Volume 2, No. 3 (March, 1992) pp. 46-48

PARTIAL JUSTICE: FEDERAL INDIAN LAW IN A LIBERAL-CONSTITUTIONAL SYSTEM by Petra T. Shattuck and Jill Norgren. New York: Berg Publishers, 1991. 208pp. Cloth $49.50.

Reviewed by Ronald Stidham, Department of Political Science, Lamar University.

The authors' early interest in the general topic of Indian rights centered on land claims cases. However, Jill Norgren tells us that "the more we wrote, the more we became absorbed with the question of whether, by laws of our own making, the United States's legal treatment of Native Americans had been fair and just" (p. xiii). The answer to that question is the subject of this book.

Aided by a Rockefeller Foundation fellowship which allowed them to spend a year both at archives and in the field, the authors delved deeply into American legal history, politics, and jurisprudence to find their answer. The result is a most inter- esting and insightful study of one minority group's struggle to achieve justice through the American legal and political systems.

Although Indians have recorded some legal victories, they have also encountered numerous losses in the courts. Gains made in the courts are frequently offset by losses in the political arenas. Likewise, political victories are sometimes reversed by actions of the judicial branch. Thus, the authors' basic thesis is that "the legal treatment of Native American tribes by the United States has resulted, at best, in partial justice" (p. 13). The evidence amassed in support of this thesis provides an extensive analysis of major political and legal decisions which contributed to the development of federal Indian law from the early nineteenth century to the 1980s.

The book is organized into an introduction, five substantive chapters dealing with various legal and political decisions, and a conclusion. Each chapter is extensively footnoted and there is also a select bibliography and an index.

The story of Standing Bear at the beginning of the introduc- tion sets the tone for the study. In 1879 a federal district judge in the Nebraska territory ordered the release of Standing Bear from military custody. The Ponca chief thanked his lawyers for finding a "better way" of redressing Indian grievances. It seems, however, that Standing Bear and his followers "won their freedom in a decision that acknowledged procedural error, but nonetheless affirmed the unlimited power of the executive branch over Indian tribes" (p. 12). According to the authors, the legal record, both before and since the Standing Bear episode, is filled with such apparent contradictions.

Shattuck and Norgren argue that such contradictions exist because of the courts' use of a two-tier model. That model, described briefly in the introductary chapter, utilized through- out the substantive chapters, and discussed at greater length in the conclusion, explains that on the higher tier the judiciary

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adopted the principle that the relationship between the federal government and Indians was exceptional and thus exempt from ordinary constitutional standards and procedures. On the lower level the courts have imposed legal standards of regularity and due process, often subjecting implementation and administration of policies chosen by the federal government to exacting judicial scrutiny. The most important result of this two-tier approach, however, is that judicial decisions on the lower level can never breach the highest tier -- the unlimited power of the federal government over Indians. The development of the two-tiered approach, which the authors say was in place by the end of the nineteenth century, may best be understood in the context of major legal and political decisions before and since that time.

The book's five substantive chapters provide an in-depth analysis of such legal and political decisions. In chapter one Shattuck and Norgren discuss the original principles of federal Indian law and describe how Indian tribes evolved from the status of sovereign political communities in their relationship with European nations and the early United States government to that of "domestic dependent nations" by 1831. Both the Court and the political branches of the government vacillated in their federal Indian policy from the 1830s through the 1870s as the United States sought a political and economic order that would minimize the power of Native Americans.

The book's second chapter focuses on the nineteenth century efforts of "Friends of the Indian" to assimilate Native Americans into the great American melting pot in order to save them from extinction. However noble such a goal might have been, the authors argue that "the work of the reformers, along with others, led to the loss of tribal land and the destruction of tribal government" (p. 82). The Dawes Act of 1887, for example, allowed for most Indian reservation land to be allotted to individual Indians. Although some felt that the Dawes Act would bring about the birth of the citizen-Indian, Shattuck and Norgren argue that it is more appropriate to view the period after 1887 as one of the Indian as ward.

In chapter three Shattuck and Norgren deal with the issues of trusteeship, plenary power, and the political question doc- trine. The trust relationship, which the authors contend is justified only by reference to the Indians' inferiority, became the source of broad federal power to regulate all aspects of tribal existence. The broad reach of the federal government was further strengthened by the concept of plenary power. Two constitutional sources, the Indian commerce clause and the treaty clause, provide the justification for the concept that Congress has plenary power over Indian affairs. Finally, given the foreign affairs focus of treaties with Indians, the political question doctrine makes it difficult to mount judicial challenges to the federal government's Indian policies. Thus, the federal government has "inherent powers of almost unlimited scope in the areas of tribal property rights and, in particular, tribal sovereignty" (p. 127).

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The typical mode of U.S.-Indian relations has been the exercise of power disguised by a cloak of legal principle. This is nowhere more evident than in the history of the Indian Claims Commission, discussed at length by Shattuck and Norgren in chapter four. The ICC, created by Congress in 1946 to handle long-standing Indian claims against the government, received mixed reviews during its 25 years of existence. In keeping with their basic thesis, the authors say that the ICC "reflects a pattern typical of U.S.-Indian relations: the resort to judicial forms serves to disguise the tension between law and power, but it cannot resolve it -- as the Indian claims process demon- strates" (p. 154).

Conflicts are again exposed in the final substantive chapter where the focus is on the Indian Civil Rights Act of 1968. Section 1302 of the act makes many of the constitutional guaran- tees of the Bill of Rights binding on Indian tribes by enumerat- ing specific rights that are not to be abridged by tribal govern- ments. However, from a tribal perspective the imposition of constitutional rights and liberties is in direct conflict with principles of Indian sovereignty and tribal self-determination.

Naturally, this brief review cannot do justice to a book which I believe makes a valuable contribution to the literature on U.S.-Indian relations. Scholars and students alike will find that it provides an excellent and, for the most part, quite readable overview of the development of federal Indian law. Additionally, the extensive footnotes and select bibliography will be useful to those who wish to do further reading on the subject. Although it is a bit repetitive in places (the Standing Bear story, for instance, appears at least three times), this minor detraction does not subtract from the overall quality of the book.

A cautionary statement may be in order for some potential readers. Those looking for solutions to the problems of Native Americans will not find them here. In fairness to the authors, however, it should be noted that they never promise to offer any remedies. Instead, their contribution is that by setting forth the origins and nature of the problem they encourage a more informed debate on the question of Indian rights.