Abstract
In the last twenty years, the concept of legitimate expectations has come to play a very prominent role in international investment treaty-based arbitration, as arbitral tribunals have required states to compensate investors for taking measures that allegedly interfere with, or for failing to take measures that protect, such investors’ legitimate expectations about the future. Tribunals have awarded compensation to investors for a variety of governmental actions or inaction, ranging from the refusal to renew a license for a particular investor, to the passage of generally applicable health, safety, or welfare legislation that binds the community at large.
In this piece, I explore what insights investment law scholars can gain from authors in the fields of critical race theory and settler colonial studies, who have examined the use, and implications of the use, of the concept of expectations in particular contexts. Taken together, these latter works demonstrate what remains generally-unrecognized in investment law scholarship: that the concept of expectations has long-served, and continues to serve, as an important technology through which certain intersecting forms of privilege are maintained and reproduced through law. I use these existing works to think across different—but crucially related—contexts of hierarchy and subordination, in order to more clearly identify the precise logics by which the legal protection of expectations has functioned, and continues to function, to maintain or reproduce privileges of various kinds.
Introduction
In the last twenty years, the concept of legitimate expectations has come to play a very prominent role in international investment treaty-based arbitration, as arbitral tribunals have required states to compensate investors for taking measures that allegedly interfere with, or for failing to take measures that protect, such investors’ legitimate expectations about the future. Tribunals have awarded compensation to investors for a variety of governmental actions or inaction, ranging from the refusal to renew a license for a particular investor, to the passage of generally applicable health, safety, or welfare legislation that binds the community at large.
This line of decisions has been much critiqued by activists, academic commentators, governments, and even some tribunals. For these critics, the problem is the breadth of the expectations protected by tribunals: Unreasonable and illegitimate expectations have been protected alongside reasonable and legitimate ones. The solution, according to such critics, is more rigorous review by tribunals, to separate the former from the latter. I take a different approach, considering whether such a line-drawing exercise is sufficient, or whether there may be something more pernicious about the manner in which the concept of expectations has historically functioned, and continues to function, that requires a more fundamental critique.1
In this brief article, I explore what insights investment law scholars can gain from authors in the fields of critical race theory and settler colonial studies, who have examined the use, and implications of the use, of the concept of expectations in particular contexts. Taken together, these latter works demonstrate what remains generally-unrecognized in investment law scholarship: that the concept of expectations has long-served, and continues to serve, as an important technology through which certain intersecting forms of privilege are maintained and reproduced through law. In this article, I use these existing works to think across different—but crucially related—contexts of hierarchy and subordination, in order to more clearly identify the precise logics by which the legal protection of expectations has functioned, and continues to function, to maintain or reproduce privileges of various kinds.
First, I show that, in dominant Anglo-American legal doctrine, the protection of expectations has long been grounded in affect (and more precisely, in the allegedly universal affective benefits of certainty and security, and the allegedly universal affective costs of uncertainty and insecurity). Second, I consider how existing works in the fields of settler colonial studies and critical race theory allow us to challenge such a grounding (both in terms of its accuracy and its political implications): I further draw out the implications of these challenges for the field of international investment law. I conclude with some reflections on my (hesitant) choice to consider the protection of expectations across different contexts of hierarchy and subordination.
I. Grounding Property in Expectation; Grounding Expectation in Affect
The concept of expectation has long been central to Anglo-American property law. Prior to the nineteenth century, ownership in England had been grounded primarily in hereditary title and birthright, and later, in notions of possession and use. Locke, for example, declared that “’tis allowed to be his goods who hath bestowed his labour upon it, though before, it was the common right of every one.”2 The latter theories of ownership also grounded English property claims, and so effected indigenous dispossession, in the colonies, and, in fact, emerged out of colonial encounters. Locke’s grounding of property in labor, for instance, enabled indigenous dispossession because only a “very specific form of industry”—associated with the English—was recognized as labor at all.3
Alongside notions of possession and use, however, in Anglo-American property law, we can see what Brenna Bhandar compellingly calls “an affective grounding of ownership rooted in expectation and the desire for security.”4 Such a grounding is most associated with the work of Jeremy Bentham, who famously argued that at the very core of property lay the “expectation” of being able to do, in the future, with one’s possessions as one wished.5 For Bentham: “To have a thing in our hands, to keep it, to make it, to sell it, to work it up into something else; to use it—none of these physical circumstances, nor all united, convey the idea of property.”6 Rather, “[t]he idea of property consists in an established expectation; in the persuasion of being able to draw such or such an advantage from the thing possessed.”7 For Bentham, then, only “fixed and durable possession . . . merits the name of property.”8 Note the close relationship, in this conceptualization, between law, expectation and security about the future, such security being, for Bentham, both “entirely the work of law” and its “principle object.”9
The grounding of property in expectation is visible not simply in the writings of scholars like Bentham, but in common material practices and techniques, many of which gained prominence in the nineteenth century. Bhandar, for instance, highlights the shift taking place during this period in the colony of South Australia, from a system of contract for land transference (where “[t]he seller had to produce each and every deed of conveyance . . . to show the purchaser a good chain of title”) to the new “Torrens” system of title based on registration (where ownership is listed in a central registry).10 One of the core justifications for the shift was that it would reduce or eliminate the uncertainty of title produced by the old, contract-based, conveyancing system.11 In this old system, “not all interests [in the land] [were] created by or recorded in deeds forming part of the chain of title.”12 As a result, the argument went, “even the most thorough searching of the title deeds did not always provide sufficient security for prospective purchasers,” since older, non-extinguished claims could always arise.13 In contrast, registration legally “render[ed] all prior ownership claims irrelevant,” “preclud[ing] any consideration of what was there before.”14 In doing so, registration provided security to the registered purchaser, who no longer had to worry about the possible emergence of previously unknown claims to the land.
Three points are important to note here. First, in both the work of Bentham and in nineteenth century debates about registration, property is not simply grounded in the notion of expectation and security. Rather, the benefits of expectation and security are themselves understood in affective terms. For example, Robert Richard Torrens, a key supporter and designer of the new system of registration in South Australia, condemns the old system in the following terms:
[P]ecuniary loss is not the worst feature. The harassing, spirit-wearing perplexity in which the land-owner is too frequently involved is yet more distressing . . . . How many purchasers for bona fide consideration, having parted with their money, pass their days in anxiety and bitterness, dreading lawsuits, eviction and ruin.15
Similarly, Bentham writes:
To form a precise idea of the extent which ought to be given to the principle of security, we must consider that man is not like the animals, limited to the present, whether as respects suffering or enjoyment; but that he is susceptible of pains and pleasures by anticipation . . . .16
Here, Bentham explicitly grounds the need to protect expectations and security in affect, pointing out that every attack upon such expectations and such security “produces a distinct and special evil, which may be called a pain of disappointment.”17
Second, in these works and debates, the benefits of expectation and security are not simply understood in affective terms: rather, these affective benefits are additionally cast as universal. For instance, in the above quote, Bentham emphasizes “man’s” susceptibility to “pains and pleasures by anticipation” and states that such susceptibility serves to separate “man” from animals.18 Similarly, Torrens speaks of the sentiments of the “land-owner” and the “purchaser” abstractly, removing these sentiments from their particular contexts (in this example, settler colonialism in South Australia).
Third, the foregoing discussion provides our first inkling that, despite the universalist claims described above, the benefits of protecting expectations might be far more particular, systematically accruing to some groups and not others. The Torrens system of land registration certainly provided security to registered purchasers, but (or rather, precisely because) it erased the claims of the non-registered to the land. Bhandar argues that this necessary erasure, of the claims of some, for the security of others, accounts for the relative ease of introducing the Torrens system in the colonies, where the British could more easily discount indigenous claims to land.19 The “rendering illegible [of] all pre-existing relations of use and ownership,” she writes, “is more easily realized in places where the inhabitants are deemed by the force of law as something less than civilized (defined, of course, in spectacularly circular reasoning, by the absence of private property).”20
II. Challenging the Grounding
In the previous Part, I showed how the protection of expectations has long been grounded, at least partly, in the (allegedly universal) affective benefits of certainty and security, and the (allegedly universal) affective costs of uncertainty and insecurity. In this Part, I consider how existing works in the fields of critical race theory and settler colonial studies provide important insights that allow us to challenge this grounding. I focus on two aspects of such works: First, their demonstration that the allegedly universal feelings that serve to ground the protection of expectations are actually the product of very particular histories and structures of power (particularly, the related histories of capitalism, colonialism/settler colonialism and racism), and second, their explication of the importance, even the necessity, of certain forms of uncertainty and insecurity in struggles for decolonization and desegregation. Finally, I consider what these insights mean for scholarship on the relatively-recent emergence of a legitimate-expectations rule in international investment law.
A. The Production of Expectations
In the previous Part, I suggested that, when property law scholars discuss the anxiety and perplexity caused by uncertainty, or the disappointment caused by a failure to protect expectations, they generally characterize these as universal emotions, automatically arising from the interior space of humans (albeit in response to particular external events). Recent work on affect in a range of disciplines, however, has fundamentally challenged such an understanding.21 Reconceptualizing emotions as “social and cultural practices,” rather than simply individual psychic sensations, scholars have directed attention to “the processes of production or the ‘making’ of emotions”22 and the ways in which emotions work to produce (subjects, spaces, sociopolitical formations and so on).
Scholars working in the field of settler colonial studies have further developed this argument. Not content with simply making the theoretical point that feelings are socially produced, such scholars have emphasized the particular importance of “[p]rocesses and institutionalized frameworks of settlement—the exertion of control by non-Natives over Native peoples and lands”—in giving rise to “certain modes of feeling . . . among non-Natives” in settler colonial states.23 So too, these scholars have theorized the content of feelings that arise from settlement, arguing that what is central here is a sense of “certainty” about entitlement to and continuing possession of land—including land that has long-been claimed by indigenous groups, even in the face of particular land rights actions by such groups.24
Eva Mackey’s work is of particular importance here. In a recent book, Mackey, an anthropologist, undertakes a “detailed genealogy of how certainty and entitlement to land and superiority have been created and naturalized over centuries of colonialism and nation-building.”25 In the book and a related article, drawing on interviews with groups of settlers opposing indigenous land rights claims in Canada and the United States, Mackey shows how “ubiquitous narratives about how their families (and other families like theirs) have worked hard on the land to build the nation”26 and legal doctrines (for example, of discovery and terra nullius)27 have all played a role in both creating feelings of certainty among such settlers, and, conversely, in giving rise to feelings of anger and frustration if such certainty is threatened. Mackey importantly points out that, given these narratives and doctrines (and much else besides), such feelings of anger and frustration should not be surprising.28 Indeed, quite the contrary: These deep feelings are “normal responses to land-rights actions, if they are conceptualized in the context of longstanding axiomatic frameworks of settler colonialism.”29 This, of course, is not to say that such feelings should be accepted or protected through law.
In her work, Mackey shows that feelings of certainty about continuing possession of land are the product of very particular histories of settlement. Relatedly, critical race theorists have demonstrated that practices and institutional structures of slavery, segregation and racism (which are imbricated with those of settler colonialism) also give rise to a sense of certainty among the beneficiaries of these practices—specifically, certainty that there will be ongoing exclusive access to “the privileges inhering in whiteness.”30 So too, such scholars have shown that these practices and structures give rise to powerful feelings of anger and victimization if such certainty is jeopardized—as, for example, through governmentally mandated programs of desegregation.31
At this point, we can begin to sense the problems with Bentham’s argument. Bentham, like many contemporary courts, represents the pleasure of certainty, and the anger and disappointment caused by its thwarting, as universal, natural, spontaneous, even human, affective states. And yet the above-described works demonstrate that these are, instead, particular modes of feeling, produced by the related institutional structures and practices of capitalism, colonialism/settler colonialism and racism. In this way, these works call into question the accuracy of the assumption of universality that serves, in Bentham’s account, to normatively ground the protection of expectations. In addition, and more importantly, these works call attention to the implications of this assumption of universality, demonstrating the ways in which such an assumption allows for the reproduction of privilege through law.
We can see this through an example. In her article, Mackey describes the 2005 case of City of Sherrill v. Oneida Indian Nation of New York,32 in which the Supreme Court rejected the Oneida Nation’s attempt to turn lands they had purchased on the open market into trust lands.33 In justifying its decision, the Court displayed a concern for the “settled expectations” of the “non-Indian” residence of the area, emphasizing that “[g]enerations have passed during which non-Indians have owned and developed the area that once comprised the Tribe’s historic reservation.”34 “Given [this] longstanding, distinctly non-Indian character of the area and its inhabitants,” the Court asserted, allowing the trust “would seriously disrupt the justifiable expectations of the people living in the area.”35
In City of Sherrill, we can identify the precise logics through which the concept of expectation works to maintain and reproduce privilege. The expectations which the Court protects in the decision are the product of practices and frameworks of settlement. But the recourse to a general rule on the protection of expectations—a rule grounded in the allegedly universal nature of affective benefits of such protection—allows the Court to cast its protection of such expectations as a neutral and nondiscriminatory move. After all, if certainty is seen as universally beneficial, it becomes very hard to see how a general rule for the protection of such certainty might, in fact, benefit some groups over others. But my suggestion in this Part is that this is exactly what such a rule does, as courts, protecting feelings born of privilege, also protect the privileges in which such feelings are born.
B. Reconsidering Uncertainty
In the previous Subpart, I showed that existing works in the fields of critical race theory and settler colonial studies demonstrate that the allegedly universal feelings that serve to ground the legal protection of expectations are actually the product of very particular histories and structures of power. Next, I explore a second insight of these works: Their suggestion that uncertainty and insecurity may not always be undesirable conditions, to be guarded against at all costs.
Turning, once more, to an example: In her seminal article, “Whiteness as Property,” critical race theorist Cheryl Harris discusses the two Brown v. Board of Education decisions—widely known as Brown I36 and Brown II.37 In Brown I, the Supreme Court famously refused to countenance legalized segregation, thus “disregard[ing] the immediate associational preferences of whites.”38 Yet, in Brown II, the Court only ordered desegregation with “all deliberate speed,” thus “break[ing] with a tradition in constitutional law” that the violation of constitutional rights “required immediate remediation.”39 Central to the second decision, Harris contends, was the Supreme Court’s preoccupation with the settled expectations of white people—to avoid having their children interact with black children. Harris writes:
Although the Court was unwilling to give official sanction to legalized race segregation and thus required an end to ‘separate but equal,’ it sought to do so in a way that would not radically disturb the settled expectations of whites that their interests—particularly the relative privilege accorded by their whiteness—would not be violated.40
Both Brown II and City of Sherrill allow us to begin to see why, rather than simply evils, uncertainty and insecurity may sometimes be necessary or desirable states. In Brown II, Harris points out, the Supreme Court’s concern with white expectations meant that “the nature of the injury to Black children was not what defined the scope of the remedy; rather, the level of white resistance dictated the parameters of the remedy.”41 Desegregation, the Court held, could only take place at a rate that did not excessively upset the expectations of whiteness; thus today, school desegregation has still not taken place. In City of Sherrill, the “longstanding observances and settled expectations” of settlers determined not just the kind of remedy granted to the Oneida Nation, but precluded relief from being granted at all (despite the Supreme Court’s acknowledging the Oneida Nation’s “historic” claims to the land).42
Together, the Brown II and City of Sherrill decisions demonstrate how a concern with protecting settled expectations (and an underlying concern with preventing uncertainty and insecurity) can limit prospects for racial justice and decolonization, by making the pace and possibilities of change depend not on the desires, demands, or needs of the subordinated, but on the likely impact of such change on the dominant. The problem with this is not simply an ethical one about a misplaced locus of concern. Rather, it is that significant societal changes—like desegregation or decolonization—are impossible without some degree of upheaval. Desegregation and decolonization, as scholars and activists have long argued, require precisely upsetting the expectations or life plans of the dominant (for example, their plans to send children to segregated schools)—in fact, this is what dismantling privilege means. It is for this reason, I argue, that the desirability of a norm around the protection of legitimate expectations should not be taken for granted, but instead, should be rethought.
It should be noted that my point here is not to valorize uncertainty or instability, for their own sakes or in the abstract. Quite the contrary: it is to emphasize the contextual nature of the benefits and harms of uncertainty and instability, as well as the particular positionalities of the people to whom these benefits and harms accrue. Such reminders, of the importance of context and positionality, may seem superfluous: Yet their necessity becomes clear when one considers how the provision of certainty and stability is generally assumed to be a worthwhile end of Anglo-American law. The critical works discussed in this Part help us question this assumption, and raise the question of whether uncertainty and instability (which one might alternatively understand as openness) should instead, in certain circumstances, be what such law strives to provide.
C. Insights for Investment Law
What, then, does the above discussion mean for investment law scholarship on the legitimate expectations rule? First, the above discussion suggests the limits of critiques of arbitral decisions that simply or primarily focus on the over-broad nature of those decisions and advocate more rigorous review to separate “good” expectations from “bad” ones. It suggests that such critiques miss the pernicious aspects of even those expectations which may actually appear (and even be) quite “reasonable”—but only in, and given, particular contexts of privilege or hierarchy.43
In addition, however, the above discussion suggests the utility of the concept of “investor states or modes of feeling”—feelings manifest, for example, in indignant press releases from investors or their lawyers about the injustices they have suffered at the hands of foreign governments. First, the concept directs attention to the processes by which investors (particularly investors in the global North) come to feel certainty about their continuing access to Southern resources, or about their entitlement to particular standards of treatment by Southern governments, such that deviation from such standards leads to feelings of frustration, anger, and being wronged. Second, the concept directs attention to the implications of such states of feeling in enabling particular interventions—including but not limited to legal interventions—to safeguard Northern capital in the global South. Third, the concept forces a reconsideration of, and allows for a challenging of, international investment law itself. It does so by highlighting how particular feelings, born of hierarchy and privilege, lie at the very center of those investment law doctrines which are generally represented and legitimized as responsive to human (or, relatedly, market) proclivities or demands, or to the demands of “fairness” or “equity.”44
Conclusion
I want to conclude with some reflections on my choice to consider together the protection of expectations across national boundaries and legal fields. I have made this choice hesitantly, for fear of obscuring the specificities of the different contexts being discussed. The modes and states of feeling that emerge from “[p]rocesses and institutionalized frameworks of settlement”45 are not the same as those that emerge from histories and practices of either slavery and segregation or international investment. In addition, these different “affective formations”46 naturalize very different forms of oppression, violence, and privilege. Overlooking these differences can have crucial political consequences, serving, for example, to obscure distinct—and even contradictory and conflicting—demands for recompense or change.47
Mindful of these dangers, however, I hope that this article has demonstrated that there may be value to thinking—cautiously—across these different, but related, contexts of hierarchy and subordination. This is, in part, because the modes and states of feeling discussed above may not be the same, but may certainly be (and, I would argue, are) related, deriving, as they do, from the inseparable dynamics of capitalism, colonialism/settler colonialism and racism. It is also because of the frequent transference of legal doctrines, concepts, and practices across national borders and legal fields. Doctrines developed to enable colonial settlement and dispossession in the continental United States have not only been invoked by settlers in other British colonies, but have been used by courts to enable U.S. overseas expansion. So too, doctrines developed to enable U.S. overseas expansion have come to play a role in what is generally considered U.S. domestic law, enabling, among other things, racial profiling, the exclusion of immigrants and enhanced executive power. Indeed, the concept of legitimate expectations is itself an example. Long used in the context of U.S. domestic law, it has only recently been invoked in the context of international investment law, with a key justification for such invocation being its long use in multiple domestic contexts. This article has attempted to show, then, that by thinking across diverse contexts of capitalism, colonialism/settler colonialism and racism, we can sometimes better understand the interlocking nature of different forms of hierarchy and subordination, as well as the precise legal logics and strategies through which such hierarchy and subordination are maintained and reproduced. Furthermore, this article has identified the protection of expectation is one key strategy of such reproduction, working to enable the legal protection of feelings derived from privileges of various kinds.
[1]. To clarify, my question is not whether there is something inherently problematic about the concept of expectations. Rather, my interest is in how the concept has functioned, and continues to function, in concrete historical circumstances, and in the implications of such functioning.
[2]. John Locke, Two Treatises of Government 289 (Peter Laslett ed., 3d ed. 1988).
[3]. Barbara Arneil, The Wild Indian’s Venison: Locke’s Theory of Property and English Colonialism in America, 44 Pol. Stud. 60, 63 (1996).
[4]. Brenna Bhandar, Title by Registration: Instituting Modern Property Law and Creating Racial Value in the Settler Colony, 42 J.L. & Soc’y 253, 255 (2015) (footnote omitted).
[5]. Thus, Bentham famously declared: “Property is nothing but a basis of expectation . . . .” Jeremy Bentham, Security and Equality in Property”, in Property: Mainstream and Critical Positions 41, 51 (C.B. Macpherson ed., 1978).
[6]. Id. Here, we can see why Bhandar describes Bentham’s “notion of ownership” as an “abstract” one: Ownership is not grounded in “pre-existing relations of use and ownership” but instead, in legal edict. Bhandar, supra note 4, at 265.
[7]. Bentham, supra note 5, at 51–52.
[8]. Id. at 50.
[9]. Id. at 49. For an account of the relationship between property, law, and security in Bentham’s work, see Bhandar, supra note 4, at 265–66.
[10]. Bhandar, supra note 4, at 269.
[11]. Id.
[12]. Robert T.J. Stein & Margaret A. Stone, Torrens Title 4 (1991).
[13]. Bhandar, supra note 4, at 269.
[14]. Id. at 273–74.
[15]. South Australia, Parliamentary Debates, House of Assembly, June 4, 1857, 202 (Robert Torrens) (Austl.) (introducing the Real Property Bill in the South Australian legislature), quoted in Bhandar, supra note 4, at 270.
[16]. Bentham, supra note 5, at 50 (emphasis added).
[17]. Id. at 51. This emphasis on the affective costs of insecurity remains a central theme of property law scholarship to the present day. However, in contemporary property law scholarship, we also see a second justification for the protection of expectations. Many property law scholars argue—or simply assume—that security promotes investments and improvements. Risk, in this account, is what prevents or dis-incentivizes such investments and improvements: the government, by protecting expectations, can reduce risk. It should be noted that, although functionalist, this argument also ultimately relies on an (often-unspoken, in this context) belief in the universal affective benefits of security: it is these benefits that lead individuals to seek out security, and avoid risk, in the first place.
[18]. Id. at 50. Of course, Bentham’s notion of humanity may itself be limited—beyond his gendered language, the figure of the savage is a constant presence in his work. See, e.g., id. at 49–50.
[19]. Bhandar, supra note 4, at 270–72.
[20]. Id. at 265.
[21]. See, e.g., Mark Rifkin, Settler States of Feeling: National Belonging and the Erasure of Native American Presence, in A Companion to American Literary Studies 342, 345 (Caroline F. Levander & Robert S. Levine eds., 2011).
[22]. Sara Ahmed, The Cultural Politics of Emotion 11 (2d ed. 2015).
[23]. Rifkin, supra note 21, at 342.
[24]. Eva Mackey, Unsettling Expectations: (Un)Certainty, Settler States of Feeling, Law, and Decolonization, 29 Can. J.L. & Soc’y 235, 238 (2014).
[25]. Id. at 241 (discussing the genealogy contained in Eva Mackey, Unsettled Expectations: Uncertainty, Land and Settler Decolonization (2016)).
[26]. Mackey, supra note 24, at 239.
[27]. Id. at 241.
[28]. Id. at 239.
[29]. Id. at 238.
[30]. Cheryl I. Harris, Whiteness as Property, 106 Harv. L. Rev. 1707, 1736 (1993). As Harris shows, at different historical moments, these privileges have included the right to own property, to call oneself “white,” or to send one’s children to particular schools.
[31]. For example, in an article that discusses the “[a]ffective [e]ntitlements of [w]hiteness,” Alyosha Goldstein writes: “A standard trope of whiteness in the United States since the de jure victories of the long civil rights movement is the reversal of injury [and] a claim of white victimization . . . .” Alyosha Goldstein, Possessive Investment: Indian Removals and the Affective Entitlements of Whiteness, 66 Am. Q. 1077, 1077 (2014).
[32]. 544 U.S. 197 (2005).
[33]. Mackey, supra note 24, at 240–41.
[34]. City of Sherrill, 544 U.S. at 200–02.
[35]. Id. at 202, 215 (quoting Hagen v. Utah, 510 U.S. 399, 421 (1994)).
[36]. Brown v. Bd. of Educ., 347 U.S. 483 (1954) (Brown I).
[37]. Brown v. Bd. of Educ., 349 U.S. 294 (1955) (Brown II); Harris, supra note 30, at 1745–57.
[38]. Harris, supra note 30, at 1753.
[39]. Id. at 1755.
[40]. Id. at 1756.
[41]. Id. at 1755–56.
[42]. City of Sherrill v. Oneida Indian Nation, 544 U.S. 197, 202 (2005). For another account of City of Sherrill that demonstrates the work done by the notion of an “expectation of stability and order” in denying Oneida sovereignty, see Robert Nichols, Indigeneity and the Settler Contract Today, 39 Phil. & Soc. Criticism 165, 180 (2013).
[43]. Recall Mackey’s point, previously discussed, about how settlers’ deep feelings of indignation and anger at indigenous land claims should not be surprising; to the contrary, these deep feelings are “normal responses to land-rights actions, if they are conceptualized in the context of longstanding axiomatic frameworks of settler colonialism.” Mackey, supra note 26, at 238.
[44]. Crucially, for our purposes, this includes the legitimate expectations rule itself, the primary doctrinal hook for which is the “fair and equitable treatment” clause contained in many investment treaties. See Freya Irani & Katharina Pistor, Expectations as Property: Histories, Contextualizations, and Critiques, 65 UCLA L. Rev. Discourse (published concurrently in this Symposium issue 2018), and Lise Johnson, A Fundamental Shift in Power: Permitting International Investors to Convert Their Economic Expectations Into Rights, 65 UCLA L. Rev. Discourse (published concurrently in this Symposium issue 2018), for a description of this doctrinal grounding.
[45]. Rifkin, supra note 21, at 342.
[46]. Id.
[47]. As Rifkin reminds us: “The primary issue that frames US-Indian relations . . . is not racist exclusion from citizenship but forced incorporation into the state . . . . ” Id.
