Book Review

In American Indian Sovereignty and the U. S. Supreme Court: The Masking of Justice, David E. Wilkins painstakingly analyzes fifteen Supreme Court decisions that repeatedly eroded American Indian tribal sovereignty step by step. By systematically rendering the situations that gave rise to the cases and the precedents for ruling otherwise, Wilkins forcefully shows how the Supreme Court disguised its political and economic motivations with high-minded rhetoric. The cases he selected demonstrate how the Supreme Court "generated and reified a number of novel extralegal and extraconstitutional doctrines . . . which have often been used to mask questionable federal and administrative activities against tribes and individual Indians" (4–5).	1
Some of the cases Wilkins discusses are familiar to specialists in American Indian history: Johnson v. McIntosh (1823), U. S. v. Rogers (1846), Lone Wolf v. Hitchcock (1903), and U. S. v. Sioux Nation (1980). Others are less so: The Cherokee Tobacco (1871), U. S. v. Nice (1916), and Lyng v. Northwest Indian Cemetery Association (1988). Related cases are grouped into five chapters that examine fundamental doctrines that were established and then elaborated upon. In all cases, Wilkins clarifies the historical context so as to lay bare the political motivations behind Supreme Court decisions.	2
Wilkins situates his study within Critical Legal Theory, which posits that the Court has a perceptual "legal consciousness" that it draws on to rationalize disparate decisions. He also applies insights from John T. Noonan, Jr.'s, Persons and Masks of the Law (New York, 1976) to identify invented doctrines that masked the humanity and sovereignty of American Indians and held forth Court decisions as objective and above reproach. In this vein, American Indians have been defined as "culturally deficient" and requiring "improvement." They were defined simultaneously as "domestic-dependent nations" and as "dependent wards."	3
Through these invented doctrines, justices purposefully and progressively eroded native sovereignty. Early on, cases established the ludicrous doctrine that "discovery" bequeathed upon the first lucky Europeans the right to usurp native claims to their homelands through "purchase or conquest" and to impose their own rights and duties upon the territory. The extremely powerful doctrine of "plenary power" denotes three rights accorded to Congress over time: 1) the Commerce Clause of the Constitution delegated the exclusive right to regulate the federal government's relationship with Indian tribes; 2) Congress was awarded the preemptive right to legislate to preclude state actions regarding Indian affairs; and 3) the absolute authority of Congress over native tribes, resources, and lands was repeatedly upheld. Time after time, the court refused to hear or decide cases where native sovereignty was under attack because doing so would intrude on legislative or executive powers over what were termed "political questions." This became an important diversionary doctrine upholding Congressional plenary power. The doctrine of "geographic incorporation" subverted native sovereignty within the territorial boundaries established on paper by contending European powers who dismissed the rights of native inhabitants. Originally articulated by Chief Justice John Marshall in Cherokee Nation v. Georgia and reified during the assimilationist campaigns of the late nineteenth century, the doctrines of "dependency" and "wardship" unilaterally reduced native sovereignty to dependency and delegated authority to the federal government to "improve" them. If federal officials acted honestly, if negligently, they were upheld as acting in accord with the doctrine of "good faith." Finally, the doctrines of "affirmative delegation" and "implicit divestiture" recognized native self-governance only as specifically mentioned in treaties or statutes. Wilkins forcefully shows how Supreme Court decisions increasingly upheld and accorded Congress the right to call all the shots. Nothing illustrates this with greater clarity than "the fact that the judiciary has never voided a single congressional act that diminished or abrogated any inherent or aboriginal tribal rights" (10).	4
Wilkins is clearly an advocate for native rights. Some may feel that this intrudes an unwelcome bias in his analysis of these fifteen court cases. On the contrary, I would argue that it is high time that a serious legal scholar follow the lead of David Kairys in With Liberty and Justice for Some: A Critique of the Conservative Supreme Court (New York, 1993) and apply these insights to the complex and contradictory field of American Indian Law. Indeed, Wilkins argues that Supreme Court justices' actions have been so political and conniving that a coherent body of American Indian Law has never existed.	5
Melissa L. Meyer University of California, Los Angeles

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