Vol. 13 No. 8 (August 2003)
NATIVE AMERICAN SOVEREIGNTY ON TRIAL A HANDBOOK WITH CASES,
LAWS, AND DOCUMENTS by Bryan H. Wildenthal. Santa Barbara, California:
ABC-CLIO, 2003. 359 pp. Cloth $55.00. ISBN: 1-57607-624-5; E-Book $60.00.
ISBN: 1-57607-625-3.
Reviewed by Jill Norgren, Department of Government, John
Jay College of Criminal Justice and Graduate Center, CUNY (emerita). Email: jnorgren@gc.cuny.edu
This volume is an addition to the ABC-CLIO On Trial series.
According to the series editor, Charles Zelden, the goal is to “explore
the many ways in which the U.S. legal and political system has approached
a wide range of complex and divisive legal issues over time…and to give
students and other general readers a framework for understanding how the law…has
shaped and reshaped the world in which we live today” (p.vii). Zelden has correctly identified Native
American sovereignty as a complex and divisive topic. He has recruited law
professor Bryan Wildenthal to author this contribution to a series that now
includes volumes on gay rights, the human body, pornography, racial violence,
voting rights, waging war, and constitutional change (reviews of several On
Trial volumes are archived on this site).
NATIVE AMERICAN SOVEREIGNTY ON TRIAL follows the series leitmotif:
the first half of the book describes and analyzes court decisions identified
by the author as important benchmarks; the second, longer, portion of the
volume combines a documents section—edited treaties, court opinions,
and government agreements—with other reference materials divided into
“Key People, Laws and Concepts,” “Chronology,” “Table
of Cases and Statutes,” and “Annotated Bibliography.” Wildenthal
writes that he has designed the book to introduce the general university-level
or advanced high school reader “to the history and status of Native
American (American Indian) societies (p.xi). He is an optimistic man. Even
with the great care that he has taken to write clearly and to avoid legal
jargon, the analysis in this volume is well beyond all but the most serious
student of the subject. He has, however, taken a stab at introducing readers
to one of the most difficult areas of law and his effort should be appreciated,
even as the reader should be aware that the treatment is cursory.
Wildenthal begins with a too-short overview of Native American
sovereignty—what it is and how it came to be. Readers are introduced
to the idea that, in his view, Indian sovereignty in the United States today
“is one of the most fascinating paradoxes of our history and law”(p.3),
walked through relevant U.S. Constitutional text, and told that the Cherokee
Cases of 1831-32 laid the basic foundation for Native American sovereignty
and American Indian law. Wildenthal also introduces the other four areas around
which he organizes this book: Indian treaty rights, tribal criminal and civil
jurisdiction, and tribal gambling.
Chapter 2, “Historical Background,” takes up,
breathlessly, a five-hundred year course of events, beginning with the Spanish,
as it has affected Native Americans in North America. Chapter 3 constitutes
what Wildenthal considers to be the “heart” of the book, and here
he shows his training in the law and his enthusiasm for it. He opens with
a lengthy essay on the foundational Cherokee cases, providing solid historical
background and appropriate analysis of the U.S. Supreme Court opinions in
CHEROKEE NATION v. GEORGIA and WORCESTER v. GEORGIA, cases that established
that Indians stood in a ward-guardian relationship with the United States,
but also that Indian tribes were domestic dependent nations, distinct communities
occupying their own territories.
Working in the manner of a legal treatise, Wildenthal moves
through a body of late nineteenth and twentieth century law out of which he
hopes to tease conclusions about the state of Native American sovereignty
in 2003. He is a fair-minded reader of law, pointing out consistencies as
well as inconsistencies, “shocking” doctrine (LONE WOLF v. HITCHCOCK,
p.59), “nakedly colonialist theory” (TEE-HIT-TON INDIANS v. U.S.,
p.61), but also justices on “strong ground” (Rehnquist, p.76)
or controversial opinions about which it “must be conceded that there
is a certain logic” (Kennedy in DURO v. REINA, p.80).
Wildenthal argues that American Indian sovereignty has been
sharply curtailed in the area of criminal jurisdiction; whereas the modern
Supreme Court has treated the rights of Native American governments in the
area of civil jurisdiction somewhat more generously. Yet even on the question
of civil jurisdiction he acknowledges that the 2001 decision in ATKINSON TRADING
CO. v. SHIRLEY “contained a foreboding portent” (p.93) and that
NEVADA v. HICKS, decided one month later, was “a major earthquake in
the Court’s Indian law jurisprudence”(p.93). He writes further
that if the Court intended Justice Scalia’s opinion in HICKS “to
be taken seriously – that the tribes bear the same relationship to the
states as do the states to the federal government – then American Indian
law as we know it is dead…an apocalyptic suggestion”(p.98).
The review of cases concludes with a useful essay on tribal
gambling, arguably the issue about which our students are likely to be curious
given media attention to the ever-expanding number of tribal casinos. Here,
as elsewhere in the book, readers are urged to pause and to consult relevant
original documents in the reference section. For tribal gambling, there are federal and state court opinions
as well as the “Gaming Compact between the State of California and California
Indian Tribes.” Although I have some doubts about the necessity of commercializing
documents available in libraries and through library electronic data bases,
there is no question that their inclusion is beneficial. Greater care should
have been taken with the construction of the end-of-chapter bibliographies
as well as the annotated bibliography. Many classic studies, histories, and
certain casebooks have been omitted. The bibliography following the extensive
essay on the Cherokee cases, for example, should include Reid (1976), Harring
(1983), and Norgren (1996).
Following the discussion of tribal gambling, a final chapter
takes up the questions of impact and legacy. Wildenthal’s discussion
of criminal and civil jurisdiction opinions as they affect Native American
sovereignty suggests that he is not optimistic about the future of Indian
governmental powers. Yet he finds the conclusions offered by Shattuck and
Norgren (1991) “too despairing” (p.124), and argues that “further
development of Indian sovereignty will have to come from the other branches
of government and from the Indian nations themselves”(p.101). Indian
nations have relied on Congress and the executive branch in the past, with
varying success. It remains to be seen whether Native American sovereignty,
pursued in the popularly elected branches of the American government, will
bring a more just and stable law to American Indian communities.
REFERENCES:
Harring, Sidney
L. 1983. CROW DOG’S CASE. New
Brunswick: Rutgers University Press.
Norgren, Jill.
1996. THE CHEROKEE CASES. New
York: Mcgraw-Hill. (To Be Republished by The University of Oklahoma Press,
Spring 2004).
Reid, John Phillip.
1976. A BETTER KIND OF HATCHETT.
University Park, Pa: Pennsylvania State Press.
Shattuck, Petra T., and Jill Norgren. 1991. PARTIAL
JUSTICE. New York: Berg.
CASE REFERENCES:
ATKINSON TRADING CO. v. SHIRLEY, 532 U.S. 645 (2001).
CHEROKEE NATION v. GEORGIA, 30 U.S. (5 Pet.) 1 (1831).
DURO v. REINA, 495 U.S. 676 (1990).
LONE WOLF v. HITCHCOCK, 187 U.S. 553 (1903).
NEVADA v. HICKS, 533 U.S. 353 (2001).
TEE-HIT-TON INDIANS v. UNITED STATES, 348 U.S. 272 (1955).
WORCESTER v. GEORGIA, 31 U.S. (6 Pet.) 515 (1832).
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Copyright 2003 by the author, Jill Norgren.