N. Bruce Duthu
United States law recognizes American Indian tribes as distinct political bodies with powers of self-government. Their status as sovereign entities predates the formation of the United States and they are enumerated in the U.S. Constitution as among the subjects (along with foreign nations and the several states) with whom Congress may engage in formal relations. And yet, despite this long-standing recognition, federal Indian law remains curiously ambivalent, even conflicted, about the legal and political status of Indian tribes within the U.S. constitutional structure. On the one hand, tribes are recognized as sovereign bodies with powers of self-government within their lands. On the other, long-standing precedents of the Supreme Court maintain that Congress possesses plenary power over Indian tribes, with authority to modify or even eliminate their powers of self-government. These two propositions are in tension with one another and are at the root of the challenges faced by political leaders and academics alike in trying to understand and accommodate the tribal rights to self-government. The body of laws that make up the field of federal Indian law include select provisions of the U.S. Constitution (notably the so-called Indian Commerce Clause), treaties between the United States and various Indian tribes, congressional statutes, executive orders, regulations, and a complex and rich body of court decisions dating back to the nation’s formative years. The noted legal scholar Felix Cohen brought much-needed coherence and order to this legal landscape in the 1940s when he led a team of scholars within the Office of the Solicitor in the Department of the Interior to produce a handbook on federal Indian law. The revised edition of Cohen’s Handbook of Federal Indian Law is still regarded as the seminal treatise in the field. Critically, however, this rich body of law only hints at the real story in federal Indian law. The laws themselves serve as historical and moral markers in the ongoing clash between indigenous and nonindigenous societies and cultures still seeking to establish systems of peaceful coexistence in shared territories. It is a story about the limits of legal pluralism and the willingness of a dominant society and nation to acknowledge and honor its promises to the first inhabitants and first sovereigns.
K. Tsianina Lomawaima
In 1911, a group of American Indian intellectuals organized what would become known as the Society of American Indians, or SAI. SAI members convened in annual meetings between 1911 and 1923, and for much of that period the Society’s executive offices were a hub for political advocacy, lobbying Congress and the Office of Indian Affairs (OIA), publishing a journal, offering legal assistance to Native individuals and tribes, and maintaining an impressively voluminous correspondence across the country with American Indians, “Friends of the Indian” reformers, political allies, and staunch critics. Notable Native activists, clergy, entertainers, professionals, speakers, and writers—as well as Native representatives from on- and off-reservation communities—were active in the Society. They worked tirelessly to meet daunting, unrealistic expectations, principally to deliver a unified voice of Indian “public opinion” and to pursue controversial political goals without appearing too radical, especially obtaining U.S. citizenship for Indian individuals and allowing Indian nations to access the U.S. Court of Claims. They maintained their myriad activities with scant financial resources solely through the unpaid labor of dedicated Native volunteers. By 1923, the challenges exhausted the Society’s substantial human and miniscule financial capital. The Native “soul of unity” demanded by non-white spectators and hoped for by SAI leaders could no longer hold the center, and the SAI dissolved. Their work was not in vain, but citizenship and the ability to file claims materialized in circumscribed forms. In 1924 Congress passed the Indian Citizenship Act, granting birthright citizenship to American Indians, but citizenship for Indians was deemed compatible with continued wardship status. In 1946 Congress established an Indian Claims Commission, not a court, and successful claims could only result in monetary compensation, not regained lands.