Vol. 13 No. 3 (March 2003)

 

UNEVEN GROUND: AMERICAN INDIAN SOVEREIGNTY AND FEDERAL LAW, by David E. Wilkins and K. Tsianina Lomawaima. Norman, Oklahoma: University of Oklahoma Press, 2001. 326 pp. Paper $19.95. 0-8061-3395-3. Cloth $39.95. ISBN 0-8061-3351-1.

 

Reviewed by Cynthia G. Hawkins-Leon, New England School of Law. E-mail: cghleon@fac.nesl.edu

 

The laudable goal of this book is to illustrate to the reader the disparate, unfair, and illegal treatment that American Indians individually and their tribes and nations as a whole have received throughout the history of both the colonization of North America and later the United States – for more than four centuries – while reinserting and strengthening an indigenous perspective in federal Indian policy and law.   The authors hope that ultimately – after study of their careful analyses – governments (tribal, state and federal) will be better able to make informed decisions regarding the applicable federal doctrines (which up-to-now have been inconsistently interpreted and applied).  The publisher orients the reader to the issue as follows: “The political rights and sovereign status of American Indian nations has variously been respected, ignored, terminated, and unilaterally modified by federal lawmakers.  The ambivalent political and legal status that tribes endure under western law has created and reinforced a vacillating federal Indian policy.”  The book’s title UNEVEN GROUND has a dual meaning referring both to the “inconsistency, indeterminacy, and variability” of federal Indian policy and the varied and ever-shifting relations of power among native and non-native groups.  Therefore, indeterminacy and inconsistency are the hallmarks of the tribal-federal relationship.  

 

The book is divided into seven chapters.  Each chapter provides an in-depth discussion of a particular federal doctrine: the doctrine of discovery; the trust doctrine; the doctrine of plenary power; the doctrine of reserved rights; the doctrine of implied repeals; disclaimers in tribal-state relations; and the doctrine of sovereign immunity. This book is well-documented and researched – the substantially endnoted chapters are supported by hundreds of both primary and secondary-source references.  Although the depth and breadth of the work make it difficult to review adequately in this limited forum, for those who are interested in a critical analysis of federal Indian policy (both past and present) from an indigenous person’s perspective, this book is a must read.

 

By way of introduction, it is vital to note that the United States federal government officially recognizes over 560 American Indian tribes and Alaska Native villages.  Further, an adequate definition of the term/concept sovereign nation is crucial for further meaningful discussion:

 

A sovereign nation defines itself and its citizens, exercises self-government and the right to treat with other nations, applies its jurisdiction over the internal legal affairs of its citizens and subparts (such as states), claims political jurisdiction over the lands within its borders, and may define certain rights that inhere in its citizens (or others). . . .   “The Indian Commerce Clause by its own terms acknowledges tribes as sovereigns, sovereigns other than states for which the federal government needs delegated authority to regulate” (citation omitted) (pp.4, 9).

 

Chapter One – “The Law of Nations”: The Doctrine of Discovery.  Through the lens of critical indigenous person’s theory/analysis, the doctrine of discovery reduces tribal nations to “second-class national status” and their people to “second-class citizenship status” stripped of their property rights since the discovering European nation was granted full legal title to discovered lands, leaving the American Indians as mere occupants or tenants.  After the Revolutionary War, the newly-formed United States government became the successor-in-interest to these lands.  The authors thoroughly outline the doctrine as individually and often contrarily applied by the Spanish, French, British, and U.S. governments and the U.S. Supreme Court.  “The doctrine of discovery, when defined as an exclusive principle of benevolent paternalism or, as it was in the MCINTOSH decision, as an assertion of federal ownership of fee-simple title to all the Indian lands in the United States is a clear legal fiction that need to be explicitly stricken from the federal government’s political and legal vocabulary” (p. 63).

 

Chapter Two – ‘With the Greatest Respect and Fidelity’: The Trust Doctrine.  The authors theorize that the doctrine involves “federal responsibility to protect or enhance tribal assets (including fiscal, natural, human, and cultural resources) through policy decisions and management actions” (p. 65).  Throughout this chapter they provide the historical context and analysis of the doctrine – continuing their indigenous persons critical analysis of the relevant Supreme Court cases along with federal Acts and treaties.  Additionally, the authors detail the rather recent phenomenon of the so-called “‘anti-trust’ segment.”  Followers of this movement believe that the trust doctrine fails to provide any legally-enforceable federal responsibilities.  The US Supreme Court upheld this interpretation of the trust doctrine in U.S. v. SIOUX NATION and LYNG v. NORTHWEST INDIAN CEMETERY PROTECTIVE ASSOCIATION.

 

Chapter Three – “Such an Outrage”: The Doctrine of Plenary Power.  The broad definition of plenary means “complete, entire, perfect, possessing full power or authority” (p. 101).  In federal law and cases, plenary power has been applied to American Indian tribes in three ways:  exclusive power; preemptive power; and unlimited or absolute power.  The authors discuss why the first two applications by both Congress and the US Supreme Court are appropriate; whereas the third interpretation is not.  The American Indian perspective on plenary power is summarized in the following:

 

Suppose the Federal Government should send a survey company into the midst of some of your central counties of … Connecticut and run off the surface of the earth into sections and quarter sections and quarter quarter sections and set apart to each one of the inhabitants of that country 60 acres, rescinding and annulling all title to every inch of the earth’s surface which was not included in that 60 acres, would the State of Connecticut submit to it? … No!   Dewitt Clinton Duncan (Cherokee), 1906  (p. 98)

 

Chapter Four – “Treaties as Covenants”: The Doctrine of Reserved Rights.  The authors define reserved rights as those rights a tribe never expressly surrendered or gave up in a treaty or similar agreement.  The basis for this definition stems from the 10th Amendment to the US Constitution and US Supreme Court decisions such as LONE WOLF v. HITCHCOCK, U.S. v. WINANS, WINTERS v. U.S., and MENOMINEE TRIBE v. U.S.

 

Chapter Five – “Justices Who Bent the Law”: The Doctrine of Implied Repeals.  Interestingly, the authors chart the US Supreme Court’s political (as opposed to judicial) policy-making role regarding Indian affairs as particularly illustrated in LONE WOLF.

 

The Indian treaty has achieved a status just short of folkloric in the American consciousness. “Breaking the treaty,” as invoked in motion pictures and on television, is generally the lawless act of frontier settlers rather than a deliberate act of the federal government. But more treaties were “broken” by judges and justices who bent the law to accomplish certain political ends than were ever broken by boomers and sooners.  Deloria and Demallie (1999, vol. 1, 6) (p. 143).

 

Chapter Six – “No Reasonable Plea”: Disclaimers in Tribal-State Relations.  This chapter illustrates how, despite federal policies, clauses to the US Constitution (commerce and treaty clauses) and judicial rulings to the contrary, states have historically asserted jurisdictional supremacy to Indian tribes and nations.

           

Chapter Seven – “As It Was Intended”: The Doctrine of Sovereign Immunity.  The final chapter provides an in-depth historical analysis of the doctrine of sovereign immunity in general and tribal sovereign immunity in particular.  

 

Overall, the book is incredibly informative, and the authors are quite convincing in their critical legal analysis from the indigenous person’s perspective.  However, although only containing 260-pages of text, the book is so dense that – rather than the stated purpose of being easily and equally accessible to lawyers and non-lawyers alike – its audience will be somewhat limited.  Regardless of this short-coming, there is no doubt that this book should be required reading for legislators, policy-makers, and activists alike.  As aptly stated in the book’s conclusion:

 

It is time to call for a just, accurate, and humane understanding of the status of the Indian tribes and Indian people in America.  American Indian people are not merely another “minority,” defined as an ethnic group or an economic class, because tribes possess a nation-to-nation political relationship with the federal government.  That unique political relationship is founded on the principle of tribal sovereignty, on the facts of treaty negotiation and ratification, and on the contractual and voluntary federal assumption of a trust responsibility and relationship to tribes (p. 250).

 

REFERENCES

Deloria, Vine and Raymond J. Demallie (eds).  1999. DOCUMENTS OF AMERICAN INDIAN DIPLOMACY: TREATIES, AGREEMENTS, AND CONVENTIONS, 1775-1979 (LEGAL HISTORY OF NORTH AMERICA, 4).  Norman, Oklahoma: University of Oklahoma Press.

 

CASE REFERENCES

JOHNSON v. MCINTOSH, 21 U.S. (8 Wheat) 543 (1823).

 

LONE WOLF v. HITCHCOCK, 187 U.S. 553 (1903).

 

LYNG v. NORTHWEST INDIAN CEMETERY PROTECTIVE ASSOCIATION, 484 U.S. 439 (1988).

 

MENOMINEE TRIBE v. U.S., 391 U.S. 404 (1968).

 

U.S. v. SIOUX NATION, 448 U.S. 371 (1980).

 

U.S. v. WINANS, 198 U.S. 371 (1905).

 

WINTERS v. U.S., 207 U.S. 564 (1908).

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Copyright 2003 by the author, Cynthia G. Hawkins-Leon.