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.