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Published online by Cambridge University Press: 20 November 2018
1. Symposium on Indian Law, 54 Wash. L. Rev. 475–668 (1979); Rennard Strickland, Introduction to Indian Law Symposium—Indian Law and Policy: The Historian's Viewpoint, 475–78.Google Scholar
2. The same critical perspective, however, would also argue for putting quotation marks around “Indian law.” But, revealingly, this is never done by the academics who dabble, or the lawyers who practice, in this field (or should it be “field”?).Google Scholar
3. Strickland's view is that “government policy follows shifts in public perception of the ‘Indian problem.’ ” Whether that sequence is faithful to reality, whether the reverse may not be more accurate, or whether the interplay between public perception and governmental policy is altogether more subtle and complicated need not concern us here. Of interest is what the successive definitions of the “problem” and the “solutions” have been, and where we stand today, how our present era might be characterized, in relation to Indian affairs.Google Scholar
4. Strickland thinks that we may have turned the corner on the legal era and that we are now moving into the age of the Indian problem as “ ‘social problem’ for which,” as he puts it, “we seek a federal, alphabet-soup solution from HEW, HUD and half-a-hundred other agencies,” thereby entering into a new form of “dollar colonialism” (p. 47). Whether Strickland is right, whether there is really much difference between the “legal” and the “alphabet-soup” eras, or whether it is a matter of many of the legal solutions tending to be alphabet-soup solutions, the significance of the dollar approach and the actual amounts involved are not to be underestimated. Nor to be ignored are the serious questions that have arisen about the distribution and use of the money. An article appearing in the Washington Post a couple of years ago (Nov. 25, 1977, at A6, col. 1–2) detailed the situation at the Lac Court Oreilles Reservation in Wisconsin as representative of the general problem. In 1971 this band of 1,300 Chippewas received $1,500 in federal funds: by 1977 the tribe was the beneficiary of an annual $1.7 million in federal operational funds and another $3 million in construction moneys. With 42 different federal agencies contributing to these staggering sums, “the whole thing just completely outstripped [the tribe's] ability to manage it,” the chairman of the tribe was quoted as admitting. Charges of fraud and other irregularities in the spending of the money were widespread but not pursued because the tribal records were so bad that there was no documentary evidence to sustain convictions. The current setting may thus be characterized as one in which the legal assertion of “social entitlements” has given rise to a new set of legal difficulties and needs. In such a setting, both the book under review and the symposium remain quite pertinent. Whatever the role of the welfare agencies or the effect of their moneys, the legal perspective in Indian affairs remains dominant. And, tellingly, the distancing tone of Strickland's introduction and the sarcasm about the successive problem-perceptions and solutions, are wholly absent both from the remainder of the symposium's pages and from the book.Google Scholar
5. There is more such material, especially in the closing sections of the book. At 123, e.g., in a subsection on Law in the World (no less) one finds: “Thus Law as myth is actually liberal thought and practice reified.” And another section containing the book's main critical contribution (Another View, at 109) is introduced as follows: “Ideologies are coherent wholes; concepts are related to each other; practices are related to concepts; structures and forms reflect and reinforce underlying concepts. At society's core is a way of relating to others and to the world, which is reflected in the definitions of humanness, power, and politics informing action.” And so forth.Google Scholar
6. E.g., the Indian Law Resource Center in Washington, D.C.—which owes its own existence to the increased consciousness about “Indian” laws and rights—recently estimated that lawyers in the late 1970s netted some $60 million in legal fees for their role in pursuing Indian land claims before the Indian Claims Commission. The law under which these actions were brought has been derisively dubbed the “Indian Lawyers Welfare Act.”Google Scholar
7. A recent study by Samuel Z. Klausner, a professor of sociology, and Edward F. Foulks, an associate professor of psychiatry and anthropology, both at the University of Pennsylvania, and associate professor of public policy Mark H. Moore from the Kennedy School of Government at Harvard University regarding the effect of energy development activities on the native populations of Alaska's North Slope—particularly the Inupiat Eskimos of the town of Barrow—paints just such a picture. The study, a short version of which was reported on in various major newspapers and in several reservation publications, found alcoholism rates of over 70 percent among members of the native community and an incidence of murder, suicide, alcohol-related accidents, and physical and mental disabilities stemming from alcohol abuse that would have been unthinkable only a decade ago. The press reports quoted the study as concluding that the native community of Barrow was “practically committing suicide” by mass alcoholism and facing a very real prospect of “extinction.” Not unexpectedly, the authors of the study have been charged by “pro-native” groups with being “culturally biased.” The full report of the study—which is less sensational—is entitled Social Change and the Alcohol Problem on the Alaskan North Slope and is published by the Center for Research on the Acts of Man, in Philadelphia, Pennsylvania (1980).Google Scholar
8. For one answer, see Samuel Jan Brakel, American Indian Tribal Courts: The Costs of Separate Justice (Chicago; American Bar Foundation, 1978). The study details some of the incongruities and inadequacies of these imposed legal systems. Compare the hopeful, but wholly unrealistic, assumptions in the book under review (at 95):Google Scholar
[O]ne of the best ways to improve tribal court systems is to involve attorneys in their operation. Where competent attorneys appear, “professionalization” of the judicial systems should gradually follow. Attorneys insist on written and reasoned opinions from judges, in turn relying on such opinions as “precedent,” a very important part of a properly functioning judicial system.
Further, predictability, which lawyers see as a vital element of due process, becomes possible. Similarly, legal briefs will educate judges, while judicial opinions based on the briefs, legal argument, and Native American tradition will educate attorneys appearing in such courts. Thus the level of the legal process will slowly rise.
9. United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), 520 F.2d 676 (9th Cir. 1975), cert. denied, 96 S. Ct. 877 (1976). See also The Chippewas Want Their Rights, Time, Nov. 26, 1979, at 54, for an account of the fishing controversy in other parts of the country.Google Scholar
10. The Boldt decision spawned a new set of regulations by the Washington Department of Fisheries to implement it, which, when challenged in turn, resulted in rulings by the Washington Supreme Court basically contra Boldt (Puget Sound Gillnetters Ass'n v. Moos, 565 P.2d 1151 (1977); Washington State Commercial Passenger v. Tollefson, 571 P.2d 1373 (1977)). But the essence of these Washington Supreme Court rulings was recently reversed by the United States Supreme Court in Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658 (1979), substantially upholding the Boldt result.Google Scholar
11. Tribe, Puyallup, Inc. v. Washington Dep't of Game (“Puyallup III”), 433 U.S. 165 (1977), vacating and remanding Department of Game v. Puyallup Tribe, Inc., 548 P.2d 1058 (1976). See also Puyallup Tribe v. Washington Dep't of Game (“Puyallup I”), 391 U.S. 392 (1968), and Puyallup v. Washington Dep't of Game (“Puyallup II”), 414 U.S. 44 (1973). Also, United States v. Washington, 496 F.2d 620 (9th Cir.), cert denied, 419 U.S. 1032 (1974).Google Scholar
12. The effect of the “winners” may be no less deplorable. See note 7 supra. Google Scholar
13. Tribune, Chicago, Mar. 15, 1980, § 1, at 6, col. 1:Google Scholar
An $81.5 million out-of-court agreement has been reached between the state [of Maine] and two Indian tribes that asserted that two-thirds of Maine was stolen from them by land-grabbers more than 150 years ago. The Penobscot and Passamaquoddy tribes filed suit in [the] United States District Court in 1972, saying 12.5 million acres of land had been taken in violation of a 1790 federal law. There are 900 Penobscot and 1,500 Passamaquoddy Indians in Maine.