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Reviews
Uneven Ground: American Indian Sovereignty and Federal Law
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By David E. Wilkins and K. Tsianina Lomawaima
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University of Oklahoma Press, Norman, 2001. Tables, notes, bibliography, index. 336 pages. $39.95 cloth.
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Reviewed by John Shurts
Northwest Power Planning Council, Portland, Oregon
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Uneven Ground is advertised as providing indigenous perspectives
on federal Indian policy and law. This does not mean that the book
surveys a host of American Indian scholars to discern their disparate
views on policy and law; the perspective in this book is most definitely
that of just the two authors. The promotional information is true
in the sense that the authors compare what Indian law and policy
ought to be, in their view, if it were consistent with the principles
of sovereignty understood by American Indians to what that law and
policy is and has been. The non-Indians in state and federal government
most responsible for creating Indian law and policy rarely understood
or cared about the Indian perspective.
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David Wilkins is a professor of political science, American Indian studies, and law at the University of Minnesota and a member of the Lumbee Tribe, and Tsianina Lomawaima is a professor of American Indian studies at the University of Arizona and is of Creek and Cherokee background. They begin their analysis with the point of view that America's Indian nations occupy a distinctive status within the United States as separate sovereigns based in a doctrine of "inherent sovereignty." That sovereignty has been affirmed in treaties and agreements and recognized in the U.S. Constitution, federal legislation, and case law. Recognition of this starting point should, in their view, lead to clear and certain conclusions about how to understand a range of legal and policy issues involving and affecting American Indians. Instead, American Indian law and policy have been "marked by inconstancy, indeterminacy, and variability in interpretation" (p. 6), and their development "rests on a foundation of racism, ethnocentrism, repression of tribal histories, inappropriate policy-making by judicial bodies, and inaccurate historical understandings" (p. 11). |
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The rest of the book is a classic contrast between what ought to be, at least as the authors would have it, and what is. The authors chose to analyze the tribal–federal and tribal–state relationships through seven areas or doctrines of law: (1) the doctrine of discovery, that is, the rights and opportunities that the law gave to Europeans because of their "discovery" of American lands; (2) the trust doctrine, which is central to the relationship between the federal government and American Indians but is susceptible to widely varying interpretations; (3) the doctrine of plenary power, which in some articulations gives the United States unlimited powers over tribes and their resources; (4) the reserved rights doctrine and the struggles to gain recognition and protection for reserved rights to resources such as water, land, and fish; (5) the doctrine of implied repeals, which in different understandings can limit or enable the United States government's power to abrogate treaties; (6) the disclaimer clauses in state enabling acts and constitutions, which could and, in the authors' view, should be applied to reclaim the federal government's role as the lone constitutional authority to deal with the tribes; and (7) the doctrine of sovereign immunity, which is recognized by state and federal governments but is imperfectly recognized in the Indian nations. |
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Each chapter examines how the legal doctrine at issue has evolved over time through the actions, interactions, and decisions of officials in different branches of federal and state governments and compares that to how the authors believe the doctrine should have developed, if the people involved had stayed true to an understanding of the inherent sovereignty of American Indian nations. History offers more than just examples of doctrinal failure; it also contains a few good examples of the right way to understand sovereignty and to make law and policy. Wilkins and Lomawaima ground their counter-understanding of doctrinal issues in the historical narrative, too, whenever they can. For example, they conclude that the historical record shows that legal ownership of the lands of America resided fully in the hands of the Indian nations and did not pass upon "discovery" to European nations, despite doctrinal confusion to the contrary. |
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Uneven Ground would be an
excellent starting point for anyone interested in studying the historical
development of the central doctrines of Indian law and policy or
in understanding the elements of current controversies in American
Indian law and policy. The authors' advocacy of a particular view
helps sharpen the analysis. This is true with the following caveats,
however. First, this is not a book for serious scholars or experts
in history or law; it is better geared toward introducing undergraduates
to the history of American Indian law and policy. A more sophisticated
look at the subject can be found in books by Robert Williams (especially
The American Indian in Western Legal Thought), Francis Paul
Prucha, Charles Wilkinson, and Wilcomb Washburn and in the revised
Handbook on Federal Indian Law. Second, the strength of the
book — its strong advocacy of a particular perspective on
how an understanding of sovereignty should lead to conclusions about
various issues — is also a weakness when the complexities
of the concepts and history are glossed over to serve the conclusions.
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