam threatened to move the Yavapai from their ancestral land. To develop the Environmental Impact Statement required by the National Environmental Policy Act of 1969, the U.S. Bureau of Reclamation adopted a rational decision framework that some Yavapai believed misrepresented them. Their resistance stimulated a reinterpretation of their collective identity, a defense of their distinctiveness, and a reassertion of their right to represent themselves. The effect of this reappraisal was a new appreciation and articulateness about Yavapai distinctiveness, an invigorated sense of their own history and, most important, their enhanced empowerment.

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