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Book Review
| Christian W. McMillen, Making Indian Law: The Hualapai Land Case and the Birth of Ethnohistory, New Haven: Yale University Press, 2007. Pp. 304. $38.00 (ISBN 978-0-300-11460-7).
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| Making Indian Law examines a 1941 U.S. Supreme Court case, United States v. Santa Fe Pacific Railroad Company, in which the United States, as guardian of the Hualapai Tribe, sought an injunction against interference with Hualapai property rights. The book focuses on how the tribe's legal claim took shape and a new and internationally influential approach to Indian history and land claims was born. |
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An 1883 executive order created the Hualapais' reservation, confirming an 1881 agreement with the tribe to protect Hualapai land from increasing demands of miners and ranchers and the approaching Atlantic and Pacific Railroad (A&P). The reservation embraced only a portion of Hualapai aboriginal land, but clearly included the water-rich Peach Springs area. Nevertheless, A&P's successor, the Atchison, Topeka, and Santa Fe Railroad (ATSF), whose tracks traversed the reservation's southern tip pursuant to an 1866 statutory grant, claimed ownership of the area and charged the tribe for use of Peach Springs water. |
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In 1921, Fred Mahone returned to the reservation and launched what proved to be a decades-long effort to defend his tribe's rights, beginning with Peach Springs water rights. This Chilocco Indian School graduate, World War I veteran, and indefatigable activist documented Hualapai land and water use and drafted numerous petitions and letters over the years. Although the Peach Springs dispute ended with a 1931 settlement (made without tribal consent), it was simply the first skirmish in a broader defense of Hualapai rights, based on aboriginal occupation, to land both on and off the reservation. |
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A new threat arose when ATSF, relying on the 1866 statute and a 1925 consolidation statute, sought to establish title to half of the reservation. At the time, tribes "had a difficult, if not impossible, time mounting effective land claims" because "as a matter of habit, anthropologists, historians, writers, and jurists wrote off their land use as ephemeral" (59). It became clear that history was central to defending Hualapai rights, but courts generally deemed Indians' own testimony as to their history and land use unreliable. Having been "written out of their land" by the dominant discourse, the Hualapais had to "write themselves back into" the landscape by showing their longstanding occupation (71). The tribe struggled to prove that tribal occupation long pre-dated the reservation's creation and established a right of occupancy, or "original Indian title," under Johnson v. M'Intosh (1823). Because this title had never been extinguished by Congress, ATSF's 1866 statutory grant would be subject to Hualapai property rights. |
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For many years, the government response to Hualapai claims included ambivalence and flip-flopping by some officials, and collusion with ATSF by others. In 1932, the Hualapais gained firm support from new Interior Department Solicitor Nathan Margold, who wrote a 150–plus page memorandum that took the Hualapais' history seriously, looked to anthropology to bolster Hualapai claims, and reiterated the principle of Indian title. Government attorneys compiled evidence of Hualapai occupancy and, in 1937, filed a complaint alleging ATSF interference with Hualapai rights on and off the reservation. After setbacks in the district court and court of appeals, Interior Department Assistant Solicitor Felix Cohen (author of the groundbreaking Handbook of Federal Indian Law) drafted the lengthy brief submitted to the Supreme Court to argue the claims against ATSF. |
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The Court's 1941 opinion revitalized the Johnson principle of the enforceability of Indian title, based on exclusive aboriginal occupancy of a defined territory and not dependent (as ATSF claimed) on formal government action, and set out other key principles. Occupancy necessary to establish Indian title is a question of fact, to be proven by historical evidence. Indian title survives railroad grants unless extinguished by Congress, whose intent to extinguish must be clear and plain. The Court held that the tribe's acceptance of the 1883 reservation boundaries extinguished any potential off-reservation Indian title, but rejected several ATSF arguments that on-reservation Hualapai rights had been extinguished. It was left to the tribe to prove to which reservation lands it could validly claim Indian title and assert occupancy rights against ATSF. The tribe mustered sufficient evidence to prompt a 1947 settlement containing the long-awaited "recognition that the land within the reservation was theirs" (169). |
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McMillen gives life to the story of the Hualapai case through carefully drawn portraits, based on interviews, private papers, and official documents, of key participants. He does a fine job of situating the case in the developing international discourse of indigenous peoples' rights, drawing on cases from Canada, New Zealand, and Australia. Finally, McMillen's work is noteworthy for emphasizing the crucial role played by determined Hualapais in telling their history and shaping the law. Because they "would not let their land go, and they held on until someone with more power came along and cared" (xvii), they achieved a result that continues to influence indigenous peoples' land claims around the world. |
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| Allison M. Dussias
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| New England School of Law |
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