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Book Review
| David E. Wilkins and K. Tsianina Lomawaima, Uneven Ground: American Indian Sovereignty and Federal Law, Norman: University of Oklahoma Press, 2001. Pp. vi + 326. $19.95 (ISBN 0-8061-3351-1).
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| Carolyn N. Long, Religious Freedom and Indian Rights: The Case of Oregon v. Smith, Lawrence: University Press of Kansas, 2000. Pp. xii + 317. $14.95 (ISBN 0-7006-1063-4).
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| Uneven Ground: American Indian Sovereignty and Federal Law and Religious Freedom and Indian Rights: The Case of Oregon v. Smith provide a comprehensive and understandable primer on the peculiar legal status of American Indians. Uneven Ground provides a general overview of the relationship between the federal government and Native American tribes, while Religious Freedom and Indian Rights embodies this relationship by tracing the circuitous legal route followed by Alfred Leo Smith, a Klamath Indian and a member of the Native American Church, who was challenging an Oregon law outlawing the use of peyote. In addition to highlighting Native American legal issues, both books provide an understandable description of the workings of the federal legal system from the circuit level to the United States Supreme Court. These books would assist legal scholars, Native American historians, political scientists, and those interested in the inner workings of the federal court system. |
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Uneven Ground: American Indian Sovereignty and Federal Law, by David Wilkins and K. Tsianina Lomawaima, attempts to "reach some understanding of the contest between sovereigns, between tribes and the United States" (10). They identify six critical legal doctrines pertinent to Native Americans: the doctrine of discovery, the trust doctrine, the doctrine of plenary power, the reserved rights doctrine, the doctrine of implied appeals, and the doctrine of sovereign immunity. Wilkins and Lomawaima use these legal ideas to divide the text into discrete chapters. In each chapter the authors provide a nuanced, informed, and clear description of the specific doctrine and show how it has affected native peoples throughout American history. Their arguments are strengthened and clarified by placing the legal doctrine in an historical context, explaining the contradictory application of the doctrine by the federal government and evaluating the legal ramifications of major court cases dealing with these doctrines. The chapters are freestanding discourses on each of the doctrines, and the authors have achieved an enviable goal in a study of this nature: impeccable research, clarity of prose, balance of presentation, and scholarly objectivity. The concluding chapter of the book (most useful for those seeking a quick and clear analysis of tribal-federal relationship) provides a concise review of the entire text with a synopsis of the six legal doctrines discussed in the narrative. |
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Apart from the analysis of the six legal doctrines, Uneven Ground also introduces novel views of Native American history, a complex review of the major twentieth-century Supreme Court decisions affecting Native Americans, and new ideas germane to American history (sovereignty, aboriginal title, equal footing, and immunity). Wilkins and Lomawaima are commended for providing an understandable, broad, and well-crafted treatment of the challenges present when two sovereigns spar with each other in the legal arena. |
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In the opening pages of Uneven Ground, Wilkins and Lomawaima posit that "there is firm evidence that since the 1980s the United States Supreme Court has become more conservative and has veered away from the congressional policy of self-determination" (7). The validity of the grim legal assessment is clearly argued in Religious Freedom and Indian Rights: The Case of Oregon v. Smith, by Carolyn N. Long. Long traces the legal saga of Klamath Indian Alfred Smith whose employment was terminated when he acknowledged that he partook of peyote as part of his religious worship in the Native American Church. The main legal issues in this text revolve around the free exercise and establishment clauses of the United States Constitution. At issue in this case was religious freedom, the degree of judicial scrutiny appropriate for free exercise cases, and the discretion afforded state governments to enforce drug law. |
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Carolyn Long clearly and astutely connects Alfred Smith's case to the new judicial federalism "that emphasizes that state courts rely on the protection provided in state constitutions rather than the federal constitution" (98). This shift in jurisprudence breathes life into Felix Cohen's argument that "like the miner's canary, the Indian marks the shift from fresh air to poison gas in our political atmosphere" (3). Long's analysis demonstrates that recent political machinations and transitions have attached themselves to Indian sovereignty and in the end will leave Native peoples vulnerable and unprotected. |
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Religious Freedom and Indian Rights is a compelling and interesting account of Alfred Smith, who conquered chronic alcoholism and worked for Alcohol and Drug Abuse Prevention and Treatment (ADAPT) in Oregon. The legal case emerged from a conflict with ADAPT employment policy, which classified peyote as an illegal drug. Smith contended that peyote was a sacred sacrament. Long weaves a narrative that traces the movement of the case beginning with an administrative hearing regarding unemployment benefits through state and federal district courts and culminating in two considerations by the United States Supreme Court. In the final judgment, Justice Scalia ruled against Smith and struck down the Sherbert standard (compelling state interest) for cases involving free exercise of religion. In an attempt to balance the action of the United States Supreme Court in Smith, the United States Congress passed the "Religious Freedom Restoration Act," which was signed into law by President William Clinton on November 16, 1993, with the following declaration: "this act reverses the Supreme Court's decision in Employment Division against Smith and reestablishes a standard that better protects all Americans of all faiths in the exercise of their religion in a way that I am convinced is far more consistent with the intent of the founders of the nation than the Supreme Court decision" (240). |
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In keeping with the structure of Uneven Ground, Long's analysis of the Smith case includes an analysis of the inner workings of the United States Supreme Court. In chapters six and seven—"An Appeal to the High Court" and "Employment Division v. Smith I: Back to Oregon"—the narrative focuses on issues such as writs of certiorari, amicus curiae, Supreme Court sessions, conference days, opinion writing, and the interpersonal dynamics of the justices. These chapters amplify the arguments presented in the text and may be borrowed by scholars seeking an astute overview of the work of the United States Supreme Court. |
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Carolyn Long provides an excellent microstudy with broad application to legal and Native American history. The book is well written, clearly organized, and painstakingly researched and will attract the attention of scholars from a variety of academic fields. |
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Uneven Ground and Religious Freedom and Indian Rights make important contributions to a complete understanding of Native American legal issues and join a growing literature dealing with the peculiar legal status of Native American tribes and peoples. Both books are written and researched in a manner that insures a wide readership, including legal scholars, historians, lawyers, political scientists, and those interested in documenting the shift in jurisprudence in the federal courts over the last twenty years. |
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| James T. Carroll
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| Iona College, New Rochelle, NY |
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