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Book Review
Canada and the United States
| Christian W. McMillen. Making Indian Law: The Hualapai Land Case and the Birth of Ethnohistory. New Haven, Conn.: Yale University Press. 2007. Pp. xx, 284. $38.00.
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| This book by Christian W. McMillen is a solid treatment of an important, if not widely known, U.S. Supreme Court decision involving the Hualapai people and the Santa Fe Railroad. United States v. Santa Fe Pacific Railroad Co. (1941) forcefully established the doctrine that aboriginal title or Indian title to land rests with the Native American nation that possessed and occupied it unless it has been surrendered to the United States by treaty provisions, has been abandoned by the nation's members, or has been explicitly extinguished by federal statute. |
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But the book is much more than a simple legal case study. McMillen does an excellent job of placing the case in social, historical, and geographical context, and he poignantly gives due credit to the Hualapai activist, Fred Mahone, and other tribal leaders who refused to surrender their clear knowledge, not belief, that ancestral lands were, in fact, theirs, even while forces at the local, state, corporate, and national level colluded to deny them such recognition. |
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The incredible tension between the Hualapai, who "wondered why centuries of living in the same place meant nothing when compared to the rights of a railroad" and the Bureau of Indian Affairs officials, Justice Department personnel, cattle ranchers, and members of Arizona's congressional delegation, who asserted that the Hualapai were a "savage tribe" and a "nomadic" people who lacked the capacity to claim legitimate title to their own lands, is a palpable theme that suffuses the entire text. While the tension persists today, at least in this case the Supreme Court sided with the tribal nation and created a set of precedents that have on occasion benefitted other Native peoples. |
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Utilizing a well developed comparative approach, McMillen deftly describes how the case's precedent has been wielded—for both good and ill results—by other high courts in other nations to deal with the question of indigenous land claims, notably in Canada, Australia, New Zealand, Southern Rhodesia, Nigeria, and Malaysia. |
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Equally important, though not as fully developed as some of the author's other arguments, is the role that the Santa Fe case played in the genesis of ethnohistory as a fledgling discipline. As McMillen notes, "if it is true that the great outpouring of Indian history that resulted from the formation of the Indian Claims Commission (ICC) marks the more or less formal birth of ethnohistory then the discipline was conceived during the Hualapai case" (p. xv). |
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McMillen has not written a "tribal history," but he has produced a multilayered, nuanced, and intriguing account that traces various sets of relationships that surrounded the Hualapai's persistent effort to recover title to their land: the relationship between certain political and cultural segments within the tribe that were sometimes at odds over the best way to proceed; the relationship between the Hualapai and the Santa Fe Railroad Company; the relationship between the Hualapai and intertribal and non-Indian interest groups; the relationship between the tribe and several federal agencies, especially the Departments of Justice and Interior; and the relationships between the Hualapai and their land, between the tribe "and their encounter with colonial law," and between "non-Indian lawyers and their defense and partial destruction of that same colonial law" (p. xvii). |
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