Review of Native American Law and Colonialism, Before 1776 to 1903. Volume 1 of Native Americans and the Law: Contemporary and Historical Perspectives on American Indian Rights, Freedoms, and Sovereignty Edited with introductions by John R. Wunder
Date of this Version
Great Plains Quarterly Vol. 18, No. 3, Summer 1998, pp. 275-76.
This is a worthy project given the growth of activity in Indian law, most of it due to conflicts between states and tribes over gaming and treaty rights, issues proving to be a bonanza for the legal profession and likely to be with us for a long time.
The editor of this new series, John R. Wunder, is well fitted for the task, given his record of research and publication. Volume one's dozen essays, all previously in print, offer something for every reader. Particularly impressive are Joseph C. Burke's "the Cherokee Cases," Wunder's own "No More Treaties," and Sidney L. Harring's "Crow Dog's Case."
Including two essays each on Cheyenne law and on Lone Wolf v. Hitchcock, however, was probably unnecessary. Moreover, the second Cheyenne article's appendix B, consisting of cases drawn from Karl N. Llewellyn and E. Adamson Hoebel's The Cheyenne Way, is presented in questionable fashion: the material having been edited, but without that being clearly indicated to the reader.
Native American Law and Colonialism has relatively little to do with Native American law, since it deals principally with the treatment Indians have received at the hands of white judges and other officials. Given the difficulty of generalizing about the law ways of literally hundreds of tribal societies, this probably was to be expected. For example, the Cheyennes, the only tribe singled out for discussion, were not even typical of Plains tribes.
Wunder distinguishes between what he refers to as the "Old Colonialism" and the "New Colonialism" he says replaced it in 1871 when Congress ended the practice of negotiating treaties with the Indian nations. He denounces the New Colonialism as "more vicious and deceitful," without, however, discussing the context of the change or the viability of options.
Future volumes in the series will concentrate on developments since the Supreme Court's landmark decision in 1903, Lone Wolf v. Hitchcock. The series will culminate with a volume on that most vital issue, Indian sovereignty. As the literature on Indian legal issues multiplies rapidly, the editor will have a daunting task in making his selections. But the general topic's importance and urgency entitle the series to a welcome reception.