Vol. 9 No. 9 (September 1999) pp. 402-406.

WILD JUSTICE: THE PEOPLE OF GERONIMO VS. THE UNITED STATES by Michael Lieder and Jake Page. Norman, OK: The University of Oklahoma Press, 1999. 336 pp. Paper $16.95.

Reviewed by Lauren Bowen, Department of Political Science, John Carroll University.


This book, written by a journalist and a lawyer, tells the story of the Indian Claims Commission Act by focusing on one band of Apaches. The Chiricahua Apaches became prisoners of war after Geronimo's famous uprising in 1886. Detained by the government in Florida and then Oklahoma until 1913, the claim they filed for compensation under the provisions of the Indian Claims Commission Act organizes much of the book.

Informing the reader about the Indian Claims Commission Act and the tribunal it created to adjudicate the claims against the government filed by tribes is clearly one goal offered by the authors. As they suggest, the Commission is little remembered and one of the most extraordinary tribunals in American history. Passed by
Congress in 1946, the law was designed to provide a redress of grievances by those indigenous to what had become the United States of America.

Prior to the passage of this statute, tribes had asked Congress for special jurisdictional rules to allow for suit. Few were able to sue and fewer recovered under this
system. The Indian Claims Commission Act had been introduced several times before 1946. Its successful passage was attributable to the post World War II climate
that acknowledged Native Americans as war heroes. The law was also appealing to those that wanted to terminate federal responsibility for American Indians and promoted complete assimilation. Designed to last for ten years, the Act was extended by statute five times and the tribunal hearing disputes was finally disbanded in 1977.

During its 32-year existence, the Indian Claims Commission distributed over $818 million. The Court of Claims, to which Indian Claims Commission disputes were
appealed, has awarded an additional $400-$500 million bringing the total amount to $1.3 billion. Virtually every tribe had a claim heard before the Commission suggesting the scope of the Commission's activity was comprehensive. However, ultimately the amount awarded was not significant enough to effect meaningful change in the daily lives of most Indians. The total awards averaged less than $1000 per Indian, which is "a pittance" (p. 257) according to the authors.

Although the statute had some strengths, the authors contend that the Commission was destined to fail because of inherent weaknesses in American law relative to the kinds of claims being brought by tribes. And this, then, is the

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fundamental premise of this work. The primary goal of Lieder and Page, then, is to expose the deficiencies in the American legal tradition that precluded justice being
served by the Commission. As noted above, the amount of the awards made by the Commission were too small to redress past wrongs. Indeed, the authors suggest that the Commission itself and the decisions it promulgated were more about assuaging the guilt of the white majority. Poverty of Indians was not alleviated by the act and the decisions produced no discernible change. As I will detail below, the book succeeds in attaining the first goal of informing the reader but is less successful in constructing an argument that accomplishes the second goal.

Let me make it clear that I am sympathetic to the idea that justice was not served here. However, the outrage and surprise that is implicit in the narrative seems a bit
misplaced. I would expect a tribunal created by Congress to reflect American legal principles. It would be hard to imagine a statute that challenged prevailing wisdom passing through conventional means. I think the book might have worked better by not making the structural argument so crucial. Instead, the structural constraints of the Anglo-American legal system might have provided the parameters for debate. Certainly, the fundamental injury that native people in the U.S. suffered was the destruction of their identity and culture as the authors contend. The focus of the American legal system is individualistic with tribes then being considered legal individuals. Only economic harm could be the grounds for a lawsuit. Monetary relief was available; land restoration was not a legal option. A bit
more discussion of why these constraints existed and the extent to which they are immutable in the American tradition would have strengthened the analysis. That might have then provided the authors a context in which they could have lamented the political process that operated within this structure. For example, a more thorough discussion of the appointments to the tribunal coupled with a discussion of the actual implementation of the Act would have allowed them to examine if a higher degree of justice than was achieved was even possible given the structural constraints imposed. In other words, could the commission have understood better the perspective of the Indians or ultimately, did it not matter who the commissioners were?

Perhaps I am objecting more to the tone than the content of the argument. Although their definition of justice was not possible and that is worth acknowledging,
their seeming dismay that it was not achieved seems a bit naive. Part of this naive, stems from their faith in congress relative to the courts. It is difficult to
imagine that Congress had members so much more enlightened about native culture, values, etc. that would not have reduced most disputes to economic land transactions as well. If it really is the structure of they system, then it goes beyond the courts and this particular tribunal. And it is inconsistent to laud the actions of Congress while lamenting bureaucratic and judicial decisions. Accordingly, if the flaw here is in the political process, then the emphasis of the argument needs to look more at decision-making by the commissioners. I think the tone of the argument does the disservice of ignoring a potentially rigorous analysis of the

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implementation of the Act and the process and politics employed by the Commission.

The book opens with a nice history of the Apaches in the Southwest detailing Spanish conquest and U.S. settlement. The reader is quickly disabused of the idea
that tribes were not civilized with a discussion of their distinct cultures. While this is a necessary discussion to place into context the observation that much of U.S. policy has been predicated on the understanding of tribes as savage and uncivilized, it doesn't ring quite true. The tone is almost incredulous. I would expect, however, that most readers in 1999 do not need to be convinced that native tribes have distinct cultures nor will they be surprised that U.S. policy assumed otherwise. And the sophisticated reader, I suspect, would appreciate that these are not mutually exclusive positions that policy is not always formulated with the noblest of intentions and that the actions of U.S. officials in the 19th century were tantamount to genocide.

Perpetuation of the idea that native people were "savage" and "subhuman" was propaganda that rationalized U.S. economic policy. It seems to me that the authors are suggesting these flawed assumptions about Native-Americans caused the destruction of native cultures where I would argue that because it was economically necessary to destroy native culture, the fiction that they were not civilized was created. Their logic seems to assume if native culture had been understood, it would not have been destroyed. Much of my critique of the book, then, stems from the authors making very different assumptions about the motivations of those conquering native lands and people. Although their earnest outrage was distracting to me, those sharing their perspective will find the narrative more compelling.

The authors then detail the imprisonment of the Chiricahuas in the wake of the resistance of Geronimo and his supporters. It is remarkable that that all members of the tribe, even those that had served as scouts for U.S. troops, were deemed prisoners of war and held in captivity until 1913. Those born in captivity were given POW status. The absurdity of this is not lost on the authors as they recount the relocation of the Chiricahuas to climates that decimated their health.

This backdrop provides the context in which the passage of the Indian Claims Commission Act is explicated. As noted above, the creation of the commission is detailed with the political overtones of appointing the commissioners limiting the scope of change effected by the Commission from its outset. However, ultimately the
authors are making a structural argument so the process emphasis is a bit confusing especially since it is more compelling. The inability of the Commission to fulfill the
promise of those that advocated it seems to be in large measure attributable to the policy preferences of those adjudicating the disputes. As Lieder and Page indicate, presidents sought to appoint those that were not reputed to be "pro-Indian" almost guaranteeing that the adjudicative process would be slow and the decisions would favor the government, or at least not provide an adequate redress of grievances from the perspective

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of the tribes. This discussion would be strengthened tremendously with some acknowledgement of the judicial decision-making literature that demonstrates the relevance of ideology in the resolution of disputes. Instead, the authors ground their arguments in the inherent weaknesses in existing Anglo-American legal principles and seem dismayed that the likelihood of winning is instrumental in forming legal arguments.

Much of the text details the work of the Commission in resolving the 546 disputes brought before it. The vast majority of these disputes were land claims even though statute allowed for more. A sizeable number of suits also alleged that the federal government had mismanaged tribal funds and other assets. Both kinds of claims had grounding in existing Anglo-American legal principles. For example, land claims can be raised in the context of eminent domain. Although there are significant differences between Indian and non-Indian takings (e.g. no deeds conveying title existed for the tribes, the Indians had no records defining boundaries of aboriginal territory, few tribes had the concept of land ownership under which real estate can be bought and sold, and the market value of a tract of land in the Anglo economy had little relationship to value of the land to its Indian occupants), land claims were probably the most likely claim to have a receptive hearing from the
Commission. The authors detail nicely Marshall Court jurisprudence that was largely ignored in the 19th century but never overruled. As the authors note, these decisions were waiting for jurists more sympathetic to Indian claims thus providing a legitimate legal framework within which to adjudicate these disputes.

This discussion gives some credence to the premise that the American legal tradition precluded claims not easily grounded in other traditions. As the authors note on
p.91, very few of the tribe's lawyers were willing to risk breaking uncharted legal ground but rather organized their petitions in terms of the likelihood of winning.
Therefore, there were no moral claims about the extent to which the federal government engaged in unfair or dishonorable dealings (which the statute included).
Denials of religion, language, and economic self-sufficiency were not asserted. This, then, bolsters the overall argument that justice was not served. However, this
discussion also seems to indicate that (albeit appropriate) strategic calculations of the tribe's lawyers are responsible rather than structural weaknesses. Similarly,
the stall tactics of the federal government are attributed largely to the anti-tribe politics of Ralph Barney, the head of the Justice Department's Indian Claims Section from the 1940s to the 1970s. He advocated the use of "hardball litigation tactics" (p. 94) discouraging settlement and promoting myriad motions to dismiss. Adverse rulings were almost always appealed. Not until the 1960s did his supervising assistant Attorney General disagree with his tactics again suggesting that the political process and the discretion of individual actors in the system might explain to some extent the inability of the Indian Claims Commission Act to fulfill its promise.

The Indian Claims Commission,. and the act that it created, have unfortunately long been overlooked by

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scholars. This book, then, is a valuable contribution to the literature given the rich detail it includes. I learned a great deal about the commission and admit I was
not aware it had existed until I agreed to review this book. The documentation of the decimation of native culture is compelling reading and deserves a wide audience. The story of the Chiricahuas provides a nice backdrop by which to detail the Commission. Perhaps, ironically given the overall accomplishments of the Commission, the Chiricahuas eventually received a $22 million settlement, more than fifty times what the tribe had requested. This was largely attributable to the dating of the taking of the relevant land by the government. In this instance, the taking was dated as 4 September 1886, which was the day Geronimo surrendered. This decision greatly inflated the value of the land because of minerals extracted in the 1870s and 1880s (the 1870s would have been a viable taking date as well as many Chiricahuas had acquiesced to the U.S. government's demands prior to Geronimo's uprising). The size of the award to the Chiricahuas nicely highlights the
challenges associated with implementing the Act. However, as an aside I should note that the stories of numerous other tribes are interspersed throughout the book. While the contrasts were crucial to placing the size of the Apache award into context, there was not much discernible pattern to this aspect of the narrative. They were neither chronologically nor thematically organized often doing more to distract than inform, at least as presented.

The Commission marks the first time a government, which had colonized people, provided a forum for displaced natives to sue which is noteworthy. That this law broke new ground with its fair and honorable dealings provisions is also significant. However, the debate remains as to whether it is even more damning within this context that the recoveries were primarily symbolic or whether structural constraints coupled with implementation that impeded meaningful change was inevitable.

Copyright 1995