Review of Constitutionalism and Native Americans, 1903 - 1968. Volume 2 of Native Americans and the Law: Contemporary and Historical Perspectives on American Indian Rights, Freedoms, and SovereigntyEdited with introductions by John R. Wunder
Date of this Version
Great Plains Quarterly Vol. 18, No. 3, Summer 1998, pp. 276-77.
The previously published essays selected by editor John R. Wunder for volume two of this six book series take up the legal, political, and economic issues of Native American sovereignty at the critical moment of the 1903 Lone Wolf v. Hitchcock United States Supreme Court decision (treated in volume one). In his brief introduction to volume two, Wunder describes the period from 1903 to 1968 as one in which the tension between federally enforced tribal constitutionalism and "residual sovereign rights" was played out. Excerpts from Charles Wilkinson's American Indians, Time, and the Law (1987) provide an opening framework to explain this tension, Wilkinson arguing that "as the modern era began, the construct of Indian law ultimately rested on two separate braces of opinions." Federal Indian legal doctrine drew upon Supreme Court decisions dating from the early nineteenth century that recognized Native American governments as autonomous "domestic dependent nations," entities capable of and entitled to managing their own affairs. But competing with doctrine established in Worcester v. Georgia (183 2), Ex parte Crow Dog (1883 ), and Talton v. Mayes (1896) was a second line of Supreme Court opinions dating to the end and turn of the century, including Lone Wolf, which accepted plenary federal power over tribal life and governance.
Wilkinson's leadoff essay is followed by a variety of well-known journal articles and book chapters that explore the tension in this era between the assertion, or attempted assertion, of sovereign tribal rights and the exercise of nearly unchecked power by the United States government. These essays make clear that the naked use of military force was a thing of the past-the power of the United States in the twentieth century expressing itself instead through judicial, administrative, and legislative fiat. Actions and decision spill out of Washington, D.C., that affect fundamental property rights and economic opportunity such as the control of water; the reorganization of tribal governments and the imposition of constitutional governance; the resolution of land claims; the termination of federal-tribe relations with the elimination of numerous reservations and much of the trust support system previously established by federal courts and Congress; the extension of state control in lieu of the federal-tribe relation; and relocation of reservation residents to urban areas.
All of the articles in volume two will enrich a reader's understanding of critical issues concerning what Wunder calls "constitutionalism." The volume would have been more useful though had Wunder provided a significantly longer editor's introduction. The disparate essays need to be woven together. The facts and conclusions of older articles need to be evaluated against subsequent political and legal actions as well as more recent scholarship. Authors whose complementary or competing ideas have not found representation in these pages need to be referenced. And, finally, topics that presumably could not be included for reasons of space should be acknowledged. That said, the volume provides ready access to valuable work.