American Indian Sovereignty and the U.S. Supreme Court: The Masking of Justice

by David E. Wilkins

"Like the miner's canary, the Indian marks the shift from fresh air to poison gas in our political atmosphere; and our treatment of Indians, even more than our treatment of other minorities, reflects the rise and fall in our democratic faith," wrote Felix S. Cohen, an early expert in Indian legal affairs. In this book, David Wilkins charts the "fall in our democratic faith" through fifteen landmark cases in which the Supreme Court significantly curtailed Indian rights. He offers compelling evidence that Supreme Court justices selectively used precedents and facts, both historical and contemporary, to arrive at decisions that have undermined tribal sovereignty, legitimated massive tribal land losses, sanctioned the diminishment of Indian religious rights, and curtailed other rights as well. These case studies—and their implications for all minority groups—make important and troubling reading at a time when the Supreme Court is at the vortex of political and moral developments that are redefining the nature of American government, transforming the relationship between the legal and political branches, and altering the very meaning of federalism.

Genres: Indigenous, Nonfiction, Native American History, Law

421 pages, Hardcover

First published January 1, 1997

Reviews

[Michelle Boyer · Rating 4 out of 5]

Disclaimer I purchased this for a Federal Indian Law course, but of course the professor only required that we read one chapter out of the entire book. My review, thus, is primarily about Chapter 2 and the brief skimming that I completed of a few other chapters.

Chapter 2, "The Era of Defining Tribes, Their Lands, and Their Sovereignty," discusses how recognition of American Indian tribes (via the US federal government) came to be. It is a great overview chapter, which explains why it was the sole chapter selected to be read in a course I was taking. The chapter begins by describing inherent sovereignty: the inherent right of American Indian Nations to self-govern in a way they see fit without interference. They define this from a political/legal standpoint as well as from a cultural/spiritual standpoint. The author discusses that the Commerce Clause actually shows that the Federal Government knows about this inherent sovereignty, although at times and in different eras they pretend not to understand the concept.

The chapter then goes on to discuss the Marshall Trilogy. This is a series of three court cases that helped to give a federal definition of American Indian Nations and is named after the Supreme Court Justice Marshall, who gave the main statements at the end of each case. Cherokee Nation v. Georgia (1831) is the first case that determined the Cherokee Nation was not a foreign nation, so they could not even bring a case against Georgia in the courts. This is where you end up with the idea/concept of "domestic dependent nations" that leads people to believe tribes are "dependent" upon the federal government.

There is then a brief insertion of a discussion/explanation/definition of plenary power.

The chapter then goes back to discuss Johnson v. McIntosh (1823) which is another of the Marshall Trilogy cases. It was actually the first case, but the book deals with them out of order. Here, Johnson bought Indian land from a Native individual and McIntosh had purchased the land from the government office. The dispute ended up in the Supreme Court and they decided that Native people could not own/sell land--giving the government exclusive rights to buy/sell Indian land.

Following this, the chapter goes on to discuss ways in which the government began to "identify" Native people using different methods. These include questions about citizenship, federal allegiances, separate nations within nations, becoming Indian, questions about if adoptions into tribes count, and if the Supreme Court should ever have jurisdiction in helping/deciding these questions.

Overall, a fascinating chapter. The rest of the book looks great too, but this is the fundamental groundwork for everything else.

[Inez Beall]

Creation of Indian Law.