19. Elizabeth Mensch, “The History of Mainstream Legal Thought,” in David Kairys, ed., The Politics of Law, 18–39.
20. Kennedy, “Toward an Historical,” 4.
21. Kennedy, “Toward an Historical,” 5.
22. Noonan, 1976.
23. Ibid., 20.
24. Ibid., 21.
25. See especially Nancy Carol Carter, “Race and Power Politics as Aspects of Federal Guardianship Over American Indians: Land-Related Cases, 1887–1924,” American Indian Law Review 4 (1976): 197–248; David E. Wilkins, “The Cloaking of Justice: The Supreme Court’s Role in the Application of Western Law to America’s Indigenous Peoples,” Wicazo Sa Review 10 (Spring 1994): 1–13.
26. Noonan, Persons and Masks, 25.
27. Ibid.
28. Ibid., 24.
29. See especially Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988); Cotton Petroleum Corporation v. New Mexico, 490 U.S. 163 (1989); Brendale v. Confederated Tribes and Bands of Yakima, 492 U.S. 408 (1989); Employment Division v. Smith, 494 U.S. 872 (1990); Duro v. Reina, 110 S. Ct. 2053 (1990); County of Yakima v. Yakima Nation, 112 S. Ct. 682 (1992); South Dakota v. Bourland, 113 S. Ct. 2309 (1993); and Department of Taxation v. Attea, 62 U.S.L.W. 4482 (1994).
30. See, e.g., David E. Wilkins, “Reconsidering the Tribal-State Compact Process,” Policy Studies Journal 22 (1994): 474–488; Frank Pommersheim, “Tribal-State Relations: Hope for the Future?” South Dakota Law Review 36 (1991): 239–276; K. Gover et al., “Tribal-State Dispute Resolution: Recent Attempts,” South Dakota Law Review 36 (1991): 277–298; Daniel L. Rotenberg, “American States and Indian Tribes: Power Conflicts in the Supreme Court,” Dickinson Law Review 92 (1987): 81–103; and Glenn A. Phelps, “Representation Without Taxation: Citizenship and Suffrage in Indian Country,” American Indian Quarterly 9 (1985): 135–148.
31. I am deeply indebted to Prof. Michael Green of the State University of New York-Oneonta for his critical reading of an earlier draft of this chapter and for his assistance in the reformulation of this discussion of different types of legal consciousness and their integral relationship to judicial “masks.”
32. Joel B. Grossman and Richard S. Wells, Constitutional Law and Judicial Policy Making, 3d ed. (New York: Longman Press, 1988), 11.
33. U.S. Commissioner of Indian Affairs, Annual Report (1883), 11.
34. 35 Fed. 575 (1888), 577.
35. Ibid., 579.
36. Francis P. Prucha, The Indians in American Society: From the Revolutionary War to the Present (Berkeley: University of California Press, 1988). See especially his chapter entitled “Paternalism.”
37. Judicial evidence of separate treatment for the Five Civilized Tribes is available as early as 1832. In the Worcester case, Justice John McLean noted that these tribes were better neighbors than “wild-savage” tribes. And the Pueblo were recognized by the Supreme Court in 1877 (United States v. Joseph, 94 U.S. 614) as being much more “civilized” than the “wild” Navajo and Apache tribes. In fact, Commissioner of Indian Affairs T. J. Morgan said in 1891 that Indians in the New Mexican Territory could be classed in two camps: “(a) The civilized Pueblo and Mission Indians,” who were “noted for their intelligence, virtue, sobriety, and industry, and [were] Indians only in race and as to a few of their customs; and (b) the wild, nomadic, or savage tribes, not farther advanced in civilization than the hunter state, whose only means of subsistence were the chase and depredations not infrequently committed upon the property of their more civilized and industrious neighbors” (U.S. Department of the Interior, Commissioner of Indian Affairs, Annual Report, House Executive Document No. 1, 52d Cong., 1st sess., 28–29).
However, by 1913 Pueblo status was reconfigured by the Supreme Court in U.S. v. Sandoval (231 U.S. 28). While a sizable body of statutory and judicial law, including Joseph, had held that the Pueblo were not to be federally recognized as Indians for purposes of Indian-related legislation, by 1913 the number of whites inhabiting Pueblo territory had increased dramatically, and federal policy was now focused on coercive assimilation of all Indians. A general guardian/wardship relationship was then declared to exist in which tribal people were viewed as utterly dependent groups in need of constant federal tutelage to protect them from unscrupulous whites and from their own vices.
Thus, the Supreme Court now held that rather than being civilized, sober, and industrious, the Pueblo had become “primitive,” “inferior,” and “dependent” on the U.S. government. In deferring to congressional power designed to protect the Pueblo from whites selling liquor, the Court went to extraordinary lengths to illustrate its belief that although the Pueblo remained “industrially superior” to other tribes, they were still “easy victims to the evils and debasing influence of intoxicants because of their Indian lineage, isolated and communal life, primitive customs and limited civilization” (p. 47).
38. Prucha, The Indians, 10–11.
39. James N. Danziger, Understanding the Political World: An Introduction to Political Science (New York: Longman Press, 1991), 222.
40. Boston: Beacon Press, 1966.
41. These are (1) the successful bourgeois revolution which commercializes and modernizes the countryside and assimilates aristocracy and peasantry into the modern economy and democratic policy (Britain, France, and the United States); (2) the conservative revolution, in which the bourgeois revolution is either aborted or never takes place, and where industrialization is carried out from “above” by a coalition of aristocratic/bourgeois elements in which the bourgeois component is the junior partner (Germany and Japan); and (3) the Communist revolution, in which the middle and urban classes are too weak to constitute even a junior partner in the modernization process and in which a multitudinous and alienated peasantry provide the main destructive revolutionary force that overthrows the old order and then become its primary victims (the former Soviet Union and China).
42. See especially Moore’s Chapter 3, “The Last American Civil War: The Last Capitalist Revolution,” which is his rich and detailed case study of the American model.
43. Samuel P. Huntington and Jorge I. Dominguez, “Political Development,” in Fred I. Greenstein and Nelson W Polsby, eds., Macropolitical Theory, vol. 3 of the Handbook of Political Science (Reading, Mass.: Addison-Wesley Publishing Co., 1975), 1–114.
44. Ibid., 66.
45. Ibid.
46. Vincent N. Parillo, Strangers to These Shores: Race and Ethnic Relations in the United States, 3d ed. (New York: Macmillan Publishing Co., 1990). See especially Chapter 7, entitled “Native Americans.”
47. Robert A. Williams Jr., The American Indian in Western Legal Thought: The Discourses of Conquest (New York: Oxford University Press, 1990), 6.
48. For example, several early treaties with the Cherokee and Delaware Tribes contained provisions that would have allowed those tribes political representation in the U.S. Congress. Article 6 of the 1778 Delaware Treaty said, “And it is further agreed on between the contracting parties should it for the future be found conducive for the mutual interest of both parties to invite any other tribes who have been friends to the interest of the United States, to join the present confederation, and to form a state whereof the Delaware nation shall be the head, and have a representation in Congress. . . .” [emphasis mine].
49. Vine Deloria Jr., Response to Thomas Biolsi’s article, “Bringing the Law Back In,” Current Anthropology 36 (Aug.–Oct. 1995): 560.
50. Milner Ball, “Constitution, Court, Indian Tribes,” American Bar Foundation Research Journal 1 (Winter 1987): 21.
51. Ibid., 6.
52. Ibid., 7.
CHAPTER 2
1. See especially Stephen Cornell and Joseph P. Kalt, eds., What Can Tribes Do? Strategies and Institutions in American Indian Economic Development (Los Angeles: American Indian Studies Center, 1992).
2. See Vincent N. Parillo, Strangers to These Shores: Race and Ethnic Relations in the United States, 3d ed. (New York: Macmillan Publishi
ng Company, 1990, 18–19), who says that all minority groups share the following traits: they are a subordinate group with less control or power than members of a dominant or majority group; they have racial or cultural characteristics that distinguish them from the majority group; their membership is generally ascribed, that is, determined by birth; they have a sense of group solidarity; and they share common experiences of unequal or discriminatory treatment.
3. See especially U.S. Government, American Indian Policy Review Commission, Final Report (Washington: Government Printing Office, 1977), 83–94; and Sharon O’Brien, American Indian Tribal Governments (Norman, Okla.: University of Oklahoma Press, 1989), 291.
4. See especially Frances Svensson, “Liberal Democracy and Group Rights: The Legacy of Individualism and Its Impact on American Indian Tribes,” Political Studies 27 (Sept. 1979): 421–439.
5. Standing Bear v. Crook, 25 F. Cas. 14,891 (1879); and see Nell Jessup Newton, “Federal Power Over Indians: Its Sources, Scope and Limitations,” University of Pennsylvania Law Review 132 (1984): 287.
6. Joyotpaul Chaudhuri, “American Indian Policy: An Overview,” in Vine Deloria Jr., ed., American Indian Policy in the Twentieth Century (Norman, Okla.: Oklahoma Press, 1985), 22.
7. Ibid., 23. See, for example, the foundational cases of Johnson v. McIntosh (1823); Cherokee Nation v. Georgia (1831); Worcester v. Georgia (1832); and Mitchel v. United States (1835) for conflicting accounts of how tribal sovereignty has been dealt with by the Supreme Court. Of course, a majority of the cases we examine employ very restrictive definitions of tribal sovereignty or refuse to acknowledge its existence at all; while other cases follow the classic lead of the Worcester decision and support the notion that tribes were “distinct peoples, divided into separate nations, independent of each other, and of the rest of the world, having institutions of their own, and governing themselves by their own laws.”
8. See the Solicitor’s Opinion, “Powers of Indian Tribes,” October 25, 1934, 55 I.D. 14, in vol. I, Opinions of the Solicitor (Washington: Department of the Interior, 1974), 445–477.
9. Vine Deloria Jr., “Self-Determination and the Concept of Sovereignty,” in Roxanne Dunbar Ortiz, ed., Economic Development in American Indian Reservations (Albuquerque: University of New Mexico Press, 1979), 27.
10. Gerald R. Alfred, Heeding the Voices of Our Ancestors: Kahnawake Mohawk Politics and the Rise of Native Nationalism (New York: Oxford University Press, 1995), 102–03.
11. Lucy Cohen, ed., The Legal Conscience: Selected Papers of Felix S. Cohen (New Haven: Yale University Press, 1960), 255.
12. Tribal nations are sovereign since they predate the United States and since their rights were not defined under the federal Constitution. Thus, the U.S. Bill of Rights does not apply to the acts of tribal governments, and limits on state and federal power delineated in the Constitution cannot constrain tribal governing powers. Tribes, for instance, may legally discriminate against non-Indians and nonmember Indians in voting solely on the basis of race (Indian Civil Rights Act, 82 St. 77, 1968); the Fifth Amendment right to indictment by grand jury does not apply to prosecutions in tribal courts (Talton v. Mayes, 163 U.S. 376 (1896); and as separate governments tribes enjoy sovereign immunity (Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978).
13. See especially Joseph C. Burke, “The Cherokee Cases: A Study in Law, Politics, and Morality,” Stanford Law Review 21 (1969): 500–531; and Jill C. Norgren, The Cherokee Cases: The Confrontation of Law and Politics (New York: McGraw Hill, Inc., 1996).
14. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 55 (1831).
15. Vine Deloria Jr. has forcefully made this argument on several occasions. But see Felix S. Cohen’s Handbook of Federal Indian Law (1972 edition, 91) where he asserts, with limited proof, that Congress’s power over tribes, in addition to the treaty-making power, is “much broader” than its power over commerce “between states.” On the previous page, however, Cohen more accurately states that “Congress has no constitutional power over Indians except what is conferred by the Commerce Clause and other clauses of the Constitution.”
16. U.S. House, Committee on Indian Affairs, Report on Regulating the Indian Department, House Report No. 474, 23d Cong., 1st sess. (1834), 19.
17. 112 U.S. 94, 100 (1884); and see Felix S. Cohen, Handbook of Federal Indian Law, 173.
18. Cohen, Handbook, 90.
19. Felix S. Cohen, “Erosion of Indian Rights, 1950–1953,” Yale Law Journal 62 (1953): 352.
20. Petra T. Shattuck and Jill Norgren, Partial Justice: Federal Indian Law in a Liberal Constitutional System (Providence, R.I.: Berg Publishers, 1991), 13.
21. 43 St. 253.
22. U.S. Commissioner of Indian Affairs, Annual Report (Washington: Government Printing Office, 1905), 60.
23. 241 U.S. 591, 598 (1916).
24. See especially Milner Ball’s article, “Constitution, Court, Indian Tribes,” American Bar Foundation Research Journal 1 (1987): 1–139.
25. Vine Deloria Jr., “The Distinctive Status of Indian Rights,” in Peter Iverson, ed., The Plains Indians of the Twentieth Century (Norman, Okla.: University of Oklahoma Press, 1985), 237–248.
26. Rachel San Kronowitz et al., “Toward Consent and Cooperation: Reconsidering the Political Status of Indian Nations,” Harvard Civil Rights-Civil Liberties Law Review 22 (1987): 507–602.
27. David Engdahl, “State and Federal Power over Federal Property,” Arizona Law Review 18 (1976): 363.
28. Ibid.
29. 82 St. 77.
30. Engdahl, 363.
31. 48 St. 985.
32. Morton v. Mancari, 417 U.S. 535 (1974).
33. Washington State’s Constitution, art. XXVI, contains an example of one such disclaimer. See in my Chapter 6 the discussion of the Yakima decision for details of this state’s clause.
34. Newton, “Federal Power,” 196 n. 3.
35. From the earliest Supreme Court sanction of unlimited congressional power—United States v. Kagama (1886)—to the Court’s first acknowledgment of limits to such authority—Perrin v. United States (1914)—plenary power was explicitly cited by the Court in nearly a dozen cases. See David E. Wilkins, “The U.S. Supreme Court’s Explication of ‘Federal Plenary Power’: An Analysis of Case Law Affecting Tribal Sovereignty, 1886–1914,” American Indian Quarterly 18, no. 3 (Summer 1994): 349–368.
36. Mashunkashey v. Mashunkashey, 134 P.2d 976 (1942).
37. George F. Canfield, “The Legal Position of the Indian,” American Law Review (January 1881): 26–27.
38. See especially David E. Stannard, The Conquest of the New World: American Holocaust (New York: Oxford University Press, 1992).
39. See Fletcher v. Peck, 10 U.S. (6 Cranch.) 87 (1810); New Jersey v. Wilson, 11 U.S. (7 Cranch.) 164 (1812); Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823); Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832); and Mitchel v. United States, 34 U.S. (9 Pet.) 711 (1835).
40. Because of their importance, these cases, especially the so-called Cherokee cases—Cherokee Nation and Worcester—have been written about by virtually every scholar who has pursued this area of study. The Mitchel decision had until recently received scant scholastic attention, but see David E. Wilkins, “Johnson v. M’Intosh Revisited: Through the Eyes of Mitchel v. United States,” American Indian Law Review 19, no. 1 (Summer 1994): 159–181.
41. Johnson, 572.
42. See The American State Papers: Public Lands (Washington: Gales & Seaton, 1832–1861). This eight-volume collection of primary executive and legislative documents dealing with land issues has many reports and other documents which affirm the individual’s title to lands purchased from Indian tribes when the transaction was properly executed.
43. Ibid., vol. I (1832), 93.
44. See ibid., vol. II, Public Lands, Illinois & Wabash Land Companies, No. 177, 11th Cong., 3d sess., 1810 (1834), 108.
45. Johnson, 572.
; 46. Robert A. Williams Jr., The American Indian, 231.
47. Vine Deloria Jr. and Clifford M. Lytle, American Indians (p. 4), show that Marshall’s characterization of the “doctrine of discovery” was really a corrupted version of the discovery principle first discussed in 1532 by Francisco de Vittoria, a prominent Spanish theologian who had been approached by the King of Spain with a query about what rights, if any, indigenous peoples had that were to be respected by European colonists.
48. See especially Williams, The American Indian; and Franke Wilmer, The Indigenous Voice in World Politics (Newbury Park, Cal.: Sage Publications, 1993), 1.
49. See Milner Ball, “Constitution, Court,” 23–29; and Felix S. Cohen, “Original Indian Title,” Minnesota Law Review 32 (1947): 47, who asserts that “the dismissal of the plaintiffs’ complaint in this case was not based upon any defect in the Indians’ title, but solely upon the invalidity of the Indian deed through which the white plaintiffs claimed title.”
50. Howard R. Berman, “The Concept of Aboriginal Rights in the Early History of the United States,” Buffalo Law Review 27 (1978): 637–667.
51. Deloria and Lytle, American Indians, 26–27.
52. Johnson, 573.
53. Ibid., 587.
54. Ibid., 574.
55. Ibid., 588.
56. Ibid., 591.
57. Ibid., 603.
58. Ibid., 588.
59. Ibid.
60. Ibid., 591.
61. Ibid.
62. Berman, “The Concept,” 655. But see also the informative note in Milner Ball’s “Constitution, Court,” 58 n. 132, which is a splendid analysis of Marshall’s equivocation on the doctrine of conquest.
63. Johnson, 591.
64. Ibid., 593.
65. Ibid., 594.
66. Cohen, “Original Indian Title,” 48.
67. Deloria and Lytle, American Indians, 26.
68. Williams, The American Indian, 317.
69. See Wilkins, “Johnson v. M’Intosh Revisited.”
70. U.S. Commissioner of Indian Affairs, Annual Report (Washington: USCIA, Government Printing Office, 1864), 147.
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