The War on Poverty, Lawyers, and the Tribal Sovereignty Movement, 1964-1974

‘The Sovereignty that Seemed Lost Forever’: The War on Poverty, Lawyers, and the Tribal Sovereignty Movement, 1964-1974

Aurélie A. Roy

Submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy in the Graduate School of Arts and Sciences

COLUMBIA UNIVERSITY

2017

Aurélie A. Roy

ABSTRACT

Relying on interviews of Indian rights lawyers as well as archival research, this collective history excavates a missing page in the history of the modern tribal sovereignty movement. At a time when vocal Native American political protests were raging from Washington State, to

Alcatraz Island, to Washington, D.C., a small group of newly graduated lawyers started quietly resurrecting Indian rights through the law. Between 1964 and 1974, these non-Indian and Native

American lawyers litigated on behalf of Indians, established legal assistance programs as part of the War on Poverty efforts to provide American citizens with equal access to a better life, and founded institutions to support the protection of tribal rights. In the process, they would also inadvertently create both a profession and an academic field—Indian law as we know it today— which has since attracted an increasing number of lawyers, including Native Americans. This story is an attempt at reconstituting a major dimension of the rise of tribal sovereignty in the postwar era, one that has until now remained in the shadows of history: how Indian rights, considered obsolete until the 1960s, gained legitimacy by seizing a series of opportunities made available in part through ‘accidents’ of history. The work done by this new generation of Indian rights lawyers between the mid-1960s and the mid-1970s recast definitions of tribal sovereignty in Indian Country as well as the practice and teaching of Indian law. At its core, this project

1 Charles Wilkinson, Opening Keynote Address, 45th Anniversary of the Native American Rights Fund, University of Colorado Law School, Boulder, CO, November 5, 2015. seeks to realize three aspirations: First, to explain where Native American rights come from and how they interact, engage, and fit in with American law; second, to dissect the uses and limitations of law as an avenue for the pursuit of social justice; and third, to probe the question of whether the United States can function as a plural state capable of hosting multiple visions of politics, law, and culture.

TABLE OF CONTENTS

Remerciements ii

Introduction 1

PART I

Chapter One “An Accident of Fate”: The Emergence of a New Generation of Indian Rights Lawyers 23

PART II

Chapter Two Devising New Protections for Indian Rights: California Indian Legal Services, 1966-1968 58

Chapter Three Fishing for Lost Rights in the Pacific Northwest: How Tribal Sovereignty Became Legal Strategy for Recovering Indian Rights, 1968-1974 90

PART III

Chapter Four Building Institutions of Indian Law 126

Chapter Five Disseminating Indian Law: The Cohen Handbook and the Training of the Next Wave of Indian Rights Lawyers 159

Epilogue ‘The Work of Our Lives’: Tribal Sovereignty as an ‘Ongoing Contest’ 194

Bibliography 211

Appendix 232

REMERCIEMENTS

I would like to thank my friends, particularly those who have helped me grow a garden of peace in my heart, and my family, for providing the love, support, and space to hold the madness an academic journey seems to require. I am particularly grateful for the dear friends who were part of an intense daily routine during the home run. Special thanks to my cosmopolitan amis for keeping things in perspective for me as I navigated zombieland: Sarah Duris for your generous heart and for reassuring me when I badly needed it; Juan Jímenez, who ensured I got my weekly anti-insanity formula by inviting me over for some Vinyasa and Hatha and, most delightfully, the four minutes of Shavasana at the end during which I allowed myself not to think dissertation;

Danche Petrovska, for your caring and radically honest love; Velina Dinkova, for your positive energy, the exchange of academic feedback over tapenade and good Scotch amongst the pine trees of the front range of the Rocky Mountains; and Masako Hattori and Johannah Schwartz

Miralles for reading drafts of my work very late in the process as well as for your enduring friendship. Thanks to James Brooks, for being the best human and intellectual cheerleader I know. At home, what an inspiring sister and woman I am so lucky to have so close, muchas gwracias for being who you are, Angela Myers! And also, cappuccino cheers to Danica

Trifunovic for your delightful presence, your heart-warming smiles as you entered into the glow of retirement, and for never stopping to speak poetically on life and love.

At Columbia, my partner in crime, Maria John, has been a personal model of balance and strength as well as a wonderful friend. I was also blessed with a supportive—and loving!— cohort. Extra doses of heartfelt hugs to Ian Shin, Ana Isabel Keilson, and Noah Rosenblum. I am very grateful and fortunate for my committee: Sam Moyn and Karl Jacoby for agreeing to co-

ii supervise my work, Mae Ngai and Elsa Stamatopoulou for staying with me through the end even after I vanished back to Colorado, and Betsy Blackmar for her constant interest and support for my work over the years and for accepting to join my committee at the last minute. I would also like to thank the faculty of the History Department at Columbia at large. My deeper appreciation goes, in particular, to Evan Haefeli and Eric Foner, who enthusiastically welcomed me into the program, Adam McKeown, whose recent passing leaves me heartbroken, for his lively spirit and inspiring humanness, Adam Kosto for supporting my choices in the second half of my time at

Columbia and beyond, Pamela Smith for her incredible mind and never-ending curiosity, and

Caterina Pizzigoni for leading our teaching team with so much grace and kindness.

Thanks, Babbo, for your demanding kindness, which taught me to push my own limits and persevere, even and especially when things got tough—not one thing too many to have in this Ph.D business. Thanks a million for your soothing words in the last few months and for your generous and peaceful heart. Thanks, Maman, for providing much needed strength, confidence, and support at critical times, and for sending your awesome French food packages across the ocean. Thank you, Melon, mon petit soleil, my little sister, Émeline Roy, who has been the wisest person I’ve known since her coming into this world, and my most cherished companion in profound and silly discussions on the relationships and societies we have navigated together.

Infinite thank yous to my lil brother, P’ti Frère, Cédric Roy, who has been a constant inspiration even when going against my grain and for your ability to think straight amidst the occasional chaos—not a minor quality to have in this world. I’m glad we got closer and closer over the years, because it means I have somehow managed to meet you in the spaces you got right and inspired me from. After many head bumps into invisible walls, I finally got to understand a few important things thanks to your rootedness.

iii

In conducting this project, I was fortunate in interviewing men and women who, contrary to many among the people they have represented, tend to live long lives. Still, the nature of researching people’s contact information online can be cruel. As I searched for many a lawyer who had been mentioned to me by another, I often found myself on the brink of a minor heart attack. It was, after all, possible that some of them had passed, and that thought moved me deeply. Time had passed since the 1960s and 1970s and as I inquired about past colleagues, lawyers could not always guarantee that their colleagues of old would still be alive. Some of them, much to my dismay, and great losses to the field, did pass before I started the project, and I hope the present work honors their memory.

In many ways, this is a work in progress, still. The stories I tell here are part of a wide web of connections, some of which I have been fortunate enough to receive knowledge on. There is so much more to say. But for now, I shall thank the people who have taken part in my adventure so far, including those who formally disappeared from the story as I narrowed down my focus. Following the somewhat haphazard order I interviewed them, thanks to: Tim Coulter,

Jana Walker, John Echohawk, Ray Ramírez, Mike Chiropolos, Rick Collins, Monroe Price,

Steve Moore, Ian Fisher, Howard Belodoff, Mary-Ellen Sloan, Bill Thorne, Scott McElroy,

Katherine Belzowski, Sage Garland, Lateigra Cahill, Loretta Danzuka, Steve Shirley, Therese

Yanan, Richard Hughes, Brenda Anderson, Matt Van Wormer, George Duke, Louise Grant,

Charlie Hobbs, Reid Chambers, Bethany Berger, Arthur Lazarus, Scott Peck, Jerry Straus, Bob

Anderson, Richard Schifter, Al Ziontz, Charles Wilkinson, Bob Pelcyger, Richard Guest, Gloria

Valencia-Weber, Mason Morisset, Tom Schlosser, Mike Taylor, Robert Pirtle, Tom Fredericks,

Greg Dallaire, Bruce Greene, Dick Trudell, Lee Sclar, Arlinda Locklear, Rob Thompson, Russel

Lawrence Barsh, Harry Sachse, Frank Pommersheim, Ada Deer, Carole Goldberg, and Tom

Luebben. Thank you all for sharing your professional and personal stories with me, and for helping me build this narrative; none of these interviews could have been replaced by the archival materials available out there. All errors of interpretation remain mine.

I am also grateful for the help of the librarians and archivists, some of whom were particularly generous with me over the years: Jane Thompson, at the Library of the University of

Colorado Law School, John Hollowed, at the Northwest Indian Fisheries Commission, and

David Selden, at the National Indian Law Library, for supervising me as an intern during the summer of 2009 and mostly for giving me the freedom to explore Indian law from within, and for sharing relevant historical materials about NILL later on.

In many ways, this dissertation is the culmination of the past fifteen years of my life.

Cécile Coquet-Mokoko, teacher and human extraordinaire, mama to us all graduates of the

Département d’Anglais at the Université de Tours, sparked a fire in me for studying Native

American issues back in France a long time ago by teaching us the painful and important history of Indian removal in my second year of college. My gratitude also goes to the friends and professors of the Department of American Indian Studies at the University of Arizona for having me as a Ph.D student for two years before I left for Columbia. Although I certainly do not pretend to know everything, my understanding of indigenous histories and contemporary issues would not be anywhere close to where it is now had I not had that the chance to interact with ‘the

AIS people’. My friends there and the feedback I received from my professors made me grow in ways which have borne intellectual fruits to this day.

Attending grad school in this country would have been impossible for me without the financial support of the University of Arizona (my Department’s but also many other smaller grants which enabled me to travel for research for earlier works which eventually led me to this dissertation), the Department of History at Columbia in the form of a five-year Richard

Hofstadter fellowship, the American Philosophical Society for granting me two Phillips Fund

Grants for Native American Research, the Lyndon B. Johnson Presidential Library for providing me with a Moody Research Grant, the Briscoe Center for American History, and the Doris G.

Quinn Foundation and Columbia for offering me a generous fellowship to complete the writing.

A toast to places: To France, a distant land which still takes me back when I return, after all these years, with more widely open arms every time (although every time I wish it could do away with the stinky cheese I loathe). To New York, which was wonderful to experience—in my twenties. And to Boulder, a place I have cherished, has always been so giving to me, and where I started my life in this country a decade ago. Boulder—not the city so much as the Nature around it—has nurtured my spirit, my brain, my body, my friendships, and my heart in rich ways. Thank you, woods, sun, and smells, for peeling off the lawyers I needed to shed to continue. Your spirit makes this home a sacred place to me. Thanks for the adventure I love to Simon Herskowicz, who showed me the ways of the mountains of Colorado and of the desert of Utah. On campus, thanks for one of the best years of my life to the French Department for having me teach my language to students as passionate about the slopes and the rocks as to learning. Special thanks to

Greg Johnson for his generosity and support at a meaningful time in my academic journey and to the Center for Native American and Indigenous Studies, which bloomed while I was away. At the Law School, warm thanks to Julia Guarino and Kristen Carpenter, two powerfully inspiring

vi women I feel fortunate to have worked with as I was writing my dissertation. Our simultaneously enchanting and challenging swording through the obscure jungle of records on local Native

American histories and treaties as we were trying to determine the historical and ongoing rights of Native American tribes for a bewildering National Park Service Project have fed into my thinking about Indian law in enriching ways.

Following French tradition, j’ai gardé le meilleur pour la fin. Beyond any graduate education I could have dreamed of, there are always a few extraspecial people who exponentially enlarge our heart and soul. A trip to the moon and back to Jérôme Bolton, for inviting me, gently but insistently – that is, until I gave in – to come study with him in New York and for continuing to share life beyond the borders of where we came from. Thank you for your continuing and caring friendship. What I can feel but not speak comes through at its fullest through art. New

York gave me the rare opportunity to be touched, moved, and transformed by the artists whose worlds I dove in during my last year living in the East Village, thus momentarily erasing time, so central to our discipline. Booboodoop to Marcus Conrad Poston, for inspiring me to think in Art, and for sharing a very special space where time became silent and where the heart could be heard beating fierily. Thank you to Makhoudia Diouf, a special soul indeed, for your important intellectual endeavors and companionship. Thank you to Justin Dreyer, for the compassion and unconditional love you radiate. And thanks to the inspiring Todd Sutherland and Anna Shaw for helping me blow off some steam, for the many shapes sweetness takes in your arms, and for showing me how life is enjoyed.

Best of all, thanks to Dustin Hiles, who has joined in my life on this wild Ph.D adventure at a challenging moment in the game: the frantic and incredible stressful final year and a half

vii during which I stubbornly tortured electronic pages to squeeze out the project. Thank you for listening to me as I neurotically tried to make sense of my scattered ideas. Your oh so kind, sunny, passionate, and rooted spirit has helped brighten and soften the academic voice I tried my best to liberate throughout this journey, and your love has nurtured my inner child as much as it has allowed my womanhood to blossom beyond my wildest dreams. Thank you, for putting so much love into this precious nest of ours where I nestle, revel, and shine.

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Introduction

“[T]he Indians are still here. We never phased away. We didn’t just blend into society and vanish. In fact, we’re appearing more and more. We get around more now, too. Indians are not just confined only to the United States or one state or one county or one city or one house. They know us all over this Earth.” —Wallace Black Elk2

“Laws are passed to help us fulfill what we should be, not to punish us or regulate us or basic disciplines.” —Vine Deloria, Jr.

“I am a mover, a shaker. I think, I act. And I am not a victim.” —Ada Deer3

Few people, even among the highly educated, know why Native Americans have rights that other American citizens do not. Many are confused as to why they seem to have ‘special rights’ distinct from their other rights as U.S. citizens, those that every American answers to.

Many also believe that Native Americans were ‘conquered’ or ‘colonized’ a long time ago, and that they should by now have vanished out or into American society, annihilated or assimilated.

It seems puzzling to even the staunchest believers in the Constitution that Indian treaties should be considered legitimate, even though they are acknowledged by the text as ‘the law of the land.’

To put it bluntly, many believe that these rights simply do not exist. But, as highlighted by the many controversies which regularly make headlines such as the recent one surrounding the

2 Wallace H. Black Elk and William S. Lyon, Black Elk: The Sacred Ways of a Lakota (San Francisco: HarperCollins, 1991).

3 Interview with Ada Deer (Menominee activist), by author, by phone, December 14, 2016.

Dakota Access Pipeline, rights of self-government have endured. And much of their contentious existence today is due to the period between the mid-1960s and the mid-1970s, when conceptions of Indian rights changed.

During that time, unbeknownst to the general public as well as to contemporary scholars, a small group of lawyers—and tribal members, many of whom have passed away—started resurrecting tribal rights of self-government which had formerly been recognized—even carved out—by American law.4 After centuries of battles over territories, it was not always clear whether tribal rights remained valid in the eyes of the law, and whether such rights would ever be enforced if they were indeed legally valid. But by using the law wisely, these lawyers felt they could make a difference. In doing so, they contributed to the larger tribal sovereignty movement which erupted at the national level in the very late 1960s and continued to rage throughout the

1970s, forming, overtime, a loose ‘contemporary legal tribal sovereignty movement’ which brought together lawyers, tribal members, even government officials around the legal protection of tribal rights.5 The work of this generation of legal advocates resulted in restoring rights of tribal self-government, faith among tribes that their rights could potentially be enforced instead of ignored, as well as in an increased ‘legalization’ of Indian Country, covering a wide range of legal areas ranging from land rights to taxation to treaty rights.

Few people know about these lawyers because they have been eclipsed by another, widely unpopular generation of lawyers who preceded them before interest for their own work

4 On the role of tribal leaders in this movement, see Charles F. Wilkinson, Blood Struggle: The Rise of Indian Nations (New York: Norton, 2005).

5 I am expanding here on the term “modern tribal sovereignty movement” used by Charles Wilkinson to describe, primarily, the work of tribal leaders in restoring rights of tribal self-government in the 1960s and 1970s. See Wilkinson, Blood Struggle.

could develop. Some scholars have argued that 95% of the current U.S. territory was purchased.6

However, the Indian Claims Commission, a U.S. tribunal established in 1946 to process unsettled Indian claims to lands, found that at least 50 million acres had been taken from Native

Americans illegally or unfairly and, as a result, deserved monetary compensation. Following the passage of the act establishing the Commission in 1946, Indian nations hired lawyers to seek such monetary compensations. In exchange, Indian nations had to relinquish their rights to the lands which had been illegally taken. Few of these lawyers made millions of dollars on these claims, but the publicity received by those who did was sufficient to build a reputation for lawyers as facilitators of Indian assimilation: Many people in Indian Country as well as among academics fell under a sense that lawyers could only help with monetary rewards, leaving out any possibility for fuller redress even as this new generation of lawyers emerged on the national scene in the early 1970s. Between 1964 and 1974, a new generation of lawyers would show otherwise.

It is this more discreet group of lawyers who interests me here—those who sought (and continue to seek) to assist Indian nations in recovering rights as opposed to mere monetary compensation. During that time, catching the tide of the civil rights movement, Native

Americans started vocally protesting against assimilation and abuses of power committed against them in the public arena. Starting with patrols of the streets to protect Native American individuals from being harassed by the police in Minneapolis, the American Indian Movement quickly became emblematic of a wider Red Power movement. As this activist movement

6 See Sally K. Fairfax, Buying Nature: The Limits of Land Acquisition as a Conservation Strategy, 1780-2004 (Cambridge, MA: MIT Press, 2005).

unfolded, these lawyers stayed away from charismatic personalities such as Dennis Banks and

Russel Means, who captured the attention of the general public.

In many ways, this quieter legal movement ran parallel to the vocal public demonstrations held by Red Power activists, behind the curtain of public life, in the shadow of many more highly visible tribal fights for their rights, and out of sight from the general public.

As the American Indian Movement was getting organized in Minneapolis in 1968, George Duke and Monroe Price were establishing Legal Services programs for Native Americans in

California. While Red Power activists were encamped at Alcatraz from the fall of 1969 through the summer of 1971, David Getches, John Echohawk, Bruce Greene, and Bob Pelcyger were launching the first law firm specialized in Indian rights representation, the Native American

Rights Fund, in Berkeley. While activists occupied the headquarters of the Bureau of Indian

Affairs in Washington, D.C. in 1972, Rick Collins was preparing to argue McClanahan v.

Arizona State Tax Commission before the Supreme Court, a landmark case which denied state taxation over Indian reservations.7 In 1973, while AIM activists occupied the site of the 1890

Wounded Knee massacre in South Dakota, Al Ziontz, Mike Taylor, and several other lawyers, expert witnesses, and tribal leaders were pulling together their resources in preparation for what would be another landmark case (this time on Indian fishing rights), the U.S. v. Washington trial, scheduled for late summer.8

These cases—and the kind of work conducted by the lawyers and, by extension, the movement which coalesced around the use of law, including tribal members—consisted largely

(at least in those years) of calibrating tribal needs with tribal rights as defined in American law. It

7 411 U.S. 164 (1973).

8 384 F. Supp. 312 (W.D. Wash., 1974).

is useful to consider a concrete example: If the education of Native American children required commuting back and forth 200 miles a day by bus so that the children could attend non-Indian schools outside the reservation, as happened to Navajo children traveling from the reservation across the Arizona-Utah border until the 1970s to attend public school in southeastern Utah, the role of Indian rights lawyers could be to facilitate the negotiation of agreements with the schools to better accommodate the commuting children as well as to unlock authorizations for the construction of tribal schools on reservations.9 What this work (and what I, by following it) was concerned with, therefore, focuses on the possible unlocking of possibilities at the juncture of tribal life and American law, rather than the inner workings of tribal law itself.10

This legal work, more discreet than protest politics, served the tribal sovereignty movement quite well for, even though the Red Power movement made itself heard clearly,

Native American issues remained poorly heard. Indian people and their rights were considered

‘obsolete’ and, as a consequence, not taken seriously until well into the 1970s. (In fact, this continues to apply into the present day.) Treaties concluded with Indian nations in the colonial era and 19th century, for instance, were often not taken seriously. And, in many ways, it is precisely this general effervescence and the fact that Indian affairs and rights were not taken seriously which made it possible for the legal tribal sovereignty movement to make significant advances on the reassertion of Indian rights, by operating under the radar of the federal government’s priorities as it sought to manage the various strands of the civil rights movement, cultural clashes, the Watergate Scandal, the Vietnam War, and the Cold War.

9 Interview with Charles Wilkinson, by author, Boulder, CO, November 16, 2016.

10 The latter unfolded later on, partly through lawyers but mostly through tribal decision-making. Interview with Frank Pommersheim, by author, by phone, December 2, 2016. I am not examining tribal law specifically in the present work.

Indeed, the small divisions within the legal services programs addressing Indian legal issues benefitted from and capitalized on an unusually low level of supervision characterizing the governmental Legal Services programs at large. Further, rather than following a predetermined strategy, these lawyers identified and rectified hindrances to the exercise of these rights as they uncovered them, one at a time. They therefore turned the law into a generative site of contestation with no broad public articulation or platform, thereby making their efforts less immediately visible. This contestation ran into deeper American values which have been entrenched in the country’s historical narrative about its own roots, all the way back to its tense relationship with the British Crown: if the federal government protects Indian nations and their rights, from the point of view of conservatives segments of the American population, it should not have such broad powers in the first place, especially if it uses its authority to protect what seem like ‘special rights’ of groups seeking to disturb the idea that the country rests on the concept of E pluribus unum (which is, in itself, contested). This also impacts conceptions of equality of opportunity as well as conflicting perspectives on the larger management and organization of society.

This resurrection of Indian rights precipitated a major shift away from prior articulations of such rights. The Indian policy adopted by the federal government in the 1950s had been designed to annul the distinct rights of tribal members and to assimilate Native Americans into the fold of American society, not as tribal members, but as regular U.S. citizens. Thus, when the new generation of Indian rights lawyers started familiarizing themselves with Indian rights,

Native Americans were still perceived by many as “an anachronism, a historic curiosity not

suited for modern life.”11 Since Native Americans were expected to blend into mainstream society, their distinct rights as tribal members came to be regarded by federal and state governments as irrelevant.

In 1968, a Harvard study reflected this widespread sentiment that Indian law was dead and that incorporation of Native Americans into the fold of American society was inevitable, thereby justifying the discarding of their tribal identities: “The concept of tribal sovereignty, though moribund, retains attractiveness for those reluctant to surrender the powers thought to accompany it,” declared the authors of the article.12 But few were aware or trusting of the law as a possible instrument of liberation at the time. For many a layman and academic, its opening lines resonate today as much as they did back then: “The attitude of America toward the Indian has long been characterized by the dichotomy between a sentimental attraction to the ‘noble savage,’ often increasing with distance from the centers of Indian population, and a startling ignorance of and indifference to the actual circumstances of his life.”13

This legal work proved critical to the restoration of tribal rights to self-government at a time when federal policy started shifting toward tribal self-determination. But even though this new policy was hinted at by President Johnson in 1968 and formally announced by President

Nixon in 1970, it would not officially become policy until the passage of Indian Self-

Determination and Education Assistance Act of 1975.14 These lawyers thus played a significant

11 Interview with Al Ziontz, by author, by phone, November 19, 2015.

12 Warren H. Cohen and Philip J. Mause, “The Indian: The Forgotten American,” Harvard Law Review 81 (1968): 1818-1858.

13 Cohen and Mause, 1818.

14 Lyndon B. Johnson, “Special Message to the Congress on the Problems of the American Indian: ‘The Forgotten American,’” March 6, 1968; Richard Nixon, “Special Message to the Congress on Indian Affairs,” July 8, 1970; and Indian Self-Determination and Education Assistance Act, 88 Stat. 2203.

role, not simply in the evolution of Indian rights representation, but in shaping federal policy toward Native Americans. At a pivotal moment between systemic assimilation and self- determination, these lawyers and tribal leaders pushed against the ongoing impetus to engulf all members of Indian tribes into mainstream society.

The year 1964 marked an important turning point for Native Americans: It marked the beginning of the War on Poverty and, with it, a shift from the paternalistic stance of old on

Indian affairs toward a focus on internal community decision-making. Among tribal leaders,

Vine Deloria, Jr.—a central force in the tribal sovereignty movement—took the directorship of the National Congress of American Indians. Finally, the earliest lawyers of this generation started working with tribes.15 By the end of 1974, the judiciary had already started accepting

Indian treaties as a legitimate source of tribal rights more widely, and other fundamental rights of tribal self-government had been reaffirmed as the Supreme Court processed Indian cases at an unprecedented pace—a total of 35 cases over the course of the 1970s alone.16

Contrary to the focused approach of the Red Power movement, the contributions of these lawyers took shape through a series of accidents of history which crystallized at the confluence of larger historical forces. They thus illuminate the contemporary tribal sovereignty movement from a different angle. Indeed, the vast majority of these lawyers initially did not know that, on top of their rights as U.S. citizens, Native Americans also held rights of self-government which remained legally valid. Some of them became Indian law experts after they were assigned to

15 See, for instance, Alvin J. Ziontz, A Lawyer in Indian Country: A Memoir (Seattle: University of Washington Press, 2009).

16 Charles F. Wilkinson, American Indians, Time, and the Law: Native Societies in a Modern Constitutional Democracy (New Haven: Yale University Press, 1987), 2. For a detail of the Burger Court’s treatment of Native American issues, see, for instance, John R. Hermann and Karen O’Connor, “American Indians and the Burger Court,” Social Science Quarterly 77, no. 1 (March 1996): 127-144.

work for the Legal Services programs of Lyndon Johnson’s War on Poverty, even though the intent of the new presidential administration was not to revive tribal rights. Others were hired directly by Indian nations to assist with lawsuits involving specific disputed rights, and learned that their rights remained valid through tribes. A couple of exceptions set aside, these lawyers did not start working with tribes as part of a pre-designed strategy such as the one which had driven the African American legal fight against desegregation. They fell into Indian law through a “casual decision that turned into a career.”17

In the process, this legal movement would profoundly revolutionize the practice of Indian rights representation. Since federal policy was set on assimilation, the previous generation of lawyers believed that Indian law would disappear.18 A progressive treatise on Indian law had been published in the early 1940s.19 Yet, soon caught in the midst of the termination policy, many Indian claims found themselves channeled through the Indian Claims Commission.

Between 1946 and the late 1960s, few alternatives were in sight: Lawyers assisted tribes in claiming entitlements to monetary compensation before the option to do so would expire.

Contemporary tribal sovereignty owes many of its contours to the work of these lawyers, as they developed Indian law as we know (or, for most of us, don’t know) it today. Its impact began to be felt almost immediately through an adversarial battle of ideas which unfolded in courtrooms, institutions, classrooms, and in print. Their projects often acted as bridges between

Indian nations and the American political and legal system as they translated these rights into a

17 Interview with Bruce Greene, by author, Boulder, CO, September 28, 2016.

18 Interview with Charlie Hobbs, by author, by phone, November 4, 2015; Interview with Jerry Straus, by author, by phone, November 13, 2015.

19 Felix S. Cohen, Handbook of Federal Indian Law (Washington, D.C.: United States Government Printing Office, 1942).

language which could be accepted by American judges in courts of law. This translation rested on a Handbook of Federal Indian Law published by the Department of the Interior in 1941, which provided the basis on which our current understanding of Indian rights has crystallized.

The Handbook enabled them to make sense of Indian rights as a cohesive system as they started representing Indian nations and, perhaps even more importantly, to counter the many who believed such rights had been or could easily be swept away. Largely revered by Indian law scholars and practitioners to this day, this Handbook has nonetheless maintained some contentious pillars of American law on Native American issues.

Within a decade, the work of this legal tribal sovereignty movement brought dramatic changes to Indian Country as a whole by providing increased access to the law. After centuries of apparent lack of access to the American justice system, this movement provided hope for those who wished to exercise control over the affairs of their communities. This equipped Indian nations with legal tools to manage the ever-expanding incursions of federal and state governments into tribal affairs, thereby enabling a degree of autonomy which had in many places been generally unheard of since the colonial era. As a result, Indian nations started flexing the

American legal system in droves, hoping that, if turned on its head, it could be turned into a channel for liberation. This new sense of empowerment therefore begs us to incorporate Native

American interactions with the law as agents making choices rather than as mere victims of history. As such, it sheds light on a process led by the agency of Indian people(s) in resisting to simply submit to the authority of the settler state. By extension, it also invites us to reconsider the role of law in Indian Country as well as our historical narratives about federal-Indian relations.

The present work is therefore partly a complementary, and partly a corrective history: its narrative reveals at least some of the inadvertent origins and results of an unexplored movement to restore the legitimacy and actualization of tribal rights.20 This is, in part, a story about how tribal sovereignty came to be the dominant concept through which we now view Indian affairs and people despite the larger variety of legal issues encountered by individuals bearing tribal affiliations. Indeed, the turn to the 1970s saw a shift in the way Indian rights were conceptualized; yet, this shift was not held together by a united or even grand vision. In law, in policy, as well as among Indian nations, it grew as an unplanned product around what lawyers and tribal leaders came to think could support tribal autonomy, a basic sense of justice, and how each responded to the other. Their solutions were not always couched in the language of tribal sovereignty. Rather, the sense of justice which surrounded Indian legal issues took many different forms, and the language of tribal sovereignty we nowadays take for granted did not turn into a cultural battle until later—and, in fact, at least partly as a result of this earlier work.

To some extent, this project brushes against the grain of the contemporary literature on

Indian rights and adopts instead a more ‘positive’ angle on the history of contemporary tribal sovereignty than usual: Rather than examining how the law has been used to disempower Native

American people(s), I am interested, chiefly, in exploring the question of how law has been used creatively and successfully (on some levels and over a specific period of time) to recover rights of tribal self-government which were previously thought to have been lost.

20 One academic book was published on a portion of this new generation of lawyers. See Linda Medcalf, Law and Identity: Lawyers, Native Americans and Legal Practice (Beverly Hills, CA: Sage Publications, 1978). The author provided an overwhelmingly negative evaluation of their work, arguing centrally that these lawyers precipitated the demise of Indian cultures. I unpack the methodological and interpretive issues contained in this book in Chapter One.

To even look at lawyers as tribal sovereignty advocates makes for a controversial way to approach Native American history, as the law and its practitioners remain a sensitive topic for many in Indian Country as well as among scholars of Indian affairs. My effort here has been to unpack what lawyers were able to do between 1964 and 1974 that furthered tribal sovereignty: If law was standing in the way of exercising tribal sovereign rights, what did these lawyers (try to) do to free up space for the exercise of such rights? Which rights seemed most important to protect from the perspective of Indian nations and why? What strategies did lawyers devise to correct the law in order to reestablish legitimacy for Indian rights? How did the recasting of

Indian rights accomplished by these lawyers between 1964 and 1974 turn into a legal movement?

And, finally, how did this movement navigate the larger politics of American identity in order to make room for itself?

On a deeper level, this dissertation seeks to answer two larger questions which can be difficult to answer in the absolute. The first is philosophical: Does a nation-state such as the

United States allow for multiple political, legal, and cultural systems to co-exist—i.e., can the

United States function as a plural State? Is it a plural state at all? The second, more practical, is perhaps more closely centered on the human relational experience: Is it possible for us humans to live together in a society like the United States despite our different beliefs and have divergent ways of making sense of and relating to the world? The topic of Indian rights lawyering and rights can act as a test to start answering these questions in, for instance, the following ways: Can the law serve, not simply to ensure that rights are respected, but to support a diversity of political and legal systems? Can lawyers, by using American law—including those portions of which apply exclusively to Native American people(s)—help build a structure of rights and legal rules or principles which support tribal autonomy? A priori, by observing the period from 1964 to

1974 through the angle of the work of Indian rights lawyers, one can feel inclined to conclude that these possibilities are indeed workable, although not without resistance from all sides.

Sources

Oral History

This dissertation relies primarily on a set of over seventy interviews I conducted with over fifty Indian rights lawyers, including recent law graduates, as well as legal staff. The vast majority of my interviews were conducted on the phone, as these lawyers were scattered across the country, although I conducted them in person whenever possible. Lawyers tend to evade scrutiny, largely due to the fact that their work operates behind the curtain of public life. As a result, their contributions to society remain shrouded in mystery. My preliminary research had made it clear that documenting this history was not going to be possible without speaking directly to the lawyers who participated in making it. Minimal pieces of information about their work could be found in scattered areas of the vast literature on Indian issues, but it was challenging to gather enough information to reconstitute a coherent history of their proper motivations and careers.

Borrowing from an older ethnographic tradition developed in anthropology, scholars have come to accept oral history as a research method. Historians of the postwar era have tended to use oral history to document the ‘grassroots’ dimension of minority rights movements.21 In contrast, the present work documents the work of a class of people usually considered part of the

‘elite.’ This category of people rarely falls within the purview of oral history unless subjects are

21 See, for instance, Christian McMillen, Making Indian Law: The Hualapai Land Case and the Birth of Ethnohistory (New Haven: Yale University Press, 2007).

prominent government officials, typically on their way out of office. The Indian rights lawyers on whom I have focused have worked in tandem with tribes, not as leaders isolated within a bubble of elitism. While they have at times suggested directions for legal action to tribes, they have also generally served demands made by Indian nations on the American legal and political system. I have therefore approached them instead as translators of the law and bridges between tribal members and the American legal system.

To some extent, the interactive nature of the interview process provides the historian with an opportunity to exercise some degree of control over the collection of the data: we can simply ask, in dialogue, for further information on a specific point raised by an interviewee in a way that cannot be achieved when consulting archives. However, interacting directly with our sources, we also raise the question of reliability, which remains a major concern of the historian. In order to account for as much validity as possible, I made sure to cross-check the important pieces of information I collected across the interviews I conducted. This was made possible by the relatively large number of lawyers who accepted to be interviewed. I also set the information collected through the interviews against the backdrop of the political and legal context of the broader historical period in which their work unfolded.

Any interview process begs the question of interviewee selection. For a virtually unexplored field like this one, much of my own exploration of people’s work depended—at least initially—on my interviewees’ guidance (i.e., suggestions referrals, testimonies of merit, etc.) toward past or present colleagues who had also played significant roles in the movement. I felt fortunate to interview legal professionals who were powerful, driven, and often larger-than-life characters, albeit in different ways: while some of them excelled at litigation, others preferred developing institutional structures. Some were particularly apt at leading legal teams, while

others found fulfilment carrying projects through to completion, such preferences shaped the projects they worked on. When major disagreements arose, they usually led to a fork in the park, and usually the formation of a separate organization. On a few occasions, this directed me to the necessity to further explore new circles of people and new organizations. In many ways, this narrative aspires to convey a sense of the variety of nuances I have found in each interviewee’s contribution as well as a sense of balance in inscribing these individual experiences in the larger narrative of legal advocacy between the mid-1960s and mid-1970s.

Relying on oral testimonials also brings forth the issue of reliability for historical reconstitutions based on memory. Apart from rare discrepancies in the precision of dating events such as the exact beginning of a project—for which they could be forgiven since such events often dated back several decades—the question of faulty memory was hardly a noteworthy issue among the lawyers I spoke to. Many of them are still in practice, or else, when retired, often continue working on a few legal projects, which typically requires rather exacting mental acuity and alertness. In situations where I received conflicting information, I asked my interviewees for additional information and/or relevant print references, and inquired further with other interviewees whom I knew had a different perspective on the matter.

Researchers are sometimes concerned with another type of reliability as well:

Interviewees, one sometimes wonders, might be tempted to influence the overarching narrative about their work by framing aspects of their work in a flattering way, especially given that their curricula vitae boast impressive accomplishments. But the fact that few lawyers have written about their own individual contributions and have focused instead on attempting to correct the legal issues involved in the battles they have waged testifies, in my opinion, to a gravity center of

interest in the work itself rather than in personal fame. After all, legal practice has a way to remind its practitioners that excellence does not guarantee success—however success is defined.

While I have concluded that my interviewees were consistently candid in their responses to my questions, I do believe that our exchanges were also facilitated by my general sympathy for their work. People read between the lines and often can sense how those they interact with stand in relation to their work. I did not, for example, pretend that I agreed or disagreed with any given point solely for the sake of gathering needed information. Rather, I always strove to remain genuine in my inquiries. Sometimes this meant asking questions which were quite uncomfortable for me to ask. Most often, the answers I received were confessions that the interviewees had not previously thought about the points I raise. Typically, discussions with most of my interviewees tended to stop at the border of larger philosophical questions, or else with speculations about the influence of greater historical forces on their work. A couple of exceptions set aside, few of them had thought about the general impact of their work in depth, and many invited me to take over at those junctures. One lawyer declined to be quoted directly because he was unsure of my political orientation, which he feared might lead to a skewed interpretation of his work (in the opposite direction of his own beliefs). Ironically, it is my admiration for the work of these lawyers which made this project sustainable in the first place and kept it engaging from beginning to finish.

Alternatives to Interviews

A very small number of lawyers either declined an invitation or failed to respond to my requests for an interview. In order to give the reader a chance to see whom I have identified as relevant to this history, those lawyers who did decline or failed to respond are listed in the

Appendix. Fortunately, the majority of those who fit into this category left behind law review

articles describing the formation of important programs which sparked and/or sustained the growth of the field (e.g., Sam Deloria on the American Indian Law Center in Albuquerque and

John McDermott on the role of the University of Montana). Unfortunately, a few lawyers who played key roles in the revival of Indian rights have passed away. Among the most prominent figures are Ralph Johnson, Vine Deloria, Jr., and David Getches. As the leading figure of the tribal sovereignty movement, Deloria participated in virtually every area of tribal, academic, and government activity. He even trained to become a lawyer himself during that time, graduating from the University of Colorado Law School in 1970. His correspondence proved invaluable to understand not simply his legal work between 1969 and 1973, but also how this new legal universe took shape around and partly through him.22

Memoirs

Similar to oral accounts, memoirs too raise the question of memory. As people reflect back on their lives, they are often able to make sense of at least some of the ways in which their personal inclinations may have influenced their professional trajectories. At times, this may lead them to highlight, interpret, and attribute value and importance in different ways than what may have been the case for them when they were younger. Reflecting on the past in writing affords more time to ponder than spontaneously answering a question posed by a stranger. The fact that some of the interviewees made sense of the history in which they had taken part through writing memoirs meant that their articulations of their respective contributions took shape well before I interviewed them. As a result, the three memoirs published in recent years have echoed quite

22 I suspect that the massive correspondence of Ralph Johnson hosted at the University of Washington could potentially be equally enlightening. I have not yet had the time nor the financial resources to consult them, however.

closely what these lawyers have told me viva voce.23 I chose to prioritize (and quote) the interviews over the memoirs, using the latter for complementary details only. These memoirs are nonetheless important to point out because they make such lawyerly work increasingly visible and viably accessible to the general public. Other memoirs are important, such as the one written by Peterson Zah’s on, among many other things, the early moments of the DNA (Navajo) Legal

Services program.24

Archives

The interviews thus brought to life a significant portion of a neglected part of the role played by these lawyers in helping defend Native American rights and territories and, as a consequence, a significant but unspoken portion of Native American history. And they proved all the more important given that so many archival resources remained silent about these lawyers’ intentions and work. Given that the firms for which lawyers work have confidentiality agreements with their clients, the accessibility of their records for researchers remains quite limited. Further, the contemporary nature of the firms I was interested in meant that, even if a portion of their records may be available to the public someday, they have not as of yet been sorted through. However, if oral history is now accepted as a legitimate method in historical research, it must always be complemented by archival research—the historian’s most usually favored source of information and, by extension, of historical narrative formation. Therefore, even though the vast majority of archival collections I consulted were far from exhaustive on

23 Robert Pirtle, To Right the Unrightable Wrong: An Autobiography of Robert L. Pirtle, Tribal Lawyer (Place of publication unidentified: Xlibris Corporation, 2007); Ziontz, A Lawyer in Indian Country; Monroe E. Price, Objects of Remembrance: A Memoir of American Opportunities and Viennese Dreams (New York: Central European University Press, 2009).

24 Peterson Zah and Peter Iverson, We Will Secure our Future: Empowering the Navajo Nation (Tucson: University of Arizona Press, 2012).

even select aspects of lawyerly work, persistent and systematic exploration of such sources enabled me to gather both crucial background and innumerable small nuggets of important information about relevant organizations, which enabled me to recreate the thread of historic events, encounters, and outcomes of this movement.

Other types of archives helped me retrace areas which shaped the work that these lawyers could do or continue. The incomplete records of Legal Services established during the War on

Poverty at the National Archives provided some paper trail for a number of Indian Legal

Services Programs, and the archives of the Field Foundation at the Briscoe Center for American

History in Austin offered enlightening clues on the history of the Native American Legal

Defense and Education Fund, an organization which proved challenging to trace otherwise. For the oral arguments of the court cases analyzed in Chapter Three, I am indebted to Oyez.com and to John Hollowed at the Northwest Indian Fisheries Commission for transcripts of the oral arguments given by lawyers during the U.S. v. Washington trial in 1973. The remainder of my sources consist of law review articles published by these lawyers, newsletters and, occasionally, newspaper articles. In documenting the legacy of the few lawyers who have passed, my reflection was additionally nourished by the indirect information I collected through my interviews with their former colleagues and, sadly, by obituaries.

Roadmap

This project investigates the unexplored yet critical contributions of these new Indian rights lawyers to the contemporary tribal sovereignty movement by following the various stages in the emergence of this legal tribal sovereignty movement in a generally chronological order, from the local level, to statewide developments, to its impact nationally. It moves from these

lawyers’ creative public law work through some of the Legal Services programs of the War on

Poverty, their articulation of tribal sovereignty as legal strategy in groundbreaking litigation, the independent institutions they set up for the practice of Indian law, and their efforts to disseminate knowledge about Indian rights while training an increasingly large number of lawyers in their visions of Indian rights.

I examine the evolution of Indian rights in American courtrooms and other institutions from various angles: first, by drawing a portrait of this new generation of Indian rights lawyers, then by looking at the creation of the California Indian Legal Services program, followed by the

Pacific Northwest fishing rights litigation, the founding of national institutions supporting Indian law practice for lawyers, and, finally, the early efforts made to disseminate knowledge about

Indian rights so they could continue to be protected. Chapter I (which constitutes Part I) is dedicated to the personal and professional backgrounds of this new generation of Indian rights lawyers, as well as to the historical forces at play in their entry into Indian rights representation.

It probes the context in which the unplanned yet rapid emergence of the legal tribal sovereignty movement was born: Who are these lawyers? What are their background? Does it matter and, if so, why? What brought them to work in Indian law? How did they differ from previous generation of Indian rights lawyers? How did these lawyers positioned themselves, through their work, on larger social issues they were observing within American society? How were they able to practice law differently than their predecessors? How did the legal landscape which tribes and lawyers navigated change in the 1960s? How did opportunities open up for rethinking Indian rights and, consequently, protecting them?

Part II details the work done by these lawyers at their respective firms and/or in legal services programs and its growing impact in two U.S. states: Chapter Two examines California

and Chapter Three, Washington. Both were critical to the restoration of the validity of Indian rights in different ways. In California, the protection of Indian rights was launched by lawyers working for California Rural Legal Assistance, the State’s legal services program set up during the War on Poverty, out of which an Indian Division soon emerged. In Washington State, tribal members initiated lawsuits to protect their rights—most notably fishing rights. Soon, the two overlapped through collaboration between Legal Services programs and litigation. Thus, in

Chapter Two, I explore the coming together of Indian legal services programs and, in Chapter

Three, the ways in which litigation strategies on Indian rights evolved between the 1960s and the early 1970s. This Part follows, not only the convoluted ways in which lawyers and tribal leaders learned to navigate Indian law through those channels, but also the ways in which they increasingly gave direction to their practice and shape to the nascent reconceptualization of tribal rights.

Part III traces the rise of Indian law as a distinct specialized professional and academic field on a national scale post 1969. Chapter Four examines how these new legal experts created the first institutions to support its practice as well as tribes nationally. It accounts for the rise

(and fall, for some) of the first non-profit law and consulting firms specialized in Indian law were born, not as parallel projects, but as projects splintering off the emerging thinking about

Indian law. By doing so, it seeks to show how philanthropic foundations aborted the early efforts of some Indian rights advocates to explore alternative visions and legal practices regarding the protection of tribal sovereignty, resulting in a streamlining of what constitutes the field of Indian law. Chapter Five explores the ways in which Indian law started being disseminated, through law classes taught in California and Washington State in the late 1960s, the first Indian law casebooks, as well as through the publication of an increasing number of law review articles

fostering Indian law practice. Through these channels, Indian law soon turned into a burgeoning academic field that would blossom over the course of the 1970s, and even more so in the 1980s, thereby laying the foundations for the legal field of Indian law as we know it today. As it so happens, however, many of these efforts rested on one treatise, published on Indian rights in the early 1940s: Felix Cohen’s Handbook of Federal Indian Law. The chapter therefore also looks at how Cohen conceptualized Indian law and how his vision continues to influence the ways in which Indian rights are thought about and exercised today.

Chapter One

“An Accident of Fate”: The Emergence of a New Generation of Indian Rights Lawyers

1954. Seattle, Washington. A few members of the Makah Tribe step into the office of

Ziontz & Pirtle, a small firm of two working on “small cases,” upon the recommendation of

Ziontz’ bank representative: “Al, I have an Indian gentleman here and he should talk to a lawyer.” Bruce Wilkie, then a 17-year-old high school student who would later become the executive director of the National Congress of American Indians is in need of assistance with a land allotment issue. Ten years later, Ziontz, who was then President of the Democratic Club and on the board of the ACLU in Seattle, becomes the Makah’s lawyer. Ziontz was untrained in but intrigued by tribal rights, an obscure set of rights considered obsolete. “I’ve never done any legal work for a tribe and I am not an expert in Indian law,” he told the tribal council, “[b]ut I’ve done some work for the Wilkies, Bruce’s family, several years ago, and that’s when I studied the law pertaining to Indians.” “I discovered something important,” he continued, “under the law Indian tribes are sovereign.”25

Few lawyers, tribal members, government officials, and other U.S. citizens knew about this distinct legal status held by Indian nations. Intrigued by the challenge of reconciling traditional American law with tribal rights, the few lawyers who had represented Native

Americans had often done so on a fascination for a set of rights which demanded to maneuver through American law in order to accommodate tribal rights alongside regular rights of citizenship and a prior interest in history, without which Indian rights could not be grasped. With

25 Ziontz, A Lawyer in Indian Country, 5.

his suggestion that the Makah use tribal sovereignty as a linchpin around which to articulate a defense of their rights, Ziontz and his partners inaugurated a new kind of Indian rights representation, one revolving around the restoration of tribal rights rather than their extinguishment.

A number of other young lawyers would soon become interested in Indian rights. They started fresh out of law schools, and their names were largely unknown to most: Tim Coulter,

Monroe Price, John Echohawk, Rick Collins, George Duke, Reid Chambers, Charles Wilkinson,

Bob Pelcyger, Mason Morisset, Greg Dallaire, Bruce Greene, Dick Trudell, Harry Sachse,

Carole Goldberg, Vine Deloria, Jr., David Getches, Ralph Johnson, Bruce Greene, Sam Deloria,

Bob Clinton, Tom Fredericks, Robert Pirtle, Harry Sachse, Fred Hart, and Lee Sclar.26

The vast majority of these lawyers were non-Indian men who were—probably without realizing it—products of the War on Poverty, and would turn out to be engineers of the legal tribal sovereignty movement as well. Alongside other Indian rights advocacy projects which gave rise to a more robustly organized corpus of people and institutions in the 1970s. These legal practitioners were thus instrumental to forming the conceptions of tribal sovereignty of today.

This chapter provide background information about these lawyers, and places their emergence in the context of the evolution of federal Indian policy as well as of the most salient legal mechanisms available to tribes, particularly in the decades surrounding the 1960s. It also delineates relevant domestic and foreign policy, as well as the evolution of Indian rights representation.

26 The names of these lawyers are listed here in the order in which I interviewed them.

Portrait of a New Generation of Indian Rights Lawyers

Until the late 1960s, few Native Americans were encouraged to seek a legal education.

The lack of Native American lawyers was not determined exclusively by individual choice.

Starting formally in the late 1870s, federal Indian educational policy provided vocational training to Native American children, who were forced to attend off-reservation boarding schools, spending months, even years without seeing their families.27 This policy lingered into the

Kennedy administration.28 This finally changed under Lyndon Johnson, as the administration launched programs supporting Native Americans who wished to pursue careers in the professions—as doctors, teachers, lawyers, and other ‘higher-level’ occupations.

Very few of the lawyers who attended law school considered that their Indian background constituted a significant part of their academic lives. Tim Coulter (Potawatomie) does not consider that his background influenced his decision to become a lawyer: “I came from an educated family. We did not even talk about my background at Columbia. People knew I was

Indian and I probably mentioned it once or twice but it was really not central to my experience there.”29 John Echohawk had wanted to become a lawyer since he was a child. His parents raised him in the traditional American work ethic: working hard would unlock the doors to any career

27 See David Wallace Adams, Education for Extinction: American Indians and the Boarding School Experience, 1875-1928 (Lawrence: University Press of Kansas, 1995); Brenda J. Child, Boarding School Seasons: American Indian Families, 1900-1940 (Lincoln: University of Nebraska Press, 1998); Adam Fortunate Eagle, Pipestone: My Life in an Indian Boarding School (Norman: University of Oklahoma Press, 2010); and K. Tsianina Lomawaima, They Called It Prairie Light: The Story of Chilocco Indian School (Lincoln: University of Nebraska Press, 1994).

28 See George Pierre Castile, To Show Heart: Native American Self-Determination and Federal Indian Policy, 1960-1975 (Tucson: University of Arizona Press, 1998); and Thomas Clarkin, Federal Indian Policy in the Kennedy and Johnson Administrations, 1961-1969 (Albuquerque: University of New Mexico Press, 2001).

29 Interview with Tim Coulter, by author, by phone, January 31, 2017.

he dreamed of. He benefitted from a new fellowship launched for Native American students at the University of New Mexico American Indian Law Center but he had made his decision long before getting the fellowship. Things fell into place before him: “I was in the right place at the right time.”30 Yet another lawyer, Tom Fredericks (member of the Mandan, Hidatsa, and Arikara

Nation), encouraged by the fact that Vine Deloria, Jr. was already attending, decided to apply to law school in Boulder. Deloria was from Standing Rock, where Fredericks was working as the director of a CAP program he had set up with a grant from the Office of Economic Opportunity.

Deloria told Fredericks he could help him apply, although Deloria’s help was probably unnecessary to his being admitted.31 It was thus possible for Native Americans to attend law school, but those who did usually came from educated families and applied and enrolled at law schools through mainstream channels.

No woman joined this legal movement until the early 1970s. The lack of women in the formative years of the field of Indian law reflected the gender gap characteristic of law schools at the time: “10% of my class were women,” recalls Carole Goldberg, who transferred from the

University of Pennsylvania to Stanford in the late 1960s. In 1970, the national average proportion of women attending law schools was a whopping 8.6%—a marked, yet still ludicrous increase from the 3% of the 1950s.32

30 Interview with John Echohawk, by author, Boulder, CO, November 7, 2013.

31 Interview with Tom Fredericks, by author, Louisville, CO, September 26, 2016 (comment mine).

32 Cynthia Fuchs Epstein, Women in Law (New York: Basic Books, 1981), 97. That same year, 4% of all practicing lawyers in the United States were women (1993 edition, 5); and “A Review of Legal Education in the United States,” ABA Section of Legal Education and Admissions to the Bar (1986): 66.

The number of admissions of women into law schools shifted, partly as a result of the women’s rights movement, as women started to fight for equal opportunity.33 In 1972, Title IX of the Higher Education Act was passed to ensure equal access to higher education for women.34

This opened doors for women as law schools might lose funding if they refused to comply with federal law: “When I started at UPenn, there were no women on the faculty. There was one at

Stanford, one at UCLA. They hired three of us at the same time when I joined the UCLA faculty in 1972.”35 But it was also a result of the requirements of the Vietnam War: Since men might not be able to finish law school before being drafted, women were suddenly more likely to be admitted. This combination of domestic and foreign policies forced law schools to accept women in greater numbers in order to maintain their yearly pools of graduates through turbulent times.

Among the rare early women of Indian law, one can find Yvonne Knight (Ponca), who attended the University of New Mexico (graduating in 1971), after being encouraged to consider

Indian law as a career by her cousin, who had attended the Indian law program at the University of New Mexico Law School with John Echohawk.36 Indian law would have to wait until the mid-

1970s for other women, and other lawyers more generally, encouraged by the growing number of

33 Watershed events included the publication of Betty Friedan’s feminist manifesto, The Feminine Mystique (New York: Norton, 1963) and the passage of Title VII of the Civil Rights Act, which prohibited discrimination on the basis of sex, race, religion, and national origin in employment, in 1964. On the contrasting perception of women’s role in society in the 1950s, see Barbara Aronstein Black, “Something to Remember, Something to Celebrate: Women at Columbia Law School,” Columbia Law Review 102, no. 6 (October 2002): 1451-1468; and Michael H. Cardozo, “Women Not in the Law Schools, 1950-1963,” Journal of Legal Education 42, no. 4 (December 1992): 594-598.

34 86 Stat. 235.

35 Interview with Carole Goldberg, by author, by phone, June 15, 2017.

36 Interview with John Echohawk, by author, Boulder, CO, May 8, 2017.

opportunities to protect Indian rights, to pursue Indian law, this time with a view to intentionally seek a career in a rapidly growing field.37

These lawyers attended law school in the middle of the Vietnam War, raging abroad and vastly unpopular at home and, yet, at its peak in drafting recruits. A number of lawyers had sought to avoid the draft by going to law school, sometimes obtaining conscientious objector status. Some were eventually drafted as the option to defer their education ended in the late

1960s when the lottery system was put in place.38 Those who were drafted—before the draft became voluntary again in 1973—returned from the War ever more determined to bring forth social change at home.39

As domestic efforts at publicizing the country’s role as a liberating force in the Cold War at home and the need to legitimize the role of the US in the world was met with intense criticism.

Recently, the unprecedented success of indigenous people(s) in restoring some fundamental rights as they confronted common law settler state politics such as Australia, Canada, and New

Zealand has been attributed to the fact that this period constituted a moment of rupture in these countries’ national histories. This opening, which permitted indigenous people(s) to be integrated into the recasting of national identities in all three countries, failed to happen in the United

States.40 Indeed, although white Americans are now more intent on (even enthusiastic about)

37 See Chapters Four and Five.

38 Interview with Mike Taylor, by author, by phone, September 23, 2016.

39 Interview with Ray Ramírez, by author, Boulder, CO, December 3, 2014. Ray Ramírez is the Native American Rights Fund’s grant writer and communications editor.

40 See Miranda Johnson, The Land Is Our History: Indigeneity, Law, and the Settler State (New York: Oxford University Press, 2016), 2-11; Russel Lawrence Barsh concurs on Canada. Interviews with Russel Barsh, by author, by phone, November 7 and November 21, 2016.

claiming their genealogical Native American ‘roots,’ at the state level, policy took the form of a retraction as the U.S. attempted to defend its identity in the face of lingering Cold War ideological battles. Thus, domestic policies were carved in response to public outcry at home, although adopted for the country’s public image abroad rather than in an effort to rethink the country’s internal history and identity.

These sometimes self-proclaimed ‘hippie lawyers’ expressed opposition to the War in

Vietnam on moral grounds by avoiding the draft as well as helping others avoid it by using their legal skills, sometimes while still in law school. Perhaps the revolution could happen through the law. Indian law would provide fertile ground for continuing this opposition to the status quo and a way to balance out society’s inequalities, as these lawyers tended to question the organization of society as a whole rather than as a set of fragmented components.41 If society was imbalanced, the law could provide an instrument of redress and be used to seek enforcement of existing but neglected laws. In short, it could be turned upon its head to attain a fairer distribution of resources and, even more importantly, help people regain control over their lives. This social justice bent would act as a binding agent between these lawyers as they later would come to uncover buried tribal rights of self-government.

Many Indian rights lawyers were Jewish, which, in part, reflected the proportion of

Jewish people in the legal profession. While 3% of the total American population was Jewish in the late 1950s, 17% of law school attendees were Jewish.42 Many Jewish lawyers would enter

41 Interview with Mike Taylor; Interview with Bruce Greene.

42Albert I. Goldberg, “Jews in the Legal Profession: A Case of Adjustment to Discrimination,” Jewish Social Studies 32, no. 2 (April 1970): 150.

Indian law through the Legal Services programs of the War on Poverty, constituting, for instance, an estimated third of all lawyers working at California Indian Legal Services in the mid- to late-1960s.43 However, some of them also came through private practice, where they faced discrimination: “initially you had to apply to Jewish firms, that was just how it worked, but by the time I sought work in Seattle it was over” says Ziontz, noting that it may also have had to do with the fact that he moved away from Chicago into a more progressive environment.44 But most lawyers opined that “Jews had made it by the 1960s.”45 The increased acceptance of Jewish lawyers into the legal profession marked a historical turning point in the 1960s as a result of a general “decline of discrimination and increased demand for legal services.”46

But the entrance of Jewish lawyers into Indian law also echoed some darker episodes in the history of mankind. Monroe Price, whose work would be instrumental to the rise and continuation of this movement, had immigrated to the U.S. in 1939, fleeing the Shoah devastating his native Vienna. Price traced his concern for Indian issues almost directly to a seminar on the American West he took at Yale, taught by a scholar who took Native Americans to heart. Native American history, particularly the history of displacement and genocide naturally resonated with his own experience as a refugee: “Indians and Jews had similar human experience and I started looking into it more.”47

43 Interview with George Duke, by author, by phone, October 30, 2015.

44 Interview with Al Ziontz.

45 Ibid.; Interview with Lee Sclar, by author, by phone, November 3, 2016; and Interview with Monroe Price, by author, New York, NY, January 27, 2014.

46 See Eli Wald, “The Jewish Law Firm: Past and Present,” in Ari Mermelstein et al., Jews and the Law (New Orleans, LA: Quid Pro Books, 2014): 65-124.

47 Interview with Monroe Price. For more details, see Price’s memoir: Objects of Remembrance: A Memoir of American Opportunities and Viennese Dreams (New York: Central European University Press, 2009).

The historical struggles facing Native Americans and Jews as ethnic groups had something else in common. Neither had sought integration into American society by articulating their needs in terms of their ethnic identities or on the basis of gender discrimination, as had many other minority groups seeking respect for their rights. Jews had accomplished their socio- economic and professional integration into American society chiefly through mainstream channels rather than through political protests. And the tribal sovereignty movement articulated tribal rights as legally valid based on the fact that at least some of those rights were enshrined in the Constitution. This distinct status of Indian nations as distinct political entities made it particularly difficult to accommodate within the existing American political and legal system as the latter sought to standardize national values and lifestyles into the early 1960s.

Lawyers among Indians: A Bad Reputation

Neither the law nor lawyers have earned a good reputation in Indian Country, partly because many lawyers played instrumental roles in the historical dispossession of Indian lands and rights. Reality and fiction in this context are rarely far from each other regarding Indian affairs. In a rare novel on the subject, The Indian Lawyer, the Blackfeet author James Welch’s realist novel captures the contemporary tensions surrounding a career in law for Native

Americans. “How did you figure you wanted to be a lawyer?” the protagonist, Sylvester Yellow

Calf, is asked. Sylvester had “wanted to get into a school with a decent prelaw program. He had .

. . wanted to at least see if he could hack law studies. He had read an article in a magazine that . .

. . called [Indian lawyers] the ‘new warriors’ and predicted that Indian law and water law—both of which figured prominently on reservations—were the fields to choose in the seventies and

eighties.”48 But what inspired Sylvester to become a lawyer in the novel is irrelevant. The seemingly “simple question,” Welch narrates, was also “filled with skepticism.”49

Sylvester’s career appears in unflattering tones—a medium to describe lawyers as selfish and money-hungry: “They’ll say, he was a basketball player, now he’s a big-time lawyer making all kinds of money. He doesn’t want to quit that gravy train to help out his people.”50 Lawyers have attracted more suspicion than inspiration in Indian Country. They tend to be seen as one of two extremes: crooks or moral crusaders, and are often deemed untrustworthy—even when they are Native American. In Welch’s depiction, even Sylvester’s own idea about the capacity of lawyers to make meaningful contributions to Indian life seems confused: “he was dissatisfied with his life of the usual lawyerly stuff of settling claims, personal injury and workman’s comp, of representing business interests in land and property deals, of various other forms of litigation.

He did some pro bono work for tribes but the big deals, the water rights, the hunting and fishing rights, the mineral rights cases, were usually handled by tribal attorneys and big law firms in

Washington, D.C., on retainer.”51

48 James Welch, The Indian Lawyer (New York: Penguin Books, 1990), 106.

49 Ibid., 220.

50 Ibid., 327.

51 Ibid., 119.

Lawyers and Native Americans before the Indian Claims Commission

Although fictional, the story woven around Sylvester’s decision to become a lawyer echoes a general distrust of lawyers in Indian Country. Claims lawyers such as those involved in the lawsuits brought before the Indian Claims Commission (ICC) were accused of making money on the back of Indian nations, since their pay—a contingency fee proportional to the monetary award received by a given tribe—would deplete tribal financial resources while turning lawyers into millionaires. The Commission had established that the lawyers’ pay would be restricted to a maximum percentage of 10% on any judgment rendered for any given Indian nation—a rule specific to Indian claims, as it could go up to 25 or even 50% of a claim’s final award in other areas of legal practice.52 There was no guarantee for lawyers that the claims they filed would be successful and, by extension, that they would ever get paid. Few lawyers made a fortune working on those claims, but those who did captured the media’s attention, which depicted the scandalous victories with long-standing effects.53

The lawyers described by Sylvester in Welsh’s Indian Lawyer thus seem to depict those who worked on significant cases although they had generally not developed very deep relationships with the communities they were serving and, as a consequence, were often more attuned to some of the internal political conflicts than the everyday living conditions of Indian reservations.54 As noted earlier, these lawyers practiced Indian law within a limited framework.

For tribal leaders interested in understanding the law in the immediate postwar period, the few

52 Nancy Oestreich Lurie, “The Indian Claims Commission Act,” The Annals of the American Academy of Political Science 311 (May 1957): 59.

53 See, for instance, Stuart Taylor, “3 Lawyers Get $10 Million in Winning Case for Indians,” New York Times, May 27, 1981, available at http://www.nytimes.com/1981/05/27/us/3-lawyers-get-10-million-in-winning-case- for-indians.html (last accessed March 23, 2017).

54 Interview with Al Ziontz.

lawyers who were able to convey a comprehensive or cohesive understanding of Indian rights practiced in Washington, D.C., far away from Indian lands. Over time, the claims work had become concentrated in the hands of few lawyers. Among these firms were those of Glen and

Ernest Wilkinson in Salt Lake City; the Fried, Frank, Harris, Shriver & Jacobson law firm in

New York and Washington, D.C.; and the Riegelman, Straus, Schwarz, Spiegelman firm, also in

Washington.55

The long-held idea that Indian people(s) would vanish away as tribal members by integrating American society played a significant role in the way Indian grievances were approached via legal channels. The practice of Indian law at mid-century reflected larger political forces. In the 1950s, the federal government passed a series of major assimilationist laws to dissolve the status of Indian nations as separate political entities and encourage individual tribal members to move into cities while Indian lands would be brought under the jurisdiction of individual States. The first of these endeavors, Public Law 280, passed in 1953 extended state jurisdiction over Indian reservations. The following year, the Indian Termination

Act of 1954 was issued to terminate Indian reservations altogether. In 1956, the Indian

Relocation Act of 1956 invited Native Americans to leave their reservations and seek permanent employment in urban areas. Far from being what in 1969 President Lyndon Johnson called the

“Forgotten American,” Native Americans were being carefully stripped of their remaining rights and lands and escorted out of reservations into American society.

The ICC lawyers wittingly operated as implementers of the termination policy of the federal government, whose role was to facilitate the closing of a legal frontier past which Indian

55 Interview with Reid Chambers, by author, by phone, November 11, 2015; and Interview with Arthur Lazarus.

law and Indian nations would no longer exist. Once processed, both the Indian claims and Indian law altogether would disappear, the ICC lawyers thought. The firm for which Charlie Hobbs was working, for instance, was going to go into commercial law, which he was asked to develop to compensate for the disappearing Indian law work he had been doing so far.56 But Indian law as it was practiced then was an advancement to ICC lawyers in itself. “It had been hard enough to get there,” recalls Arthur Lazarus, “monetary recovery was all the law allowed, you had to operate within that framework. It was that or nothing.”57 The value of the Act was that, for the first time in U.S. history, tribes and their lawyers did not need to request an authorization to sue from

Congress because the Act automatically allowed such lawsuits.

Many tribal leaders embraced the termination policy and the possibility of obtaining funds through the ICC.58 This created tensions between those willing to embrace termination at the tribal level and leaders and advocates working at the national level, particularly those who had a finger on the pulse of federal Indian policy at large. In 1965, congressional hearings revealed the uneven understanding of the termination policy. While many tribal leaders marched toward termination and congressmen declared that tribes understood the policy, Vine Deloria, Jr., the president of the National Congress of American Indians (the largest Indian organization in the country) alerted his querists that, because many tribes had not been consulted on the termination policy, they would be imposed the bill without understanding it.59

56 Interview with Charlie Hobbs.

57 Interview with Arthur Lazarus, by author, by phone, November 12, 2015.

58 On this point, see Kenneth R. Philp, Termination Revisited: American Indians on the Trail to Self- Determination, 1933-1953 (Lincoln: University of Nebraska, 1999).

59 Hearings before the Subcommittee on Constitutional Rights of the Committee on the Judiciary, Senate, S. 961, S. 962, S. 963, S. 964, S. 965, S. 966, S. 967, S. 968, and S.J. Res. 40 To Protect the Constitutional Rights of American Indians, Day 3, 89th Cong., 1st sess., June 24, 1965, 200-201.

Between 1953 and 1966, 109 tribes were terminated. A few tribes articulated robust campaigns to reverse the termination bills which had abolished their tribes, and successfully restored them.

The efforts of emerging national leaders such as Ada Deer at Menominee in Wisconsin and local tribal leaders such as Lucy Covington at Colville in Washington State both make it quite clear that without determined and tribal leaders who understood the implications of the law and indefatigably lobbied against it, termination may well have proceeded quite smoothly.

But many tribes embraced the move, and it can be challenging to identify the exact origins of and reasons behind the motivations of tribal and state officials in the context of a settler state intent on assimilating its indigenous populations. In fact, it is equally facile

(particularly for scholars of Indian affairs), in such a context, to dismiss certain expressions of tribal sovereignty as invalid. Privileging culture as a measure for evaluating degrees of tribal sovereignty, for instance, amounts to essentializing the myriad different choices made by tribes to recover varying degrees of autonomy: In such a scenario, only projects aimed primarily at protecting ‘culture’ are celebrated as successes. Other efforts, particularly economic ones, tend to be dismissed as contradictory to tribal sovereignty: when poor, Native Americans continue to be perceived as savable; when rich, they are often perceived as greedy ‘sellouts.’60 This, in turn, feeds the myth of the romantic Indian: an Indian in the singular, interested in culture to the exclusion of what can, at times, permit it in the first place, i.e., economic development. In other words, the revered ‘Indian’ remains, to this day, the warrior who refuses to renounce to their culture but must remain poor, powerless, and resigned to an unfortunate fate, usually imposed from the outside, for us to pay attention.

60 This tension applies particularly harshly in critiques on Indian casinos. Some scholars have productively deconstructed such stereotypes. See, for instance, Alexandra Harmon, Rich Indians: Native People and the Problem of Wealth in American History (Chapel Hill: University of North Carolina Press, 2010).

A Lack of Knowledge on Legal Representation and Academic Skepticism about the Law

The Indian Claims Commission was initially hailed as a positive advancement in the adjudication of Indian legal issues, including by the lawyers representing Indian nations. Glen

Wilkinson, working for one of the leading law firms who defended Native Americans before the

Commission (the Wilkinson, Cragun, and Barker firm, based in Washington, D.C.), explained that “Indian tribes [had] not always had the right to present their grievances to a judicial tribunal.” Prior to the ICC Act, Wilkinson continued, the “first judicial remedies came in the form of special legislative grants of jurisdiction to the Court of Claims to hear Indian tribal claims.” With the passage of the ICC Act, Indian nations were “provide[d] with a uniform remedy [to file] grievances against the [US government].”61 In other words, they would no longer have to request an individual (i.e., tribal specific) authorization to sue from Congress before a legal issue could even be adjudicated by a court of law. Scholars concurred.62

By the late 1970s, however, some of the same scholars who had hailed the work of the

Commission were criticizing it for having been too conservative in its treatment of the Indian claims and not accomplishing the work Felix S. Cohen, a government lawyer sympathetic to

Indians, had drafted it for. Not only had Cohen opened a forum where Indian claims could be prosecuted, he had included in the Act a provision for the redress of moral wrongs.63 The

61 Glen A. Wilkinson, “Indian Tribal Claims before the Court of Claims,” The Georgetown Law Journal 55 (1966-1967): 511. Nancy Oestreich Lurie, “The Indian Claims Commission,” The Annals of the American Academy of Political and Social Science 436 (March 1978): 97-110.

62 See, for instance, Nancy Oestreich Lurie, “The Indian Claims Commission Act,” The Annals of the American Academy of Political Science 311 (May 1957): 56-70.

63 The Act provided a redress mechanism for the following: “(1) claims in law or equity arising under the Constitution, laws, treaties of the United States, and Executive orders of the President; (2) all other claims in law or equity, including those sounding in tort, with respect to which the claimant would have been entitled to sue in a court of the united States if the United States was subject to suit; (3) claims which would result if the

Commission rarely, if ever, engaged this aspect of the claims process, dismissing tribal claims on procedural grounds in order to keep the U.S. Treasury from bankruptcy even—and especially— as it realized that many of these claims had legal standing. As the Commission ended its mandate and transferred the pending claims to the U.S. Court of Claims, scholars were able to identified the reasoning which had driven the Commission’s functioning: providing monetary relief while extinguishing Indian title to their ancestral lands, and reversed their interpretation of its role in remedying historical injustices. Even the Commission’s official historian concluded his evaluation on a bleak note.64

In large part due to the bad publicity received by the claims lawyers who preceded them, the lawyers who started working on Indian rights in the mid- to late-1960s have received little positive attention outside of their field. In the only academic book focusing on the work of this generation, they were held responsible for the deterioration of Native American ways of life as well as for the assimilation of Native Americans into the fabric of American society.65 Published in 1978, the book reproduced the frustrations formulated by scholars on the Indian Claims

Commission rather than a fair, honest, and thorough examination of this new legal work as

treaties, contracts, and agreements between the claimant and the United States were revised on the ground of fraud, duress, unconscionable consideration, mutual or unilateral mistake, whether of law or fact, or any other ground cognizable by a court of equity; (4) claims arising from the taking by the United States, whether as the result of a treaty of cession or otherwise, of lands owned or occupied by the claimant without the payment for such lands of compensation agreed to by the claimant; and (5) claims based upon fait and honorable dealings that are not recognized by any existing rule of law or equity.” An Act to create and Indian Claims Commission, to provide for the powers, duties, and functions thereof, and for other purposes, 60 Stat. 1049 (August 13, 1946) (italics mine).

64 See Nancy O. Lurie, “The Indian Claims Commission”; Sandra C. Danforth, “Repaying Historical Debts: The Indian Claims Commission,” North Dakota Law Review 49 (1972-1973): 359-403; and Harvey D. Rosenthal, Their Day in Court: A History of the Indian Claims Commission (New York: Garland Publishing, 1990).

65 Linda Medcalf, Law and Identity: Lawyers, Native Americans and Legal Practice (Beverly Hills, CA: Sage Publications, 1978).

potentially independent from the Commission’s prosecutions. In short, the author missed the mark: in 1978, the new tribal sovereignty legal movement had already accomplished a series of legal victories of a different kind, and was in its prime.

The fact that the study also approached legal work on tribal rights as a finished project reflected a larger issue which persists among the public branches of government, the corporate world, the general public, even among academics, into the present day, i.e., the tendency to want to resolve, in one way or another, the tension between governmental and corporate expansion into Indian affairs and the autonomy of Indian nations. However, tribal sovereignty remains contested territory or, in the words of some scholars, an “ongoing contest.”66 Its limits are constantly being tested, and the various authorities involved in the management of their overlapping jurisdictions (the federal government, states, and tribes themselves) are unlikely to stop challenging each other.

Other methodological issues in the book riddled the story. The author generalized from a sample (of thirteen) legal practitioners located in one city (Seattle) which is perplexing since

Seattle was at the forefront of the fishing rights legal successes of the 1970s and continues to be considered as a seat of progressive practice in regards to Indian rights work. Further, the author insisted on maintaining her interviewees’ anonymity, while also heavily weaving her analysis with sociological theory. This made it difficult to both distinguish between what could be explained by scholars and what could be accounted for by the lawyers themselves. It also made it challenging to evaluate the exact nature of the projects they worked on as well as their relationships with individual tribes. The argument that lawyers were contributing to the

66 David E. Wilkins and K. Tsianina Lomawaima, Uneven Ground: American Indian Sovereignty and Federal Law (Norman: University of Oklahoma Press, 2001), 5.

assimilation of Native Americans to the detriment of their traditions might have made sense if the author had interviewed Indian claims lawyers since the Indian Claims Commissioners had limited the possible outcomes of the claims submitted by lawyers and tribes to monetary settlements. However, even such an interpretation would have been contentious, given that such lawyers acknowledged that it had already been almost impossible to establish a tribunal to process any Indian claims in the first place.67

The 1980s scholarly note that “[t]he skill, knowledge, and competence of lawyers have not been the subject of scientific research and may not be susceptible of scientific evaluation,” thus remains more valid than ever, still today.68 Even when lawyers do constitute the focus of academic studies, the sources used by scholars are almost inevitably removed from the lawyers’ own experiences with the law. More recently, in an effort to debunk the “myths of cause lawyering,” a leading contribution to the academic literature gathered individual cases studies on public interest lawyers. However, this evaluation of the work of legal practitioners rested not on a direct examination of lawyerly work, but on “organizations rather than individuals because of the source material available from organizations. The one exception is the radical lawyering chapter where individual lawyers did a great deal of writing about their forms of practice. Thus I have looked at legal organizations involved in the civil rights movement, but not at the relatively small number of solo practitioners from the South who participated as well.”69

67 Interview with Arthur Lazarus.

68 Michael H. Cardozo, “The Good about America’s Law Schools,” Syllabus 14, no. 4 (December 1983): 1.

69 Thomas Miguel Hilbink, “Constructing Cause Lawyering: Professionalism, Politics, and Social Change in 1960s America” (Ph.D Diss., New York University, 2006). Hilbink’s work came to prominence among public interest law scholars through an article he published out of his doctoral research in which the foundations on which his examination rests are not discussed. See Thomas M. Hilbink, “You Know the Type…: Categories of Cause Lawyering,” Law & Social Inquiry 29, no. 3 (Summer 2004): 657-698.

It would have been impossible for the author of this important work to conduct an even more pointed study than he already did—after all, interviews are simply not an option with deceased subjects. However, if alternate sources do not provide an adequate angle to evaluate a question of such major social significance as public interest law, should we (researchers) undertake it in the first place? This is particularly perplexing as the majority of the literature on lawyerly work comes from political science and sociology, both of which tend to drown in theory derived from the triumph of the legal strategy adopted by the NAACP Legal Defense

Fund in its pursuit of equality for all.70 One must ask, therefore, if our understanding of public interest law does not blindly follow projections of our scholarly hopes for a fairer future which are derived from our admiration for such a major accomplishment as Brown v. Board of

Education.

On Indian affairs, we still know little about legal interactions between Native Americans and the American legal system, despite the fact that Native Americans—both as individuals and as (semi-)sovereign nations—have interacted with American courts and have had legal representatives since the colonial era.71 At the time, at least some Indian defendants, including

70 For more on this point, see Chapter Three.

71 The literature on legal interactions between American colonies and Indian nations is inversely proportional to the massive size of the aggregate colonial record. Studies remains sporadic because the nature of colonial records makes the task quite daunting. These records require to sift through enormous amounts of handwritten notes and reports, usually in cursive—to the exception of a very small number which have recently been transcribed by scholars. As a consequence, only limited studies have been produced on legal interactions between Native Americans and colonial officials during that period. A few incursions into this history have been attempted, however. See, for instance, Jason Eden, “‘Therefore Ye Are No More Strangers and Foreigners’: Indians, Christianity, and Political Engagement in Colonial Plimouth and on Martha’s Vineyard,” American Indian Quarterly 38, no. 1 (Winter 2014): 36-59; Yasuhide Kawashima, “The Pilgrims and the Wampanoag Indians, 1620-1691: Legal Encounter,” Oklahoma City University Law Review 23 (1998): 115- 131; Puritan Justice and the Indian: White Man’s Law in Massachusetts, 1630-1763 (Middletown, CT: Wesleyan University Press, 1986); and James P. Ronda, “Red and White at the Bench: Indians and the Law in Plymouth Colony, 1620-1691,” Essex Institute Historical Collections 110, no. 3 (1974): 200-216; Katherine

tribal leaders, brought their own legal representatives to court. Overall, however, the lack of systematic recording of the presence of legal representatives by the courts’ clerks makes it difficult to identify the individuals chosen to represent tribes in their legal dealings with settlers and their institutions when they were indeed present. As a result, it is difficult to identify and evaluate the variety of ways in which Indian people(s) and their legal representatives may have exercised agency in courts of law or managed to use them to their advantage. Further, lawyers cannot be easily tracked because the legal profession was not incorporated until the mid- to late

18th century. For instance, the lawyers of old could be planters, merchants, entrepreneurs, even tavern keepers who complemented their main source of income with a lawyer’s salary, which then tended to be quite meager.72 Finally, the colonial legal system was not as bureaucratically organized as the legal system of today: Even when legal representatives may have been present in courtrooms, their presence was not always recorded.

This issue is not limited to the colonial period. Information about lawyers engaged in representing Indian defendants has remained limited ever since. For most of American history, very few Native Americans became lawyers. There are only a few exceptions: the Cherokees

John Rollin Ridge (Cherokee, 1827-1867) and E. C. Boudinot (Cherokee), and Lyda Burton

Conley, “a Wyandotte Indian [woman] born in 1869 near present-day Kansas City”—who may have been the first Native American woman admitted to legal practice—although the author does

Hermes, “‘Justice Will Be Done Us’: Algonquian Demands for Reciprocity in the Courts of European Settlers,” in Christopher L. Tomlins and Bruce H. Mann (eds.), The Many Legalities of Early America (Chapel Hill: University of North Carolina, 2001): 133; and Rhode Island Court Records: Records of the Court of Trials of the Colony of Providence Plantations, 1647-1670, vol. 2 (Providence: s.n., 1920).

72 See, for instance, Alan F. Day, A Social Study of Lawyers in Maryland, 1660-1775 (New York: Garland Publishing, Inc., 1989), 24.

not inform us of whether and/or where and how they were trained and of the types of cases they may have contributed to.73

These issues are endemic and have been inscribed in the legal interactions of Indian nations and individuals with the various branches of the American government since its formation. Even for members of one of the ‘Five Civilized Nations,’ securing impressive legal counsel did not suffice to retain authority over tribal affairs. In 1823, the Supreme Court started processing a series of cases addressing crucial Indian issues, known among Indian law experts as the Marshall Trilogy.74 Like the two early male Native American lawyers, all three cases were connected with the Cherokee Nation. In 1830, the Cherokee Nation hired William Wirt and

Horace Binney, two of the most prominent figures of their times—Wirt was the former Attorney

General and Binney served in the House of Representatives. In an opinion written from

Baltimore, where he had opened a private law firm upon retiring from public office, Wirt asserted that “the Cherokee are a sovereign nation . . . and . . . their having placed themselves under the protection of the United States does not at all impair their sovereignty and independence as a nation.”75 He continued, “One community may be bound to another by a very unequal alliance, and still be a sovereign State. Though a weak State, in order to provide for its safety, should place itself under the protection of a more powerful one, yet according to Vatell . .

. if it reserves to itself the right of governing its own body it ought to be considered as an

73 Cf. Kristen A. Carpenter and Eli Wald, “Lawyering for Groups: The Case of American Indian Tribal Attorneys,” Fordham Law Review 81 (2012-2013): 3100 (citing Stacy L. Leeds and Elizabeth Mashie Gunsaulis, “Resistance, Resilience, and Reconciliation: Reflections on Native American Women and the Law,” Jefferson Law Review 24 (2012): 307-17.)

74 Johnson v. M’Intosh, 21 U.S. 543 (1823); Cherokee Nation v. Georgia, 30 U.S. 1 (1831); and Worcester v. Georgia, 31 U.S. 515 (1832).

75 Opinion of Mr. Wirt: Late Attorney General of the U.S., on the controversy pending between Georgia and the Cherokee Nation. Western Luminary 7, September 1, 1830, 238.

independent State.” Therefore, Wirt concluded, “the territory of the Cherokee is not within the jurisdiction of the State of Georgia, but within the sole and exclusive jurisdiction of the Cherokee

Nation.”76

This may be the last interpretation of Indian rights as both international and absolutely sovereign in nature. In Wirt’s opinion, the tribal sovereignty of the Cherokee was absolute, and even the federal government did not have jurisdiction over its affairs or territory; it was simply protecting it from other powers foreign to it. But, when the case was reviewed by the Supreme

Court a few months later, Chief John Marshall decided otherwise. In Cherokee Nation v.

Georgia, Marshall declared the Cherokee Nation to be a ‘domestic dependent nation.’ The

Cherokee retained the federal government’s protection from state intrusions into their internal affairs but they lost their international status as foreign States. Native Americans entered

Cherokee Nation v. Georgia (1831) as foreign nations, and came out on the other end as nations subjected to the power of the federal government. The battle over who—the federal government, individual American States, or tribes themselves—would have jurisdiction over which Indian issues was launched.

With his opinion in Cherokee Nation v. Georgia, John Marshall—one of the most celebrated Supreme Court Chief Justices in American history—brought Indian nations within the fold of the American legal and political system. By coining the term ‘domestic dependent nations,’ Marshall considered that tribes were domestic indeed, even though their members would not be considered as U.S. citizens until the passage of the Snyder Act (also known as the

Indian Citizenship Act) of 1924.77 One could be tempted to interpret Marshall’s legal fiction as

76 Wirt, emphasis mine.

77 43 Stat. 253.

an effort to protect Indian nations in a time of intensifying pressure with settlers as the country dramatically expanded, but Marshall’s own writings, in which he consistently referred to Native

Americans as savages to be controlled or decimated, do not leave much room for the benefit of the doubt.78 The battle over tribal sovereignty would now be waged not only on the battlefield, but also in the courts. This ambivalent status continues, to this day, to regulate and oftentimes confuse the management of Indian affairs.

The Cherokee’s ability to obtain the assistance of a prominent lawyer points to an exception. Few other Indian nations were able to mobilize such magnificent counsel. Yet, even with their status as one of the ‘Five Civilized Tribes’ and some the most respected legal authorities in the country on their side, the Cherokee were soon removed to Indian Territory.

Many other tribes who were not entirely decimated or engulfed in the onslaught of non-Indian immigration found themselves the new residents of Indian reservations.79 As physical battles between Indians, settlers, and the Army continued through the nineteenth century, culminating with the Wounded Knee Massacre of 1890, important excisions were made to rights sustaining tribal existence. In 1830, the Indian Removal Act provided federal authorization for the displacement of Indian nations west of the Mississippi, inaugurating the establishment of Indian reservations which would develop exponentially during the second half of the 19th century as assimilation efforts intensified. While Native American children were sent to off-reservation

78 As an illustration, see John Marshall, The Writings of John Marshall, Late Chief Justice of the United States, upon the Federal Constitution (Boston: John Munroe and Company, 1839).

79 While more studies of court cases adjudicated at the state level remain to be done to understand how state court decisions have historically shaped Indian rights, we are indebted to Tim Alan Garrison, The Legal Ideology of Removal: The Southern Judiciary and the Sovereignty of Native American Nations (Athens: University of Georgia Press, 2009) for a rare study of state and federal law in the first part of the 19th century. See also Lisa Ford, Settler Sovereignty: Jurisdiction and Indigenous People in Georgia and New South Wales, 1788-1836 (Cambridge, MA: Harvard University Press, 2010).

boarding schools and adults forced to adopt American agricultural lifestyles through the

Allotment (or Dawes) Act of 1887, the Supreme Court and Congress settled significant issues of tribal jurisdiction.80

Contemporary scholars have probed the law as a site of intense oppression and discrimination against Native American people, or at least as a hindrance to tribal sovereignty, both domestically and internationally. Critical legal studies scholars, in particular, have probed how the Supreme Court, for instance, uses antiquated and racist principles of law to further diminish the scope of the rights of self-government of Indian nations. 81 Illustrations that the law has been used historically to divest disadvantaged people of their rights on racist grounds alone abound, both in historical materials and in court decisions, even recently.

This focus on the expansion of federal and state powers over Indian lands and rights when the law, lawyers, and public officials are involved has, however, reified the law as a set of static processes, often relegating Native American people(s) to the rank of victims of history. In reviewing published works, some (rare) scholars have pointed to a narrative built on preconceived ideas of the law as oppressive even when the sources tell otherwise.82 This bias

80 While the Supreme Court acknowledged tribal jurisdiction over criminal matters in Indian Country in Ex Parte Crow Dog (1883), two years later, Congress passed the Major Crimes Act, thereby curtailing tribal sovereignty over crimes such as murder, rape, and manslaughter. In the same movement, U.S. v. Kagama (1886) declared that Congress had ‘plenary power’ over Indian affairs.

81 See, for instance, Robert A. Williams, Jr., The American Indian in Western Legal Thought: The Discourses of Conquest (New York: Oxford University Press, 1990). See also S. James Anaya, Indigenous Peoples in International Law (New York: Oxford University Press, 1996); Karen Engle, The Elusive Promise of Indigenous Development: Rights, Culture, Strategy (Durham, NC: Duke University Press, 2010); and Vanessa Ann Gunther, Ambiguous Justice: Native Americans and the Law in Southern California, 1848-1890 (East Lansing, MI: Michigan State University Press, 2006).

82 See Michael Magliari, review of Ambiguous Justice, by Gunther, Pacific Historical Review 77, no. 2 (May 2008): 321-322.

toward seeing the law as inevitably discriminatory can have dire consequences: Examining the law as a site of oppression rather than as one of contestation in which Native people(s) hold agency and can maneuver through the American political and legal system with the help of lawyers as well as of people in government can even hinder progress on the recovery of rights of tribal self-government.

Historians who have taken a close look at people’s use of the courts in other areas have unveiled that people who have been chronically discriminated against can also be empowered by using the courts. In her analysis of 600 cases filed by African Americans in the post-Civil War

South, Melissa Milewski found redress and justice for African American litigants in an overwhelming number of cases. She concluded that the disadvantaged position of these litigants’ in society did not necessarily preclude them from obtaining justice through American courts.83

On Native American issues, scholars have mentioned, in passing, a few specific obstructions to justice: the fact that Indian tribes did not (generally) have access to the federal courts until 1966 and that the requirement for tribes to seek the authorization of the Secretary of the Interior in order to ensure that their contracts with their attorney be valid was not repealed until—it was time—seventeen years ago.84 But very few in-depth studies have been produced on this specific question of access to the courts for tribes despite the innumerable individual bills passed throughout American history to regulate such legal interactions. For all that we know, Native

83 Cf. Melissa Milewski, Litigating across the Color Line: Civil Cases between Black and White Southerners from the End of Slavery to Civil Rights (New York: Oxford University Press, forthcoming). In the meantime, see Milewski’s doctoral dissertation, “From Slave to Litigant: African Americans in Court in the Post-War South, 1865-1920 (Ph.D Diss., New York University, 2011) and article, “From Slave to Litigant: African Americans in Court in the Post-War South, 1865-1920” Law and History Review 30, no. 3 (August 2012): 723- 769.

84 See, respectively, Matthew L.M. Fletcher, “2010 Dillon Lecture: Rebooting Indian Law in the Supreme Court,” South Dakota Law Review 55 (2010): 527; and Carpenter and Wald, 3100.

Americans may have had formal access to the legal system much more than they (and scholars) have previously thought.

It is possible, for instance, that the lack of redress through the legal system may also (and sometimes, instead) derive from a lack of knowledge about such rights as well as from an overwhelming paternalistic barrier imposed by the Bureau of Indian Affairs blocking access to formal legal redress mechanisms. Our knowledge on the specific ways in which the legal system may have allowed or restrained access to justice for Native Americans seeking to use the legal system for redress remains too limited to draw even preliminary conclusions. Meanwhile, access to justice has varied quite a lot from one Indian nation to another, depending on their individual state of residence, one area of law to another, and the historical moment in which such attempts have taken place.85

To give one example, in the contemporary period, tribes and their lawyers were able to circumvent seeming obstructions by requesting Assistant Regional Solicitor for the Department of the Interior (for the Pacific Northwest) to file the U.S. v. Washington lawsuit, The suit resulted in the major 1974 victory that reaffirmed the tribal fishing rights of Native Americans from twenty tribes in the region, setting a precedent for tribes across the country.86 Such examples tell a story of tribal members as creative, full-fledged actors in their engagement with the law rather than as passive victims of history.

A New Practice of Indian Rights Emerges in the Midst of Changing Domestic and Foreign Policies

85 See for instance Ex parte. Partial justice.

86 See Chapter Three.

When the new generation of Indian rights lawyers was emerging in the mid- to late

1960s, the ICC was still processing Indian land claims. Until well into the 1960s, Native

Americans continued to be seen by the general public and government officials as a “holdover from the past,” people with “no political future.”87 The Legal Services programs of the Johnson administration would provide bright young lawyers with professional opportunities to drastically reduce poverty in America, and it would draw from the best universities in the country to achieve that goal. Many of these future Indian rights lawyers attended Ivy League or other top law schools in the country: Harvard,88 Columbia,89 Yale,90 the University of Colorado at Boulder,91 the University of New Mexico,92 Stanford,93 Berkeley,94 the University of Chicago,95 the

University of Washington,96 the University of Southern California,97 Georgetown University,98

87 Interview with Al Ziontz.

88 George Duke ’59; Richard (Rick) Collins, ’66; Reid Chambers, ’67.

89 Robert (Tim) Coulter ‘69

90 Monroe Price ’60; Robert (Bob) Pelcyger ’66; Sam Deloria, ’67.

91 Robert Pirtle, ’58; Vine Deloria, Jr., ’70; Thomas (Tom) Fredericks, ’72.

92 John Echohawk, ’70; Dick Trudell, ’70(?).

93 Charles Wilkinson, ’66.

94 Lee Sclar ’66; Mason Morisset, ’68.

95 Alvin (Al) Ziontz, ’51

96 Ralph Johnson, ’49.

97 David Getches, ’67.

98 Fred Hart, ’55.

Louisiana State University,99 and Hastings Law Schools.100 They attended law school at a time when Indian law courses did not exist, but “It was not problematic that we didn’t receive training in Indian law since the job of any lawyer is to figure out what is to be done in any area of law,” noted Rick Collins, a Harvard graduate who started his career at Legal Services Programs on the

Navajo Reservation and in California in the 1960s and 1970s before joining the Native American

Rights Fund in the mid-1970s and the University of Colorado Law School faculty in the early

1980s.

As he evaluated the Legal Services Program in 1966, Earl Johnson, Jr. (its Director) proudly noted that its first crop of lawyers qualified as “the cream of young legal talent in the nation.”101 Many had stood out as honors students, serving on the board of editors of their schools’ law reviews. These were graduates who could have taken a job anywhere and excelled at it. Graduating from the best law schools in the country with such credentials guaranteed the privilege of choosing where they would work with high chances of getting the job. Elite law school training accustomed lawyers to the most challenging and creative legal thinking.

However, contrary to many of their fellow graduates, they sought positions they could become passionate about and challenged by. Public interest law work paid less than working at a large corporate law firm, but they did not seem to make financial gain a priority. Indeed, as tribal lawyers later, they often ended up doing pro bono work for tribes. Still, the legal services programs also made sure to make its offers appealing to future law graduates. As Legal Services

99 Harry Sachse, ’57

100 Bruce Greene, ’67.

101 Earl Johnson, Jr., “The O.E.O. Legal Services Programs,” The Catholic Lawyer 14, no. 2 (Spring 1968): 111. Johnson was the first Deputy Director of the Legal Services Program from October of 1965 through June of 1966, when he became its Director.

recruiters combed the campuses of the country’s major law schools, they packaged Legal

Services work into prestigious, “cutting-edge legal work” to bring the best graduates into its programs.102

For young law students eager to make positive social change upon graduation, these were exciting opportunities, and when a position was not given to them, others opened up. For instance, when Earth Justice gave the job for which Charles Wilkinson had interviewed to someone else, they told him about a brand new firm doing Indian rights work freshly established in Berkeley as an offshoot of California Indian Legal Services.103 Upon meeting its founders,

Wilkinson was ecstatic: “These guys were handling major lawsuits, I was immediately impressed!”

American law schools were not hotbeds of radical thought. Law schools have been known for preparing students for the corporate world, and some of these lawyers indeed started their careers at large corporate firms. Robert Pirtle, a Seattle-based lawyer represented Boeing for the Perkins firm in Seattle before creating a firm with Al Ziontz. George Duke, who founded a Legal Services Program dedicated to Native American clients in California, started his career in atomic energy law for a private law firm. Charles Wilkinson, who launched his career with the

Native American Rights Fund in Berkeley, California and became one of the foremost authorities on Indian law, worked for large private firms in Phoenix and San Francisco before “looking around” in 1971. He applied for a position at Earth Justice (then called the Sierra Club Legal

102 Interview with Mike Taylor.

103 Interview with Robert Pirtle, by author, by phone, September 23, 2016; and Interview with Charles Wilkinson, by author, Boulder, CO, November 19, 2015.

Defense Fund), a new but already leading firm in environmental law which had just established its headquarters in San Francisco.

While public interest law had arisen several decades earlier, the Johnson administration placed heavier emphasis on public interest law than had been done in federal policy before, and, after decades of assimilationist and genocidal policies, Native Americans qualified for the status of ‘indigent.’ Indian law provided a perfect channel for many a young lawyer’s ambitions to fix the contemporary ills of society through law, which could be used almost scientifically.104 Their work engaged their own visions and values of what constituted a fairer society; it invited them to design new, creative strategies and to leverage the legal system to defend Indian clients. It invited them to translate tribal issues through the paradigm of American law, but also their values and visions of the role of law in society, opening room for unpacking and even creatively rethinking the protection of tribal rights.

Their rigorous academic legal training would prove critical to the development of the legal tribal sovereignty movement. Heavily focused on rational thinking, it provided an alternative route to protecting Indian rights, away from the emotionally charged protest politics and grassroots community organizing. Their qualifications became sought after as a number of tribal leaders sought to lift some of the limitations and obstacles presented by the legal system.

Law became a concrete means to solve specific Indian problems, no longer an instrument of oppression and legal abuse. As Ada Deer, one of the champions of the restoration of the legal

104 For a detailed examination of the scientific apparatus deployed during the War on Poverty, see Alice O’Connor, Poverty Knowledge: Social Science, Social Policy, and the Poor in Twentieth-Century U.S. History (Princeton, NJ: Princeton University Press, 2001).

status of the Menominee, still emphasizes today, “if I want to make myself understood I don’t hammer it into someone’s head.”105

During that time, logical reasoning thus came to be valued over reactive political protest.

Vine Deloria, the renowned thinker on Indian affairs who had just burst out on the national scene with his manifesto Custer Died for Your Sins, redefined his priorities as he was finishing law school in 1970. “I . . . now do not go any place to talk to anyone unless it is with an Indian tribe or group that is seriously working on some legal problem that I am interested in. . . . I simply have to devote myself to problem-solving instead of discussing problems.”106 Tim Coulter, who founded, in 1978, the Indian Law Resource Center, an NGO dedicated to Indian rights and who has been its director since then, noted that while lawyers representing Indian clients could sometimes participate in political protest events even in the early days, it was far from defining their work.107 Among these lawyers and the tribal members they worked for, mass public political demonstrations were, then, not seen as the most effective avenue for social change.

Thus, if this legal work was conducted at the same time as the nationalist activist demonstrations unfolded, it did not closely interact with it, at least not through lawyers. Alliances with specific tribes, however, were common, with the effect of always rooting legal work in concrete legal issues encountered by tribes.

Much of our current conceptualization of Indian rights was thus channeled through these mostly non-Indian lawyers trained at American law schools who translated them into a language

105 Interview with Ada Deer, by author, by phone, December 14, 2016.

106 Letter from Vine Deloria, Jr. to Mr. Harmon, undated (around early November, 1970), Deloria Papers, Beinecke.

107 Interview with Tim Coulter, by author, Helena, MT, October 2013.

which could be grasped and absorbed by the American legal system—a system which had long been manipulated to divest Native Americans of their rights to lands, resources, and cultural practices. To a certain extent, this process of translation implied to work with the body of laws pertaining to Native Americans as it existed. But, given that many of these young lawyers had their own frustrations with the way American society was structured, poverty law seemed like a viable solution to achieving greater social justice.108

Legal scholars have argued that there was never a legal tribal sovereignty movement per se, but rather a myriad independent legal projects serving different ends.109 And indeed, the academic literature on the contemporary tribal sovereignty movement has focused on the multifarious Native American activism of the 1960s and 1970s, which provided a popular platform for airing out Indian grievances.110 Recent studies have enriched the initial scholarly accounts of Red Power by examining government policy and the work activists have accomplished from behind the scenes.111 Since then, the timeframe of 20th-century Indian

108 Interview with Tim Coulter, October 2013.

109 Fletcher, “Rebooting Indian Law in the Supreme Court,” 511.

110 Cf. Alvin M. Josephy, Jr., Red Power: The American Indians’ Fight for Freedom (New York: American Heritage Press, 1971); Stephen Cornell, The Return of the Native: American Indian Political Resurgence (New York: Oxford University Press, 1988); Troy Johnson, “The Occupation of Alcatraz Island: Roots of American Indian Activism,” Wicazo Sa Review 10, no. 2 (1994): 63-79; Troy R. Johnson, The Occupation of Alcatraz Island: Indian Self-Determination and the Rise of Indian Activism (Urban: University of Illinois Press, 1996); Paul Chaat Smith and Robert Allen Warrior, Like a Hurricane: The Indian Movement from Alcatraz to Wounded Knee (New York, The New Press, 1996); and Troy Johnson, Joane Nagel, and Duane Champagne, American Indian Activism: Alcatraz to the Longest Walk (Urbana: University of Illinois Press, 1997).

111 Daniel M. Cobb, Native Activism in Cold War America: The Struggle for Sovereignty (Lawrence: University of Kansas Press, 2008); Susan Applegate Krouse and Heather A. Howard (eds.), Keeping the Campfires Going: Native Women’s Activism in Urban Communities (Lincoln: University of Nebraska Press, 2009).

activism has even been considerably extended,112 with scholars now locating the roots of Indian activism further back in time, in a way similar to the “long civil rights movement” approach offered by the scholarly literature on the African American civil rights movement.113

On the whole, the history of the civil rights movement has tended to be captured exclusively through a bottom-up approach,114 occasionally merging the two (bottom-up and top down).115 One caveat to this approach is that it sets what is perceived as elite power against grassroots action. Entering the law through the angle of lawyering gives us an opportunity to peek into ways in which lawyers, as mediators, have expanded the boundaries of what is permissible under law by negotiating with judges, philanthropic foundations, and federal and state agencies. Examining how Indian rights legal strategies have evolved over time therefore allows us to explore how a lawyer’s defense of Indian sovereignty differs and complements other avenues for social change for Indian people.116 This could open further avenues for researchers

112 Cf. Bradley G. Shreve, Red Power Rising: The National Indian Youth Council and the Origins of Native Activism (Norman, University of Oklahoma Press, 2011); Daniel M. Cobb and Loretta Fowler, Beyond Red Power: American Indian Politics and Activism since 1900 (Santa Fe: School for Advanced Research, 2007).

113 Cf. Jacqueline Dowd Hall, “The Long Civil Rights Movement and the Political Uses of the Past,” The Journal of American History 91, no. 4 (2005): 1233-1263.

114 Books exemplifying this approach abound; cf., most recently, Annelise Orleck and Lisa Gayle Hazirjian’s The War on Poverty: A New Grassroots History, 1964-1980 (Athens: University of Georgia Press, 2011).

115 Cf., for instance, Tomiko Brown-Nagin, Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement (New York: Oxford University Press, 2011).

116 On this point, I expand on the work of Lisa Ford, who examined the dynamic construction of Indian sovereignty during the early years of the American republic, as opposed to a fixed set of unbendable rules. See Ford, Settler Sovereignty.

interested in exploring parallels with the larger civil rights movement, which Red Power drew inspiration from and, yet, remains isolated from in the academic literature.117

While landmark civil rights cases such as Brown v. Board of Education make Supreme

Court decisions unforgettable, lawyers themselves are generally not regarded as agents of social change. Regardless of the central issues at stake in any given case argued before the Supreme

Court, Indian rights cases rarely capture the attention of the general public because they apply to a much smaller segment of the American population and tend to focus on claims to Indian sovereignty, which is group specific. Still, court decisions can be used as precedents in later cases, and their potential consequences can go far beyond Indian Country.

Conclusion

It is precisely during the timeframe covered by scholars of the activist tribal sovereignty movement that the legal redress sought after by lawyers and tribal leaders was most effective.

The 1970s, in particular, were a time during which tribal leaders and lawyers, bolstered by their evident victories in the courts, were optimistic about resorting to law as a means to use the ‘white man’s system’ to hold America accountable to its historical promises to Indian tribes. In some ways, these lawyers performed other types of public demonstrations of a different kind in courts of law and other legal institutions, ultimately building enduring structures supporting tribal self- government. This dissertation hopes to highlight that their imprint on American law and Indian

Country runs at least as deep as the legacies of the Red Power movement.118

117 Such connections have started to appear, see Sherry L. Smith, Hippies, Indians, and the Fight for Red Power (New York: Oxford University Press, 2012). Despite its title, Smith’s book tells a much broader story of the Red Power’s alliances with other protest groups, well beyond the hippie movement.

118 The expression ‘Red Power,’ was coined by Vine Deloria, Jr. in 1966 to describe diverse and complementary strategies to protect Indian self-determination, not simply protest politics. Cf. David E.

By the early 1970s, Indian law was not necessarily only a part of a law firm’s caseload; it could be its exclusive component. This new generation of lawyers, by their very background and the times during which they graduated, were in a unique position to rethink Indian rights. By the end of that decade, due to their aggregate work, an institutional infrastructure vastly different from earlier firms would be in place for a new practice of Indian rights. This would make possible, over the course of the next few years, the excavation of a forgotten field of Indian law that would be used to protect tribal rights. The next two chapters dive into how these lawyers resurrected Indian rights and developed programs to increase access to the legal system for

Indian nations.

Wilkins, American Indian Politics and the American Political System, 2nd ed. (Lanham; Boulder, New York: Rowman & Littlefield Publishers, Inc., 2007), 229. See also R. David Edmunds, Frederick E. Hoxie, and Neal Salisbury, The People: A History of Native America (Boston; New York: Houghton Mifflin Company, 2007), 426-427.

Chapter Two

Devising New Protections for Indian Rights: California Indian Legal Services, 1966-1968

“The function of the law … is to serve a changing society and uphold its values, not to hold it prisoner to an unjust past.” Walter Echo-Hawk119

California Rural Legal Assistance legal team, with the Indian Services Division lawyers, Asilomar, CA, 1967. Courtesy of Richard B. Collins

119 Walter R. Echo-Hawk, In the Courts of the Conqueror: The Ten Worst Indian Law Cases Ever Decided (Golden, CO: Fulcrum Publishers, 2010), xiv.

In 1967, California Rural Legal Assistance (CRLA) photographed its legal team on a beach in Asilomar, CA, a prime resort town and conference hub on the Monterey Peninsula. In it, three lawyers represent the Indian Division (soon to become California Indian Legal Services, or

CILS): George Duke (left of center, glasses on his nose and handkerchief in his pocket), Lee

Sclar (second row right of center, face partially blocked and a hand on his shoulder), and Rick

Collins (in the back row, third from right). Around them, lawyers serving other populations stand half stiff, half relaxed in the sand in a rare and surprising beach shot.

After almost a century of private legal aid societies, the LBJ administration introduced publicly funded legal assistance. These programs were designed for disadvantaged citizens so they could benefit from counsel and representation in their domestic lives. California Rural Legal

Assistance was one of the first such programs. The installment of these programs did not proceed smoothly, as legal aid advocates were skeptical of a shift from private to public administration.120

Like termination, the mood of the government was directed toward increasing standardization of cultural values, to which the federal government was not perceived as an appropriate route. In the context of the Cold War, group rights, particularly communal forms of property and rights tended to be silenced rather than celebrated, perhaps more than ever. It was also illustrative of a socialist approach to dealing with poverty—a particularly sensitive subject during that time. The prime of this period would not last very long. Many government officials immediately opposed the legal services programs. And, even though the earlier efforts to curb the programs were defeated, by 1974, the boon was over. That year, the Legal Services Corporation took over the

120 Earl Johnson Jr., To Establish Justice for All: The Past and Future of Civil Legal Aid in the United States, vol. 1 (Santa Barbara, CA: Praeger,2014 ), 91.

oversight of legal assistance, placing restrictions on the work of the legal services programs which would seriously limits the social justice efforts launched in the 1960s.

Thus, for a brief period, from the mid-1960s (when the Legal Services programs were included into the War on Poverty) to 1974 (when the Legal Services Corporation restricted the programs’ work), the ‘poor’ would have enhanced access to justice through federally funded programs. In countless such programs of the War on Poverty, lawyers strove to defend the rights of individual clients, but also of entire classes of citizens they felt were being harmed by the social system. Revolted at the thought of blatant inequalities pitting the ultra-rich against the ultra-poor and fueled by the willingness of the federal administration to allow for change, they pushed for structural reforms in the process. Like the Community Action Programs, which enabled tribes to launch community project themselves, they sought legal representation because they qualified for them economically and benefitted from them because they allowed for thinking about group rights.

This chapter on the War on Poverty’s Legal Services program provides some background about its emergence and accounts for its significance to the administration of Indian affairs. The

War on Poverty introduced a shift in the federal management of Indian affairs, from an isolated bubble of the Bureau of Indian Affairs (a segregated agency located within the Department of the

Interior) to an executive agency (the Office of Economic Opportunity) administered by an entirely different governmental team centered on community empowerment. The policy also heralded a new era for the conception and exercise of tribal rights as they were excavated by legal services lawyers. In order to illustrate how the program benefitted Native Americans through a case study of sorts focuses on California Indian Legal Services.

California Indian Legal Services (or CILS) was among the earliest programs developed for Native Americans within one of the very first legal services program to be established nationally. The latter, California Rural Legal Assistance, established a solid reputation for serious public law work from its very beginning despite its emergence in a State adverse to such programs. It was also strongly oriented toward class action lawsuits, which had the potency of addressing the rights of large groups of individuals being disadvantaged by unfair structural inequalities. CILS was known for recruiting excellent lawyers—something that was not always achievable at the more than 130 legal services programs nationwide—and built a vigorous initial

Native American division which quickly acquired renown throughout the State and, eventually, on a national level. This division soon gave birth to the Native American Rights Fund project, which would later branch out from CILS to become the first (and still leading) independent non- profit law firm dedicated to the protection of Indian rights nationally.

The War on Poverty: A Shift in Federal Control over Indian Affairs

The 1966 amendment giving birth to the Legal Services Programs complemented the

Community Action Programs launched by the Office of Economic Opportunity Act of 1964. But by June of 1966 the program had already built an extensive network of offices by approving

“$25 million in raw grants (over $170 million in 2011 dollars) to some 130 separate local organizations.” The program was already widely popular on the ground.121 The 1966 amendment thus constituted a formal authorization to further develop a logistical and financial structure for

“legal advice and legal representation to persons . . . unable to afford the services of a private attorney, together with legal research and information as appropriate to mobilize the assistance of

121 Johnson, Jr., To Establish Justice for All, 103.

lawyers [and/]or legal institutions to further the cause of justice among persons living in poverty.”122 These programs were designed for disadvantaged citizens so they could benefit from counsel and representation in their domestic lives. California Rural Legal Assistance was one of the first of these programs.

Like the Community Action Programs, the Legal Services program was managed by the

Office of Economic Opportunity. This meant that a significant portion of federal programs designed for all Americans were made available to Indians, and that they would be not be administered by the Bureau of Indian affairs but by an executive agency whose mandate was to serve all Americans equally. This constituted a serious transfer of authority in Indian affairs, which had been largely considered an administrative issue by the federal government. Indeed,

Indian affairs had historically been dealt with through the War Department until the mid-19th century, and the Bureau of Indian Affairs—located within the Department of the Interior—since then.

This shift in federal control over Indian affairs is crucial to understand the enhanced leeway in the administration of Indian affairs tribes and lawyers benefitted from under the

Johnson and Nixon administrations. Upon assuming the presidency, Lyndon Johnson had retained Stewart Udall, who had become Secretary of the Interior the day after Kennedy took office in January of 1961. Udall exercised a tight grip on Indian affairs. His Indian policy resulted from distinct visions in three areas: economic development for Indian nations, relocation of the American industry from abroad, and conservation. Udall aimed to bring the large

American corporations implanted abroad to cut their production costs home by offering them to settle on Indian reservation in order to keep their operating costs low. This would, in turn,

122 80 Stat. 1462 (1966), Section 211-1 (b).

provide them with manpower (the reservations’ residents, Native American people) while also providing jobs to Indian Country, thereby stimulating the economies of reservations, which constituted some of the most economically depressed areas in the country. Meanwhile, creating recreation areas on reservations (such as reservoirs where Native Americans could ‘recreate’ on the weekend) would also nourish his larger, massive conservation agenda.123

Political circumstances would give lawyers as well as tribal leaders a considerable amount of leeway in setting up Legal Services programs for Native Americans. These efforts participated directly in the transition from the federal government’s assimilationist policy of tribal termination to self-determination which would be announced as the new official Indian policy by President Nixon in 1970 and adopted in law through the Self-Determination and Indian

Education Assistance Act in 1975. Indeed, the changes in administration brought by the War on

Poverty effected a sweeping change in the administration of Indian affairs.

If Udall was retained by Johnson, the two men did not always agree on Indian policy, especially after Johnson decided to implement the War on Poverty because this implied the transfer of a significant area of policy affecting Native Americans outside of the Bureau of

Indian Affairs, located in the Interior Department. Udall’s battle under Johnson would be to try and maintain as much authority over Indian affairs as he could, which was short-circuited by

Johnson’s implementation of the Native American Community Action Programs and Legal

Services programs since they were both managed by the Office of Economic Opportunity and not by the Bureau of Indian Affairs, supervised by Udall. Embroiled in a struggle over whom the larger management of Indian affairs under the War on Poverty should fall under, the two camps

123 My interpretation of Stewart Udall’s agenda is based on my consultation of the Stewart L. Udall Papers, hosted at the Rare Books Library at the University of Arizona in Tucson, AZ.

pressed for control, while tribal members eagerly embraced the programs offered by the new administration.124

First Steps toward the Indian Self-Determination Policy in Government

LBJ’s policy initiatives were widely popular among tribal leaders, who welcomed the chance to obtain a higher level of decision-making over programs they thought were needed on their reservations, especially if it meant not having to work with the convoluted bureaucracy of the paternalistic Bureau of Indian Affairs. The War on Poverty was a policy which tribes and their members could support. It also meant that, through the opportunities offered by the CAPs and Legal Services programs, tribes could develop their own visions of self-determination, even independently from each other since the administration enabled a devolution to local communities.

Meanwhile, tribal self-determination as a policy goal was also being powerfully articulated by the National Congress of American Indians led by Vine Deloria, Jr., who became its executive director in 1964. These initiatives would pave the way for Richard Nixon’s formal announcement of the tribal self-determination policy in 1970 and its adoption into law through the Self-Determination and Indian Education Assistance Act in 1975. For now, these political circumstances would give lawyers as well as tribal leaders a considerable amount of leeway in setting up Legal Services programs for Native Americans. In California, this took place within

California Rural Legal Assistance, established in 1966.

124 For more information on Udall and the Community Action Programs as they applied to Native American projects, see Daniel M. Cobb, “Philosophy of an Indian War: Indian Community Action in the Johnson Administration’s War on Indian Poverty, 1964-1968” American Indian Culture and Research Journal 22, no. 2 (1998): 71-102.

California Rural Legal Assistance: Serving Filipinos, Indians, and—Mostly—Mexican Americans

CRLA was founded through a grant proposal submitted to the Office of Economic

Opportunity, and incorporated as a non-profit organization on March 3, 1966. The following

May, it received a $1,276,138 federal grant to be used within a year. Its founder and first director, James D. Lorenz, Jr., was a Harvard Law graduate who had worked in corporate law for

O’Melveny and Myers, then the largest law firm in Los Angeles. Lorenz had envisioned CRLA as an honorable competitor to his old firm, except that it would represent a largely rural and poor population. Seemingly not bothered by the contradiction, Lorenz decided to establish its administrative headquarters at 257 Spring Street, in the heart of the Financial district of downtown L.A., a hype location nicknamed the “Wall Street of the West” before it was moved further west in the 1970s.125

His initial proposal contained an ambitious set of six broad goals: to “undertake a comprehensive survey of their legal rights,” to “educate them in those rights,” “to provide them with legal advice and represent them in court,” “to develop and advocate appropriate reforms in statutes, regulations, and administrative practices,” “to train their representatives in more effective means of law enforcement,” and “to make public officials, business groups, private service agencies, and rural communities more responsive to the particular needs and grievances of farm workers and other rural poor.”126

125 Records of the War on Poverty, National Archives, College Park, MD; Michael Bennett and Cruz Reynoso, “California Rural Legal Assistance (CRLA): Survival of a Poverty Law Practice,” Chicano Law Review 1, no. 1 (1972): 3, fn 3; and Andrew Khouri, “Title Insurance Building Acquired: A Development Group Plans to Transform the Downtown L.A. Tower into Creative Offices,” Los Angeles Times, June 14, 2016, C.4.

126 National Archives, College Park, MD.

The history of the founding of CRLA has so far been told through the Mexican-American farm worker movement. CRLA started as a pilot program aimed at “demonstrat[ing] the desirability and feasibility of rendering legal services on a statewide basis to the rural poor, particularly farm workers.”127 On its initial board of directors could be found grassroots migrant farm workers’ leaders Cesar Chavez and Dolores Huerta, all representatives of the Mexican

American farm workers and whose roles have been widely acknowledged by historians by now.

A conspicuous absence dots CRLA’s history: the integral role of the Filipino in the history of the farm workers’ movement throughout the 1960s remains little known. Over the past few years, forays have been made into this dismissed portion of history through a few articles and a documentary about Larry Itliong, the man who organized Filipino farm workers.128

Itliong had come to the U.S. as a teenager with a sixth-grade education but spoke several languages and Filipino dialects. He also learned as much as he could about American law by attending trials. As community organizer for the Agricultural Workers Organizing Committee set up by the AFL-CIO, Itliong organized the Delano Grape Strike to pressure table-grape growers to give farm workers a raise. The Delano Strike had immediate and significant impact for the Latino and Filipino workers’ movement: “By Sept. 16, the NFWA voted to join the strike. The eventual result was the United Farm Workers Union, which brought together Filipinos and Mexicans, but also combined the labor movement with the broader civil rights movement. It was a story that would attract newsmakers like Martin Luther King Jr. and Robert F. Kennedy to the fields. It

127 Ibid.

128 See Marissa Aroy, Niall McKay, and Sally Jo Fifer, Delano Manongs: Forgotten Heroes of the United Farm Workers (San Francisco, California: Kanopy Streaming, 2016).

drew international attention with Chavez’ hunger strike and belief in non-violence.”129 The

Strike, which started on September 8, 1965 and was joined by the National Farm Workers

Association led by Chavez and Huerta a week later would lead to the merging of the Association with Itliong’s Agricultural Workers Organizing Committee in August of 1966—this collaboration would last until Itliong resigned in 1971.130

We know even less about the use of Legal Services by Native Americans and their lawyers. Partly this is due to the fact that the story of the integration of Native Americans in the fold of the Legal Services programs is more modest. Contrary to the Mexican-American and

Filipino farm workers, the entry of Native Americans into the Legal Services of California was neither a grassroots effort nor a political move to promote Indian rights, nor a crusade led by lawyers in the name of tribal sovereignty. Native Americans would come to benefit from legal services programs of California through the somewhat haphazard work of a man named George

Duke, who initially did not know much about Indian rights.

The Unplanned Debut of California Indian Legal Services

California Rural Legal Assistance was founded in 1966 and had migrant farm workers of

Mexican-American origin as its focus. Commenting on the photograph located at the head of this chapter, Richard Collins explained that the beach had been selected for its proximity to the

129 Emil Guillermo, “Eclipsed by Cesar Chavez, Larry Itliong’s Story Now Emerges,” NBC News, September 8, 2015, available at http://www.nbcnews.com/news/asian-america/eclipsed-cesar-chavez-larry-itliongs-story- now-emerges-n423336 (last accessed May 3, 2017).

130 Patricia Leigh Brown, “Forgotten Hero of Labor Fight; His Son’s Lonely Quest,” New York Times, October 18, 2012, available at http://www.nytimes.com/2012/10/19/us/larry-itliong-forgotten-filipino-labor-leader.html (last accessed May 3, 2017); and Guillermo. For more on Itliong’s work, see Emil Guillermo, “Larry Itliong Tapes II: How the Fil-Am Labor Leaders Didn’t Sell Out, and His Comment on Cesar Chavez,” October 28, 2013, available at http://aaldef.org/blog/larry-itliong-tapes-ii-how-the-fil-am-labor-leader-didnt-sell-out-and- his-comment-on-cesar-chavez.html (last accessed May 3, 2017).

lawyers’ accommodations during a conference organized by CRLA, “then headquartered at

Delano in the Central Valley.” It “was to be an occasion for us to listen to a harangue from a big expert from Washington. So we had to gather in a fancier place than Delano, and the management chose Asilomar. . . . the event had almost nothing to do with Indian law. The program was designed to serve farm workers, and CILS had not yet split off.”131

Soon, George Duke, still fairly new to the California legal services programs, created an

‘Indian Division’—an office within CRLA designed specifically to address the legal problems faced by Native Americans. As a lawyer for the American Civil Liberties Union, he had processed over 50 cases and had never encountered a legal problem involving Native Americans.

In 1966, George Duke took up the directorship of CRLA’s regional field office in Santa Rosa, in northern California. But, as he opened CRLA’s second office in Sonoma County, he realized that

Mendocino and Lake Counties and, to a lesser extent, Napa County had a significant Native

American population who lived in dire conditions on remote checkerboarded lands considered of little commercial value at the time. Their economic status made them qualify for legal assistance if they needed it.

The fact that the creation of the Indian Division seems to have gone relatively unnoticed helped foster an unplanned resurrection of Indian rights of self-government. Duke had noticed that

Native Americans had certain historical rights that made their legal status distinct from other citizens and gave them legal tools that could open up opportunities. At a time when separate movements for equality of opportunity could merge to strengthen their leverage of the American political system, Native Americans would remain on the sidelines of this integrationist history, and

131 Rick Collins, e-mail message to author, October 23 2015.

at the center of their own. Their distinct legal and political status justified a different strategy and a different path.

Duke emitted the idea of a separate “Indian Division”—a program within CRLA to deal specifically with legal issues facing Native Americans. A graduate of Harvard Law (1959), Duke was in the eyes of the OEO the ideal candidate for a position in the War on Poverty’s Legal

Services. He had clerked for the California Court of Appeals and done appellate work while volunteering at the American Civil Liberties Union, and worked for the Lawyers Constitutional

Defense Committee in Jackson, Mississippi before deciding to pursue public interest work in

Washington, D.C. His five-year tenure at CRLA marked an unexpected but pivotal moment for

Indian rights: between 1966 and 1971, he put in place the foundations for what would become

California Indian Legal Services.

Around Duke, a team of emerging legal practitioners and scholars gathered to form

CLRA’s Indian Division. Monroe Price, a young legal scholar from UCLA, became Duke’s deputy director. In 1968, Duke and Price expanded the scope of its legal representation services to include Native Americans in northern California. California Indian Legal Services was born.132 Use of the Legal Services program by lawyers and tribal members was facilitated by the fact that its mandate was sufficiently broad and intentionally ill-defined to allow lawyers to carve out solutions outside of its unstated expectations to solve poverty. California Rural Legal

Assistance had been founded against the State’s opposition to the program.133 This opposition continued over the years. Legal services lawyers continued to sue the State and the federal

132 Interview with Bob Pelcyger, by author, Boulder, CO, November 23, 2015; Interview with Price; and Interview with Duke.

133 For more information, see Earl Johnson, Jr., 98-101.

government through various offices.134 In response, in 1967, Senator George Murphy introduced an amendment before the Senate to curtail the CRLA’s scope of action, proposing that “no . . . project . . . may grant assistance to bring any action against any public agency of the United

States or any political subdivision thereof.”135 Frustrated by the program, Senator Murphy complained that “Legal Services lawyers are not only working as defense counsel . . . they have begun to challenge our laws all too often.”136 The proposed amendment was rejected.137

Setting up a program was a fairly fluid process, especially given that, in order to start a program, a team did not have to create an institution. The designers of the programs were aware that, for the Legal Services program to even stand a chance to succeed, they could not hope to build programs from scratch because government funding was not sufficient to build new offices.138 It could rely on previously established legal aid societies or seek the sponsorship of law schools and programs. The 1966 amendment’s mandate also did not specify exactly how poverty was to be solved. As a consequence, the Legal Services Programs for Native Americans would largely develop free of federal supervision, and lawyers and tribal projects would be able to reshape the protection of Indian rights almost with carte blanche. This revival of Indian rights would be all the more unanticipated that Native Americans had long been thought to have been either assimilated or on their way to incorporation into the mainstream of American society.

134 Interview with Greg Dallaire, by author, by phone, September 28, 2016.

135 90 Cong. Rec., S27871 (October 4, 1967).

136 90 Cong. Rec., S278872 (October 4, 1967), Statement by Senator Murphy, cited in Earl Johnson Jr., 126.

137 For more details, see Johnson, To Establish Justice for All, 127.

138 See Johnson, To Establish Justice for All, 90.

Still, many obstacles lay in the way of restoring historical Indian rights, since even when legally valid, tribal rights were rarely respected. The work would have to be done in a piecemeal fashion. The legal status of Indian lands in California, for instance, posed a distinct hurdle to their use by tribal communities. Major population migrations and intermingling, combined with intense discrimination against many non-white groups had caused many California Indians to conceal their respective ethnic identities and try to adapt to the changes happening in mainstream society. As a result, very few people in the 1960s, including lawyers, realized that Indian rancherias—the equivalent of Indian reservations specific to the state of California—still existed.139

Contrary to tribes living on larger and more isolated reservations in other parts of the country, the Indian communities of the Sonoma, Mendocino, Lake County, and Napa Counties seemed barely visible. “There were no organized groups. People had been dispossessed by whites and were living in a dire situation on remote and poor lands which later became valuable because of their resources.”140 California seemed to have magically managed a de facto disintegration of

Indian lands and a delegitimization of their legal validity.

Further, Legal Services Programs had been envisioned as a chance to address the legal issues of individuals, not the collective rights of Indian communities as distinct political and legal status entities. The framework of the War on Poverty imposed using what was known as poverty law—using law in order to lift underprivileged citizens out of poverty in order to provide them with increased opportunities to integrate mainstream society. But, as lawyers started researching laws pertaining to Indians, it became increasingly clear that tribal members had

139 Interview with John Echohawk, November 7, 2013. See also William Wood, “The Trajectory of Indian Country in California: Rancherías, Villages, Pueblos, Missions, Ranchos, Reservations, Colonies, Rancherias,” Tulsa Law Review 44 (2008-2009): 317-363.

140 Interview with George Duke.

additional rights anchored in separate sources of law. Native Americans had at their disposal— albeit unknowingly—a body of laws that pertained specifically to them and not merely to their status as indigents. Initial legal research revealed that while California Indians encountered similar problems to the main population being served by its legal services—migrant workers—

Native Americans rural issues, most of which revolved around the contested legal status of

Indian lands.141 Legal issues involving Indians could fall under different jurisdictions.

This tension illustrated conflicting approaches to law within government. While

Republicans were generally opposed to the Legal Services program, its Democratic advocates pushed for Law as a tool which could be used to build a fairer society. Its director, Clinton

Bamberger, declared that “Lawyers must be activists to leave a contribution to society. The law is more than a control. It is also an instrument for social change. The role of the OEO programs is to provide the means within the democratic process for the law and lawyers to release the bonds which imprison people in poverty, to marshal the forces of law to combat the causes and effects of poverty.”142 Advocates and opponents of the program would continue fighting for and against the existence of Legal Services in California. As an increasing number of offices continued to sprout across the State, Murphy kept introducing proposals to restrict their range of action. His 1969 proposed amendment to give State governors veto power over any legal services program or part thereof within their respective States was also defeated.143

141 Interview with George Duke.

142 Clinton Bamberger, cited in Johnson, To Establish Justice for All, 91.

143 90 Cong. Rec., S29894-97 (1969), cited in Shira A. Scheinlin, “Legal Services-Past and Present,” Cornell Law Review 59, no. 5 (June 1974): fn. 102, p. 980.

In 1967, the designers of the Legal Services program declared law reform as a primary goal. Law reform was a “broad enough [term] to embrace all the means for achieving the desired end—a legal regime that was fairer to the low-income population [including] ‘test cases,’ appellate advocacy, class actions, along with advocacy before legislatures and in administrative rule-making proceedings.”144 Thus, the ‘radical’ work of lawyers was not radical in the context of the War on Poverty itself. It rather reflected its vision. Rather, it was radical because it questioned the very foundations on which American society rested, which was protected by the federal Establishment as well as the American Bar Association (the latter of which had supported private forms of legal aid since the 19th century).

Just like the program had sought to recruit the best law school graduates by combing campuses, it sought to promote its law reform ideal by organizing conferences to train and encourage its lawyers in practicing in that spirit. The Harvard Conference on Law and Poverty, held on March 17, 1967, was one such conferences. At the event, the program’s lawyers as well as board members, professors, and students—400 of them in attendance—received the message from the new Legal Services program director, Earl Johnson, Jr., that, because “the huge appropriation required to provide services to every indigent is not going to be available either today or in the immediate future . . . . the primary goal of the Legal Services Program now must be law reform: bringing about changes in the structure of the world in which poor people live in order to provide, on the largest scale possible consistent with our limited resources[,] a legal system in which the poor enjoy the same legal opportunities as the rich.”145

144 Johnson, To Establish Justice for All, 112.

145 Ibid. 114.

In many ways, California Indian Legal Services benefitted from a group of dedicated and excellent lawyers, thereby ensuring a kind of success which was not always possible in every legal services program office. (Despite the efforts of its early planners, the program was not always able to recruit the most effective lawyers.146) But another issue soon arose: the program had been established without consulting Indian individuals or communities, and Duke now sought out Indians for the board of CILS. If the program was to appropriately address the needs of Native American communities in the State, it should, after all, bring them—as well as Native

American lawyers—on board.

An Initial Attempt at Building a Native American Division with Tribal Representatives

In the 1960s, Native Americans lawyers were not easily found but, after a tedious search,

Duke identified one: Fred Gabourie, who practiced law in Thousand Oaks, just northwest of Los

Angeles. A Seneca from the Iroquois Nation of Ontario, Gabourie had put himself through law school at Texas’ Southwestern University by acting as a stuntman in Hollywood, where he was born to Buster Keaton’s technical director.147 Gabourie had a large Indian clientele. Starting in

1965 and until 1976 (before he was appointed the first Native American judge in California),

Gabourie practiced law in private practice in Los Angeles, representing Native American defendants in “hundreds of cases for Indian clients . . . during the 1960s and 1970s that involved murder, rape, car theft, and burglary, among other crimes.”148 His clients most likely knew about

146 See Ibid., 105.

147 Gene Scott Freese, Hollywood Stunt Performers, 1910s-1970s: A Biographical Dictionary, 2nd ed. (Jefferson, NC: McFarland & Company, 2014), 100.

148 National Indian Law Library, “Steering Committee of the Native American Rights Fund,” Announcements, 1, no. 1 (June 1972), 15, and Nicolas G. Rosenthal, Reimagining Indian Country: Native American Migration and Identity in Twentieth-Century Los Angeles (Chapel Hill: University of North Carolina Press, 2014), 89.

him through urban networks, possibly following the implementation of the relocation policy after passage of the Indian Relocation Act of 1956, since L.A. was a major relocation center and their tribal affiliations pointed to places outside of California. Indeed, Gabourie was not otherwise known as a public advocate for Indian rights. Still, he was brought on CILS’ Board of

Trustees.149

Given the dearth of Native American lawyers at the time, the program would, for now, have to keep recruiting through other channels. By early 1968, Price and Duke opened the second office of California Indian Legal Services in Escondido, just north of San Diego.150

Seeking to recruit additional competent lawyers to launch CILS, Price offered Jay Walter, whom he knew from Yale, the opening position. Walter declined, recommending in his place one of his former classmates, Bob Pelcyger. Pelcyger had furthered his studies on a Fulbright scholarship in

England following his graduation from Yale Law School in 1966.

As a Fulbright fellow, Pelcyger benefitted from the mentorship of Owen Barfield, a retired Solicitor, philosopher, and scholar. Barfield had published a book entitled Saving the

Appearances, which had been published in England almost a decade earlier and received warm reception in the United States after its publication here in 1965.151 Saving the Appearances described the evolution of human consciousness, inspiring Pelcyger to seek to accomplish in law what Barfield had accomplished in the history of science, i.e., to conceive of law and legal relations between people as dynamic rather than static.

149 Interview with George Duke; and National Indian Law Library, “Steering Committee of the Native American Rights Fund.”

150 Interview with Monroe Price; Interview with Bob Pelcyger.

151 See Owen Barfield, Saving the Appearances: A Study in Idolatry (New York: Harcourt, Brace & World, 1965).

Pelcyger was thus a great fit for the Legal Services program, and Indian law would prove a fruitful testing ground for him to apply his nascent philosophy of law. He joined CILS upon his return to the U.S., on Walter’s recommendation. But CILS remained in the works: Price was still in the process of establishing the Escondido office of CILS, and arranged for Pelcyger to apprentice at the DNA Legal Services Program on the Navajo Reservation until the office was set up. Pelcyger worked at DNA from late summer or early fall of 1967 to early 1968, when the program opened and then moved to southern California, where, for almost two years, he helped launch the program with Price. Soon, David Getches, another young law school graduate, was hired to co-direct with Pelcyger what became a two-lawyer office.152

Few legal services programs were serving a predominantly Native American population at the time. No legal services program could exclusively serve a Native American population since they were meant to be available to a certain socio-economic class rather than ethnic communities; thus, even programs set up on Indian reservations had to remain accessible to non-

Indians. Establishing an office within a larger program enabled lawyers to circumvent that rule.

Because of the nature of Legal Services programs, the work of lawyers and requests from tribal members did not always revolve around efforts to recover rights of self-government. The vast majority of their work took the form of individual cases addressing everyday legal abuses which affected individual Indians and their families rather than Indian nations as a whole. Such cases were described by the administration as “service” cases—cases aimed at “reliev[ing] the effects of poverty for individual poor people.”153 For instance, knowing that Native Americans

152 Interviews with Bob Pelcyger, by author, Boulder, CO, November 23 and November 30, 2015.

153 Wood, 713.

tended not to know their rights, unscrupulous car dealers would fool them into illegal sales.154

Such practices persist to this day in border towns (towns located right outside Indian reservations) well beyond California’s borders. In New Mexico, for instance, car dealerships continue to profit from unsuspecting Indian customers in Farmington and Gallup—an ideal location between the Navajo and Hopi Reservations, the Zuni and other Pueblos, the Ute

Mountain Ute and Southern Ute, and the Jicarilla Apache Reservations—and as far as

Albuquerque and Las Cruces, the State’s last town before reaching the borders with Texas and

Mexico.155

The other dimension of the work conducted at CILS involved the representation of classes of citizens. Legal Services lawyers were always on the lookout for what sometimes were referred to as “impact cases”—those cases aimed at reforming American law in order to increase social justice and equality of opportunity: “CRLA never established a ‘law reform’ or ‘test case’ unit as did many large legal services programs. We spoke of ‘impact cases’—simply cases that affect a lot of our clients—and wanted all CRLA attorneys to be involved in some. ‘Impact cases,’ as CRLA defined them, meant enforcing existing laws or working with poverty groups to create a cooperative more often than it meant establishing ‘new law’ in court. We believed that such cases might arise from almost any individual client’s problem if it was thoroughly and professionally handled, and that ‘impact cases’ were almost bound to arise if attorneys

154 Interview with Lee Sclar.

155 Personal communication from Julia Guarino, attorney for the Navajo Nation, to author, Bluff, UT, October 14, 2016; see also “Bordertown Predators, Car Dealers Target Indians,” Indian Country Today, March 5, 2004, available at https://indiancountrymedianetwork.com/news/bordertown-predators-car-dealers-target-indians/ (last accessed May 4, 2017).

maintained regular relationships with poverty groups as private firms do with corporations.”156

These reform efforts could provide long term solutions to social problems.

Law provided an avenue for redress that could counter historical abuses committed against Indian rights since the “loss of Indian Country [in California] occurred not because the

American legal system did not recognize these areas as Indian lands but rather because . . . the

California and United States judges and others who were supposed to be enforcing these laws failed to follow them.”157 For Indian rights lawyers, these directives did not only take the form of more collective representation; they also meant engaging a specific body of laws unknown to non-specialists. They also implied that, while CILS was funded by the War on Poverty, lawyers had to veer away from the integrationist approach called for by its framework.158

These were the first steps they took toward what would become a massive rethinking of the ways in which Indian people and their legal issues could be litigated nationally. They became, by default, archaeologists of the law: beyond the surface discoveries they made, their explorations took them into the deeper layers of what the law said about Indian rights. Starting in

1966 at CILS and continuing into the early to mid-1970s at other Legal Services programs, they unearthed a complex distinct system of laws pertaining to Indians, which had almost become obsolete because it had not been exercised on the grounds or before courts of law they had been forgotten.

156 Bennett and Reynoso, “California Rural Legal Assistance,” fn 4, p. 3.

157 Wood, 334-335.

158 In this sense, these lawyers’ work counter interpretations of War on Poverty officials and agents as engineers of standardized individual behavior as argued, for instance, by Alice O’Connor in her groundbreaking work. See Alice O’Connor, Poverty Knowledge: Social Science, Social Policy, and the Poor in Twentieth-Century U.S. History (Princeton, NJ: Princeton University Press, 2001).

The early legal research conducted by these lawyers in California as they prepared to represent Indian clients unveiled only the tip of an iceberg; the vast number of laws and rights pertaining to Indians remained to be unearthed, and varied from tribe to tribe, state to state, and based on the area of the law involved. Thus, this shift in their approach of Indians as having a distinct political and legal status would take different forms depending on where the specific

Legal Services programs they worked for was located. In order to counter the de facto erosion of

Indian rights which had taken place since at least the 19th century, they would need to be creative and turn American law as it pertained to Native Americans onto its head. California Indian Legal

Services heralded a wave of efforts on the part of tribal members and lawyers to set up legal assistance offices on reservations. Between 1966 and 1970, several Indian legal services programs came to light as part of a growing web of legal programs dedicated to protecting the rights of the Indian poor.

Indian Legal Services Nationwide

In order to receive legal assistance through Legal Services programs, people had to qualify as ‘poor,’ and these programs were designed to address individual, not tribal issues. But some tribes, such as the Menominee of Wisconsin, who had figured among the most prosperous tribes in the country, found itself bankrupt following the termination of their legal status by the federal government in 1960, and also sought assistance through one of these governmental programs—at Wisconsin Judicare.159 Most tribes who would use the programs, however, were small tribes with few resources, as larger tribes with a reliable economic base already had

159 For more information on the Menominee struggle to restore their federal recognition status, see Nicholas C. Peroff, Menominee Drums: Tribal Termination and Restoration, 1954-1974 (Norman: University of Oklahoma Press, 1982).

enough resources to afford in-house counsel. This explains why, for instance, the eastern tribes of Washington State generally did not seek legal counsel from the Legal Services program while the State’s western tribes embraced them, as demonstrated by the establishment of offices in

Seattle as well as directly on some reservations.160 (The realization that treaty rights, for instance, were still valid on the part of tribal members was in part derived from the experiences of Native

Americans returning from World War II with a completely different understanding of the potential power of law in enforcing such rights, the place of Indian nations in the wider nation, as well as the sometimes conflicting positions of the federal government on domestic and foreign policy.) It also explains why Legal Services lawyers came to represent smaller tribes with little political or economic leverage.

Some Legal Services programs focused on the protection of individual rights, even on

Indian reservations. Rather than taking advantage of the programs to reassert powers of self- government. The same year CILS was founded (in 1966), South Dakota (now Dakota Plains)

Legal Services was established on the Rosebud Sioux Reservation in South Dakota. In contrast with CILS, which was a collective effort, Dakota Plains was run by one man, Bill Janklow, an unusually controversial Indian rights lawyer. Janklow started working for the Program upon graduation from the University of South Dakota Law School in 1966, holding the position until

1973. During that time, Janklow did not bring major litigation and focused on individual representation. Yet, he was respected, even appreciated, by tribal members on the reservation for

“[winning] acquittals of 30 American Indians accused of murder or manslaughter.”161

160 See Chapter Three.

161 Interview with Frank Pommersheim; and Bart Barnes, “William J. Janklow, Former S.D. Governor and Congressman, Dies at 72,” The Washington Post, January 12, 2012, available at

Janklow is an interesting figure because he has been criticized for taking a 180-degree turn on his State’s Native Americans. Tribal members and Native American critics alike have often commented that Janklow supported Native Americans as a Legal Services lawyer, and dismissed them as soon as he became the State’s attorney general in 1974 and its governor four years later.162 But this interpretation is too limited for it to make sense because Janklow has always been described as a straightforward—albeit contentious—figure. As a Legal Services lawyer defending Native American clients, Janklow was just as aggressive as he was when going after them once he took political office. As the story goes, “[l]ater, as a prosecutor for the state attorney general’s office, he acquired a reputation as a staunch opponent of Indian claims.” which people have attributed to the necessity of doing so in order to win popular opinion if he was to make his way into state politics. During a tense period of Indian activism in South

Dakota, Janklow “prosecuted 22 people, most of them associated with American Indian

Movement, who were charged with rioting and arson in an Indian rights protest in 1973.”163

Janklow’s record and reputation make it very difficult to condone his methods or admire his personality. More than a few shady events dotted his career and are quite perturbing: One of

https://www.washingtonpost.com/local/obituaries/william-j-janklow-former-sd-governor-and-congressman- dies-at-72/2012/01/12/gIQAnRrguP_story.html (last accessed November 16, 2016).

162 Interview with Frank Pommersheim; Elisha Page, “Former Gov. Janklow Has Died,” Rapid City Journal, January 12, 2012, available at http://rapidcityjournal.com/news/local/former-gov-janklow-has- died/article_9d4f382a-3d45-11e1-9434-001871e3ce6c.html (last accessed November 16, 2016); Barnes, “William J. Janklow, Former S.D. Governor and Congressman, Dies at 72”; and Elizabeth Cook-Lynn, “Writing the Story about William Janklow,” Native Sun News, reported November 22, 2011, available at http://www.indianz.com/News/2011/003840.asp (last accessed November 16, 2016).

163 Interview with Frank Pommersheim; Page, “Former Gov. Janklow Has Died”; Bart Barnes, William J. Janklow, Former S.D. Governor and Congressman, Dies at 72,” The Washington Post, January 12, 2012, available at https://www.washingtonpost.com/local/obituaries/william-j-janklow-former-sd-governor-and- congressman-dies-at-72/2012/01/12/gIQAnRrguP_story.html (last accessed November 16, 2016); Jack McCarthy, “Who Killed Jancita Eagle Deer?” CounterPunch, August 23, 2003, available at http://www.counterpunch.org/2003/08/23/who-killed-jancita-eagle-deer/ (last accessed November 16, 2016); and Cook-Lynn.

them involved an accusation made by a Jancita Eagle Deer, a Lakota woman from the Rosebud

Reservation, who accused Janklow, her legal guardian, of raping her back in 1967. Her testimony led to Janklow’s disbarment in 1974. That year, however, after an investigation conducted by the

Senate Judiciary Committee, Janklow was confirmed to join the board of the Legal Services

Corporation board. That same year, he also became the Attorney General for South Dakota.164

Janklow was a staunch Republican, and his belief in people’s individual rights and his professional conscience as a lawyer most likely account for his impressive record in defending

Native American clients during his time at Dakota Plains Legal Services. And it was probably the same belief in individual rights which pleased so many South Dakotans when he ran for governor. Thus, he most likely did not ‘turn around,’ as many have asserted. Rather, he would best be described as an odd fit in the larger Legal Services program as it was envisioned by its designers.

Meanwhile, other programs such as DNA Legal Services on the Navajo Reservation in

Eastern Arizona and Western New Mexico were set up upon the initiative of tribal leaders with the help of outsider lawyers.165 With the Legal Services programs to Native Americans came a sense of empowerment for at least some tribes, who were now able to mobilize the law. The office was exclusively dedicated to legal issues affecting Native American people from the start.

164 McCarthy; and Honor the Earth, “Remembering Jancita Eagle Deer,” undated, available at http://www.honorearth.org/remembering_jancita_eagle_deer (last accessed July 9, 2017). For more information about the controversies surrounding Bill Janklow, see Susan Shown Harjo, “Questions from Past Folllow Janklow into the House,” Indian Country Today, January 17, 2003, available at https://indiancountrymedianetwork.com/news/questions-from-past-follow-janklow-into-the-house/ (last accessed July 9, 2017).

165 DNA stands for Dinébe’iiná Náhiiłna be Agha’diit’ahii, “attorneys who work for the economic revitalization of The People.” DNA – People’s Legal Services, “About Us,” http://www.dnalegalservices.org/AboutDNA/AboutUs.aspx (last accessed November 3, 2015).

Its founder, Ted Mitchell, had grown up as a Mormon in Utah, a religion he had rejected by the time he founded DNA. An inherently combative personality and a lawyer experienced in legal aid, Mitchell made the necessary moves to establish the program.166 DNA quickly became—and remains today—a sort of incubator for future Indian rights lawyers. If DNA was mainly used to ensure protection of individuals from domestic abuse, some cases involved the Navajo Nation as a tribe and even impacted Indian Country as a whole. In 1972, the most significant case to come out of DNA would reassert tribal exemptions from state taxations on Indian reservations.167

Around 1969, in Maine, another Indian Division was established within Pine Tree Legal

Services. Through that office, Tom Tureen, another bright and ambitious young lawyer, would assist the Passamaquoddy and, later, the Penobscot in seeking the return of their lands in the

State of Maine. The skills deployed by Tureen and the other lawyers who worked on the

Passamaquoddy and Penobscot litigation would force Maine to conclude, in 1980, an $81.5- million settlement in order to extinguish valid aboriginal title in the State.168 Another impressive effect of this litigation is that it restored eastern tribes as more than actors of a past, colonial history.

In 1970, the Native American Division of Evergreen/Seattle Legal Services emerged at the request of tribal leaders, who asked from the newly appointed Seattle Legal Services director, Joe

166 Interview with Rick Collins, November 29, 2016, Boulder, CO; and Johnson, To Establish Justice for All, 86.

167 See McClanahan v. Arizona State Tax Commission, 411 US 164 (1973).

168 For more information, see Dean J. Kotlowski, “Out of the Woods: The Making of the Maine Indian Claims Settlement Act,” American Indian Culture and Research Journal 30, no. 4 (2006): 63-97.

Delacruz, that a Legal Services office be established directly on its reservation so that tribal members would no longer have to travel all the way to Seattle when they needed to seek legal advice. Tribes had an idea of who they wanted to be represented by: a man named Mike Taylor, who had represented tribes in the area and was out of state on a Heber Smith Fellowship. He was called back to work in the Quinault Tribal Office as Director of the Legal Department for the

Quinault Nation.

By the 1960s, the larger tribes of eastern Washington State could afford in-house counsel, but the smaller and financially less well-off western tribes could still use financial assistance to access the legal system. The tribes of Western Washington had (long) been organized and effective in their battle to preserve their fishing rights at the grassroots level. But as late as 1968, they had few lawyers who could leverage the legal system. That year, the Puyallup and Nisqually Indians went to the Supreme Court to defend their fishing rights in the Puget Sound area, represented by two lawyers who let themselves be confused by the convoluted nature of Indian rights, resulting only in a partial win for the tribes.169

In 1970, Greg Dallaire took the directorship of the Native American Division of Seattle

Legal Services. His contribution to Indian law came to revolve around another significant component of Legal Services work: educating people about the law (as opposed to exclusively litigating cases). As a lawyer for legal services in Oakland, he had “developed a philosophy [aimed at serving] communities, groups, and organizations” and “hoped that the legal services programs that had just opened their doors would be more than welfare legal services.” Educating people

169 See Chapter Thee.

about their rights, he reflected, would “make them stronger, so they could participate more in our whole community in ways that could help alleviate some of the problems that affected them.”170

Along with Mike Taylor, who “went around the state to visit tribes and talk with them about whether or not and we offered our services to them,” Dallaire was told by private lawyers that “[they] were engaging in unethical conduct and would lose their license to practice law if

[their] work was advertised.” Unafraid to tread unstable ground, Dallaire replied that “the tribes could not pay them so [they] were not stealing clients from [them].” For Dallaire, Indian rights work was advocacy, and it required lawyers to be active about educating Indians and non-Indians about what the law actually said.171

Dallaire joined Seattle Legal Services as Director in May of 1970 in the middle of a

“huge fish-in . . . taking place on the Puyallup River. There were 100 or so people on the river, and twice as much police, who were beating people up. It was very similar to what I had seen in

Oakland, where the anti-war movement and the Black Panthers were [active].”172 Dallaire was from South Dakota, a factually segregated state in which Native Americans lived on reservations, where whites rarely set foot. Even though Dallaire was born in Sioux Fall, he had never “met or seen an Indian person except at the Catholic state basketball tournaments.”173 He soon became informed of the state’s more than twenty Indian tribes as he met with VISTA lawyers, including one lawyer who was representing the Muckleshoot Tribe, located in King

170 Interview with Greg Dallaire.

171 Ibid.

172 Ibid.

173 Ibid.

County, which fell under the jurisdiction of Seattle King County Legal Aid. That was Dallaire’s introduction to Indian law.

Dallaire was unfamiliar with Indian issues, but he was not new to the grassroots protests that were happening in the African-American community. In California, he had taught a class on street law to students, Black Panthers followers, from continuation schools in Oakland: “I did work with the National Lawyers’ Guild at the time, when they had the shootings in Chicago in

’68 or ’69 the police killed . . . Panthers in a raid in Hampton. Because of that, the Panthers in

Oakland, where their headquarters were located, were concerned the police were going to invade them as well, recruited a bunch of white lawyers including myself and we volunteered and I slept overnight two nights at the headquarters in Oakland.” This experience would prove useful to navigate the waters of Indian law in Washington State, as it prepared for the biggest accomplishment coming from the Seattle Legal Services: the U.S. v. Washington litigation which started in 1970 and culminated with the decision made by Judge George Hugo Boldt—now commonly known as the Boldt Decision, allowing tribal fishermen of over a dozen tribes in the

State to fish half of its fish.174

The same year DNA was born, a similar program emerged in Alaska. And other programs were launched on the “Choctaw Reservation in Philadelphia, Mississippi; at Cheyenne River,

Crow Creek, . . . at Zuni Pueblo in New Mexico, Papago . . . in Arizona, Wind River in Wyoming.

. . . [in] Montana and Wisconsin.”175 By 1969, this “small but growing band of lawyers financed

174 See Chapter Three.

175 Monroe E. Price, “Lawyers on the Reservation: Some Implications for the Legal Profession,” Law and the Social Order (1969): 161.

by the Office of Economic Opportunity to provide legal services for American Indians” working in “a tiny corner of the legal profession” amounted to forty.176 But not all programs and lawyers played a vital role in the development of a more general articulation of Indian rights beyond specific legal issues faced by Indian nations or their individual members. For instance, even though a case of major significance . . . occasional case could come out of during their early years, DNA was praised primarily for better organizing and bringing order on the Navajo Reservation.177

California Indian Legal Services quickly became one of the most dynamic and critical Legal

Services Program to the development of Indian rights beyond specific tribes. By 1969, it had given birth to a project addressing Indian legal issues out of state, which would become the Native

American Rights Fund. Thus, it can be said that the excavation of Indian rights and their emergence on the national scene started with Duke’s team in California.

176 Price, “Lawyers on the Reservation,” 161.

177 Peterson Zah, We Will Secure Our Future; and Interview with Loretta Danzuka, for DNA in Shiprock, NM), by author, Shiprock, NM, September 29, 2015. Danzuka has been a Tribal Court Advocate for DNA in Shiprock, NM. Tribal Court Advocates are the Navajo Nation’s equivalent of lawyers trained at American law schools; they are internally licensed by the Navajo Nation.

Conclusion

The ‘OEO period’ of the Legal Services programs, which spanned the period from 1964 to 1974, enabled, in part, the flourishing of Indian rights practice by acting as an incubator for these lawyers as they rediscovered and made sense of Indian law.178 It was a highly dynamic time during which the foundations for the practice of Indian law as we know it today were developed, both through litigation, educating tribal members about their rights, and settling the place of tribal rights in the larger American political and socio-economic system. Through the legal services, Indian rights were not only ‘resurrected’ but also unpacked.

Rather than merely applying the ideals crafted by the designers of the Legal Services programs and of the War on Poverty more broadly, at least some of the lawyers working in such programs redefined what Indian rights meant for tribal members, for the federal administration, and for legal practice as well. This work would contribute to the rise of tribal sovereignty as a paradigm for channeling Indian rights in the courts and well as in an intellectual sense, thereby participating in the shift from the termination to the self-determination policies. It is from their place in society as ‘middlemen’ that lawyers were able to channel a unique kind of work emerging both from their creative thinking as members of an intellectual elite and the pragmatic situations in which tribal members were operating on the ground. Their work thus both foreshadowed and shaped Richard Nixon’s 1970 announcement of the tribal self-determination policy.

178 The Legal Services programs were able to continue representing disadvantaged citizens past 1974, although their administration was transferred from the Office of Economic Opportunity to a non-profit corporation, the Legal Services Corporation (LSC), whose existence was made possible by a bill signed by Nixon on his very last day in office. The LSC still administers Legal Services programs today.

This generation of young lawyers was riding a wave of governmental support for minorities which was more than willing to include Native Americans. Yet, the fact that this support was thought by governmental officials to mean integration into mainstream American society also meant that their contribution was as unexpected as it was pioneering. Public and private efforts could be used conjointly by lawyers who wanted to defend the rights of minorities. It would take new proportions through a massive fishing rights court case developed over more than three years and resulting in the reaffirmation of Indian treaty rights nationwide.

The rapid and dramatic specialization in Indian law which developed among lawyers within Indian Legal Services programs inaugurated a new era for the protection of Indian rights.

This increased specialization trend reflected the larger functioning of the Legal Services program:

“Those staff attorneys who manned local legal services offices . . . . quickly became experts in the kinds of problems . . . that were unfamiliar turf for the typical private practitioner. They could handle those problems quicker and more effectively than private attorneys who had to start searching each problem from scratch.”179 For Indian rights lawyers, this specialization was particularly vital given that Indian law had been obscure to most at best and so convoluted—even schizophrenic, according to some—that it was impossible to navigate without serious training and reflection. Over the course of the 1970s, these lawyers, alongside tribal members, would use this ability to file numerous cases in courts of law, often taking them all the way to the Supreme Court, resulting in major victories: Over the course of the 1970s, tribal issues ‘won’ more than half of the cases reviewed by the Supreme Court (today, and since the 1990s, it is around 10%). The next chapter explores the shift they were able to create in litigation which led to massive recoveries of tribal rights at both the State and national levels for Indian nations across the country.

179 Johnson, To Establish Justice for All, 95-96.

Chapter Three

Fishing for Lost Rights in the Pacific Northwest: How Tribal Sovereignty Became Legal Strategy for Recovering Indian Rights, 1968-1974

The efforts started by lawyers and tribal leaders through the legal services programs and private practice in the 1960s would have an increasing number of opportunities to expand onto the regional and national scenes, including through litigation, in the 1970s. The most dramatic of those arose in the Pacific Northwest as tribes sought to reassert their tribal fishing rights in the face of opposition by the State as well as non-Indian fishermen. The litigation which ensued provides an entry point into the shift in Indian rights litigation strategies which took place between the late 1960s and the early- to mid-1970s. In order to trace this shift, this chapter zooms in on the arguments made by the lawyers representing Indian nations in two major Indian fishing rights cases: Puyallup Tribe v. Wash. Dep’t of Game (decided by the Supreme Court in

1968) and U.S. v. Washington (decided by the U.S. District Court for the Western District of

Washington in 1974, and whose opinion is generally known as the Boldt Decision, after the name of the judge, George Hugo Boldt, who issued the decision).

These two cases are significant for several reasons, three of which particularly stand out.

First, the Puyallup case embodies a century-old struggle over tribal fishing rights while the Boldt

Decision represents the legal resolution of some major issues perpetuating this struggle. Second, it demonstrates the willingness on the part of the judiciary (Judge Boldt) in probing the deeper layers of an obscure field of law and its accompanying Native American tribal histories as well as their interactions with the history of settlement in the Pacific Northwest. It also showed courage in making an incisive decision on the controversial distribution of a natural resource that

was highly economically, socially, and culturally significant to the region. Both had been—and have been since then—extremely rare occurrences in the area of Indian affairs.

The third reason I wish to highlight is historiographical. Indian rights scholars and practitioners have praised the Supreme Court for supporting Indian rights in the 1970s and early

1980s for welcoming tribal requests (by reviewing a higher number of Indian rights cases than ever before), concluding that a liberal court showed significantly higher support for Indian interests and, as a consequence, enabled tribal sovereignty whereas an (ultra)conservative court hampered its exercise. However, the Puyallup I and U.S. v. Washington cases make it clear that this reality cut across political lines. After all, if the Supreme Court bench at the time was more liberal than it became over the course of the 1970s and (even more so) 1980s, Judge Boldt was a

Republican. This suggests that the willingness on the part of these two courts to accommodate tribal interests–and, by extension, what enabled the successes of Indian rights litigation which ensued—lies, to a substantial extent, somewhere else than in the political orientation of judges.

Indeed, during that time, the Court adopted a “balancing process,” which directed its opinions toward an accommodation of varied interests.180 In doing so, it pursued a redistributive form of social justice aimed at equalizing, so to speak, the demands of all segments of society.

Further, while tribal sovereignty had been placed center stage by lawyers during individual cases in the past (among them Horace Binney and William Wirt, as was alluded to in passing in Chapter One), the early 1970s marked a transition into a new phase of Indian rights representation with tribal sovereignty as a linchpin for a wider movement, as an increasing number of tribes and lawyers would soon seek to defend Indian rights as tribal rights of self-

180 See Steven B. Anderson, “Native American Indian Law and the Burger Court: A Shift in Judicial Methods,” Hamline Law Review 8 (1985): 671-712.

government. If the fishing rights issue erupted openly as a public issue in the 1960s, its roots lay in the arrival of settlers in the Pacific Northwest which led, in the mid-19th century, to the signing of treaties with twenty-three Indian tribes living in the area. In these treaties, Indian nations reserved the right to fish at their traditional fishing sites and “in common with all citizens” in exchange for ceding their lands to the federal government—a total of 64 million acres.

Population increases in the region, however, accompanied by the emergence of a conservation movement enabling the control of natural resources while inviting recreational fishing, put pressure on the region’s natural environment, which soon struggled to produce enough resources for those seeking to catch salmon in the Puget Sound.181

The early 20th century inaugurated a series of court cases both at the Supreme Court and lower levels which sought to determine how to apply the protections adopted in treaties regarding off-reservation fishing rights in the region. In 1905, in U.S. v. Winans, the Supreme

Court determined that tribal members retained the right to fish at traditional fishing sites even when such sites were located on non-tribal private property.182 In response to the Winans case, the Washington state courts supported non-tribal interests as they sought to impose conservation measures on tribal fishermen. In 1942, a new Supreme Court case, Tulee v. Washington, provided that tribal fishermen were not required to obtain fishing licenses because the treaties

181 Vincent Mulier, “Recognizing the Full Scope of the Right to Take Fish under the Stevens Treaties: The History of Fishing Rights Litigation in the Pacific Northwest,” American Indian Law Review 31, no. 1 (2006/2007): 42; and Charles F. Wilkinson, “The Salmon People, Judge Boldt, and the Rule of Law,” Experience 16 (Winter 2006): 35-39.

182 198 U.S. 371. This case involved the Yakima tribe, which had already taken a similar issue before the courts of Washington Territory in United States v. Taylor in 1887. The courts decided that the tribal fishermen were entitled to access to their ancestral fishing sites. For the court’s decision, see 13 P. 333 (Wash. 1887); for a summary of the case, see Mulier, 44-46. Another case seeking to further refine understanding of Yakima fishing rights is Seufert Brothers Co. v. United States. For the court’s decision, see 249 U.S. 194 (1919); for a summary, see Mulier, 50.

had guaranteed them the right to fish on the basis on common non-monetary based agreements.

In each of these Supreme Court cases, the Court recognized the right of the State of Washington to apply conservation regulations on tribal fishermen, but did not state exactly how these were to be applied, leaving it to the State to decide. Meanwhile, resistance on the part of non-Indian property owners and fishermen made it virtually impossible for tribal fishermen to exercise their treaty rights on the ground. The tribal right to fish thus kept oscillating between the State’s attempt to curtail tribal fishing and the Supreme Court and tribal fishermen asserting their right to fish. This left the actual content of the right unresolved. This was the situation in the courts at the time of the Puyallup I trial in 1968.183

As the tribal sovereignty movement rose to prominence, an anti-Indian treaty rights movement emerged as well.184 The State of Washington had vehemently opposed the exercise of tribal rights by supporting its fisheries in denying tribal members their right to fish and by using its courts to dismantle them. In this context, racial discrimination and violence against tribal members were mobilized to defend the various non-Indian groups’ economic interests, with the backing of the State of Washington’s fisheries and state courts. The rift had long divided tribal fishermen on the one hand and non-tribal recreational and commercial fishermen as well as state fisheries on the other. Commercial fishermen were particularly violent toward tribal fishermen.

On the boards of anti-Indian treaty rights protesters during demonstrations in the period leading up and following the trial, one could read such vitriolic injunctions as “Kill the Indian, Save the

Salmon”—transcending the boarding school era when the federal government’s policy of

183 Mulier, 44-51; and “Comments: Pacific Northwest Indian Treaty Fishing Rights,” University of Puget Sound Law Review 5 (1981): 99-129.

184 For a detailed analysis of this counter movement, see Jeffrey R. Dudas, The Cultivation of Resentment: Treaty Rights and the New Right (Stanford, CA: Stanford University Press, 2008).

cultural assimilation invited the school teachers to “Kill the Indian, Save the Man.” This time around, the commercial fishermen meant the phrase literally. These “long and violent salmon wars,” as Charles Wilkinson called them, pointed to the larger issue of the sharing of natural resources in the region.185 Indeed, the salmon industry was vital to the economic survival of all involved—tribal members as well as non-Indians.

This anti-Indian treaty rights movement testified to the national rise of a broader movement on the ‘New Right,’ which emerged in protest against the larger civil rights movement in which the contemporary tribal sovereignty movement had started taking part. This countermovement attempted to defend old conservative American values on which some segments of the American population felt the country had been built—namely the question of taxation. Recreational fishermen argued that they held superior fishing rights than tribal members because they paid dues to the State for the right to fish in the Puget Sound, which tribal members did not. As the treaty rights issue became compounded with the question of taxation, even larger issues developed. If Native Americans did not pay fees to fish in the same area as recreational fishermen, the latter argued, it meant that they benefitted from ‘special rights’—a very ‘un-American’ idea, in their view. At the heart of this issue, therefore, lay deeper questions at the heart of the formation of American identity.

A Methodological Note: Scholarly Debates over the Impact of Oral Arguments on Court Decisions

It is uncommon in scholarship to isolate oral arguments from the larger context of the cases within which they belong, and close examinations of oral arguments are rare in any field of

185 Wilkinson, “The Salmon People,” 35.

scholarship—including law. It used to be impossible to measure even the content of oral arguments because they used to be largely inaccessible to scholars. But, to a significant extent, this is no longer the case. In 1993, Oyez.com started making the oral arguments presented by lawyers before the Supreme Court available to the public via its online platform.186 This free access to oral arguments increased our chances of better understanding the American judiciary dramatically.

Perhaps the greatest challenge to understanding the significance of oral arguments in the adjudication process, however, lies in the fact that this literature remains focused on large-scale analyses anchored in quantitative and highly theoretical approaches seeking to predict the responses of the courts to oral arguments. For instance, studies have zoomed in on the emotional reactivity of judges and justices—usually measured through their use of language—as a predicting indicator of their decisions. Examples of such studies abound. For instance, one of them probed a database of “8 million words spoken by the justices during oral arguments over the past 30 years” in order to “analyze whether the emotional content of justices’ questions during these proceedings can be used to predict how they will decide on the merits.”187 Others have based their analyses on the “number of words [Supreme Court Justices] speak” during a given argument in order to measure the level of engagement of Justices with oral arguments.188

186 See http://www.oyez.com. For information about the process through which the Oyez project came to life in 1993 and has evolved since, see Mark Walsh, “Oyez Website Finds Sponsors to Take Over Its Supreme Court Audio Archives,” ABA Journal online, July 1, 2016, available at http://www.abajournal.com/magazine/article/oyez_website_finds_sponsors_to_take_over_its_supreme_court_ audio_archives (last accessed May, 14, 2017).

187 Ryan C. Black, et al., “Emotions, Oral Arguments, and Supreme Court Decision Making,” The Journal of Politics 73, no. 2 (May 2011): 572.

188 Cf. Ryan C. Black, Maron W. Sorenson, and Timothy R. Johnson, “Toward an Actor-Based Measure of Supreme Court Case Salience: Information-Seeking and Engagement during Oral Arguments,” Political Research Quarterly 44, no. 4 (804-818).

Needless to say, scholars have been at a loss to identify consistent patterns or trends. Political scientists have often concluded that the role of oral arguments in the decision making process of judges has been relatively minimal and that they did not permit to trace the thinking processes and practices of judges effectively.189 To top it off, Justice Clarence Thomas bluntly declared that oral arguments are pointless.190 If we trusted that such a declarations, made from a Justice at such a high level, applied to every one of his colleagues, we would have to advise defendants not to bother about mobilizing any legal defense in the first place.

To be sure, it remains difficult to evaluate the impact of oral arguments precisely. The importance given to oral arguments is likely to depend on a wide variety of factors including the judge, the court, the day, the mood of the judge as well as of the times, external—including short-term—events happening in society, legal training, beliefs, and so forth. Tailoring an argument to a judge’s functioning or a court could make more sense, but those also change over time and across situations. Indian rights lawyers know about all these factors all too well. Yet, almost three decades past the overall change of moods of the Supreme Court bench in the mid- to late-1980s, many Indian rights scholars and practitioners continue to lament the lack of predictability of American courts, especially the Supreme Court. Since the early 1990s, they have preferred to try and dissuade tribes from bringing their cases before the Supreme Court in order to avoid risking further possible excisions to tribal sovereignty. Indeed, since the Supreme

189 See, for instance, Timothy R. Johnson, Paul J. Wahlbeck, and James F. Spriggs, II, “The Influence of Oral Arguments on the U.S. Supreme Court,” American Political Science Review 100, no. 1 (2006): 99-113; and Warren D. Wolfson, “Oral Argument: Does It Matter?” Indiana Law Review 35 (2001-2002): 451.

190 For instance, Justice Clarence Thomas once opined that “I don’t see the need for all those questions. I think Justices, 99 percent of the time, have their minds made up when they go to the bench,” cited in Robert M. Casale, “Does Oral Argument in the U.S. Supreme Court Really Matter?” Connecticut Bar Journal 85, no. 4 (2011): 323.

Court is the last legal resort available to tribes; a decision detrimental to Indian interests can quickly result in further drastic excisions of tribal sovereignty for tribes nationally.

When legal scholars have asked how oral arguments matter in the judicial decision making process rather than whether they do or not, their objective has left out the context in which such processes unfold.191 Even when scholars have been able to prove that oral arguments were processed systematically by Supreme Court justices, their conclusions have generally failed to answer the question of whether the justices under study did indeed seriously consider the arguments they was presented by lawyers.192 Judges themselves have not been able to articulate more reliable explanations that stand up to large-scale analysis.

Apart from the fact that it would be difficult to evaluate exactly what percentage of arguments were influential in cases because it would rely on subjective data obtained from the judges’ evaluations of their own work, amassing quantitative data on the ratio of cases in which judges recognize that oral arguments were important or not will not help explain why and when oral arguments do and do not matter. Further, what more could we understand about the functioning of courts—even without asking about the significance or historical evolution of the oral argument in adjudication—if we only looked at potential changes in the judges’ opinions prior and post hearing oral arguments by simply asking whether they (1) did not change anything, (2) change positively, (3) change negatively?193 This approach, ultimately, remains

191 Casale, for instance, asks this question, see p. 325.

192 This was in itself a major advancement in the legal literature. See Casale, 323-324, citing the seminal work of Timothy R. Johnson, Oral Argument and Decision Making on the United States Supreme Court (Albany: State University of New York Press, 2004).

193 By ‘positively,’ I have in mind a process in which a judge would go from not supporting the arguing party to supporting it after hearing an oral argument; and by ‘negatively,’ a process in which a judge would go from supporting the arguing party to not supporting it after hearing an oral argument.

unsatisfying because one could argue one way or another depending on the angle they have adopted for their analysis without necessarily being entirely wrong. Yet, this point is key to understanding Indian rights adjudication: Could it be that, in a transitional period for the tribal sovereignty movement like the early 1970s, oral arguments made the difference between seeing fishing rights enforced and annulling them for good?

Another scholarly conclusion in the literature on the role of oral arguments in the outcomes of court cases is that judges find that “the helpfulness of oral argument is overrated, but that it can make a difference in a close case.”194 Given that the judges did not seem predisposed to deciding one way or another before hearing the oral arguments in either Puyallup

I or U.S. v. Washington, we must pay close attention to the lawyers’ arguments. In both cases, the judges sounded rather reasonable and open-minded. In such contexts, the preparation materials and oral arguments presented to the judges could therefore make a significant difference. Further, in the two cases examined here, the major factor in tipping the courts one way or another was the knowledge of tribal lawyers about their clients’ rights, or, said otherwise, their specialization in Indian law. In effect, many of the Justices’ complaints made about the tribal lawyers’ oral arguments in Puyallup I were reversely echoed by the credit given to the tribal lawyers in U.S. v. Washington.

To be sure, an approach focused on oral arguments has its own limitations: If one is to focus on such arguments as one element of a court case and as an embodiment of a larger vision of Indian rights, then the analysis of the arguments must still be complemented by other sources in order to be more fully understood. Obstacles lay in the way: the passing of some of these lawyers (David Getches in 2007 and Jack Tanner in 2006) and the inaccessibility to others (such

194 Wolfson, 452, 456.

as Arthur Knodel, Lester Strittmatter, and James Hovis) prevent potentially enlightening interviews.195 If these cases are indeed central to the development of the contemporary legal tribal sovereignty movement—as they are—and if this is a project hinging on interviews aimed at gathering the most direct information about their work, then one might wonder whether the lack of complementary information in that format could create imbalances or crevices in our understanding of the movement’s development.

This potentially constitutes an issue for the Puyallup I case. But the arguments, once turned on their heads, reveal more information than might have been expected at first. The answers given by the lawyers to the Justices in that case point to a potential lack of preparation as well as basic knowledge on their clients and respective cases.196 Their arguments also reveal a tenuous grasp of Indian law, and an absence of a personal vision of Indian rights. On the other hand, the preparation for the U.S. v. Washington trial was quite intense: “Judge Boldt considered arguments from eleven lawyers, heard nearly 50 witnesses, received 350 exhibits, and analyzed testimony in a 4,600-page trial transcript.”197 Moreover, given the development of the legal tribal sovereignty movement they both spurred and served (as described in previous chapters), one can expect any individual Indian rights lawyer’s conception of Indian rights in that period to be

‘concentrated’ in their oral arguments, so to speak. Further, we have established that at least some of the lead lawyers—such as David Getches, Mike Taylor, and Al Ziontz—were all part of institutions supportive of an articulation of tribal rights around the concept of tribal sovereignty

195 It is unclear if Arthur Knodel is still with us.

196 A more refined understanding of their preparation for the trial and understanding of Indian law might be achieved by consulting the case’s briefs, which was not possible for the present project.

197 Wilkinson, “The Salmon People,” 37.

(the Native American Rights Fund, Seattle Legal Services, and Ziontz’ private firm, respectively).198 We must therefore trust a limited range of sources to help us trace the evolution of Indian rights representation in the courts. Hopefully, the context provided by the chapter surrounding this one will help.

Finally, what interests me most centrally here is the carving of arguments by lawyers, on behalf of tribes and before a court of law, as the seed of a conceptual shift in a legal landscape. I have sought, specifically, to maintain my focus on two specific court cases in order to draw a picture of the evolution of tribal sovereignty more largely speaking: How did tribes and lawyers effect a pursuit of their visions of tribal autonomy before the courts? In the context of a translation of these lawyers’ (and tribes’) visions of Indian rights, oral arguments make sense as a basis for analysis because they require a certain clarity for the courts, which we, as scholars, can trust to reflect a picture of a new vision of Indian law.

Specialized knowledge in Indian law, an area of the law (almost) completely unknown to the judges, proved to be a game changer not simply in Washington State, but for all of Indian

Country. Since it arguably was central reason to the tribes’ partial loss in the Puyallup I case and satisfactory victory in the Boldt decision, it also suggests that oral arguments do sometimes really matter. There is most likely something fundamentally satisfying for a judge to hear and argument made with the objective for which arguments are part of court cases in the first place: to help judges decide how to settle a dispute pitting such diverging interests against each other.

The tribal lawyers’ arguments, showing that they had probed Indian rights deep enough to make clear sense of it for the courts despite its inherently confusing character and the fact that very few

198 See Chapters One and Two.

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lawyers had accomplished this feat before American courts, also help explain Judge Boldt’s praise of their work.

In the field of history, scholars have tended to describe how Native American people(s) have used the courts to reclaim their rights, using historical context to illuminate the deeper processes at play in court cases. I am thinking here of the necessary and thorough works of

Christian McMillen and Michael Lieder.199 To some extent, the present chapter veers away from that approach to studying how litigation has played out in the larger struggle for tribal sovereignty: By focusing on the oral arguments, I have also sought to explore instead how lawyers translated the tribal demands for sovereignty into a language that could potentially be heard, understood, and engaged by American courts of law. By doing so, I hope to open up a space for analyzing Native American issues from an angle which, to date, has been rarely exploited and, yet, provides what I believe can be a fruitful opportunity to start unpacking how oral arguments can sometimes redirect the course of history.

To be sure, I do not intend to deny the crucial role of tribal leaders in this fight. This history has been at least partly covered elsewhere. Rather, I seek to complement the historical work already done on the fishing rights struggles of the 1960s and 1970s. For this, we are indebted to Charles Wilkinson who, a few years ago, started writing a graceful series of detailed accounts of tribal uses of the law (with lawyers in the background). His two major books on the subject, Messages from Frank’s Landing (2000) and Blood Struggle (2005), as well as an article about the “salmon wars” provide both historical detail and a broader picture about the tribal

199 See, for instance, Michael Lieder, Wild Justice: The People of Geronimo vs. the United States (New York: Random House, 1997); and McMillen, Making Indian Law.

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sovereignty movement.200 I thus refer the reader to these works for additional information on the tribal side of the struggle.

Map of Washington State Indian Tribes Involved in the Fishing Rights Cases201

Puyallup Tribe v. Department of Game (1968)

When the Puyallup and Nisqually tribes decided to take their fishing rights before the

Supreme Court, they hired two lawyers new to Indian rights: Arthur Knodel and Jack E. Tanner, respectively. On March 25, 1968, the Supreme Court heard the arguments articulated by Knodel and Tanner.202 The Nisqually chose Jack Tanner, then seemingly a prominent lawyer, although

200 Charles F. Wilkinson, Messages from Frank’s Landing: A Story of Salmon, Treaties, and the Indian Way (Seattle: University of Washington Press, 2000) and Blood Struggle.

201 Washington Indian Gaming Association, “Washington Tribes Map,” available at https://www.washingtontribes.org/tribes-map (last accessed March 22, 2017).

202 The Court decided to review two separate cases, one filed on behalf of the Puyallup and one on behalf of the Nisqually, because they both addressed rights emanating from the same source of law: the Medicine Creek Treaty of 1854.

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only a little more is known about his career than about Knodel’s. Tanner “joined the Army in

1943 and served in one of its segregated ‘Jim Crow’ units.” Upon graduation from the University of Washington Law School in 1955, Tanner had become president of the NAACP’s Tacoma chapter and its regional vice-president. He built his career on civil rights litigation and adjudication. In 1983, as a federal judge, he issued a ruling recognizing that “the State of

Washington had knowingly and deliberately discriminated against women by underpaying those jobs that were at least 70 percent female and ordered that back pay be computed.”203

Distended Arguments204

As a civil rights lawyer, Tanner attempted to merge Indian rights with a framework he was more familiar with, namely the civil rights strategy revolving around the idea of equal opportunity which had been sweepingly successful to African American rights a decade and a half earlier—most notably in the Brown v. Board of Education school desegregation case of

1954. The strategy was appropriate since the objective was to enable integration. Brown v. Board of Education is easily grasped by the American public: The case did not simply transform the lives of African Americans, it also changed the lives of all Americans, and for many against their will. In contrast, tribal leaders sought to do the opposite, by seeking to prevent their own integration into American society. Indian rights lawyers had to litigate for rights which applied

203 NCBL Educational Project, National Conference of Black Lawyers: Profile of Attorneys in the Struggle (2009), available at http://www.ncbl.org/ncblwp15/wp-content/uploads/2014/01/NCBLFoundersProfiles.pdf (last accessed March 20, 2017).

204 The following analysis zooms in the oral argument of Arthur Knodel and Jack Tanner in the Puyallup case, March 25, 1968. Quotes are from the transcript of their oral arguments unless otherwise indicated. The recording and transcript of the oral argument can be found at https://www.oyez.org/cases/1967/247#!.

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almost exclusively to Native Americans, although they had definite implications for non-Indians as well.

At first view, Puyallup I looked like a discrimination case. After all, in implementing its conservation law, the State of Washington was not restricting any other party than the tribal fishermen. The State could have decided to restrict another or all three categories of fishermen, but the fisheries were owned by the State and it could have hurt the economy. Recreational fishermen were the major fishing license payers in the State, since tribal members were exempted from holding such authorizations to fish due to past treaty agreements. Although pervasive among the public and demonstrated by the State, that discrimination was not easily pinned down.

Puyallup I also placed itself in the continuity of prior articulations of the fishing rights issue in previous cases, in which the central question inevitably zoomed in on state jurisdiction and regulation, this time with an additional layer: a vague argument that tribes were being discriminated against. The first layer of Tanner’s argument revolved around the idea that tribal fishermen now found themselves deprived of fish because the fish run of the Nisqually had been impacted by factors “unforeseen” at the time when the Treaty was signed, namely the heavy fishing done by the commercial fisheries and, to a lesser extent, the recreational fishermen.

Knodel proposed an adaptive solution: He proposed to “Let more fish escape so [tribal fishermen] have fish.” If the State was opting to implement conservation laws, it should not do it to the detriment of Indian fishermen: “Don’t practice conservation on the Indians, conservation of the commercial interest, and the sports interest, leaving the Indians out.” While Knodel could have adopted a civil rights discrimination strategy, he did not pursue a robust articulation of such an argument.

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The Indians were protesting against the State of Washington’s implementation of their conservation laws, which aimed at the preservation of fish. Three classes of fishermen were involved in the issue: the commercial, the recreational, and the tribal fishermen. As the State realized that the fish was being depleted by the actions of all three, it decided to restrict the

Indian fishermen from fishing. The State decided that, after having escaped the nets of the fisheries and recreational fishermen up north, the fish left (those caught by tribal fishermen) needed to be kept alive so they could spawn and start a new cycle and prevent the run from being extinguished. As a result, the choice of implementing the conservation law by the State of

Washington essentially turned the Puyallup and Nisqually fishing into illegal activities.

Furthermore, the State’s conservation laws were not discriminatory in themselves. It was their application which had resulted in bans on Indian fishing on the grounds that the fish run needed to be regulated and that if tribal fishermen kept fishing, they were catching the last fish able to spawn. “Game wardens, rather than regulating sport and industrial fishing, put the blame for declining fish populations on tribal fisherwomen and men, who were accused of

‘poaching.’”205 The conservation laws themselves were not couched in discriminatory terms.

Still, for fear of being harassed or beaten, if not worse, Indian fishermen had already greatly diminished their fishing activities. Much fishing was done “under the radar.”206 Since it had become increasingly stressful and dangerous, it often took place at night: “The constant surveillance and threat of arrest took some of the joy and profit out of it. Increasingly, fishers

205 Amory Ballantine, “The River Mouth Speaks: Water Quality as Storyteller in Decolonization of the Port of Tacoma,” Water History 9 (2917): 57-58, citing C. Burns & H. Adams, As Long As the Rivers Run (Survival of American Indians Association, 1971).

206 Interview with Mason Morisset, by author, by phone, March 20, 2017.

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from . . . the tribes had to work the rivers at night: ‘dark-time fishing.’”207 The fact that the arguments made by Knodel and Tanner were not exclusively channeled through a civil rights framework left them to ‘float,’ as if in limbo, between several legal frameworks.

The hard line adopted by the Justices was to ensure a fairer access to the fish for the

Indians without creating new problems for commercial and recreational fishermen. In order to restore balance between the various parties’ respective shares of the fish, the Justices sought to determine how tribal members had been fishing historically. Instead of providing more detailed information, however, Knodel defaulted to another framework organized around a vague notion of colonization: “you see what society did or more or less what we did to the Indians, we said,

‘Now you adopt our western civilization.’ I mean, our schools…” he started before being interrupted by Justice Brennan summoning him to come back to measuring the extent of the tribal fishing done for subsistence in order to determine how to allocate the fish between the various parties more ‘equitably.’ Beyond the fact that neither Knodel nor Tanner presented a clear unified argument through which to channel the defense, their arguments also remained superficial.

The arguments articulated by these lawyers show a certain lack of knowledge about and understanding of tribal rights, and denote a lack of a close working relationship with the tribes they represented. Both Knodel and Tanner articulated another vague argument around the lingering consequences of colonization on Native people: “One of the [reasons why] there are so few that are now living is because of the injustices and indignity is heaped upon the Indian people.” Meanwhile, they also left that argument hanging, using it as a trump card when they

207 Wilkinson, “The Salmon People.”

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were being cornered in their argument rather than as a strategy through which to channel their defense of the tribal fishing rights. To be fair, oral arguments and court cases more largely speaking cannot be expected to solve centuries of harmful federal policies. But their cursory articulations of these serious issues make the situation even worse.

Knodel and Tanner seemingly had not developed close relationships with their clients, and therefore could not have a clear idea of exactly how the treaty fishing issue fit into their lives. Basic facts which should have come to them naturally remained blurry. For instance, when asked about how a specific Nisqually fisherman he was representing had acquired the right to fish, Tanner replied that it was “probably by marriage.” To a request for a precision about the size of the Nisqually community, he replied that “There’s only about 33 living Nisquallies, the way I understand it.” When Justice Warren zoomed in on the number, he confirmed his approximate original answer by an “Only 33; about 33.” When Justice Douglas asked about the

Puyallup, Tanner replied, “I think there are between 300 and 400, somewhere in that. . . . The number 347 is in my mind for some reason but I think it’s between 300 and 400.” It was apparent that the lawyers had failed both to do the required research for the case and to establish an in- depth professional relationship with their clients.

Tanner was equally unprepared on the question of fishing methods, causing him to default to yet other vague explanations. Since he had no data on net fishing, he set out to portray his clients as victims of modern industry, which enabled other fishermen to catch more fish by using more efficient structures, ultimately resulting in the depletion of the fish run on the River:

“the histories are replete with the streams being so filled with fish that you literally walked across the streams on the back of them.” His romanticization of Indian life ‘back in the days’ did not seem to convince the Justices and led him into yet another framework: When asked about the

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extent of the Nisqually’s commercial trading, Tanner replied that 12 people were practicing it but that no figures were available on net fishing. He mentioned instead that it was keeping his clients off welfare rolls.

Similarly, in preparing for the trial, Tanner dismissed important information regarding ways to estimate the fishing needed by the Nisqually, and was now intimating to the Justices that future lawsuits may well be filed as a later date, on different grounds—such as the doctrine of separate and equal. He replied to the Justices’ question about historical data by confirming that

“It’s available, sir, but not in this record. I know it is available. I have seen it.” Meanwhile, with the opposite side recognizing that it was possible to implement a better conservation plan, making the Justices even more determined to gather information that could enable them to make a reasonable decision on how to allocate the fish resources to the various parties. But Knodel and

Tanner were only able to confirm that the Indians had a right to fish at their accustomed sites and that the State of Washington must respect that right—as contained in the Treaty they were parties to. With no data in hand to apportion the fish more equitably despite their repeated questions, the

Justices were unable to fully decide the case. Each of these distended and loosely articulated arguments did play a role in the fishing rights issue, to varying degrees, but as Knodel and

Tanner kept moving between them, the lack of cohesiveness and persuasiveness continued to sink deeper.

Arguing Inaccurately

Three major points of contention remained unclear as the arguments unfolded: reserved rights, the phrase “in common with other citizens,” and treaty interpretation. The idea that treaties reflected the inherent sovereignty of tribes and that their fishing rights derived from

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contractual agreements between them and the federal government figured among the major principles on which Indian law had developed in the Supreme Court, and which were accepted by the Justices as foundations for Indian rights, were invoked inaccurately and superficially.

Tanner tried to push the argument that the State could not regulate Indian fishing because of their reserved rights, but the ensuing details of his argument suggested that he did not find particular usefulness in the reserved rights doctrine. Yet, this was perhaps the most solid doctrine in Indian law at the time. Seeking to clarify Tanner’s exact argument, Justice Hugo Black asked whether this grant of fishing rights to settlers by Native Americans meant that “they reserve[d] to themselves [Indians] the right to determine how the fishing should be done by everybody in the state or territory.” Tanner replied that he “would think so,” once more without identifying the source of the right he was virtually creating. Indeed, it existed nowhere in the law.

Another issue in Tanner’s articulation of Indian rights had to do with the interpretation of the phrase “in common with other citizens” contained in the Treaty of Medicine Creek. The

Justices also kept coming back to this key phrase, prompting Tanner to provide a thorough acknowledgment and interpretation of it. Seeking to reconcile the various interest groups’ rights to fish in the area, the Court sought guidance on what seemed fair for them to order the State of

Washington to do. As the Court attempted to identify sources of law for what was preventing the

State from regulating Indian fishing, Tanner expounded a peculiar theory of treaty interpretation.

The right to fish, he asserted, is “inherent in the Treaty” and “they [the Indian signatories] retain this right until that right is extinguished or terminated in the proper manner.” “The State of

Washington [had] not extinguished anything.”

If the treaty was the source of restriction of state regulation, Justice White asked, “Do you think the Treaty also includes a promise by the United States not to interfere with this so-

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called ‘retained right’ or to let the states interfere with it?” To this Tanner vaguely stated that the right had been guaranteed by the federal government. But, a few minutes later, contradicting himself, he declared that “[i]f the State is allowed to impose one regulation or standard upon the conduct of Indian fishing, then that Treaty is terminated.” Even more problematically, when asked to specify “[w]hat part of the treaty, What language? What words?” would be affected by the application of state laws, Tanner bluntly replied with an unfounded assumption which he portrayed as a legal rule: “The whole treaty, Sir.” The Court took issue with the fact that his argument was not grounded in law, turning interpretation into a legal fiction invented during the trial instead. When the Court inquired about the sources of this esoteric-sounding legal principle, he replied, “I think Section 3 [of the Treaty].” Tanner’s lack of awareness that the Indian rights contained in treaties were valid and not necessarily unconditionally subject to congressional abrogation also reflected a lack of understanding about the roots and nature of Indian rights placed tribes at risk on a national scale, since the Court’s decision could be used as precedent for future treaty rights cases.

In all probability, the Court pushed Knodel and Tanner on the source and validity of treaty rights because a similar issue had arisen in another case under review two months before hearing the lawyers’ arguments for Puyallup I and was simultaneously being reviewed by the

Supreme Court. In January of 1968, the Court had heard oral arguments for Menominee Tribe of

Indians v. United States, another case dealing with Indian treaty rights—this time both hunting and fishing rights. The Justices heard a re-argument in April (a month after Knodel and Tanner presented theirs), deciding that the Menominee’s hunting and fishing rights deriving from a treaty concluded with the federal government in 1854 were still valid, even though the tribe had

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been terminated by the same government, because Congress had not explicitly terminated those rights.208

The doctrine of plenary congressional power has been widely criticized by Indian rights lawyers and scholars because it provides that Congress can terminate a treaty or a treaty right— or any other Indian right, for that matter—unilaterally if it so wishes. However, in order to be able to do so constitutionally, it must clearly and explicitly state which right is being abrogated.

Absent such qualification, the right is maintained. Convoluted doctrines like this one abound in

Indian law. But they are easy to miss or misunderstand for non-specialists. In the case of the

Puyallup I case, it seems that Tanner did not master a sufficiently comprehensive understanding of such legal principles which, however problematic when seen from other angles, require a very clear positioning on the part of tribes and their lawyers in order to stand firm in American courts of law. Failure to do so can quickly result in unwarranted excisions of tribal rights. The

Nisqually and Puyallup were, to a certain extent, fortunate that the Court which heard their case did not take their lawyers’ arguments at face value. Neither of these two lawyers seemed to have reflected on the nature of tribal demands and rights in depth, which could really hurt tribes by simply opening up opportunities for the Court to curtail their rights.

An Inadequate Legal Framework: Navigating the Maze of Indian Law

The lack of cohesiveness of the lawyers’ arguments cannot be attributed to legal incompetency on their part. Knodel went on to become a judge for the Pierce County District

Court in Tacoma until his death in 1985 and Tanner would be appointed by President Carter to

208 See Menominee Tribe of Indians v. United States, 391 U.S. 404 (1968).

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serve as a federal judge.209 It is more likely that these lawyers defended their Native American clients without knowing enough about Indian rights to develop an argument that fit their specific needs and rights as tribal members. By choosing Tanner, the Nisqually may have thought that getting a great lawyer would mean getting great defense. But the civil rights framework did not fit the fishing rights issue. The legal strategy which had worked for the African American civil rights movement was not the magical key to unlocking the American legal system on Indian issues. Because they ran counter to the dominant framework of inclusion used by other minorities even outside of law, tribal rights posed unprecedented challenges both to courts and to lawyers. An important connection left unaddressed in the case, for instance, was the historical link between Indian treaties and their place in American constitutional law, even though Knodel had clearly stated at the onset of his argument that “The subject matter is the Medicine Creek

Treaty of 1854.”

The justices became increasingly confused as to what the exact argument presented by the two lawyers, leading them to wonder about what issue was under review, voicing their frustrations several times. Their confusion reflected a larger issue about Indian rights: the fact that they were poorly understood by the judiciary, who were not trained to reflect on Indian rights and whose understanding of Indian rights was usually limited to the Commerce Clause of the Constitution. Law schools did not teach about Indian rights, let alone as a separate body of laws requiring students to switch lenses from the common law system characterizing American law. If tribal lawyers found Indian law to be a difficult maze to navigate after conducting basic legal research, how could non-specialized lawyers be expected to master it over the course of

209 See “Council Appoints New Judge,” The Plains News, October 30, 1985, p. 2-B; and NCBL Educational Project, 10.

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their preparation for one trial? To be sure, legal strategy may not be everything, and scholars have long debated the role of oral arguments and preparation for court cases. But without a clear one, it proved difficult to stand a chance at all. The Justices’ confusion was indeed largely attributable to the lawyers’ poorly articulated arguments.

At a loss to make definite sense of the apportionment of fish to tribal and non-tribal fishermen and fisheries, the Supreme Court once again recognized the tribes’ right to fish but left the question pending on the question of apportioning the fish. A year later, in Sohappy v. Smith, the District Court for the District of Oregon reaffirmed, once more, the tribal right to fish following “the terms of the treaty. . . so far as possible, in accordance with the meaning they were understood to have by the tribal representative of the council.” Judge Belloni, deciding the case, continued by emphasizing that “[t]ribal leaders . . . would not have signed the treaties without a promise from the United States that their people would be entitled to continue taking fish at traditional fishing sites.” Similar to the decision issued in Puyallup I, the court opined that in order for state conservation laws to be in compliance with the terms of the Indian treaties, 1)

“the regulation must be necessary for the conservation of the fish,” 2) it “must not discriminate against the Indians,” and 3) it “must meet ‘appropriate standards.’” The vagueness of the last condition was compounded by the fact that Judge Belloni left it to the State of Oregon to decide how apportionment would be resolved.210 After such a long line of protracted litigation, the issue remained virtually in the same place, with the very agents of abuse and discrimination left to decide on how to compose with tribal fishing rights.

210 See Mulier, 51-58.

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In 1973, yet another round of litigation brought tribes back before the Supreme Court in

Washington Game Department v. Puyallup Tribe, also known as Puyallup II.211 The Court found that the Washington Department of Game had discriminated against tribal fishermen by

“maintain[ing] a total statewide ban on net fishing for steelhead [salmon]” but avoided one more time to interpret the overlap between treaties and conservation regulations and settle on a harvest apportionment.212 U.S. v. Washington would be the first case in the history of Indian treaty fishing rights history to address and resolve the question of apportionment of fish, ending decades of costly and duplicative lawsuits. In the Puyallup case, the lawyers for the Puyallup and

Nisqually tribes, attempted to apply a civil rights approach to Indian issues—without much success. Both novel to Indian law and working on the case as an exception, relied on a relatively shapeless strategy composed of several equally unsatisfying legal frameworks. Five years later, during the U.S. v. Washington trial, the tribal lawyers, who were already established experts in

Indian rights, used the concept of tribal sovereignty as the basis of a set of legal arguments.

U.S. v. Washington (1974)

In February of 1974, Judge George Hugo Boldt, of the District Court for the Western

District of Washington, issued a momentous opinion asserting that, based on Indian treaties,

Indian fishermen were entitled to half of the State’s fish. In his decision, Boldt declared that the arguments and evidence articulated by the defense of all parties were commendable:

Every attorney in the case has vigorously and effectively presented the particular interests and contentions of each client he represents to the maximum extent professional duty requires. On the other hand there has been a remarkable degree of highly responsible and most commendable cooperation on the part of all counsel throughout trial preparation and

211 414 U.S. 44.

212 Comments, 106; Mulier, 52.

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trial which has greatly expedited discovery and full presentation of the issues and evidence in the case. All of the legal issues have been researched in depth and effectively presented and argued in the pretrial briefs, and in the final briefs submitted after the presentation of evidence was concluded and before final argument, which also was exceptional in professional quality. By direction of the court all parties either individually or jointly, as they chose, prepared and submitted proposed findings of fact and conclusions of law referenced to the record and also drafts of a proposed decree. Each proposed finding, conclusion and decree has been closely examined and considered by review of the evidence and the portions of the briefs pertaining to each item. All fact findings and legal rulings stated herein and the detailed Findings of Fact, Conclusions of Law and Decree signed and entered by the court are hereby made a part of this decision.

Among the arguments made by American lawyers we know about in American history, it seems that only Wirt and Binney would have surpassed such praise. The Decision made it clear that preparation and oral arguments did matter a great deal in deciding the case. Indeed, Boldt’s final opinion made it unequivocal that they were central elements in his decision. What, then, made the Indians’ lawyers more convincing than Knodel and Tanner had proved to be in the Puyallup I case?

In the following sections, I have examined the arguments made by five of the tribal lawyers at trial in late August of 1973: David Getches (for the Muckleshot, Squaxin Island,

Skokomish, Stillaguamish and Sauk-Suiattle Tribes), Al Ziontz (for the Quileute, Makah, and

Lummi Tribes), James B. Hovis (for the Yakima Tribe), Mike Taylor (for the Quinault), and

Lester Strittmatter (for the Hoh Tribe). These lawyers came from various types of legal practice:

Getches from the Native American Rights Fund (as its first executive director, a position he kept until 1977); Al Ziontz, James Hovis, and Lester Strittmatter from private practice; and Mike

Taylor from the Quinault Tribal Office.213 Preparation for the trial was the first large-scale

213 Other tribal lawyers were involved in the trial: John Sennhauser, from the Seattle Legal Services, collaborated with Getches, but did not make the oral argument at trial. William A. Stiles, the lawyer for the Upper Skagit River Tribe, was not present at trial. And George Dysart played an important role in launching the case.

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collaboration between the legal services programs in Seattle, the newly-formed Native American

Rights Fund (itself an offshoot of the legal services program, from California), and federal officials. Without the option for tribes to recruit lawyers at an affordable rate, the litigation would have been impossible, as members of small tribes, the tribal fishermen did not have the financial resources to counter the larger interests of the state fisheries, commercial and recreational fishermen, as well as the State itself.

Tribal Sovereignty as Legal Argument

Despite numerous court decisions issued since the early 20th century, the specifics of the application of treaty rights were still “left to be defined”: “Those [past] cases all in some measure or another recognized a distinct right in the Indians to fish, but none of them again definitively arrived at a meaning for the language in the treaties concerning fishing rights.” The tribal lawyers hoped to “provide that definitive interpretation.”214 The arguments of the lawyers hired to represent the various tribes involved in the lawsuit focused on the same legal principles as those made by Knodel and Tanner in Puyallup I, but they framed them differently. First and foremost, they clearly and assertively rejected the civil rights strategy: “To talk about fairness and equity,” David Getches noted, “maybe we would sue under a civil rights case or a case where the court was trying to make some social adjustment between parties that came to the court in equal position. These parties do not.”215 This framework simply did not fit the fishing rights situation and the nature of tribal rights. “Do each of these new users, another user group, is

214 Oral Arguments of Ziontz (33) and Getches (20). All oral arguments are drawn from transcripts of the trial proceedings of US v. Washington held by the Northwest Indian Fisheries Commission.

215 Oral argument of David Getches, 22.

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it a group which the Indians must catch up on their supposed share of the fishery? No, the

Supreme Court has said that a reserve[d] right is a right to be present in future needs, and it’s on that basis that we reject this very pleasant sounding notion of fair and equitable share.”216 Most centrally, tribal sovereignty was central to the issue and trumped state regulation of off- reservation reserved treaty fishing rights because it predated both the treaties concluded with the federal government and State authority. “It is very difficult for a lawyer sworn to uphold the

Constitution to argue against fairness and equity, that is not what we are arguing against. We are arguing under another part of the Constitution, the supremacy clause.”

The Morality of Law

These new lawyers also articulated a secondary moral argument aimed at holding the federal government accountable to its past agreements with tribes. Al Ziontz noted that the government had to keep its word, James Hovis that “We also believe that the nation must be responsible and maintain and keep its promises.”217 that the very future of Indian nations depended on it, and that at stake was the “national honor of the United States.” “This is no mere contract dispute,” pursued Ziontz, “It is a dispute involving human rights, involving the very life, not mere property rights of the Indian people.”218 This was not empty rhetoric. Rather, it pointed to the diplomatic value of respect for legal agreements which had been more characteristic of the colonial period than of the following centuries.

216 Ibid., 23.

217 Oral argument of James Hovis, 46.

218 Oral argument of Al Ziontz, 32.

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Meanwhile, James Hovis positioned the Yakima as the opposite of radical political protestors and instead as reliable and reasonable citizens who intended to protect their rights through law, valued level-headed reflection, and did not seek to run against the American political and legal system: “the Yakima Indian Nation, six thousand forty strong, a nation that has never been involved in a fish-in, marched on a courthouse, had a demonstration but a nation that has been involved in every major Indian fishing case in the Western part of the United

States, either as a party, intervenor, or amicus.”219 Most prominently, in 1905, the Yakima had been at the center of the Winans v. United States case.220 It is difficult to know to what extent this tactic helped convince Judge Boldt. Given that he was widely recognized as a “fair-minded man,” it probably did not weigh on his decision very much.221 But it most likely allowed the tribal lawyers to neutralize their adversaries in the lawsuit. After all, given that many tribal activists had repeatedly provoked their own arrests through the 1950s and 1960s, some appeasement could only benefit the tribes.222

Contrary to the arguments made during the Red Power demonstrations, which largely revolved around the preservation of treaties as a way to preserve cultural practices, the lawyers did not place Indian culture(s) centrally in their arguments: “We will hear from the defendants allegations that Indian culture has changed, that it isn’t the same as it was one hundred twenty years ago and therefore, through some trick of history some of those legal rights that the Indian

219 Oral argument of James Hovis, August 27, 1973. For more on how the Yakima used the law to try and regain their rights, see, for instance, Richard Duwors, “Documents from the Indian Fishing Rights Controversy in the Pacific Northwest,” The Pacific Northwest Quarterly 99, no. 2 (Spring 2008): 57.

220 See footnote 2.

221 Interview with Mason Morisset.

222 For some examples, see Wilkinson, Messages from Frank’s Landing.

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reserved to himself one hundred twenty years ago he changed. This is the first time I have heard a notion of legal rights, contractual rights, property right altering merely because people wear different clothes, travel about in different conveyances or speak a different language. Cultures borrow from each other. This culture that we are in has borrowed from the Indian culture, and the Indian culture has borrowed from it, and it has altered no legal rights as between those parties.”223 This view of cultures as fluid, overlapping, and continuing—as opposed to the romanticized versions of tribal cultures stuck in the past described by the lawyers in Puyallup

I—reflected, more broadly, a new legal vision: because tribal sovereignty and American law were tied by a history of interactions between tribes and settlers, it would not make sense to seek to reform Indian rights outside the American legal system they were already part of.

Thus, culture could only constitute a secondary (even a false) argument. The fishing rights issue, they argued instead, was a matter of subsistence for some tribes—such as the

Yakima—and commerce for others.224 Relying instead on past decisions made by the Supreme

Court on water rights, Ziontz argued that treaties were concluded in order to maintain tribal means of subsistence “so that [Indian nations] could live . . . as a people indefinitely.”225 In such past court opinions, Ziontz insisted, “the Court could not conceive that the United States would confine these Indian people to a land area which was arid and barren, from which they could draw no sustenance without death, and simply condemn them to what would amount to a death camp.”226 Nor were treaties intended, Ziontz argued, as a transitional phase into assimilation: “in

223 Oral argument of David Getches, 30.

224 Ibid., 23-24; and oral argument of James Hovis, 43-44.

225 Oral argument of Ziontz, 41.

226 Ibid.

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no account was it intended that these people would be sent to these reservations to starve or just wait out their time until they could move into white society.” Contrary to many historical laws passed by the U.S. government, including those involving state jurisdiction over Indian matters,

“The treaties were not a contract to be assimilated into the white culture,”227 but rather the expression of a government-to-government relationship.

It was not just the lawyers’ arguments and pre-trial documents which had been effective.

The trial involved expert testimonies rivaling with each other on each side. Barbara Lane was called to probe the historical record in its most minute details to weigh in on tribal rights:

The anthropological reports and testimony of both Dr. Barbara Lane and Dr. Carroll Riley have been thoroughly studied and considered by the court. In so doing, the court has noted the nature, extent and duration of field work in the case area and academic research. During trial constant observation was made of the attitude and demeanor of both experts while on the stand as witnesses, and the substance of their testimony has been carefully evaluated. Allowance for the criticism by defendants that some of Dr. Lane's conclusions are "over formulated" has been made in evaluating her testimony in every instance where the criticism might be applicable. Based upon these and other factors, the court finds that in specific facts, the reports of Dr. Barbara Lane, Exhibits USA-20 to 30 and USA-53, have been exceptionally well researched and reported and are established by a preponderance of the evidence. They are found to be authoritative and reliable summaries of relevant aspects of Indian life in the case area at and prior to the time of the treaties, including the treaty councils, Indian groups covered by the treaties, the purposes of the treaties and the Indians' understanding of treaty provisions. In these particulars, nothing in Dr. Lane's report and testimony was controverted by any credible evidence in the case.

Barbara Lane was one of few women to intervene in the realm of Indian rights. If a higher number of women played a prominent role in organizing tribes at the grassroots level, women

227 Oral argument of Al Ziontz, 41.

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were rare among the early Indian law specialists.228 Further, contrary to the Indian Claims

Commission, Judge Boldt clearly took the ethnohistorical research seriously in this case. The coming together of history and anthropology in Indian affairs was thus, through this case, given a second chance, which turned out more successful that its mobilization in the context of the cases filed with the Indian Claims Commission.

Judge Boldt also carefully listened to the testimonies of tribal elders who figured among the 50 witnesses participating in the trial: “Judge Boldt was rapt, never taking his eyes from Lena

Hillaire, Lena Smith, Forrest ‘Dutch’ Kinley, and Esther Ross as they recounted their stories of the rivers, land, ceremonies, and salmon. They related too what their grandfathers had told them about treaty time, confirming and deepening Dr. Lane’s academic testimony.” As Wilkinson noted, “[s]ome lawyers in the case believe that the words of the elders ‘won the case.’” 229 This close attention to tribal histories outshines the ICC’s take on the Indian land claims by any standards. While the latter had set aside tribal testimonies to fulfill the transition into termination of the legal status of Indian nations, Boldt used them to ensure that Native Americans would also have a chance to survive economically, socially, politically, legally, and morally.

Ethnohistory has been described as a “field of study that grew organically without an overarching figure or conscious plan but that nevertheless came to engage central issues in cultural and historical analysis.”230 Indian law developed in a similar manner. Indeed, the modern legal tribal sovereignty movement initially operated largely on a case-by-case basis. If these

228 Women such as Ada Deer at Menominee in Wisconsin and Lucy Covington at Colville in Eastern Washington both played significant roles in painstakingly building tribal support against federal and state attempts at terminating the distinct legal status of their tribes.

229 Wilkinson, “The Salmon People,” 37-38.

230 Michael E. Harkin, “Ethnohistory’s Ethnohistory: Creating a Discipline from the Ground Up,” Social Science History 34, no. 2 (Summer 2010): 113.

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lawyers’ work was impressive, their legacy came into focus “in retrospect. At the time, it was just what we had to do. There was no organized field. We adopted a one-thing-at-a-time kind of approach,” noted Mike Taylor, the lawyer for the Quinault.231

Further, Indian law emerged as a synthesis of the Indian Claims Commission, whose Act, drafted by Felix Cohen, enabled the ethnohistory revolution. U.S. v. Washington, and Judge

Boldt’s attentive study of the anthropological reports, thus allowed for that potential to bloom.

The ICC Act had limited the possibility of reclaiming more than monetary compensation for rights unlawfully taken away or wrongly compensated in the past. And yet, the materials compiled by claims lawyers for the Indian Claims Commission cases, literally often comprising hundreds, even thousands of pages per case, could not be processed in any human measurements.

Even today, the Commission is an unpopular topic among scholars of Indian affairs, its sheer size, the fact that much remains in microform format, and the bad reputation of the lawyers who reaped the largest rewards by working through it have kept scholars at bay. As a consequence of this logistical challenge, we remain with a superficial understanding of the inner workings of both the Commission itself and the cases submitted to it.232 The extraordinary amount of data collected during the existence of the Claims Commission between 1946 and 1978 thus appears in retrospect inversely proportional to the despair of the claimants, since most of the records were most likely never read. The more tribes hoped to regain some restitution, the more elusive that restitution became over time, as the Commissioners designed procedural ways to avoid processing the claims for fear of bankrupting the U.S. Treasury—hardly a valid reason for

231 Interview with Mike Taylor.

232 It would be interesting, for instance, to try and probe strategies designed by claims lawyers to circumvent the rules imposed by the ICC Act. This dimension of the work done through the ICC deserves, in my view, further investigation.

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Cohen, who had made sure to include a clause in the ICC Act for ‘moral wrongs.’ Contrary to the stance adopted by the ICC Commissioners, both the Supreme Court justices in Puyallup I and

Judge Boldt in U.S. v. Washington seemed open to understanding and making a decision based on facts rather than on historical prejudice and political interests. As the Justices corrected

Knodel and Tanner on several points, they also seemed to know more about Indian rights than the lawyers and to expect to gain a deeper understanding of the fishing rights issue through the oral arguments.

Conclusion

By deciding that tribal fishermen were entitled to half of the fish harvest in the Puget

Sound, Judge Boldt resolved the question of the distribution of a natural resource as important to

Native Americans as to non-Indians. On the matter of Indian rights representation, a few lawyers had articulated a vision of Indian rights similar to the one offered by these new lawyers before, but never as a coordinated effort. U.S. v. Washington was the first case in American history addressing the rights of so many tribes at once—seven at the beginning of the suit, to which another thirteen were added later. Specialization was particularly critical given that the lawyers on the opposite side were just as well prepared. Although U.S. v. Washington never quelled the ire of many non-tribal fishermen, it paved the way for a streak of wins in the progressive

Supreme Court of the time as an increasing number of tribes sought protection of their rights through the courts and an ever-higher number of Indian rights lawyers made their way into the profession.

U.S. v. Washington was not the only federal court decision which redirected the history of

Indian rights, and the lives of Native Americans. And the new Indian rights lawyers represented

Indian nations in a flurry of cases throughout the 1970s. A year after Judge Boldt issued his

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decision, in early 1975, the U.S. District Court for the District of Maine issued another momentous decision in Joint Tribal Council of the Passamaquoddy Tribe v. Morton.233 The lead lawyer who argued the case, Tom Tureen (from the Indian Division of Pine Tree Legal

Services), would soon join the Native American Rights Fund with Bob Pelcyger and David

Getches, who worked with him on the U.S. v. Washington litigation. 1974 was thus the first significant year of that decade, with cases addressing a range of issues at the intersection of tribal, federal, and state jurisdictions including aboriginal title.234 These cases exemplify some of the possibilities which enabled tribes to seek reaffirmation of their rights rather than mere monetary compensation by using the federal courts instead of the Indian Claims Commission in the 1970s (as the Commission continued to process cases).

These opinions came out as the Supreme Court started examining a wide variety of

Indian legal issues and a flurry of landmark cases succeeded each other between the early 1970s and the mid- to late 1980s. Starting in 1972 with McClanahan v State Tax Commission of

Arizona and continuing in 1976 with Bryan v. Ithasca, the Supreme Court affirmed the rights of the tribal members not to get taxed by states.235 Meanwhile, in Morton v. Mancari, the Court confirmed the validity of Indian preference in hiring practices of the Bureau of Indian Affairs, an agency dealing exclusively with Native Americans.236

Those cases likely convinced judges more effectively due to the fact that the new lawyers articulated Indian rights in a rational, legalistic manner rather than in a vague language about the

233 528 F.2d 370 (1st Cir. 1975).

234 As an example, see Christopher Vecsey and William A. Starna, Iroquois Land Claims (Syracuse, NY: Syracuse University Press, 1988).

235 411 U.S. 164 and 426 U.S. 373, respectively

236 417 U.S. 535.

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various consequences of colonization or as narratives of victimization. But they also pointed to a broad willingness of the Court to accommodate diverging interests and, therefore, to support a redistributive vision of social justice. This was an important opening for Indian nations, who had never had the opportunity to pursue a reaffirmation of their rights on such a large scale. If

American courts seemed to open up to tribal issues and interests, however, tribal advocates had to make sure to articulate their demands in ways that could be processed by the American legal system. This pressured tribes and lawyers to frame tribal grievances in the language of American law, leaving little room to carve solutions always exactly tailored to tribal visions of justice or even for alternative ways of thinking about the law. In an effort to tease out such alternative ways of conceptualizing Indian law, the following chapter explores the major Indian rights organizations and projects which emerged in the first half of the 1970s as proponents of variations of Indian law work.

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Chapter Four

Building National Institutions of Indian Law

John Echohawk (left) and David Getches237 Vine Deloria, Jr.238 Frank Ducheneaux239

In its early days, the efforts of lawyers to set up programs and assist tribes in recovering tribal rights took place through the legal services programs and occasionally through private practice. But as they realized that their work was welcome by tribes, who increasingly resorted to the law, they sought to establish more permanent institutions in order to serve tribal needs and

237 Photograph of John Echohawk and David Getches (undated), Native American Rights Fund, “About Us,” available at http://www.narf.org/about-us/ (last accessed March 6, 2017).

238 Photograph of Vine Deloria, Jr. taken at the Martin Luther King, Jr. Holiday Celebration, Smithsonian Institution, Washington, D.C., 1990, American Historical Images on File, The Native American Experience, contributed by Troy Johnson, 1950-1990, California State University, Long Beach, available at http://www.cla.csulb.edu/departments/americanindianstudies/faculty/trj/nae/chapter_5/001_002_5.52.jpg, with caption available at http://www.cla.csulb.edu/departments/americanindianstudies/faculty/trj/nae/chapter_5/001_002_5.52.txt, (both last accessed March 10, 2017).

239 Photograph of Frank Ducheneaux, “Early Pioneers of Indian Gaming Had Same Goal: To Help Their People,” Indian Country Today, March 27, 2013, available at https://indiancountrymedianetwork.com/news/business/early-pioneers-of-indian-gaming-had-same-goal-to- help-their-people/ (last accessed May 10, 2017).

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sustain Indian law practice. The emergence of various organizations reflected the efforts made by various components of this fairly loose legal tribal sovereignty movement as they sought to define more precisely what was needed in the reaffirmation of tribal rights. Several organizations were born within a very short span. Between 1970 and 1971, as lawyers continued to work on litigation—some of them on the U.S. v. Washington case described in Chapter Three—three major organizations and several projects sought to refine Indian law practice. These projects proposed different foci, and were therefore complementary to each other. Yet, lawyers saw them as being in competition with each other.

Given that these organizations were founded a mere four to five years after lawyers stumbled into Indian law, one could have expected increased cohesion, or a coming together of these lawyers around a more unified strategy. After all, the circle of practitioners in Indian law was fast-growing but still relatively small. Yet, instead, they branched out in various directions.

This highlighted the fact that the movement had never been a close-knit group with a common strategy in mind. While it is clear that a movement had formed around a common idea—that use of the law could help reassert tribal rights—there also existed initial clusters around which these practitioners had gathered, mostly because there existed few places for lawyers to practice Indian law at the time. Until the forming of the various organizations which are the subject of this chapter, these lawyers had not yet made sense of the exact specificities which differentiated their approaches to Indian law.

This chapter traces the organizations which emerged during the first part of the 1970s, those that were forgotten along the way, and, ultimately, how each succeeded or failed—in different ways. It also shows what enabled the organizations who survived that time and quickly rose to prominence then to remain leaders in the field into the present day despite changes that

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took place in the political and legal landscape since the 1970s. The roles of individual lawyers, of the legal services programs, as well as of courts of law in shaping the legal tribal sovereignty movement have been addressed in preceding chapters. This chapter traces the increasing fragmentation of the movement into multiple organizations and, to some extent, how certain philanthropic foundations influenced the course of the movement by choosing to fund certain projects and not others. This fragmentation, I suggest, denotes a dissatisfaction with Indian law practice as established by the early projects—e.g., the Native American Rights Fund—and an effort to propose alternative routes to Indian rights representation.

The Emergence of Specialized Non-Profit Organizations

By 1969, some of the various groups of Indian law practitioners started veering away from doing strictly ad hoc legal representation (i.e., of one specific tribe at a time, as each case came along) and instead channeled their work into a more cohesive legal strategy. Among the projects Indian rights lawyers felt were most needed during that period to sustain Indian law practice was a national non-profit law firm dedicated exclusively to Indian legal issues. Two specialized Indian rights firms were created within a few months of each other: the Native

American Rights Fund (initially based in Berkeley, CA and relocated to Boulder, CO a few months later) and the Native American Legal Defense and Education Fund (based in

Albuquerque, NM). In the spring of 1971, a consulting firm was also founded: the Institute for the Development of Indian Law, in Washington, D.C.

For these Indian and non-Indian lawyers, law constituted a more effective route to social change than political demonstrations. It was a way to ‘get something done’ rather than merely talking about their issues or otherwise rely on others to make something happen. The pursuit of

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these issues through the context of the law was designed to ensure that Native Americans would be in control of their destiny, and to tackle the work these lawyers thought Indian Country needed. Soon, they set up firms with national capacity. These firms would provide tribes with a new positioning vis-à-vis the American political system as distinct and active political and legal entities—as opposed to passive recipients of federal policies.

The Native American Rights Fund

In 1969, the Native American Rights Fund (NARF) saw the light of day as a project sponsored by the Ford Foundation within the California Indian Legal Services program (CILS), headquartered in Berkeley. As a leader in the promotion of public interest law and the protection of civil rights, the Ford Foundation, which had funded the NAACP Legal Defense Fund and, more recently, the Mexican American Legal Defense Fund, provided an opportunity for new non-profit organizations representing ‘minority’ groups. While the Ford Foundation had taken notice of the work done by Indian rights lawyers, it did not itself, however, initiate the move.

Instead, Monroe Price, with contacts in the East, facilitated the process.

The Native American Rights Fund Project, as it was called in its early days, sought to eventually branch off from CILS in order to expand its activities to a national level. By the late

1969, CILS had gathered a steering committee composed of tribal and national Indian leaders, activists, and law professors. Among them figured Vine Deloria, Jr. This board defined five areas to prioritize in the defense of tribal rights: tribal existence, protection of natural resources, promotion of human rights, accountability of governments, and Indian law development.240

While in Berkeley, NARF had already started identifying cases which aligned with its priorities

240 Interview with John Echohawk, May 8, 2017.

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rather than simply processing them through the Legal Services program. NARF knew that tribes were seeking legal help outside of California, but, tied by the mandate of California Indian Legal

Services, it could not justify funding its lawyers for work beyond the State. Bob Pelcyger, for instance, had come across the Pyramid Lake legal issues in Nevada. Funding would be necessary to reach beyond the borders of California and grow beyond the purview of CILS.

The initial grant provided by the Ford Foundation enabled CILS lawyers to start working on cases beyond California from a separate office located on the same floor as CILS, which otherwise supervised its work. The NARF Project did not linger long in California but, during that time, its identity crystallized—well before any other Indian rights project emerged. The five priorities offered criteria against which cases were selected by the firm and influenced which funding would be accepted or rejected: “We explained to our potential sponsors what our values and priorities were, and only took funding from sources who agreed to support them.”241 This would prove to be a serious advantage to its development throughout the 1970s. Indeed, just as new organizations were barely started to emerge, with still very few lawyers available to work on

Indian rights, NARF set a specific direction not only for itself, but also, unintentionally, for both the legal tribal sovereignty movement at large and the philanthropic organizations newly attracted to the promotion of Indian rights.

In the summer of 1970, the NARF lawyers were finally able to branch off, and moved their headquarters to Colorado, where they started operating independently from CILS (although the organization would maintain collaborations with Legal Services programs over the years). In its effort to serve tribes nationally as well as establish its authority as a national organization,

NARF chose Boulder, then a progressive hippie town furnished with a major law school and

241 Ibid.

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airport close by, which would allow for legal research and easy travel to tribes. Vine Deloria, Jr., who was finishing law school in Colorado that spring, had strongly recommended Boulder as the location for the new law firm.242

Boulder’s location at the foot of the Rockies provided what was then perceived as a central location in Indian Country: Following the removal of tribes westward and until the 1970s,

Indian Country was thought to encompass the American West. Eastern tribes, removed from the

Southeast in the nineteenth century or decimated by wars and epidemics on the East Coast, had disappeared from American consciousness and, virtually, from the map. It was not until the groundbreaking litigation initiated by the Passamaquoddy (represented by Tom Tureen) that certain tribes ‘reappeared,’ as if resurrected ghosts of history.

Map of Tribal Lands based on major Indian Land Cessions Concluded between 1776 and 1945

242 Ibid.

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(with location of Boulder, CO marked by a blue circle)243

The terms of the Ford Foundation grant demanded that the organization be validated by a major law school. The dean of the University of Colorado Law School signed the paperwork which enabled NARF to establish its headquarters in town.244 With a federal repository library, it would both ensure a capacity for legal research and grant reassurances that its lawyers were serious and reliable. With approval of the grant in hand, the NARF lawyers signed a lease on two historic buildings which NARF later acquired, both formerly owned by the Lambda Chi Alpha fraternity—one of which would host offices for its legal staff. “The fraternity was a pit,” recalls

Bruce Greene, “We cleared the place out, cleaned out the floors.”245

The Native American Legal Defense and Education Fund (NALDEF)

NARF has long been considered the first non-profit law firm specialized in representing

Indian clients, but it had competitors in its early years, such as the Native American Legal

Defense and Education Fund (NALDEF), another non-profit organization established on funding from another foundation based in New York: the Field Foundation.246 NALDEF was created in

1971 by two women in the leadership on Indian rights advocacy, a rarity at the time: Iola Hayden

243 This map can be found at the beginning of the 1945 edition of the Handbook of Federal Indian Law. See Felix S. Cohen, Handbook of Federal Indian Law (Washington, D.C.: U.S. Government Printing Office, 1945).

244 Interview with John Echohawk, May 8, 2017.

245 Interview with Bruce Greene.

246 Interview with John Echohawk, May 8, 2017; and Report, Field Foundation Collection, Briscoe Center for American History, Austin, TX.

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and LaDonna Harris (Comanche), both from Oklahoma. Harris lived in Washington, D.C., where her husband, Fred R. Harris had to be for his position as Senator.247

NARF and NALDEF were not aware of each other, however, and “stumbled upon each other” well after NALDEF was established. This was not a good sign for either organization: doing similar work meant competing for the same sources of funding. There was only one solution to distinguish themselves from each other: to keep doing the “best work possible.”248

Between 1971 and 1974, NALDEF recruited lawyers as excellent as NARF did. Among them figured Thomas Luebben (a 1969 New York University Law School graduate), Richard L.

Young, and Tim Coulter (who had graduated from Columbia Law School in 1969). While it brought in cases addressing important legal issues, and despite its hard work, NALDEF never gathered the momentum that NARF did.249

The survival of NARF and the disbanding of NALDEF most likely hinged on two critical factors: first, the organizations’ different capacities to formulate visions for their future projects; and second, the alignment of their respective priorities with those of the philanthropic foundations that funded them. While NARF had long established its identity, NALDEF struggled from the start to define a very strong cogent identity. Moreover, lawyers previously associated with NALDEF, based on interviews, do not have a clear recollection of how the organization

247 Institute for the Development of Indian Law, “Indian Legal Service Field Spans Wide Scope of Action,” Education Journal 2, no. 3 (1973): 12; Interview with Tim Coulter, January 31, 2017; LaDonna Harris, LaDonna Harris: A Comanche Life, ed. Henrietta Stockel (Lincoln: University of Nebraska Press, 2000); LaDonna Harris: Indian 101, directed and produced by Julianna Brannum (Lincoln, NE: Vision Maker Media, 2013); and Interview with Tom Luebben, by author, by phone, July 18, 2017.

248 Interview with John Echohawk, May 8, 2017.

249 For an example of its work, see the Report of the Native American Legal Defense and Education Fund, Inc. to the Field Foundation, 1974-1975, Field Foundation Collection, Dolph Briscoe Center for American History, Austin, TX, 9.

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came together, what its exact initial vision was, nor who led it when they joined—perhaps

LaDonna Harris or Peterson Zah, the latter of whom would later become President of the Navajo

Nation.250 Even though the organization had been established in 1971, it was not until June of

1974 that its “[b]oard adopted the following priorities in their order of importance: (1)

Implementation of the Federal Trust Responsibilities to Indians, (2) Tribal Sovereignty, (3)

Indian Health, (4) Indian Education, and (5) Civil Rights.”251 On the surface, these priorities aligned with the larger priorities of the Foundations. That identity, however, did not seem to land naturally within NALDEF itself. Indeed, when the organization built an office in Albuquerque in

1971, its lead lawyer, Richard Young, conceived of its role to be closer to the War on Poverty’s legal services programs, which were dedicated to helping “individual Indians and families in trouble.”252

On May 20, 1975, NALDEF’s director, John Belindo, announced the organization’s

“[decision to] close down the Albuquerque office temporarily and concentrate our manpower and resources on strengthening Tribal government in the state of Oklahoma” and its withdrawal from litigation activities. In a letter to Leslie Dunbar at the Field Foundation, he explained, “[i]t has become increasingly difficult for NALDEF to sustain a purely litigious response to Indian problems. We have been hampered by insufficient funding needed to support the work of four, full-time attorneys in Albuquerque.”253 With funding only for a few salaries, NALDEF found it

250 Interview with Tim Coulter, January 31, 2017; and Interview with Tom Luebben.

251 “Report of the Native American Legal Defense and Education Fund, Inc. to the Field Foundation,” 8.

252 Interview with Tom Luebben.

253 Letter from John Belindo to Leslie Dunbar, May 20, 1975, Field Foundation Collection.

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virtually impossible to survive next to NARF, which focused on impressive large-scale cases and benefitted from the favor of the Ford Foundation.254

Instead, NALDEF decided to redirect its focus onto educational activities pertaining to

Indian rights in Oklahoma through its Oklahoma Indian Legal Research Project, declaring:

“during the remainder of 1975 and throughout 1976 . . . [NALDEF] will exercise its Education arm and . . . pursue a specific course of legal research to settle the many misconceptions concerning Oklahoma Indians. Our efforts will be concentrated on working with Oklahoma tribal governing bodies and state and local governments to bring about a common ground of understanding of the nature of Oklahoma Indian tribes and their relationships with other political bodies. Hopefully, from this, and on the basis of our historical and legal research, new laws and cases may be enacted and brought for the restoration of the Oklahoma Indians to their proper legal status.”255 This meant that NALDEF’s funding would be in jeopardy more than ever.

Dunbar met NALDEF’s letter with a lukewarm reaction. “I enjoyed your recent visit and have since then read the report you left with me with care, and also with admiration,” he replied,

“[a]s I said, to you when you were here, the concentration on Oklahoma makes quite a different proposition for us. We shall approach it sympathetically, but I think it would be best if we put this off until the Fall for any kind of action.”256 Between 1972 and 1974, NALDEF closed twelve cases.257 Meanwhile, NARF, which had capitalized on an immediate success, continued to win cases.

254 Interview with Tom Luebben.

255 Letter from John Belindo to Leslie Dunbar, May 20, 1975, p. 2, Field Foundation Collection.

256 Letter from Leslie W. Dunbar to John Belindo, May 28, 1975, Field Foundation Collection.

257 “Report of the Native American Legal Defense and Education Fund, Inc. to the Field Foundation,” 25-31.

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By requesting funding for its legal education project in Oklahoma, NALDEF took more than a small turn away from litigation. This move signified a departure from its initial national focus, turning instead toward legal issues facing Indian individuals mostly located in a single state. NALDEF placed the Oklahoma Indian Legal Research project under the responsibility of

Vincent Knight, who was also a product of the War on Poverty’s legal services programs. A

1971 graduate of the University of New Mexico Law School, he had then trained in litigation and advocacy as a Heber Reginald Smith Fellow in San Francisco before being assigned to the

Oklahoma County Legal Aid office in Oklahoma City and joining NALDEF. While in Oklahoma

City, he also acted as local counsel for NARF and evaluated other Indian Legal Services programs at Zuni Pueblo (in New Mexico) and DNA (Navajo) Legal Services (in Window Rock,

AZ), among many other activities. He also continued training, including at the Legal Services

Training Program in Denver in 1974.258

In describing the project, Knight explained that “[m]y philosophical approach to

American Indian legal problems has always been on the individual and personal level. There are national Indian law organizations that purport to deal with other important areas of American

Indian law which primarily [concern] tribes, tribal rights, etc. Because of this, I sensed a void for the individual American Indian and his legal problems. I decided that I would dedicate [myself] to these kinds of ‘brush fire’ problems. . . . My entire legal experience concerns the daily legal and social problems persistently confronting the American Indians [sic].”259 This move, more aligned with the initial intent of the Legal Services Programs launched during the Johnson administration, redirected NALDEF away from a national stage of Indian rights advocacy. It also

258 Curriculum vitae of Vincent L. Knight, Field Foundation Collection.

259 Comment by Vincent Knight, Field Foundation Collection.

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initiated a ripple effect based on the work done by lawyers and tribal members at the national level: Now that a basic structure had started being put in place through NARF’s and others’ efforts, implementation at the local level started taking place in a broader range of forms.

Contrary to NARF, which continues its work as a national leader in the field today,

NALDEF was a very different organization in 1975 than when it had started in 1971. Due to its distinct history, Oklahoma provided a fertile ground for applying the lessons learned nationally in a different context. Moreover, the project drew other lawyers intent on trying to translate the

Indian law revival into local solutions in Oklahoma, such as Browning Pipestem, who had worked at NARF in the very early 1970s, and soon went back to his home state to open a private practice.260

The initially hesitant definition of NALDEF’s own identity, coupled with its swift transition into local advocacy by the mid-1970s, together have made NALDEF an elusive organization in the history of the tribal sovereignty movement. Many lawyers, except the few who worked for it (such as Tim Coulter) and those in leadership positions in other places (such as John Echohawk), do not remember it. Meanwhile, those who do make it clear that it did not play a central role in national Indian rights advocacy. Rather, NALDEF quickly became a regional defender of tribal rights in an area where Indian law applied in ways specific to

Oklahoma. These individual moves steering NALDEF into a local focus made room for NARF to emerge as the leader in large-scale Indian rights litigation which could impact all of Indian

Country. Long before NALDEF came out to the Field Foundation on its change of direction, Tim

Coulter, who had then temporarily been on funding from the Rockefeller family, finally found

260 Interview with John Echohawk, May 8, 2017.

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himself without a job.261 After being discontinued at NALDEF, Coulter interviewed at NARF, but was not hired. He would spend the next few years at another new organization: the Institute for the Development of Indian Law.262

261 Interview with Tim Coulter, January 31, 2017.

262 Interviews with Tim Coulter, October 2013 and January 31, 2017.

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The Institute for the Development of Indian Law263

The Institute for the Development of Indian Law was founded by Vine Deloria, Jr.

(Standing Rock Sioux), Frank Ducheneaux (Cheyenne River Sioux), and Kirke Kickingbird (a

Kiowa lawyer from Oklahoma).264 A few months from finishing law school in late 1969, Deloria had formulated his intention to “set up a network of lawyers who would be interested in contributing time and brainpower to help create a national program to litigate Indian rights.”265 His intention was to “finish my degree and get into law practice as soon as possible.”266 Deloria and Ducheneaux completed the paperwork to establish the Institute. Its objectives were to “1) publish an Indian law journal[,] 2) do special reports a la [sic] NAACP

Indian education report[,] 3) conduct seminars for urban center boards and tribal councils on

Indian law[,] 4) start a slipsheet publication on current events in their legal aspect[,] 5) do selected research on philosophical topics in Indian law[,] 6) do selected litigation, primarily

263 Deloria insisted that the Institute not be referred to by its possible acronym, IDIL. I therefore use its full name or ‘the Institute’ in my work. Letter from Deloria to Kettering, March 24, 1971.

264 Cf. Robert A. Fairbanks, “A Discussion of the Nation-State Status of American Indian Tribes: A Case Study of the Cheyenne Nation,” American Indian Journal 3, no. 10 (October 1977); and American Indian Journal, vol. 1, no. 3 (December 1975): 15. For basic information on the Institute, see “Institute for the Development of Indian Law,” in Mary B. Davis, Native America in the Twentieth Century: An Encyclopedia (New York: Garland Pub., 1994), 266-267.

265 Letter from Vine Deloria, Jr. to Lyle Huseby, December 10, 1969, Vine Deloria, Jr. Papers, Beinecke Rare Books and Manuscripts Library/Archives, Yale University. All other letters from or to Vine Deloria, Jr. in subsequent footnotes are from the Beinecke Library.

266 Letter from Vine Deloria, Jr. to Thomas O’Hare (Recreation Coordination at UC Boulder), February 5, 1970.

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intervention into existing suits, amicus briefs, and appeals cases.”267 Thus, the Institute functioned as a “private consulting firm.”268

Deloria had met John Echohawk at the annual meeting of the National Congress of

American Indians in the fall of 1969, where he had been, as a national Indian leader on Indian issues, one of NARF’s very first board members.269 But he had quickly left it, at least partly because the organization was relying on the financial support of the Ford Foundation, which Deloria saw as threatening the independence and scope of the legal work that needed to be done to best serve tribes. In 1970, Deloria had declared that “[c]hurches and foundations have merely purchased an Indian leader or program that conforms with their ideas of what Indian people should be doing. The large foundations have bought up the well dressed, handsome ‘new image’ Indian who is comfortable in the big cities but virtually helpless at an Indian meeting.

Churches have given money to Indians who have been willing to copy black militant activist tactics, and the more violent and insulting the Indian can be, the more the churches seem to love it. They are wallowing in self guilt and piety over the lot of the poor, yet funding demagogues of their own choosing to speak for the poor.”270 Deloria’s provocative tone both echoed his 1969

Custer Died for Your Sins manifesto which had established his authority as a spokesman for tribal issues at a time when few Native American leaders spoke on the place of Indian nations in

267 Deloria to Kettering, March 24, 1971.

268 Professional profile of Franklin D. Ducheneaux, available at http://www.legalspan.com/catalog2/faculty.asp?UserID=20080213977104124845++++++&OwnerColor=%23 660033&recID=20090114-112213-155801 (last accessed April 20 2017).

269 Deborah Frazier, “Indian Movement Icon, Educator Deloria Dies,” Rocky Mountain News, November 15, 2005, available at http://www.log24.com/log05/saved/051115-Deloria.html (last accessed February 26, 2017).

270 Vine Deloria, Jr., “This Country Was a Lot Better Off When the Indians Were Running It,” New York Times, March 8, 1970, available at http://www.nytimes.com/1970/03/08/archives/this-country-was-a-lot- better-off-when-the-indians-were-running-it.htm (last accessed July 14, 2017).

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American society. By creating the Institute, Deloria was seemingly trying to propose a different approach to advocating for Indian rights nationally.

From the mid-1960s until his death in 2005, Deloria was found vigorously working on every possible front in order to foster greater understanding about Indian affairs and motivations among the federal and state government agencies, foundations, the religious establishment, and the general public—even among Native Americans themselves. As a public leader, Deloria was almost single-handedly responsible for giving direction to the modern tribal sovereignty movement at large, and has many times been described as the most important Native American commentator on Indian affairs of the 20th century.271 In 1963, he had graduated with a Master’s in Theology from the Augustana Lutheran School of Theology in Rock Island, Illinois.272 But he would soon set aside most of his life’s training to advance Indian issues and their implications through his writings and across numerous political fora and educational endeavors. To this day, a more influential figure can hardly be found in the field of Indian affairs. It is therefore not surprising that he also led the movement to engage more—Indian and non-Indian—people with the law as a means to open up possibilities for increasing the autonomy of Indian nations.

Yet, the legal aspect of Deloria’s work is not very well-known. Apart from one legal article on Indian law, his critical studies of federal policies directed at Native Americans dominate his published writings.273 Deloria was able to offer profound, detailed perspectives of

271 See, for instance, Kirk Johnson, “Vine Deloria Jr., Champion of Indian Rights, Dies at 72, New York Times, November 15, 2005, available at http://www.nytimes.com/2005/11/15/us/vine-deloria-jr-champion-of-indian- rights-dies-at-72.html (last accessed May 10, 2017); and Christopher Reed, “Vine Deloria: Working with Wit and Wisdom for Native American Rights,” The Guardian, November 23, 2005 https://www.theguardian.com/news/2005/nov/24/guardianobituaries.usa (last accessed July 14, 2017).

272 “Vine Deloria, Jr.” American National Biography Online, available at http://www.anb.org/articles/15/15- 01328.html (last accessed May 9, 2017).

273 For the former, see Vine Deloria, Jr., “Legislation and Litigation concerning American Indians,” The Annals of the American Academy of Political and Social Science 436 (1978): 86-96; for the latter Sandra L.

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Indian affairs because he excelled at broad syntheses drawn from the knowledge he had gathered over the years through his extensive network of tribal contacts both inside and outside Indian

Country, particularly as executive director of the National Congress of American Indians: “I learned more about life in the N.C.A.I. in three years than I had in the previous 30. Every conceivable problem that could occur in an Indian society was suddenly thrust at me from 15 different directions.”274 This gave him the necessary distance to make sense of the place of

Native Americans in American society and how they were affected by federal and state policies on a national scale. As a result, he was able to offer forceful theoretical foundations for rethinking Indian affairs, especially in American Indian Studies, the academic field he would create in the late 1970s.

Both Deloria and Ducheneaux were NCAI ‘veterans.’ Deloria had led it from 1964 to

1967 and Ducheneaux became its executive director for a brief moment in 1970. Finding the organization bankrupt, Ducheneaux resigned two months after being elected to the three-year position to create the Institute with Deloria. But, by February of 1971, Ducheneaux had resigned after realizing that Bruce Wilkie, its previous executive director, “had run up about $100,000 in debts and the organization was virtually bankrupt. Many of the bills were out and out hanky- panky, large checks for ‘fringe benefits,’ ‘public relations,’ ‘entertainment expenses,’ etc.”

Signed “The Savage,” Deloria’s letter lamented that Wilkie’s carelessness was causing tribes to cut their contributions to NCAI. As a result, Deloria felt let down by tribes: “They don’t care,” he complained to one of the people he was trying to recruit for the Institute’s board in

Cadwalader and Vine Deloria, Jr. (eds.), The Aggressions of Civilization: Federal Indian Policy since the 1880s (Philadelphia: Temple University Press, 1984).

274 Vine Deloria, Jr., “This Country Was a Lot Better Off When the Indians Were Running It.”

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1971.275 His past hard work to strengthen the organization as executive director had been shattered to pieces.276

Wilkie’s removal from NCAI’s executive directorship was at least in part orchestrated by

Deloria. In order to restore the organization’s efficacy, Deloria worked to replace Wilkie with

Frank Ducheneaux. As President of NCAI, Deloria had rallied more tribes to the national lobbying network than any of his predecessors, and had moved NCAI from Denver to

Washington, D.C. Deloria’s time with NCAI thus enabled exponential growth for the tribal sovereignty movement. Tribes had been withdrawing moral, political, and financial support to the organization.277 Now, they were quickly losing trust in the organization, causing a decline in its funds, which could be used to support the needs of smaller tribes. “We’ll need every vote we can get to throw Bruce Wilkie out and put Franklin Ducheneaux in.”278

During Wilkie’s tenure as NCAI President, Deloria recommended to inquiring private donors that they send their money not to NCAI, but to the American Indian Development Fund, a Denver-based organization with “a project by which very small tribes and communities are helped with small but important projects which they desperately need.”279 Deloria considered this as a transitional move as he was determined to bring NCAI back together: “Most of us who

275 Letter from Vine Deloria, Jr. to Charles F. Kettering, February 3, 1971.

276 The details of Deloria’s contributions to NCAI as Executive Director remain to be uncovered, as the history of NCAI in that period has not been written yet. Thomas Cowger—not to blame him—author of the seminal study on the early years of the National Congress of American Indians, did not venture into Deloria’s tenure as Executive Director. See Thomas W. Cowger, The National Congress of American Indians: The Founding Years (Lincoln: University of Nebraska Press, 2000).

277 Deloria to Kettering Feb 3 1971.

278 Letter from Vine Deloria, Jr. to Eugene Crawford, September 30, 1970.

279 Letter from Vine Deloria, Jr. to Marjorie Barnes, October 9, 1970.

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have been strong supporters of the N.C.A.I. in the past are working for A.I.A. until we can bring a better program to the N.C.A.I.”280 By suspending private donations to NCAI, Deloria aimed to prevent NCAI from wasting money that could have served tribes with limited political leverage and funds. Deloria, who had spent three years strengthening NCAI, felt like it had fallen into

“the hands of people that many of us feel do not help the small tribes of this country.”281 If

Ducheneaux’s tenure at NCAI was short, it was instrumental in removing Wilkie from its directorship so that the organization could get back on its feet and start better serving tribes again. In October of 1970, Deloria triumphantly announced Wilkie’s replacement with

Ducheneaux: “we won the NCAI, sent Bruce Wilkie back to Makah.” Ducheneaux had won with

54 votes, against 19 for Wilkie.282

Always on the lookout for people to work with on projects he deemed could effectively advance Indian affairs, Deloria had dismissed NARF as well as Tom Tureen at Pine Tree Legal

Assistance. Instead, Deloria was courting, quite insistently, Charles Kettering, a “noted educator” based in Englewood, in the suburbs of Denver, to join him on the board of the

Institute.283 Following up on his last communications as a law school student, Deloria made it clear that demonstrations would not be part of the plan: “we are being very scholarly about this – no Indian politics. AND – no white liberal New York politics. But we do not plan to be active or militant in the usually accepted sense. Rather a serious scholarly back-up center.”284 Deloria’s

280 Letter from Vine Deloria, Jr. to Marjorie Barnes, October 9, 1970.

281 Ibid.

282 Letter from Vine Deloria, Jr. to Charlie Tie-Clip, October 25, 1970.

283 Letter from Deloria to Kettering, March 24, 1971, p. 2.

284 Letter from Deloria to Kettering, March 24, 1971, p. 1.

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vision for the contribution of the Institute to Indian rights remained unclear, however: While he seemed tired of the liberal bent which had been proposed by the Legal Services programs, he was at a loss to carve out a forceful alternative articulation of a better approach.

One thing he had a very clear idea of was the human composition of the project. “The board [of directors] will be very small,” he wrote to Kettering. Frank Ducheneaux, who would take over the directorship after Deloria had capitalized on his success as a public speaker and respected voice on Indian affairs following the publication of his first two books “I [will] be the first President to make maximum use of fund raising potential in the east. After that old Frank would probably be chairman or President.” Barbara Lane, the rockstar anthropologist who had compiled the expert witness reports for the tribes in the U.S. v. Washington litigation—thereby making an exception to his plan to have an all-Indian board. Then came Oren Lyons, Chief of the

Onondaga Nation, Della Warrior, and more positions “to be filled later.”285 By May, Deloria and his co-founders had added a handful more people to the Institute’s potential board.286

The Institute would operate out of Washington, D.C., where Ducheneaux was based but, starting that summer, Deloria would raise funding for the organization by giving speeches to colleges across the country while being based in his Colorado hometown of Denver. After being away for barely a year, Deloria missed Colorado, a place most special to his heart. As much as he felt his and others’ presence in the Pacific Northwest was needed by the tribes engaged in the fishing rights struggle, the lack of sunshine seemed to keep him a bit depressed: “I am probably moving from this area in July to go back to Denver for a couple of years. The weather is too cold and wet for me up here having been raised where one could see the sun every so often

285 Letter from Deloria to Kettering, March 24, 1971, p. 2.

286 Letter from Deloria to Kettering, May 4, 1971.

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during the winter,” he wrote to one of his correspondents as the academic year ended in

Bellingham.287 Deloria had agreed to reorganize the Southwest Intergroup Council, initially headquartered in Arizona but soon to be moved to Denver, CO.288 As the Council decided to relocate from the Southwest, Deloria became increasingly anxious to move back to Denver.

Meanwhile, Kettering, who had suggested that the Institute could potentially be headquartered in Denver, remained hesitant to accept Deloria’s offer to serve on the board.

History will never know whether he would finally have caved in to Deloria’s insistent requests, and much about Kettering will remain in the dark. On December 12, 1971, just a few months into the existence of the Institute, the 40-year-old Kettering passed away in a tragic car accident.289

The Institute moved forward without him.

Now, since he had agreed with Ducheneaux that he would direct the Institute as he raised funds for it before Ducheneaux took over, Deloria started giving numerous public talks again, as he had done following the publication of his first book. In order to launch the Institute, Deloria had taken a public speaking hiatus while he was finishing law school and started teaching as he worked on specific tribes’ legal issues, concluding that one had to “stop talking about the issues and start doing something concrete about them.” “I am running all the time trying to get things moving or keeping them from collapsing. I don’t simply tour the colleges inspiring students.

Most of my speeches are, like Milwaukee, in order to get travel paid to go somewhere to meet

287 Letter from Vine Deloria, Jr., to Roger Olson, May 15, 1971.

288 Letter from Vine Deloria, Jr. to Anthony F. Purley, June 18, 1971; Letter from Vine Deloria, Jr. to Carol Barnhart, August 10, 1971; and Letter from Vine Deloria, Jr. to Sara Ried Massey, September 21, 1971.

289 Obituary of Charles Kettering II, New York Times, December 14, 1971, available at http://www.nytimes.com/1971/12/14/archives/charles-kettering-2d.html?_r=0 (last accessed February 27, 2017).

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with Indian people on specific legal problems.”290 But since Deloria insisted that the Institute must rely on non-governmental and non-foundational sources of funding, the talk tour began again. During that period, Deloria combined his public talks and legal work on behalf of tribes, selecting those that could bring in an honorarium of at least $1,000 that would be sent directly to the Institute’s treasury.

However, as Deloria kept thinking about how to better protect and recover Indian rights, law still did not come naturally to him. He did not consider himself to be a great lawyer.291 He had pursued the degree out of necessity and the belief that it could maybe make a difference in

Indian Country—perhaps inspired by his brother Sam, who had himself obtained a law degree from Yale in 1967 and was directing the American Indian Law Center at the University of New

Mexico. With the Institute on the verge of being organized into both a national conceptual framework and professional network, Deloria and Ducheneaux sought to hire fresh legal talents.

To realize the Institute’s vision, Deloria hired Tim Coulter, who had recently interviewed at

NARF. Had Coulter been offered the job in Boulder, it is unlikely that he would have stayed at

NARF very long because his reform ideas on Indian law were at odds with those of NARF.

While the NARF lawyers, with David Getches in the lead, believed that law could be reformed from within despite its convoluted principles, Coulter thought it was necessary to review and correct its very foundations.

Coulter had both an equally broad and profound vision of reform for Indian law and the sharp legal skills with which Deloria found himself somewhat limited. And, like Deloria at the time, Coulter privileged thorough legal work over activist demonstrations. Further, a rare

290 Letter from Vine Deloria, Jr. to Louisa Stark, March 25, 1971.

291 Interview with Tim Coulter, October 2013.

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occurrence among lawyers fresh out of law schools then, Coulter was not a complete stranger to

Indian law. Indian law had first come to his attention during his last year of law school at

Columbia when he served the board of the Columbia Survey of Human Rights Law (now the

Columbia Human Rights Law Review) and received an article on the intersection between federal and tribal law on the right to counsel after passage of the Indian Civil Rights Act.292 Initially written by another law student, the article was rewritten by Coulter and published under his name.293

At the Institute, Coulter and the Institute’s staff had a golden opportunity to further develop their vision of Indian rights in the American Indian Journal, the Institute’s publication from 1975 to 1987, and to start disseminating its vision. The Journal unpacked select points of

Indian law which either were being litigated or were highlighted for their recurring problematic character in litigation and policy. This experience with the Journal would help Coulter further develop his vision of Indian law, a process which continued to develop into the 1980s onward as he formed his own organization—the Indian Law Resource Center—in 1978 as well as published a series of articles with his staff attorney, Steven Tullberg. In the 1980s, they outlined a theory of reform for Indian law at large. On the question of the trust relationship, for instance, Coulter and

Tullberg noted that “Advocates of the trust theory have forgotten or overlooked the fact that the federal government itself initiated the destructive policies of Indian removal, allotment, termination and other wholesale denials of Indian rights. Through these policies and a host of

292 Robert T. Coulter, “Federal Law and Indian Tribal Law: The right to Civil Counsel and the 1968 Indian Bill of Rights,” Columbia Survey of Human Rights Law 3 (1970-1971): 49-93.

293 Board of editors published it under his name, although he was not the original writer and insisted that the name of the original author be acknowledged. But the Board decided that Coulter had done so many revisions that the article had changed enough to come out under his name. Interview with Tim Coulter, October 2013.

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other federal acts, the federal government has confiscated massive areas of Indian lands for its own use and that of its non-Indian citizens. One looks in vain through the historical record for actions by the Supreme Court to protect Indians from these confiscatory actions.”294 Together,

Coulter and Tullberg thus continued the work of the Institute for the Development of Indian

Law. The Indian Law Resource Center still serves as a successor of the now defunct Institute.

They also delved into the work of the international indigenous rights movement which started in the late 1970s, hoping to draw from international human rights law to reform domestic federal

Indian law, a move that is still today considered “idealistic” by other Indian rights lawyers of that time.295 Indeed, Coulter’s vision of Indian law reform was at odds with the vast majority of

Indian rights lawyers who had emerged from the various legal services programs and thought that federal Indian law could be used ‘as it was’ without risking reproducing historical abuses.296

In other words, while Coulter thought that the very foundations of Indian law should be revisited in order to ensure real justice, others did not think it necessary to make such deep reforms in order for it to be a liberatory tool for tribes.

As for the Institute, it also published groundbreaking full-length studies on foundational subjects of Indian law which could be used in litigation. One of these was the first contemporary list of treaties and agreements (without their full text) concluded with Indian nations over the

294 Bruce Elliott Johansen (ed.), Encyclopedia of Native American Legal Tradition (Westport, CT: Greenwood Press, 1998), 346. For another place where Coulter and others discussed ideas for reforms in Indian law in the early 1980s, see National Lawyers Guild Committee on Native American Struggles, Rethinking Indian Law (New York: National Lawyers Guild, 1982).

295 Interview with Rick Collins.

296 Interview with John Echohawk, November 7, 2013.

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course of American history.297 An initial compilation of Indian treaties, still used by law practitioners today and commonly known as ‘the Kappler,’ had been published in the early 20th century.298 While the latter contained the texts of treaties in full, it omitted executive agreements, which the Institute’s volume provided.299 Another important study was published on taxation, before the first contemporary judgment rendered by the Supreme Court in the McClanahan case in 1973.300

Philosophies of Leadership in Legal Assistance and Legal Thinking

Perhaps out of wishful thinking, Deloria had announced the creation of the Institute for the Development of Indian Law as the “first public service Indian law firm.”301 Something important was at stake—namely, the shift from non-Indian to Indian leadership following the establishment of the institutions which sustained legal assistance to tribes. At CILS, George

Duke had insisted early on that tribal leaders or members be brought onto its board, in order to enable tribes to lead the movement so as to better serve their needs. This was, after all, the point of the turn to self-determination policy. Native Americans had an understandable historical sensitivity around non-Indians being in positions involving decision-making powers, and non-

297 A Chronological List of Treaties and Agreements Made by Indian Tribes with the United States (Washington, D.C.: Institute for the Development of Indian Law, 1973).

298 Charles J. Kappler, Indian affairs. Laws and treaties. 2 vols. (Washington, DC, 1902). This compilation has been edited several times since then.

299 Judith A. Boughter, The Pawnee Nation: An Annotated Research Bibliography (Lanham, MD: Scarecrow Press, 2004), 2.

300 Jay Vincent White, Taxing Those They Found Here: An Examination of the Tax Exempt Status of the American Indian (Washington, D.C.: Institute for the Development of Indian Law, 1972).

301 Letter from Vine Deloria, Jr. to Elizabeth Fry, March 17, 1971.

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Indian lawyers took this consideration seriously. Like many others, Deloria was aware that centuries of oppression and non-Indian control of Indian affairs made Native Americans hesitant to trust non-Indian lawyers. Further, who better than tribal members knew what their tribes needed and how to ensure that the law would adequately serve them? The weight of history made itself feel, although lawyers—including Native American ones—rarely pushed for Indian leadership either exclusively or impulsively.302

On an everyday basis, Deloria was dealing with the contemporary equivalents of the paternalistic philanthropists of old and their donors writing to ask him which organization to send money to while being unable to overcome the guilt of belonging to the mainstream population of settlers who colonized Native America. This affected Deloria’s vision of lawyers seeking to improve Indian living conditions without addressing the underlying causes of their economically disadvantaged position in the first place. Lawyers like Hugh Calkins, at Pine Tree

Legal Assistance in Maine, tried to reassure him that not all lawyers were useless: “you might want to get in touch with Tom Tureen, 173 Main Street, P.O. Box 388, Calais, Maine 04619. He is a young attorney and seems very competent, he also is not of the do-gooder liberal bent that you seem to have such a distaste for. He would be able to fill you in on what is happening with the Indians in the State of Maine as he is the Director of the new Indian Unit associated with

Pine Tree.”303

At the same time, the tribal leaders, members, and incoming new Indian lawyers did not seek to fundamentally change the course of the new Indian law practice. Moreover, the values and priorities directing the lawyers’ work had always either come from tribes themselves or else

302 Interview with John Echohawk, May 8, 2017.

303 Letter from Hugh Calkins to Vine Deloria, Jr., Oct 3 1969.

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been reached through discussions with tribal members as to what they were seeking to accomplish by resorting to the law. The more Indian leaders sought to establish all-Indian institutions, the faster they realized that the binary distinction did not always make sense and— moreover—could also be quite difficult to implement. The very board of the Institute, which

Deloria insisted should be “a wholly Indian board,”304 soon included a combination of both

Indian and non-Indian lawyers and leaders. Deloria and other lawyers would hire competent individuals, preferring Native American ones whenever possible but not fixating on their tribal background or absence thereof. More Indian lawyers were still to be trained. Even though a higher number were trained in the early 1970s than ever before, their numbers were still too low to allow recruiters to rigidly stipulate that a tribal affiliation should be attached to a law degree.

To a college student partly Native American—like him—who “believe[d] that [using the legal system] is one way for us to use the white man’s system for keeping what we need,”305 Deloria replied warmly: “I would strongly encourage you to become a lawyer. We need all the people in law we can get. That is why I am working so hard to get an Indian law firm set up—so we can provide jobs for Indian lawyers in the future.”306 For now, non-Indian lawyers would remain in the picture, but it was not necessarily a major issue. Driven by strong personalities and hampered by few serious conflicts of ego, decisions pertaining to who should lead Indian rights organizations seem to have been made by careful selection based on a twin criterion of both who would be most competent and an optimal personality fit. If someone fundamentally disagreed with the direction taken by a given organization, they tended to create

304 Letter from Vine Deloria, Jr., to Charles Kettering II, March 24, 1971.

305 Letter from Elizabeth Fry to Vine Deloria, Jr., March 9, 1971.

306 Letter from Vine Deloria, Jr. to Elizabeth Fry, March 17, 1971.

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another one—and only figures who combined larger-than-life personas with the skills of natural leaders tended to make these moves, thereby limiting the number of organizations to a productive minimum. Indeed, this flexibility kept the legal sovereignty movement dynamic, yet focused.

Even Deloria, the critic most attuned to the pulse of Indian people’s priorities (and who could also quickly become brash at times), switched into a strict rational mode as he was finishing law school and getting ready for the bar exam. “I have decided that it is more important to solve problems than to talk about them,” he bluntly wrote to one of his correspondents in the spring of 1970.307 For about a year—until he created the Institute in 1971—he stopped giving public speeches to free up time for legal work in the name of efficiency. For a while, the national network he had put so much energy into building receded to the background to make room for his engagement with the law. From public educator, Deloria turned into a lawyer—no more, no less. To one correspondent, he wrote, “As to coming to Vancouver to meet with the Red Power, I am really busy with a number of Indian problems down here. It’s time a lot of us stopped talking and keeping people informed and started doing something about conditions. So I am not making any speeches or trips that don’t directly concern the legal problems that I am working on. At some point a person has to draw the line and try to change things instead of harassing whites and governments because there is no change.”308 To another, “After three years in Law School I don’t feel that I should spend my time doing non-legal things. So I only travel to attend meetings

307 Letter from Vine Deloria, Jr. to James Metzger, undated. Given that the letter was written in response to Metzger’s letter of October 26, 1970 and that Deloria was usually fast in replying to correspondents, his letter was most likely typed between the end of October and the beginning of November.

308 Letter from Vine Deloria, Jr. to Stephen H. Overstreet, undated, in reply to Overstreet’s letter of October 26, 1970.

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of tribes or Indian organizations that are seriously working on a legal problem that interests me.

For example I have been very active in the Iroquois struggle to regain their sacred wampum belts but have not participated in the activism to get Mount Rushmore back.”309

Deloria’s efforts to foster a future generation of Native American lawyers illustrate his role in catalyzing Indian Country in ways similar to his leadership at the National Congress of

American Indians: his hope was to galvanize tribal members to empower themselves by whatever political and legal means available in order to promote tribal autonomy. However, similar to the work of Indian rights lawyers, much remains to be explored in order to evaluate

Deloria’s legacy, particularly in law, even though he remains a quasi-religious icon in the field.

To date, a long overdue biography remains to be written. Even a tamer endeavor at circumscribing his legacy—such as, for instance, a systematic analysis of the role he played in the National Congress of American Indians—is still missing. His legacy is, after all, immense.

To consider producing even a sketch of such an evaluation can be daunting: Where to start? With what seems to have most mattered to him—pondering the metaphysical implications of the world’s varied cosmologies? With what impacted the general public and inspired Indian Country most powerfully—the unplanned success of Custer Died for Your Sins, which granted him national prominence and intellectual renown? With what opened a space for discussing Native

American affairs in academia—the founding of the field of American Indian Studies? No one has dared to try—yet.

309 Letter from Vine Deloria, Jr. to James Metzger, undated.

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Training and Supporting the Work of Indian Rights Lawyers: The American Indian Lawyer Training Program (AILTP) and the National Indian Law Library (NILL)

In 1973, another national organization emerged to complement the programs and institutions already in place for lawyers wishing to work in Indian law: the American Indian

Lawyer Training Program. The AILTP contributed to the strengthening of coordination around

Indian rights cases and the thinking about Indian law by way of its publication, the Indian Law

Reporter, which was launched in 1974.310

In addition to specialized training programs, as the movement grew, lawyers sought to expand the scope of their work on tribal rights. A centralized repository was soon needed to facilitate the lawyers’ access to legal documents pertaining to Indian rights, which were produced by the courts and other branches of the federal and state governments in the settling of

Indian legal issues. At a time when online communication did not exist, a specialized legal library that could be contacted by phone was particularly crucial to the growth of the movement.311 Several projects mushroomed in various places. One of them was proposed by

Joseph Muskrat, a fellow at the Adlai Stevenson Institute, to the federal government in the very early 1970s, but was never implemented. Once again, the Native American Rights Fund, on funding from the Carnegie Corporation, was able to set up what remains today the leading library specialized in Indian law—the National Indian Law Library—housed in the building NARF had purchased next door. In 1973, NARF noted that “[it developed] the concept of the National

Indian Law Library in the fall of 1971. In the past, no person or institution has been aware of all

310 The website of the publication can be accessed at http://www.indianlawreporter.org/.

311 Steve Moore (from the Native American Rights Fund) noted that all communications between lawyers were conducted by phone or, occasionally, by mail until the Internet made the flow of information more fluid in the 1990s. Interview with Steve Moore, by author, Boulder, CO, January 28, 2015.

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the lawsuits affecting Indians nor has there been any concerted effort at communicating the[ir] existence . . . or [of] other significant developments in Indian law. This has been particularly detrimental to the restoration of Indian rights because the efforts of those few attorneys who have been involved have been uncoordinated and the results, often even the existence, of Indian litigation have not been known generally to others working in the field. . . . The Library collects, catalogues and makes available to tribes, legal services programs and lawyers information on

Indian litigation and related issues.312 For its library, NARF drew on the model of the National

Clearinghouse for Legal Services in Chicago, “widely known for providing comprehensive services to lawyers practicing poverty law [and which had] in this capacity . . . developed a collection of Indian related cases.” In June of 1972, the Library, supported logistically and financially by the Office of Economic Opportunity, “transfer[red] to Boulder . . . all Indian law documents [of the Clearinghouse’s] collection” and became the offshoot Indian law branch of the Clearinghouse and an independent repository for Indian law materials of use to tribes and their lawyers.313

The repository would dramatically increase coordination between lawyers by facilitating the circulation of ideas and legal strategies used by lawyers in recent lawsuits. It would help lawyers avoid duplicate lawsuits and open up opportunities to further protect Indian rights by enabling them to move to additional areas of the law where reassertions of tribal sovereignty could be pursued. Having a repository also provided a communications infrastructure which

312 Native American Rights Fund, Index to Indian Claims Commission Decisions (Boulder, CO: Native American Rights Fund, 1973), vii, available at http://www.narf.org/nill/documents/ICC/index_to_icc.pdf (last accessed March 6, 2017).

313 Native American Rights Fund/National Indian Law Library, “Development of the National Indian Law Library,” NARF Newsletter: Announcements 1, no. 1 (June 1972), 1; and National Indian Law Library, “History,” available at http://www.narf.org/nill/about/history.html (last accessed March 6, 2017).

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paved the way for the national development of legal advocacy on Indian rights. Indeed, with the

Library, Indian law became, in practice, a vehicle for a legal practice which had previously been articulated largely on a tribe-by-tribe basis. Through this effort, the new generation of lawyers strengthened and expanded on the work which constituted the basis of their understanding of tribal rights: the one delineated by Felix Cohen in his 1941 Handbook of

Federal Indian Law. Three decades after the publication of the Handbook, these various new

Indian law institutions enabled Cohen’s vision of Indian law as a cohesive and distinct body of rights from a national bird’s eye view to start taking root in practical implementation.

Conclusion

While the Indian rights organizations which saw the light of day in the early 1970s attempted to propose complementary approaches to Indian law, their short existence resulted in a more streamlined field for Indian rights nationally. The legal tribal sovereignty movement never developed an exclusive strategy to protect tribal sovereignty in a way similar to the one adopted by the NAACP lawyers on desegregation, but it was an important transition in American law in the sense that it actualized possibilities for tribes on a national scale: While litigation enabled lawyers and tribes to reaffirm specific rights pertaining to individual tribes (thereby creating precedents for other tribes across the country), institutions supportive Indian rights advocacy both contributed to and drew from a ‘collection’ of recent tribal accomplishments and failures with the law. This, in turn, enabled the movement to gain confidence in legal avenues and to adapt its strategies as it continued to expand. And it did so away from the nation’s capital: While

Cohen had envisioned this turn of events as possible from Washington, D.C., NARF contributed to an increasingly large network of practitioners and practices from Colorado.

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The new Indian rights lawyers had clearly established one thing in practice: there existed historical Indian rights which remained valid. Another challenge was to disseminate knowledge about Indian law so that tribes could continue to be more adequately represented by lawyers.

Without lawyers, tribal rights would be as fragile as ever. The next chapter explores the conceptual foundations on which this institutionalization, and the contemporary legal tribal sovereignty movement more broadly, developed. Given that a variety of organizations emerged in the early- to mid-1970s, one might expect to have seen a multiplicity of core approaches to

Indian law itself. Yet, this did not happen. Instead, the organizations which emerged tended to complement each other for awhile, but many of them faded away within just a few short years.

Further, many leaders of the organizations emerging after the Native American Rights Fund seemed unsatisfied with the visions of Indian rights available to tribes, yet failed to design entirely new and creative solutions to the challenges involved in protecting Indian rights. In

Chapter Five, I argue that much of the failure of the emergence of alternative visions of tribal rights was due to the fact that all of the organizations which mushroomed in the first half of the

1970s were thus propelled into prominence by their common reliance on one vision of Indian law which remains prevalent today: Felix Cohen’s.

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Chapter Five

Disseminating Indian Law: The Cohen Handbook and the Training of the Next Wave of Indian Rights Lawyers

As the 1970s unfolded, it became clear that Indian law practice was nowhere near disappearing. An academic production started emerging, following the reasoning that in order to educate judges about Indian rights, law review articles needed to be published—and fast. The new Indian law practice also required that a larger number of Indian rights lawyers be trained in order to survive and ensure that the hard work of reaffirming tribal rights already accomplished would not be lost on tribes. The lawyers who had just pioneered a new Indian rights practice were soon to put together casebooks and to teach courses in order to ensure the enduring posterity of their work. In doing so, they continued the projects they had started in their legal practice.

In order to ensure the survival of the new practice of Indian rights representation, lawyers did not rethink Indian law. Rather, they put the original 1942 edition of Felix Cohen’s Handbook to work. Cohen’s vision thus endured despite its failure to break through in his own lifetime and amidst the massive overhaul it underwent in the 1950s—through the teaching, litigation, and academic production of these lawyers and their students. This chapter examines the successive editions of the Handbook produced during the New Deal, termination, and self-determination eras of federal Indian policies. It also brushes on the dissemination of Cohen’s ideas through both law journal articles and the studies produced by the students who took the first Indian law seminars. This chapter further explores how Cohen’s vision of Indian rights still governs Indian law practice and scholarship today, as well as how adherence to that vision provided the seeds of

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both a strengthening and a weakening of Indian rights, which has subsequently unfolded since the 1970s.

The Cohen Handbook

In 1939, Felix Cohen was appointed to lead a survey aimed at compiling laws and court cases pertaining to Indian rights.314 The work of his team resulted in the forgotten and unexamined Statutory Compilation of the Indian Law Survey, a 46-volume series which centralized all laws pertaining to Native Americans for the first time, outside of their rights as

American citizens—earned a mere few years earlier with the Indian Citizenship Act of 1924.315

But Cohen went further, and what is better remembered—and still used—by lawyers and scholars of Indian law is his Handbook of Federal Indian Law.

The Handbook provided a philosophical, moral, and intellectual foundation for Indian law anchored in the idea of law as a tool to support political, legal, and cultural pluralism.316

However, as a government-produced treatise, it had to be revised in order to reflect the shifting federal policies toward Indian nations. While some editions were mere reprints of the previous format, three general waves reflected these oscillations: from the progressivism of the New Deal

(1942 edition), to the assimilationist stance of the 1940s and 1950s (1958 edition), and the self- determination era (1982 edition).

314 Alice Beck Kehoe, A Passion for the True and Just: Felix and Lucy Kramer Cohen and the Indian New Deal (Tucson: University of Arizona Press, 2014), 91.

315 Indian Law Survey, Statutory Compilation of the Indian Law Survey: A Compendium of Federal Laws and Treaties Relating to Indians, 46 vols., ed. Felix S. Cohen (Washington, D.C.: U.S. Department of the Interior, Office of the Solicitor, 1940).

316 Dalia Tsuk Mitchell, Architect of Justice: Felix S. Cohen and the Founding of American Legal Pluralism (Ithaca: Cornell University Press, 2007).

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The 1982 edition retained Cohen’s philosophy, updating it with relevant laws passed in the interim. The 1942 edition thus ushered in a new vision of Indian law which set the stage for oscillations between two major conceptions of law: a pluralistic one in which the rights of various groups can be accommodated by the legal system, and a nationalistic one in which individuals should conform to the same set of rights. In many ways, it is this conflict between these two dominant interpretations of the role of law in managing social life which have made tribal sovereignty so challenging to exercise during most of American history.

A ‘Failed’ Attempt: The 1942 Edition

When Cohen went beyond the simple task of compiling laws pertaining to Indian rights, the Department of Justice, which had initially sponsored the project, withdrew its support for publishing the Handbook. After the debacle, the volume was finally completed in the summer of

1940.317 It was published by the Interior Department that year in the form of a temporary edition.318 It was then officially published in 1941 and again in 1942—the latter date being most commonly used by lawyers and scholars, probably because it was used for a 1971 reprint and, as such, constitutes the basis of the most recent editions.319 With the Handbook, Cohen and his team interpreted the laws they had inventoried in an attempt to produce the first cohesive framework

317 Kehoe, 91.

318 Felix S. Cohen, Handbook of Federal Indian Law (Washington, D.C.: U.S. Department of the Interior, 1940). This edition is generally available from law libraries in microform.

319 Felix S. Cohen, Handbook of Federal Indian Law (Washington, D.C.: U.S. Department of the Interior, 1941); and Felix S. Cohen, Handbook of Federal Indian Law (Washington, D.C.: U.S. Department of the Interior, 1942).

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of Indian rights in American history. This was no small feat, given the noted “intricate complexity and peculiarity of federal Indian law.”320

Both the Solicitor and the Secretary of the Interior Department, Nathan Margold and

Harold Ickes, were staunch Indian rights supporters, even though they both recognized that

Indian law itself was an “unmanageable mass of materials.”321 Ickes has often been cited as one of the most supportive Interior Secretaries in American history, and it was Margold, a former student of Morris Cohen (Felix’s father) and a close family friend, who brought Cohen in to conduct the Indian Law Survey.322 Margold, in particular, was also committed to social justice more broadly. He had produced, in 1930, a rarely cited report recommending the legal strategy that would later be used by the NAACP Legal Defense Fund to desegregate American schools.323

Margold passed away in 1947, well before his vision about the emancipatory role of law in

American society came to full fruition. Credit for the work accomplished on desegregation went to Charles Hamilton Houston and Thurgood Marshall instead.324 In Indian law, it went to Cohen.

320 Nathan R. Margold, “Introduction,” in Felix S. Cohen, Handbook of Federal Indian Law (Washington, D.C.: U.S. Department of the Interior, 1942), viii.

321 Harold L. Ickes, “Preface,” in Felix S. Cohen, Handbook of Federal Indian Law (Washington, D.C.: U.S. Department of the Interior, 1942), v.

322 For Ickes, see Clayton R. Koppes, “From New Deal to Termination: Liberalism and Indian Policy, 1933- 1953, Pacific Historical Review 46, no. 4 (1977): 543-566; and Steven J. Crum, “Harold L. Ickes and His Idea of a Chair in American Indian History,” The History Teacher 25, no. 1 (1991): 19-34. For Margold, see Tsuk Mitchell, Architect of Justice, 63.

323 See Nathan R. Margold, Report on Campaign for Educational Equality and Civil Rights Court Cases (NAACP, 1930), available in the following collection at the Library of Congress: “Papers of the NAACP, Par 03: The Campaign for Educational Equality, Series A: Legal Department and Central Office Records, 1913- 1940.”

324 See, for instance, Kenneth W. Mack, Representing the Race: The Creation of the Civil Rights Lawyer (Cambridge, MA: Harvard University Press, 2012), and Mr. Civil Rights: Thurgood Marshall and the NAACP (Arlington, VA: PBS, 2014).

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Cohen’s interpretation of Indian rights echoed the framework envisioned by John Collier and more largely, the Indian New Deal, recognizing some form of a tribal right to self- government. The major tenets of Cohen’s philosophy rested on the principles that Indian nations were distinct political entities holding inherent tribal sovereignty, that Indian treaties were valid because they were guaranteed by the U.S. Constitution, that the federal government had a duty to protect tribes (particularly from states) as well as limited power over tribal affairs. If tribal law was not detailed in the Handbook—which would have been an impossible span to cover and also fell outside the purview of the federal government’s task—it was recognized as valid and dynamic: tribal jurisdiction applied to geographical and legal areas not explicitly divested to the federal government and, occasionally, to states.

It is difficult to evaluate the exact impact of the original edition of the Handbook. Its reviewers—law school professors for the most part—welcomed the Handbook: “Previous to Mr.

Cohen’s Handbook the lawyer with an ‘Indian case’ had first to orient himself in the whole domain of federal, state and Indian relationship, and then to seek his way through a maze of statutes, treaties and decisions with no good sign posts to guide him. For the first time Mr. Cohen and his assistants have collected and analyzed in a systematic manner all of this material and produced a first class text on ‘Indian law.’”325 They praised its breadth and depth and highlighted its particular value on a subject virtually unknown.

However, these same reviewers either did not understand or did not accept how Cohen’s vision differed so drastically from the prevailing policy of the time as well as from the rights of other American minorities: “Cohen’s book reminds us that problems of minority rights and the

325 Ray A. Brown, “Book Review of Handbook of Federal Indian Law, by Felix S. Cohen,” American Bar Association Journal 29 (April 1943): 207.

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grave question of how to administer occupied territory of an alien culture have been with us for a long time, and that we can learn from our past experiences.”326 A reviewer still found that “[t]he

American Indian ha[d] an anomalous legal status,” failing to distinguish between the separate

(although intertwined) rights of Native Americans as individual U.S. citizens and tribal members: “While he is, by virtue of congressional act and the Constitution of the United States, a citizen of the state in which he resides, he is also in a very special degree subject to the supervision and protection of the Federal Government, and also in many instances in intimate relationship to the tribe of which he is a member.”327

This was not surprising given the long history of denial of Indian rights and people(s). In the context of a federal policy aimed at transforming Indian reservations into bubbles of yeoman farming and forcing children into vocational occupations, upon which was superimposed the

Indian Claims Commission seeking the relinquishment of tribal rights, the Handbook must have appeared as a surreal beacon of light for Indian rights—even to those willing to embrace Cohen’s radically different vision. Surely, Cohen’s interpretation was a rare recognition of the legal validity of Indian nations as distinct political entities whose rights deserved to be honored. Few others seemed to believe that those rights actually existed, despite Cohen’s meticulous effort to articulate and nuance them extensively. If law school professors did not understand or embrace it, who else would? The original Handbook would, for now, remain a failed opportunity to effectively resurrect tribal sovereignty.

326 Franz M. Oppenheimer, “Book Review of the Handbook of Federal Indian Law,” Yale Law Journal 54 (1944-1945), 488.

327 Brown, 207.

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But it was not simply a question of familiarizing oneself with a differing perspective on

Indian rights that posed difficulties. The reviewers also echoed a larger sentiment within government (as exemplified later by Secretary of the Interior Stewart Udall, for instance) that even in cases when one could be supportive of tribal rights, termination was inevitable. Clearly, one such reviewer foreshadowed what would appear in similar terms in the preface of the 1958 edition of the Handbook. Citing Cohen, he complained that “[t]he author of the Handbook of

Federal Indian Law is, however, too much of a scholar, and too well convinced that

‘understanding of the law, in Indian fields as elsewhere, requires more than textual exegesis, requires appreciation of history, and understanding of economic, political, and social and moral problems,’ to be content with a mere compilation of and commentary upon statutes, treaties and court decisions.” “Other students of the Indian problem,” he continued, “have believed that its solution rests in a gradual absorption of the Indian peoples into the economic, social and political life of the nation, and until that is accomplished the Indian must for his own preservation be directly largely by the Federal Government which stands to him in the relation of guardian to ward.”328 The federal government’s protection of Indian nations was therefore only relevant in the context of a gradual assimilation into American society.

A rare scholar seemed to understand the premise expounded by Cohen that tribes had inherent tribal sovereignty: “The modest title of this book scarcely does justice to its importance, or to the immense amount of research that has been put into its production. Indian law lies buried under some 4,000 statutory enactments, as well as thousands of judicial and administrative decisions. The legal position is further complicated by the fact that the American Indian is subject to three separate jurisdictions. He is bound by the laws of his own tribe, or of such of

328 Brown, 207.

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them as are allowed to function, he has legal obligations to the State in which he resides, and he is subject to the supervision of the Federal Government.”329 However, the author, who interpreted Cohen to have said that the power of the federal government still prevailed over tribal autonomy, dismissed the foundation of inherent tribal sovereignty as irrelevant: “Mr. Cohn [sic] lays great stress on the sovereignty of the Indian tribe and many readers may feel that this aspect has been over-emphasized, since he himself shows that the constitutional authority of the Federal

Government to prescribe laws and administer justice upon the Indian reservations is plenary, that a State has jurisdiction over many of the Acts of non-Indians within a reservation, that there are at the present time ten major offenses for which federal jurisdiction has displaced tribal jurisdiction, and that federal courts have also jurisdiction over ordinary federal crimes.”330

Cohen, however, had instead articulated the scope of federal power in a nuanced way, explaining that it varied depending on the area of the law and the agreements concluded with individual tribes.331

It seemed impossible for anyone but Cohen and his team to think in terms other than the prevailing attitude of the time on Indian rights. One scarcely noted treatise would be insufficient to reverse the prevailing policy and mood of the time, despite the potential noted by one of its reviewers: “The Handbook is the first attempt . . . to make Indians, and those who work with them, aware of their rights.”332 Its isolated position, combined with its limited availability, meant that knowledge about Indian rights would remain esoteric longer than the Indian New Dealers

329 C. K. Meek, “Book Review: Indians in the United States,” 1942 edition, Journal of Comparative Legislation and International Law 25, no. 3/4 (1943): 100.

330 Meek, 100.

331 See Cohen (1942), Chapter 5, “The Scope of Federal Power over Indian Affairs,” (pp. 89-115).

332 Meek, 100.

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had hoped. Its use remained confined to the lawyers accustomed to working on Indian cases— such as the claims lawyers—and the rare tribal members who became aware of it (some of whom would soon seek legal counsel on treaty fishing rights such as in the Pacific Northwest).

Even today, the Handbook seems to be approached today as a more radical articulation of the rights of tribal self-government than it had been upon first publication. Indeed, in the early

1940s, lawyers did not seem overly phased by its publication. It is most likely that it was buried as the country braced to join World War II within a few months of its publication. At home, other efforts of the New Dealers which Cohen had also participated in, such as the inclusion of a provision to address both the legal and moral wrongs committed during Indian land transfers, also failed to acknowledge the Indian nations’ right to tribal sovereignty. The hardening of the assimilationist policies in the 1950s would contribute to burying it even deeper.

Political Battles over the Handbook: The 1958 and 1982 Editions

A decade and a half after its original publication, the change of federal policy on Indian affairs—from the progressive New Deal focused on tribal self-governance to assimilation—led to a revision of the Handbook. In 1958, a new edition appeared.333 This shift in policy led to a drastic rewriting of Cohen’s vision of Indian rights. Even though the editors used Cohen’s

Handbook as the very basis of their own volume, the new Handbook took a 180-degree shift

333 U.S. Department of the Interior, Office of the Solicitor, Handbook of Federal Indian Law (Washington, D.C.: U.S. Government Printing Office, 1958).

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away from Cohen’s vision. Reflecting this tidal change, his name disappeared from the volume.334

The primary modification undertaken by the new edition was to impose federal power over Indian nations by likening them to municipalities, as opposed to sovereign entities: “There is a great expanse between the status of Indians as dependent nationalities in Marshall’s time and their national citizenship today. Federal protection of tribal governments, which now exercise what are recognized simply as municipal powers, still survives, but not on the original basis.”335

Most saliently, while Cohen had located the source of Indian rights in their inherent powers of tribal sovereignty, the new edition replaced that sovereignty with unilateral federal power over

Indian affairs. The editors described Indian treaties as “subject to such enforcement, modification, or repeal as Congress may by law provide,” insisting that “[m]uch of the earlier

Federal law and many Indian treaties now have only historical significance.”336 By denying the legal validity of tribal self-government, the new edition supported the federal government in defaulting on its moral obligation to honor the government-to-government relationship it had committed to through the act of signing treaties with Indian nations.

Reducing Indian nations to the status of mere ‘wards’ of the federal government therefore signaled a return to the old paternalistic dealings with tribal members which had historically characterized tribal-federal relations: “Because of circumstances of varying historical and legal importance, tribal Indians have been subject throughout our history to numerous treaty

334 The 1958 edition is commonly listed in library catalogs as Felix S. Cohen, Federal Indian Law (Washington, D.C.: U.S. Government Printing Office, 1958) but Cohen’s name does not appear in the volume itself.

335 Handbook (1958), 2.

336 Ibid., 1.

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provisions and special and local laws enacted by Congress for their governance, some of which relegated many of them to a status variously described in court decisions by terms such as pupilage, tutelage, and wardship. (It rests largely with Congress to determine when the remnants of that status or relationship shall cease.)”337 This emphasis on the power of the federal government over Indian issues found grounding in the 19th-century doctrine of congressional plenary power. This doctrine was also rooted in legal fictions created by Chief Justice John

Marshall in Worcester v. Georgia and Cherokee Nation v. Georgia, two cases which carved space for the idea that Indian nations had become subjugated to the federal government. The doctrine was reiterated a few decades later in another Supreme Court decision on a dispute over jurisdiction over the murder of an Indian over another Indian on the Hoopa Valley Reservation, in California.338 (The courts have since then affirmed that, whenever the federal government seeks to impose unilateral power over Indian affairs, Congress must explicitly delineate in which specific ways this power applies.)

Further, while the new edition called for placing Indian rights in historical context, it proceeded to do the opposite by denying the very validity of all past legal agreements: “As national development and progress continues and as new patterns of policy evolve, legal answers to questions of Federal Indian law will be found predominantly in the latest statutory law and judicial determinations of justiciable issues.”339 This blatant denial of existing rights amounted to no less than a legal fiction. It also paralleled the way Indian claims were being processed by the

Indian Claims Commission at the time. Even more disturbingly, it echoed the inevitability of a

337 Ibid. (parentheses in original).

338 See U.S. v. Kagama, 118 U.S. 375 (1886).

339 Handbook (1958), 1.

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conquest dating back to colonial times and the engulfment of tribal members into mainstream society, perpetuating the long-standing lack of both consultation and collaboration with tribes.

The 1958 edition served the political needs of the time as a concrete, practical “program” aimed at facilitating the immediate “[t]ermination of Federal supervision” of Indian tribes on the basis that communal forms of organization were outdated and thus not fit for modernity.340 “One reason for stressing duties,” the editors noted, “is an assumption that communal primitivity is neither the true goal nor the destiny of Indians. Another assumption is that Indians may wish more effectively to participate in and partake of our national responsibilities.”341 This was a far cry from the call made by the New Dealers to consult with tribes on matters affecting their internal affairs. As such, it reinforced the political and legal apparatus put in place in the 1950s, including House Concurrent Resolution 108 (the termination bill), Public Law 280 (aimed at the disintegration of Indian reservations, transfer of jurisdiction to states), and the Indian Relocation

Act of 1956 (seeking to individually relocate Native Americans to American urban centers), all of which were designed to annul Indian rights of self-government.

The 1958 edition was never popular among the progressive Indian rights practitioners of the 1960s and 1970s, even in its early days. Even the claims lawyers used the original 1942 edition, despite the fact that they were representing clients through the termination framework adopted by the Indian Claims Commission.342 Some of these claims lawyers had been trained by

Cohen personally and held a profound admiration for him.343 When asked about the ‘termination

340 Ibid., 3.

341 Ibid., 4.

342 Interview with Arthur Lazarus; and Interview with Jerry Straus.

343 Interview with Arthur Lazarus.

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edition,’ some Indian rights lawyers have commented that “That’s the polite way of putting it, it was also known among ourselves as the “crappy” version or the “shitty” version. It was a running joke and we’d cite the original handbook instead, but that was out of date.”344

Training Future Indian Rights Lawyers When the new generation of Indian rights lawyers attempted to make sense of Indian rights in the 1960s, they found both Cohen’s version and the 1958 revised edition. A reprint of the 1942 edition by the University of New Mexico in 1971 would make it more widely available.

It sold 5,000 copies.345 By the time the original Handbook was reprinted, a new wave of Indian rights lawyers trained in the tribal sovereignty-based approach had started to emerge. The reprint proved useful for new courses being taught at an increasing number of unversities. But it was soon to be complemented by new materials addressing the status of Indian rights post-1942. This would take place in a particularly sustained manner in Washington State and California.

The Law Classes of Ralph Johnson at the University of Washington

Responding to the insistent requests of Native American students and activists, Ralph

Johnson (1923-1999) had prepared and offered the very first course on Indian law at the

University of Washington in 1967. Initially an undergraduate course, Johnson pioneered the teaching of Indian law which has continued to blossom at law schools across the country in the

344 Interview with Mason Morisset, by author, by phone, September 20, 2016.

345 Felix S. Cohen, Handbook of Federal Indian Law (Albuquerque: University of New Mexico Press, 1971); and Nash. The statistics are drawn from the 1982 edition, p. ix.

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decades since. Two years later, he incorporated Indian law into the curriculum of the University of Washington Law School.346

In the early 1970s, Ralph Johnson published two volumes, entitled Studies in American

Indian Law, which were derived from the classes he taught at the University of Washington between the fall of 1970 and the fall of 1971.347 These studies were rigorous and tended to rely mostly on case law. However, the theoretical framework employed by some of his students, who were new to Indian law, did not always reflect the vision and practice of Indian law otherwise embraced by their professors—the message that the 1942 edition should be used instead of the

1958 one. In one general study on tribal sovereignty, for instance, the student acknowledged the significant differences between the 1942 and the 1958 editions: “It is critical to note a change in the Department of Interior’s attitude toward tribal sovereignty evidenced in the 1958 edition of the Handbook. The concept has been degraded.” He then proceeds to illustrate how tribal powers of self-government are still legally valid.348 However, while he followed a Cohen-like type of interpretation in most of his article, his reliance on the 1958 edition resulted in his declaring that

“as time progressed treaty making [had become] . . . a fiction.”349

McGimpsey’s reflection on Indian rights may not have been fully formed at the time he wrote the article. It is also possible that he adhered to the more conservative version of the 1958 edition. Be it as it may, he was never heard of again in the field. The Studies themselves never

346 David H. Getches, “Dedication to Professor Ralph W. Johnson,” Washington Law Review 72 (1997): 1001.

347 Ralph W. Johnson (ed.), Studies in American Indian Law, 2 vols. (Seattle: University of Washington, 1970- 1971).

348 See Earl R. McGimpsey, “Indian Tribal Sovereignty,” Studies in American Indian Law, vol. 2 (Seattle: University of Washington, 1971), fn 81.

349 See McGimpsey,12.

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became a prominent tool for teaching or legal practice. Perhaps because the philosophical and legal approaches presented in them were consistent neither with each other nor with the vision adopted by lawyers as they practiced it, they seem to have been long forgotten. Few libraries own them, and they remain, as a result, largely inaccessible to most people today.

Other students proved much more consistent in their analyses, resulting in the publication of their work in law review articles which were soon cited by Supreme Court Justices in important Indian law cases. In 1970, Monroe Price took a leave from UCLA to teach Indian law at Stanford for a semester. Among his students was Carole Goldberg, an unsuspecting student who, like many others before her, did not know about Indian law. A young student from the East

Coast, Goldberg had just transferred to Stanford, where Price was flying in from Los Angeles once a week to teach an evening seminar on Indian rights. She wanted to learn about what areas of the law were particularly relevant and how they applied in the West, and tried to register for a class on water law. But it was full, and Goldberg found herself in the class offered by Price.350

That semester, Price assigned topics for his students to explore for his upcoming Indian law casebook—which would be the first casebook in the history of Indian law. Goldberg was tasked to write about Public Law 280, which since 1953 had allowed some states to take over jurisdiction in select areas of the law with the consent of the individual tribes residing within their borders. Primary sources enabled Goldberg to make sense of Indian rights but, given that secondary sources were virtually nonexistent, she had to map the extent of tribal jurisdiction in contrast to that of states. In a hundred pages, Goldberg formulated a theory on the overlapping of tribal and state jurisdiction: Indian nations retained powers of jurisdiction in many areas of law

350 Interview with Carole Goldberg.

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and life, and states had only limited jurisdiction unless tribes had explicitly transferred their responsibilities to them.351

A similar mapping had been done in the area of fishing and hunting rights a couple of years earlier, through an article written by Ralph Johnson and another by Charlie Hobbs, enabling the court to better understand the origins and extent of tribal rights and, thereby, to support the tribes’ right to fish in U.S. v. Washington.352 Following in those footsteps, Price encouraged Goldberg to publish the piece so it could be used by the Native American Rights

Fund lawyers who were working on a case involving the imposition of personal property tax on tribal property located on the Chippewa reservation by the State of Minnesota. The article came out in the UCLA Law Review in 1975, and was cited in the opinion issued by the Supreme Court in Bryan v. Itasca County a few months later.353 Goldberg herself became a leading Indian law scholar after graduating in 1971, taking a position at the UCLA School of Law in 1972, thereby becoming the first female Indian rights scholar of this generation of advocates.

It is difficult to know exactly how such Indian law classes were conceptualized, given that those who taught it relied on Xeroxed materials they compiled themselves, drawing heavily from their personal experiences working with tribes. But at least some of the Indian rights lawyers who taught such classes also assigned specific topics to be addressed in their students’ term papers. Thus, the new Indian law students became an integral part of the development of the

351 Ibid..

352 384 F. Supp. 312 (W.D. Wash. 1974). For a discussion of Johnson’s and Hobbs’ law review articles, see Chapter Two.

353 Interview with Monroe Price; and Interview with Carole Goldberg. For Goldberg’s law review article, see Carole E. Goldberg-Ambrose, “Public Law 280: The Limits of State Jurisdiction over Reservation Indians,” UCLA Law Review 22 (1974-1975): 535-594. For the Supreme Court case, see Bryan v. Itasca County, 426 U.S. 373 (1976).

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conceptualization of Indian rights they had started. This enabled this generation of lawyers to go into further detail in areas of the law relevant to tribal rights and to refine their thinking about where the law could (and should, in their view) go next.

The Emergence of Indian Law Casebooks

Indian law practitioners were always part of a limited group of experts. But in order to expand their community, they would have to actively widen the community by training future competent Indian rights lawyers, who could then be hired to join the work. In order to do so, they would have to produce updated materials. The Cohen Handbook had long been out of date—four decades had elapsed since the publication of its initial edition—the only one they thought reliable if legal work was to help tribes recover any degree of autonomy over their affairs. In the very early 1970s, Deloria had announced to some of his correspondents that he was working on an

Indian law casebook. In a letter addressed to one of many scholars writing to invite him to speak on Indian issues, Deloria wrote, “I have spent 3 years in Law School with the hopes of developing a new theory of Indian law and am very close to completing it. I am now projecting what I hope will be a scholarly book on Indian law from a tribal sovereignty point of view.”354 But the project never materialized as such. Deloria would focus on specific issues of law instead: treaties, taxation, and other areas pertinent to his direct work with tribes. Eventually, he would become an expert revered for his knowledge of the succeeding federal Indian policies which had constrained Indian Country. In 1973, Monroe Price published the first casebook on

354 Letter from Vine Deloria, Jr. to Jack W. Marken (Head of Department of English at South Dakota State University in Brookings), February 5, 1970.

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Indian law, through which he aimed to complement Cohen’s Handbook and “[spur] an increase of the study of Indian legal problems.”355

The challenge of organizing Indian law persisted, and it continues to perplex lawyers with little chance of relief in the future as the field keeps growing and becoming ever more complex. By the time Monroe Price set out to produce a casebook of his own, the task was no easier than it had been for Cohen. Price described the endeavor as an “excruciating job of bringing order to the mountain of material that has resulted from the peculiar legal relationship between American Indians and federal and state governments.”356 The goal of Price’s casebook was not to revamp Indian law, but to bring it up to date in a hands-on format which could be readily used by lawyers.357 Indeed, considering that Cohen had been exhaustive in his survey, the vast majority of the lawyers of that generation readily embraced his interpretation of the sources and substance of Indian rights. “It was all in there!” exclaimed John Echohawk recently.358 The task of updating it was daunting enough. Intended as a complement to the Handbook, Price’s casebook thus essentially expanded on Cohen’s vision of Indian rights. Cohen would remain the foundational thinker of Indian law, and on his shoulders this new generation of lawyers revived—indeed, activated—his vision, which had remained dormant for forty years.

With his casebook, Price also continued the work he sketched in his 1969 article, particularly his point about assisting tribes in seeking liberation from the BIA.359 If tribes and

355 Monroe Price, Law and the American Indian: Readings, Notes and Cases (Indianapolis; Kansas City; New York: The Bobbs-Merrill Company, Inc., 1973), viii.

356 Price, Law and the American Indian, viii.

357 Interview with Monroe Price.

358 Interview with John Echohawk, May 8, 2017.

359 Price, “Lawyers on the Reservation,” 161-206. And see Chapter Two.

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lawyers were informed about what the law said and the potential which lay therein, they could escape that state of helpless pupilage they were thought to be in by mainstream society, politicians, scholars, and sometimes even by their own communities. Yet, Indian rights, while valid, remained potentially weak: absence of in-depth knowledge of these rights could virtually be equated with them not being there in the first place, as had been highlighted by Harold Ickes in 1942: “That Indians have legal rights is a matter of little practical consequence unless the

Indians themselves and those who deal with them are aware of those rights.”360 Examples were rife. For instance, in perhaps one of the most outrageous decisions made by a tribunal on Indian rights, the Indian Claims Commission had declared that the Western Shoshone had lost claim to their land through “gradual encroachment,” yet another 19th-century legal fiction fabricated by the Commissioners to extinguish aboriginal title to American lands—one which certainly would not have been applied to those lands if white settlers had held title.361 As Price pointed out, even competent lawyers struggled to excavate Indian law: “Too often, an absence of legal material means that a bureaucrat’s word is law and that there is no adequate way of answering him or appealing his decision. Too often lawyers who are confronted with Indian legal problems presume that the area is too obscure and too difficult to comprehend to permit them to furnish competent advice service. I hope that the availability of these materials will increase the likelihood that Indian tribes can make more effective use of law and that lawyers representing

Indians can provide higher quality of service.”362

360 Ickes, in Handbook of Federal Indian Law (1942), v.

361 11 Indian Claims Commission, 446 (1962).

362 Price, Law and the American Indian, viii.

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The Legal Services Programs and the Indian Law Classes in California

Materials like Price’s casebook could also provide foundations for schools willing to set up courses in Indian law. Thus, some of the addressees the casebook’s preface failed to mention were law school and law professors themselves. These circles were key, since the vast majority of courses were set up by law professors who had worked with or as Legal Services lawyers. In the early to mid-1970s, a growing number of Indian law classes started appearing, as Indian rights lawyers were invited to teach specialized seminars. The courses were informally put together, and gradually appeared in the curricula of a small number of universities, many of them in California, where they were taught by lawyers from California Indian Legal Services. Like

Ralph Johnson, lawyers put together Xeroxed materials gleaned from various sources. Lee Sclar, from California Indian Legal Services, taught an Indian law course twice at Berkeley and once at

Davis between the late 1960s and the early 1970s. George Duke taught it for four years in the

1970s, and then at Davis for one semester.363

The higher admission rates of Native American students at law schools, particularly at

Berkeley’s Boalt Hall, UCLA, and UC Davis, in the early 1970s has been attributed to implementation of the affirmative action policy: “Boalt, UCLA, and UC Davis combined to enroll twelve American Indians in 1972 and ten in 1973. Boalt alone had eight American Indian first-year students in 1972 after they were added to its affirmation action plan.”364 But it is more likely that the spike in Indian law students was generated by lawyers involved in Indian rights representation through the State’s Legal Services programs. Indeed, both George Duke and Lee

363 Interview with Lee Sclar; and Interview with George Duke.

364 Cf. William C. Kidder, “The Struggle for Access from Sweatt to Grutter: A History of African American, Latino, and American Indian Law School Admissions, 1950-2000,” Harvard Blackletter Law Journal 19 (2003): 35.

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Sclar had been invited to come and teach at Berkeley by the Dean of Boalt Hall, who was also serving on the board of California Indian Legal Services, and all three school boasted courses in

Indian law by the early 1970s.

These courses gave birth, at least in part, to the next wave of Indian rights lawyers.

However, while some of these new lawyers developed a liking for Indian law in these courses, it seems that at the time, those who decided to attend law school specifically to work in Indian law upon graduation—a new stage in this legal movement—were still inspired primarily by factors external to law school, although still connected to the innovative work done by the Indian rights lawyers of the 1960s. Word was spreading fast that Indian law could be a viable career for

Native Americans. Mary Ellen Sloan (whose father was Lakota from South Dakota) would soon join the very first women Indian rights lawyers of that generation. Citing Deloria’s Of Utmost

Good Faith (1971) and the creation of the Native American Rights Fund, Sloan seems to have been the second woman—after Yvonne Knight—to attend law school in order to pursue a career in Indian law. She graduated from the University of Utah in 1975.365 Alongside Sloan in law school was Larry Echo Hawk (Pawnee), who would later become Assistant Secretary of the

Interior for Indian Affairs in the Obama administration, among other prestigious positions in

Indian affairs. After finishing law school, Sloan joined a new law firm focusing on Indian rights created by Echo Hawk and Bill Thorne, the latter of whom had just graduated from Stanford.366

Echo Hawk, Sloan, and Thorne worked together until 1979, when the firm disbanded. More women joined these lawyers over the course of the 1970s. Arlinda Locklear (Lumbee), for

365 Interview with Mary Ellen Sloan, by author, Salt Lake City, June 5, 2015.

366 Thorne would later become a prominent tribal court judge for several tribes, a trial judge for the State of Utah, and currently serves as a judge on the Utah Court of Appeals. Interview with Bill Thorne, by author, by phone, June 8, 2015.

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instance, graduated in 1976. She would be the first Native American woman to argue before the

Supreme Court.367

Two schools would emerge out of these years and crystallize the different approaches adopted by the two most prominent Indian rights organizations at the time—the Native American

Rights Fund and the Institute for the Development of Indian Law. The Institute tended to operate on a deconstructionist and more reactive paradigm, pointing out the underlying problems of

Indian law and proposing to reform its foundations. The Native American Rights Fund adopted a more instrumentalist approach based on the idea that federal Indian law—and American law itself—could be used as it was to open further opportunities for tribal self-government. These two schools were never fully mutually exclusive—they would also come to overlap in later years. Even Deloria who, as a lawyer, had declared in 1972 Indian law to be “a swamp of pseudo-legal theories into which countless lawyers and judges have disappeared in the years since,” sought to understand Indian law as it was rather than to reform it.368 For instance, on the question of the trust doctrine, Deloria adopted the perspective of virtually every Indian rights lawyer in U.S. history: using it as protection against attempts to curtail tribal sovereignty further made by individual states and corporations. This meant that relations between Indian tribes and the federal government remained unequal. One of the rare proponents of Indian law reform was

367 Interviews with Mary Ellen Sloan; Interview with Bill Thorne; and Interview with Arlinda Locklear, by author, by phone, November 4, 2016.

368 Vine Deloria, Jr., “The Basis of Indian Law,” The American Way 5, no. 6 (June 1972), available at http://faculty.humanities.uci.edu/tcthorne/Hist15/basisofindlaw.html (last accessed March 1, 2017).

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Tim Coulter, who would publish a series of articles articulating a different vision of tribal rights in the early 1980s.369

Both schools had in common an essential take on law in the context of federal-Indian relations: Just like Indian law could not be understood by ignoring the historical context in which it had developed and continued to grow, “[a] study of American Indian history without some survey of the legal context [remained] quite inadequate and incomplete.”370 Thus, even though these lawyers largely thought that Indian law—itself a product and a part of American law— could be navigated from within and, as a consequence, did not seek to modify Indian rights so they would fit the American legal system, they believed instead that it was possible to protect the distinctness and plurality of tribal needs through it.

Coming Full Circle: The 1982 Edition of the Cohen Handbook

In many ways, this new edition published in 1982 constituted both a restoration of

Cohen’s interpretation and an update. It also reflected the federal government’s recent official shift to the new policy of Indian self-determination (following Nixon’s 1970 Message to

Congress and the passage of the Indian Self-Determination and Education Assistance Act in

1975). On the editing team could be found some of the most prominent Indian law specialists:

Rennard Strickland as editor-in-chief, Charles Wilkinson as managing editor, and Reid

Chambers, Rick Collins, Carole Goldberg, Bob Clinton, David Getches, Ralph Johnson, Monroe

369 See, for instance, Rethinking Indian Law; Robert T. Coulter and Steven Tullberg; and Interviews with Tim Coulter.

370 Price, Law and the American Indian, viii.

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Price, Neil Levy, Jerry Muskrat, Bob Pelcyger, and Harry Sachse as contributors.371 This 1982 edition aligned with Cohen’s original vision, and meant to erase the 1958 edition’s assimilationist take on Indian rights.

By following in Cohen’s footsteps, the new Handbook restored Indian law as a distinct body of laws within American law. It was organized around the pivotal principles laid out by the original edition: treaties, the trust doctrine, inherent tribal sovereignty, shared jurisdiction (between tribes, the federal government, and tribes), and a tempered congressional power over Indian affairs. Thus, while many scholars have described the 1982 edition of the Handbook as a

“substantially new work,”372 as indicated by its editors, it mostly remained an updated version of the 1942 edition. The foundations of Cohen’s thinking on Indian rights remained unmodified:

This multifaceted evolution in Indian law has caused us to undertake a more thorough- going revision of Cohen’s work than was first anticipated. As we have progressed, however, our appreciation of the original Cohen Handbook has deepened and matured. We have updated, reorganized, and rewritten, but the abiding principles of Indian law have changed little since Cohen so carefully articulated them. Cohen’s vision has proven out, and the central doctrines he identified two generations ago remain unaltered: Indian tribes are political bodies with retained powers of self-government; the United States has broad authority over Indian affairs; the federal government has a trust obligation to Indians, resulting in the protection of tribal self-government from state incursions, the protection of Indian property interests, and the provision of services and programs; and Indian tribes and individuals are entitled to be free of invidious discrimination under federal and state law.373

371 A handful of now lesser-known lawyers also contributed: Daniel Rosenfelt, Denis Binder, William Francisco, Robert McCoy, John Volkman, Jay White, and William Rice.

372 See, for instance, Edward L. Barrett, Jr. book Review of Felix S. Cohen’s Handbook of Federal Indian Law, 1982 ed.,” U.C. Davis Law Review 16 (1982-1983): 787; Margery H. Brown, book Review of Felix S. Cohen’s Handbook of Federal Indian Law, 1982 ed., “A Review and Commentary,” Montana Law Review 44 (1983): 147-157; and Janice A. Wezelman, book Review of Felix S. Cohen’s Handbook of Federal Indian Law, 1982 ed., Arizona Law Review 24 (1982): 988-989.

373 Felix S. Cohen’s Handbook of Federal Indian Law (1982 ed.), x.

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Ironically, if the two editions’ central visions had indeed been different, it might not have been as concerning as critics feared so much: Contrary to what some scholars have asserted, by the 1980s, Cohen’s interpretation of the foundations upon Indian law rested was not as radical as it sounded when it was first expounded by Cohen.374 If some reviewers found the new edition “of great help to newcomers to Indian law, particularly to lawyers who have their first Indian cases,” an even smaller number acknowledged the “arcane” nature of Indian law,375 the volume stopped short of engaging the antiquated roots as well as solutions for Indian nations which did not sound like archaic 19th-century law. It is thus, also ironically, fitting that Cohen’s original Handbook is often referred to as the ‘Bible’ of Indian law. Indeed, Indian law practitioners and scholars alike have widely attributed the birth of modern Indian law to Cohen for producing the Handbook in the early 1940s, earning the manuscript the nickname of “Blackstone of contemporary American

Indian law.”376 This privileged status endures, to this day, as the basis on which scholars and practitioners of Indian law have interpreted the content and extent of Indian rights.

This new edition received much celebration and some outcry among the legal community. Philleo Nash, the former Commissioner of the Bureau of Indian Affairs (1961-1966) who had been forced to resign by Stewart Udall, deemed it “superb.”377 But he also lamented the prohibitive cost of the new edition, which made it unaffordable to most outside of law libraries.

374 See Kehoe, 92.

375 Barrett, 788.

376 See, for instance, Felix S. Cohen, Felix S. Cohen’s Handbook of Federal Indian Law (Charlottesville, VA: Mitchie: Bobbs-Merrill, 1982), viii; and Rennard Strickland, “Indian Law and the miner’s Canary: The Signs of Poison Gas,” Cleveland State Law Review 39 (1991): 483-504.

377 James R. McCurdy, book Review of Felix S. Cohen’s Handbook of Federal Indian Law, 1982 ed., South Dakota Law Review 28 (1982-1983): 246-250; Philleo Nash, book Review of the Handbook of Federal Indian Law, 1982 ed., American Anthropologist 86, no. 1 (March 1984): 183-184.

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Many found the volume too encyclopedic in scope and impractical.378 Deloria complained that it was an esoteric treatise produced by and for a small group of specialists and, as a consequence, could not be easily used by students or the layman.

Many overbearingly focused on stylistic details rather than on the substantial differences—or lack thereof—in vision with the original edition. One review criticized its very title, charging that it was a “trap set for the unwary” as new law students interpreted the new edition as being the work of Cohen. But the volume had been retitled Felix C. Cohen’s

Handbook of Federal Indian Law, as opposed to the 1942 edition’s simple Handbook of Federal

Indian Law title bearing Cohen’s name as the direct author. Moreover, the 1982 edition’s prefatory pages explained quite clearly that it offered a revised edition based on the 1942 original; simply reading those would have avoided the confusion. Even Deloria made it sound like these lawyers’ vision of Indian rights was vastly different from Cohen’s original manuscript even though it was not.379 Probably the biggest obstacle to scholars lying in the way of celebrating the overdue updating of a reference they held dear was their characterization of the original edition as a “paragon of legal scholars.” “Cohen’s reputation,” they generously declared,

“needs no polishing; this work is so fine and strong that it does not need any reflected glory.”380

As the reviews kept Cohen’s work scriptural, it proved challenging to appreciate the minute work of updating a treatise.

378 McCurdy, 250.

379 See Vine Deloria, Jr., book review of Felix S. Cohen’s Handbook of Federal Indian Law, 1982 ed., University of Colorado Law Review 54 (1982-1983): 121-142.

380 Joseph F. Rarick, book review of Felix S. Cohen’s Handbook of Federal Indian Law, 1982 ed., American Indian Law Review 11, no. 1 (1983): 85-88.

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In a rare critical examination of Cohen’s original treatise, Russel Lawrence Barsh protested that Cohen’s vision rested on an “obsolete imperial British doctrine” justifying “the

‘right of conquest’ [as delineated] in the law of nations.” The process of conquest was facilitated, not countered, by the Handbook, and “the revised edition’s persistent use of trusteeship to explain the nature of federal power over Indian tribes [was] likely to entrench this notion even more.” The consequence for Indian nations, he pursued, was that Cohen conceived of their internal rights of tribal sovereignty as “residual” rather than as fully inherent (as pre-

Constitutional nations) and therefore immune to interference: “If tribes do, in fact, derive their political character from their original status as states and peoples, then Congress has not legitimate authority to intervene in their affairs except as provided expressly by treaty.” Barsh thus located the legal validity of reshaping the extent of congressional plenary power in diplomatic, government-to-government agreements (treaties) instead of a unilateral declaration made by Congress whenever it wished to do so. Such “treatises,” Barsh argued, “become more than scholarly summaries. They become the law.”381 Barsh concluded at the time that Cohen’s approach to law and its revival by the new generation of Indian rights lawyers could not lead to a profound rethinking of federal-tribal relations because it failed to first fix its dysfunctional premises.382 This interpretation of Indian law as a bounded system led Barsh to continue his work on indigenous issues in Canada as well as in the international arena until he went back to his initial calling—teaching science to Native American children—a few years ago.

381 See Russel Lawrence Barsh, book review of Felix S. Cohen’s Handbook of Federal Indian Law, 1982 ed., Washington Law Review 57 (1981-1982): 799-811.

382 Interviews with Russel Lawrence Barsh.

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More recently, a long overdue detailed critical approach attempted on the 1942 edition described what he termed a “dogma” deriving from the historical omissions and misinterpretations present in Cohen’s historical narrative about the development of Indian law.

The work sought, quite centrally, to debunk the idolization of Cohen as an absolutely reliable and competent expert on Indian law.383 In doing so, it tended to veer toward the other extreme by isolating passages of Cohen’s work which dealt with areas of the law which had ‘calcified,’ from his otherwise nuanced and flexible approach. A contrasting perspective is useful to better understand the tensions that were part of Cohen’s work as he strove to articulate his vision of

Indian law, but not when it selects a less dominant streak in his interpretation and makes it sound the opposite.

Significantly, while two of the most central pillars of Cohen’s thinking about Indian rights (the trust doctrine and reserved rights) did not receive a single mention, Cohen was accused of supporting the congressional plenary power doctrine. The author argued, for example, that the Handbook acknowledged the plenary power of Congress on decisions pertaining to tribal membership.384 But this is a misinterpretation in itself. Cohen in fact took great pains to infirm that Congress did have plenary power over Indian affairs. He explained, for instance, that “The

Indian tribes have original power to determine their own membership. Congress has the power, however, to supersede that determination when necessary for the administration of tribal property, particularly its distribution among the members of the tribe. The United States may assume full control over Indian tribes and determine membership in the tribe for the purpose of

383 See Billie J. Kingfisher, Jr., “Dogma: Felix S. Cohen, the Indian Law Survey, and the Spanish Model” (Ph.D Diss., Oklahoma State University, 2016).

384 See Kingfisher, 134.

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adjusting rights in tribal property.”385 It is easy to see how such a statement conceding overbearing power to Congress over Indian affairs can be interpreted as a problematic compromise. It seems fairer, however, to understand it as an illustration of an overlap of jurisdiction between the federal government and tribes in certain areas of the law. Indeed, in order to disarticulate Cohen’s thinking on this point, one must look deeper and question instead the roots and implications implied by the federal government’s operating as a ‘guardian’ or trustee of tribal lands.

In another section of the same chapter (Chapter Five, entitled ‘The Scope of Federal

Power over Indian Affairs’), Cohen dissected the extent of congressional power. Other areas he examined included the management of tribal funds by the federal government as the Indian nations’ trustee. He found that, while in theory the federal government had asserted plenary power over that area, in practice it had acted otherwise. Cohen emphasized that, whenever

Congress wished to declare jurisdictional powers it did not have, it could (and should) be sued:

“As in the case of lands, Congress cannot divert tribal funds from tribal purposes without being liable.”386 Cohen tempered the extent of congressional power in many areas of Indian law, sometimes analyzing the law sideways in order to debunk the doctrine. For instance, on the regulation of liquor on Indian reservations, while Cohen conceded to Congress the power to unilaterally regulate the sale of liquor, he also insisted that its “power over liquor traffic [was] not unlimited.”387 Many a lawyer trust that Cohen’s systematical explanation of the nuances of

385 Handbook of Federal Indian Law (1942), 98.

386 Felix S. Cohen, Handbook of Federal Indian Law (Washington, D.C.: U.S Government Printing Office, 1942), 97.

387 Ibid., 92-93 (emphasis mine).

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Indian law practice was intended to open further opportunities to challenge it in the courts rather than viewing the law as a definite cap on Indian rights.388

It is most likely Cohen’s capacity to nuance the law and its application which seduced lawyers as well as some of the members of the judiciary. At the very least, it gave him credibility as a balanced thinker attempting to resolve the tensions inherent in the overlap between federal, state, and tribal jurisdictions, which derived from the status of tribes as (semi-)sovereign entities.

If for no other reason, Cohen’s approach to the law should serve as a crucial reminder for scholars and practitioners alike today to stay clear of thinking about the law as exclusively oppressive: rather, its applications often differ widely from the rules presented on paper, sometime for the better, sometimes for worse. Cohen repeatedly stressed that this dynamic nature of the law also applied to Indian affairs and nations. He seemed to point to the interstices through which knowledge of past legal practices could be used in order to protect rights instead of further reifying legal rules, the latter of which would divest Indian nations of many of the rights that were owed them. Thus, Cohen did not mean that Congress would not try to assert an increasing amount of power of Indian affairs but that, if it did so, it could be sued for such abuses of power.

That was why Cohen had established the Indian Claims Commission, particularly its section on moral wrongs, although it failed to deliver the results he hoped would be possible. The law, after all, could not—and cannot—be enforced by one man.

388 See, for instance, Vine Deloria, Jr. book review of Felix s. Cohen’s Handbook of Federal Indian Law, 1982 ed., 125: “Hidden in various footnotes and comments in the original version were historical and legal tidbits which helped Indians understand the historical precedents and anomalies that some day might prove useful as alternative legal concepts.” The vast majority of lawyers interviewed for the present work hold a similar view of Cohen’s original Handbook.

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Conclusion: Who Conceptualized Indian Law As We Know It Today?

There has been intense debate over many of the particulars of Indian law among the legal community over the past forty to fifty years. Even though the two major strands within the field either embrace or reject its underlying principles, and seek to tweak or criticize them, the foundations on which the vast majority of scholarly reflections have developed remain anchored in the same philosophy—Cohen’s vision from the 1940s. As an “architect of justice,” Cohen laid out the intellectual, philosophical, and moral foundations for the field of Indian law.389

Legal practitioners have played a significant role in applying the vision delineated by

Cohen—in their teachings, their litigation, their institution building, and their writings. George

Duke, from California Rural Legal Assistance and California Indian Legal Services, made a foundational contribution to the logistical apparatus on which advocacy for Indian rights was able to emerge. He remains one of the most discreet ‘fathers of Indian law,’ most likely because he left the field before it fully emerged and because he worked exclusively in legal practice (i.e., he did not produce a body of scholarship, as other lawyers did), thereby not producing an enduring scholarly legacy. Still, this legal tribal sovereignty movement developed in large part on the shoulders of Duke’s institutional work.

Other actors played equally important roles in the development of contemporary Indian law. Duke’s then Deputy-Director at CILS, Monroe Price, had a more enduring influence on the field. Indian rights lawyers who were working on Indian rights in the late 1960s and early to mid-1970s still vividly remember Price as one of the key players in the emergence of the field.

Price is credited, for instance, for playing “an instrumental role in the establishment of NARF,”

389 See Dalia Tsuk Mitchell, Architect of Justice. Mitchell also gave a lecture at the Department of the Interior entitled “Felix Cohen: Father of Federal Indian Law.” Undated announcement available at https://www.doi.gov/interiormuseum/programs/Felix-Cohen (last accessed June 16, 2017).

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even being sometimes referred to as the “father of NARF.”390 Price eventually left the field and joined other significant debates in other areas of academia and public life. But the fact that he continued working on Indian rights as the field emerged enabled his legacy to endure. Moreover, his contribution to the field as both an academic (by producing law review articles as well as the first casebook) and administrative force (at California Indian Legal Services and as the Native

American Rights Fund project took off the ground) secured him a safe place in this history.

Ralph Johnson has also sometimes been credited as the founder of the field of Indian law as an academic field in 1968.391 Many of his former colleagues agree that he was critical to the strengthening of the understanding of tribal sovereignty, both in the Pacific Northwest and nationwide.392 Johnson published, among many other articles, his classic 1972 Indian fishing rights article, cited by Judge Boldt in his 1974 decision. Like Price, Johnson was an extremely prolific writer, administrator, and key enabler in the development of institutions. Johnson remains, with David Getches, one of the most mysterious figures of the coming together of the field. Johnson was an effective doer. As David Getches noted, a large part of his legacy being done directly with tribal leaders, which is rarely fully honored in academic circles—although he was a highly regarded academic and a recognized leader. But the mystery could certainly be

390 Interview with Bob Pelcyger.

391 Rachael Paschal Osborn, “Dedication to Professor Ralph Whitney Johnson, 1924-1999: Eminent Scholar, Consummate Teacher, Fisherman Nonpareil,” Center for Environmental Law and Policy (reproduction of similar article from the Denver Water Law Review, 2000), available at http://www.celp.org/archive/water/celpjohnson/Rachael_Paschal_Osborn.html (last accessed November 5, 2014). Osborn does not specify what made Johnson qualify as the founder of Indian law. She simply mentions that Johnson “discovered [federal Indian law] later in his career. His contributions to the field were monumental. Driven by a cogent sense of justice and strong, personal relationships with Native American fishers suffering unconscionable loss of treaty fisheries, Ralph studied and wrote prolifically on the subject of Indian law.”

392 Interview with Charles Wilkinson; and others such as Alvin Ziontz and Robert T. Anderson.

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lifted by looking at his Papers because, rivaled only by Deloria, he was also an extremely prolific correspondent.393

Another lawyer, David Getches, has been widely recognized as a leading figure in the field from its earliest days and until his premature passing from lung cancer in 2011. Getches is best described as the engineer of Indian law, taking the pieces from the ground and assembling them together through his inborn qualities as a leader, which were immediately put to use when he took the directorship of NARF in 1971. Getches laid out the groundwork for the practice of

Indian law as well as for its academic development on a national scale, serving as Dean of the

University of Colorado Law School long after joining it in 1979, the year he left a private practice started with Bruce Greene just a few months earlier. He also led the production of the first comprehensive casebook of Indian law, thereby expanding exponentially the casebook produced by Price. This casebook remained the only up-to-date Indian law companion available since the publication of Cohen’s treatise in 1941 and until its revised (self-determination) version in 1982. Scholars and students would have to wait until the 1990s to have access to other, competing casebooks, including a revised and much more fully fleshed out version of Price’s early casebook.

Scholars have also largely contributed to the perpetuation of Cohen’s vision. In one of the most important books on the sources and validity of tribal sovereignty using Cohen’s framework to strengthen the argument that tribal sovereignty was both inherent and had been recognized by the American legal system. Two leading scholars of Indian law examined and accepted the same central principles articulated by Cohen: the doctrine of discovery, the trust doctrine, the plenary

393 Ralph Johnson’s unexplored Papers, which include thousands of pages of correspondence, are hosted at the University of Washington.

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power doctrine, reserved (treaty) rights, implied repeals, sovereign immunity, and disclaimers in tribal-state relations.394 It is possible that these doctrines cannot be disarticulated, for reasons which lay outside of Indian law itself. Perhaps it is not possible to reconcile the scholarly argument that congressional plenary power leads to authoritarian treatment of Indian nations and the plenary power of Congress in American law more generally speaking. If this—or something else—is the reason, no scholar has, to date, explained why it may not be possible.

Meanwhile, Cohen’s vision continues to be taught at law schools today. As a result, it does not seem to matter much whether we look at how Indian law was taught in the 1970s the

1990s, or today. What one scholar described in 1996 still applies: “At this point in the history of the United States and the indigenous sovereigns, law schools must affirmatively act to (1) teach

Indian law as part of the jurisprudence within the boundaries of the United States, (2) educate

American Indians in law for reasons beyond equity, namely the unique needs of the over 500 tribal governments and their members, and (3) change their curriculum and environment to incorporate the benefit from the viewpoints of indigenous peoples which can enhance the law of the United States.”395 This only confirms that, while the Handbook did provide a set of tools to counter widespread and upcoming excisions of tribal self-government powers, it is impossible to expect radical changes in federal Indian policy if we base our conceptions and analyses of the structure of Indian law on Cohen’s work.

Apart from Tim Coulter, who formulated an alternative vision of Indian rights and Russel

Barsh, who in his review of the 1982 edition brushed on the surface of the deeper issues of the

394 See Wilkins and Lomawaima, Uneven Ground.

395 Gloria Valencia-Weber, in Rennard Strickland and Gloria Valencia-Weber, “Observations on the Evolution of Indian Law in the Law Schools,” New Mexico Law Review 26 (1996): 160.

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original version, the 1942 edition has virtually been left untouched; and the spine of the Indian law field has virtually remained the same. Neither Coulter’s nor Barsh’s visions gathered enough momentum for a domestic reform movement to emerge in Indian law. Therefore, even though

Cohen provided only the intellectual foundations for the field, it is the collective work of lawyers, government officials, scholars, and tribal members which has allowed the field to crystallize as it exists today. Even though lawyers and scholars in particular like to believe that the field came together through some strategizing and a set of systematically coordinated efforts, if this had been the case, Cohen’s Handbook would have been disarticulated or, at the very least, engaged with more critically long ago.

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Epilogue

‘The Work of Our Lives’: Tribal Sovereignty as an ‘Ongoing Contest’

At the onset, the present work explored the emergence of the contemporary legal tribal sovereignty movement as, largely (although not exclusively), a series of accidents of history. In a certain measure, the idea holds much truth. This generation of lawyers, with only a couple of exceptions aside, has confessed to have fallen into what was a non-existent field of Indian rights representation by “historical happenstance.” This is an intensely personal affair and a story of a professional coming of age, a rite of passage in deciding what to use the law for takes colorful form in many of the stories gathered over the course of this project. A hitchhiking episode in

Utah in the early 1970s ultimately leading an unconvinced corporate lawyer into a career as a tribal rights advocate is not an isolated example of how these lawyers came to the field.396

These unconventional lawyers were far from being drifting souls, however. They were, rather, looking for legal work which would resonate with their life missions. It is precisely that unconventionality—which distinguished them from the mainstream bulk of corporate lawyers they were invited to become in their legal training—which made it possible for them to

‘reinvent’ Indian rights representation. Yet, these were still highly rational minds. Their careers have been places where the personal merges with the professional, where the need and emotional attentiveness to serve a morally honorable cause somehow combined with the rationality of a lawyer’s mind. As Al Ziontz recalls, “Becoming a lawyer was not in my plan as a college student. I thought lawyers were boring, tedious, and only interested in arguing and reading dense

396 Interview with Tom Luebben.

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texts, and that, on top of that, they were not a positive social force either. My father asked me what I wanted to do, and I answered, ‘professor of political science.’ He replied to me, ‘You’ll starve to death. You should be a lawyer, you have a public talent for speaking.” “So I went and took some very comprehensive ‘vocational’ tests to determine my talents, my interests, and my personality,” he continued. “A few days later, I received a graph in the mail, which said nothing about political science, but told me to pursue law or journalism. And I didn’t believe it. I called them for an appointment with a psychologist [laughter], who tested me against the values of people in various fields, which confirmed the previous results. This settled the issue with me.

You can’t argue with science.”397

No one could equate the work of this generation with the work of the famous claims lawyers who made bad news and reputation by literally selling Indian lands off for personal profit—although the Indian claims work itself would evolve through this new kind of Indian law work. While this dissertation is not intended as a story of ‘good guys’ versus ‘bad guys,’ we have to acknowledge, in all honesty, that these new legal contributions were vastly more supportive of tribal rights of sovereignty. Law surely is not an end-all-be-all solution to protecting tribal sovereignty, but for tribes to have opportunities to pursue reassertions of their rights rather than monetary compensation in exchange for relinquishing even more lands to the federal government and other non-Indian interests cannot be ignored, for it does constitute a major breakthrough in this country’s legal history.

The argument about the role of chance—or unplanned and unexpected opportunities—in the rise of this movement also holds when considering the political apparatus which cradled it.

For a start, the legal services programs installed by the federal government in the 1960s were not

397 Interview with Al Ziontz.

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part of the initial fabric of the War on Poverty. If they were woven in fast—in fact, almost immediately—by federal officials who advocated for redistributive social justice, they also brushed against the grain of the time and fierce opponents as well as of longtime legal aid supporters who were widely skeptical of making it a public project. Once in place, these programs still held no guarantee to serve Indian nations or individuals. If tribal members themselves and lawyers had not stepped up and organized programs on and off-reservations, it is highly unlikely that Indian rights and that Indian law would today exist as a vibrant professional and academic field of advocacy. In fact, without the War on Poverty and the work of this movement, there might also have been no Indian self-determination policy.

The argument that the movement was more a product of history than a force behind it breaks, however, when we look at the years just ahead of these historical seeds of sorts: the late

1960s. These years long constituted the point of departure in the history of the tribal sovereignty movement, as scholars maintained, for over two decades, their focus on the protest politics of the

Red Power movement. This has been widely debunked in recent years, and scholars now trace the roots of modern tribal sovereignty advocacy back to the mid-century (the advent of the

National Congress of American Indians, for instance), and even sometimes back to the early 20th century.398 If we look at the history of indigenous resistance to policies and individual acts of violence, assimilation, and annihilation, this movement for political, legal, cultural, spiritual, and economic emancipation has even clearly always been there, from the moment of contact.

After all, if the War on Poverty programs were launched by a governmental agency, they were also welcome, seized, and embraced by many people in Indian Country as opportunities to

398 See, for instance, Loretta Fowler, Beyond Red Power: American Indian Politics and Activism since 1900 (Santa Fe, NM: School for Advanced Research, 2007).

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take charge of their own destinies. For the first time since the formation of the American state, communities could carve their own solutions on government as well as private funding instead of depending on BIA authorizations which never came, constantly delayed policies of compensation which failed to address the deeper issues at the heart of ever-expanding processes of conquest and colonization, and remained paternalistic and unilateral—and, therefore, authoritarian.

This being said, the battles are far from over. The work of this relatively small number of leaders—lawyers, tribal members, law professors, as well as government officials—established a field of competent practitioners who could provide legal advice and representation for Indian nations and tribal members at accessible rates through legal services programs which continue to operate today as well as through private practices agreeing to do pro bono work. Lawyers have, via these means, placed themselves at the service of tribal interests, which, as a side note, complements other studies on the supportive role of lawyers in decisions made by communities served by the War on Poverty programs.399 But parallel efforts to dock them have also been an integral part of public legal assistance: first through immediate opposition in the 1960s, then with the creation of the Legal Services Corporation (LSC) in 1974, which restricted possibilities of class action lawsuits as well as legal work deemed borderline political, and currently through the new administration’s attempts at stifling the mandate and scope of action of the LSC even further.400 Even though lawyers will admit that they are trained to circumvent rules, legal

399 While many scholars were skeptical as to the effectiveness of collaborations between lawyers and the communities they served, some have found, on the contrary, that such collaborations could be productive and mutually respectful and reinforcing. See, for instance, Stephen Loffredo, “Poverty Law and Community Activism: Notes from a Law School Clinic,” University of Pennsylvania Law Review 150, no. 1 (2001): 173- 204.

400 See, for instance, Debra Cassens Weiss, “Trump Budget Eliminates Legal Services Corp. Funding,” ABA Journal, March 16, 2017, available at

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services practitioners also recognize that the range of legal possibilities made available by the

Legal Services program to protect people’s rights had starkly diminished by 1980.401

In the area of litigation, while major advances have been made, Indian nations must still remain on their guard. The victories of the 1970s and early 1980s brought significant victories which enabled tribes to keep States from creeping into their affairs (for instance, in the area of taxation), restore various rights of self-government, and ensure that overlaps of their jurisdictional powers with State and federal jurisdiction were resolved in ways which did not curtail their autonomy. But an increasing number of excisions were made to tribal sovereignty in several areas, such as criminal jurisdiction, during that time.402 Such excisions have required further efforts to be reversed back to the tribes, sometimes requiring legislative action.403 In

2013, the Supreme Court opted to ignore the Indian Child Welfare Act of 1978 (guaranteeing that Indian children be adopted by Native American families, in response to the high rates of adoption by white families, a long-standing issue) in deciding to return a child from a Cherokee

http://www.abajournal.com/news/article/trump_budget_eliminates_funding_for_legal_services_corp (last accessed June 15, 2017).

401 Interview with Mike Taylor; and Interview with Frank Pommersheim. For an account of what happened in legal services programs more broadly until the 1990s, see William P. Quigley, “The Demise of Law Reform and the Triumph of Legal Aid: Congress and the Legal Services Corporation from the 1960’s to the 1990’s,” St. Louis University Public Law Review 17 (1997-1998): 241-264.

402 See, for example, Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978); United States v. Wheeler, 435 U.S. 313 (1978); and Duro v. Reina, 495 U.S. 676 (1990).

403 For instance, the excisions made in Duro v. Reina were rectified by an amendment to the Indian Civil Rights Act, and amendments to the Violence against Women Act (VAWA) returned some degree of criminal jurisdiction to tribes in the areas of domestic abuse and rape in order to prevent “perpetrators of crimes on tribal lands [from evading] prosecution.” See Jana Walker, “President Obama Signs VAWA Reauthorization into Law,” Indian Law Resource Center, undated, available at http://indianlaw.org/safewomen/president- obama-signs-vawa-reauthorization-law (last accessed July 19, 2017); and Interview with Jana Walker, by author, Helena, MT, October 2013.

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father to its non-Indian adoptive family.404 The case caused Indian rights lawyers to fear that this could set a precedent for future erosions of tribal family rights.405 Since the mid- to late-1980s in particular, the Rehnquist and Roberts Courts have been particularly detrimental to rights of tribal sovereignty.406 NARF remains the national leader in the field of Indian rights litigation, although it has increasingly advised tribes not to go before the Supreme Court since the early 1990s.407

From their ‘wins’ in more than half of the cases in the 1970s, the proportion of losses to wins for

Indian interests in Supreme Court cases is now around 90%.408

Thus, even though many protections enabling or restoring tribal decision-making over their affairs have been put in place in areas ranging from fishing rights to taxation to tribal membership, the increased unpacking of the content of tribal sovereign rights before the courts, even when they are rooted in law, has not consistently ensured protection. Courts retain the option to ignore precedents, which keeps tribal sovereignty vulnerable and lawyers remain wary of bringing lawsuits before the Supreme Court. Further, the general public remains largely oblivious to the multilayered complexity of tribal sovereignty. To many Americans, Native Americans still appear to have unjustified ‘special rights.’ Indian law, therefore, continues to appear as a paradox: If

Indians want to do things themselves, why do they cling to governmental assistance?

404 Indian Child Welfare Act, 92 Stat. 3069 (1978); and Adoptive Couple v. Baby Girl, 570 U.S. __ (2013).

405 Interview with Tim Coulter, October 2013.

406 See, for instance, Robert A. Williams, Jr., Like a Loaded Weapon: The Rehnquist Court, Indian Rights, and the Legal History of Racism in America (Minneapolis: University of Minnesota Press, 2005); and David H. Getches, Beyond Indian Law: The Rehnquist Court’s Pursuit of States’ Rights, Color-Blind Justice and Mainstream Values,” Minnesota Law Review 86 (2001-2002): 267-362.

407 Interview with John Echohawk, November 7, 2013.

408 See, for instance, Fletcher, “Rebooting Indian Law in the Supreme Court,” 512.

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Further, the lack of financial support from philanthropic foundations to the Indian rights organizations which emerged alongside the Native American Rights Fund in the first half of the

1970s seriously limited the nascent exploration of potentially different approaches to Indian law.

As the Native American Legal Defense and Educational Fund and the Institute for the

Development of Indian Law closed their doors, their staff moved onto existing projects or established new private practices. This resulted in a fragmentation of the movement into even smaller ‘pockets’ of Indian law practice which have engaged in occasional collaborations.

Perhaps the most daring among the organizations of later years remains the Indian Law Resource

Center, created in 1978, which has engaged international human rights law, thereby drawing on a different set of moral standards which the field did not allow for at the domestic level.

The human rights approach to Indian rights has largely been confined to the international arena, however, with a rich mobilization from indigenous peoples from around the world who convene yearly at the United Nations headquarters in New York. Domestic Indian law practice in the United States has remained, to date, largely isolated from such efforts. In September of 2017, the University of Colorado Law School in Boulder (a longtime hub for domestic Indian law practice and teaching) held a conference on indigenous issues it co-sponsored with the UN

Secretariat of the Permanent Forum on Indigenous Issues (the host of the UN annual meetings on indigenous issues, in New York). Beyond celebrating the tenth anniversary of the adoption of the

Declaration on the Rights of Indigenous Peoples by the United Nations, the event focused on the implementation of the Declaration and seemed to remain separate from the work conducted by

Indian rights lawyers nationally since the 1960s. What could have been a historical moment, bringing together the domestic and international indigenous law fields, instead confirmed that the two movements operate differently and separately.

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A host of even deeper issues has been at stake in this movement. The predictability that lawyers and tribes hoped to obtain from the law has proven elusive.409 Scholars and practitioners alike have been forced to conclude, at least for now, that Indian law has failed to drive federal

Indian policy and reforms, remaining the opposite: an “expression of Indian policy.”410 When the

Supreme Court does create policy, scholars have argued—rightfully—that tribes foster a “hyper- politicization of federal Indian law” rather than assisting in the protection of the rights of self- government.411 Indian law has, also accurately, been described as a fragile field of law because it remains caught between larger questions pertaining to the nation as a whole. For instance,

Matthew Fletcher has explained that “From the view of a national decision maker such as a

Supreme Court Justice, there is much more to a simple Indian law case than a dispute between

Indians, Indian tribes, and the non-Indian individuals, governments, and entities that oppose them. There are questions of equal protection, due process, federalism, jurisdiction, congressional and executive power, and more. Indian law disputes often are mere vessels for the

Court to tackle larger questions [which] often . . . have little to do with federal Indian law. And, since [it] is not as grounded in the Constitution as the other questions, it is more malleable; prone to inconsistencies and unpredictability.”412 After examining the workings of the Supreme Court

409 See Robert S. Pelcyger, David H. Getches, “Justices and Indians: Back to Basics,” Oregon Law Review 62 (1983): 29-47; and “Conquering the Cultural Frontier: The New Subjectivism of the Supreme Court in Indian Law,” California Law Review 84, no. 6 (1996): 1573-1655.

410 Rennard Strickland, “Introduction to Indian Law Symposium. Indian Law and Policy: The Historian’s Viewpoint,” Washington Law Review 54 (1979): 475. See also Robert T. Coulter and Steven M. Tullberg, “Indian Land Rights,” Antioch Law Journal 3 (1985): 153-184.

411 See Matthew L.M. Fletcher, “The Supreme Court and Federal Indian Policy,” Nebraska Law Review 85 (2006-2007): 127.

412 Matthew L.M. Fletcher, “The Supreme Court’s Indian Problem,” Hastings Law Journal 59 (2008): 580.

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on Indian cases closely, Fletcher concluded that, when Indian interests obtain protection, it is usually because they align with federal interests. He concluded that the best option to protect tribal sovereignty is to seek protections of tribal law.413 In such a discouraging context, many lawyers today find it challenging to remain optimistic about the protection of tribal rights as an issue that, notwithstanding the pressure caused by corporations and individual States, the various branches of the federal government will ever truly care about.

Thus, the ‘lawyering up’ of Indian country has had mixed effects. The number of Indian law practitioners has increased dramatically, as Indian law courses and positions opened across the country. The number of Native American lawyers went from under twenty-five in the 1960s to 2,400 in 2015, although it is difficult to evaluate how many Native American lawyers work in

Indian law, and how many would ‘qualify’ as “legal warriors,” a term coined to refer to those lawyers who work on protecting tribal rights.414 If Indian law now figures among the required topics of the bar exams in some states, education about tribal rights still has much ground to cover.415

Advances in the law have also had other unplanned consequences. The “explosion of

Indian legislation” of the 1970s and 1980s, which started most forcefully with the Indian Self-

Determination and Education Assistance Act of 1975, also proved to be a double-edged sword.

For instance, many tribes took advantage of the Indian Gaming Regulatory Act (IGRA) of 1988,

413 See Fletcher, “Rebooting Indian Law in the Supreme Court,” 523-527.

414 Matthew L.M. Fletcher, “The Growing Market for Indian Lawyering,” Tribal College: Journal of American Indian Higher Education 27, no. 2 (2015): 18-21, 7; and Gloria Valencia-Weber, “Law School Training of American Indians as Legal-Warriors,” American Indian Law Review 20, no. 1 (1995/1996): 5-63.

415 For an illustration through a study of the New Mexico bar exam, see Gloria Valencia-Weber and Sherri Nicole Thomas, “When the State Bar Exam Embraces Indian Law: Teaching Experiences and Observations,” North Dakota Law Review 82 (2006): 741-775.

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which has enabled a mushrooming of Indian casinos across the country.416 But the original intent of the drafters of the bill, with Frank Ducheneaux in the lead, was to prevent further reductions of tribal rights of self-government rather than the ‘corporatization’ of Indian Country. IGRA was not implemented as an instrument to promote tribal sovereignty but “in response to non-Indian pressure to limit and respect the rights of the gaming tribes.” It has simultaneously acted as a

“restriction on the rights of Indian gaming” on the one hand and as a set of “very minimum federal standards for [it]” and protections from state attacks on tribal sovereignty on the other.

The bill had initially been prepared because “Indian gaming rose out of sovereignty issues way back in history. During the Reagan years, there was a growing body of federal court decisions related to Indian gaming. . . . I was worried there would be, at some point, a severe backlash against Indian gaming,” recalls Ducheneaux, “And there was, especially in the Reagan years, at that time tribes started losing case after case in the Supreme Court. IGRA is a restriction on the rights of Indian gaming – it doesn’t give tribes the right to engage in gaming, it limits those rights – the bill was in response to non-Indian pressure to limit and respect the rights of the gaming tribes. . . . [IGRA] was the end of the legislative journey but . . . only the beginning of what you know about Indian gaming today.”417

416 According to a survey of Indian Country, “By 2010, the vast majority of American Indian tribes could be considered gaming tribes. We estimate that more than 92% of All American Indians on reservations lived on reservations with gaming operations. Gaming operations have an impact on almost every American Indian reservation given the existence of revenue-sharing funds and intertribal gaming-device leasing, which transfer gaming revenues to non-gaming tribes.” Randall K.Q. Akee and Jonathan B. Taylor, Social and Economic Change on American Indian Reservations: A Databook of the US Censuses and the American Community Survey, 1990-2010 (Sarasota, FL: The Taylor Policy Group, 2014), v, available at http://static1.squarespace.com/static/52557b58e4b0d4767401ce95/t/5379756ce4b095f55e75c77b/1400468844 624/AkeeTaylorUSDatabook2014-05-15.pdf (last accessed July 19, 2017). This does not mean that every Indian nation or individual has ‘become rich’ from gaming revenue, however.

417 Interview of Frank Ducheneaux by Maya Dollarhide, see “IGRA Author Franklin Ducheneaux Looks Back at 20 Years of Gaming in Native America,” Casino Journal 21, no. 10 (October 2008): 32. For a short summary of the coming into being of IGRA, see Gale Courey Toensing, “Early Pioneers of Indian Gaming Had Same Goal: To Help Their People,” Indian Country Today, March 27, 2013, available at

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As law turned into a prominent bargaining tool for tribes, the contemporary legal tribal sovereignty movement at large has had to adapt its strategies, not only because the composition of the Supreme Court changed, but because the political circumstances which Indian rights advocates navigated also shifted. These changes channeled the movement into additional new directions, such as cooperative agreements and settlements over water rights as well as of land claims.418 For instance, on the issue of land claims, the courts recognized aboriginal title even for some East Coast tribes. In the mid-1970s, the Passamaquoddy and Penobscot in Maine, who claimed “12.5 million acres of land, or nearly two-thirds of the state of Maine,” in the 1970s.419

But the tribes eventually settled for $81.5 million, buying lands outside of their traditional territories, from which non-Indian settlement would—or could—not be moved.420 Land rights are not the only situations in which mutually beneficial agreements have been concluded since the 1980s. Other areas include taxation, waste disposal, and law enforcement. Such “agreements

[have] resolve[d] disputes that would otherwise [have remained] mired in costly, protracted, and sometimes inconclusive litigation.” These processes largely derived from the fact that “the day- to-day problems of governance in the context of federal Indian law have become increasingly difficult, [leading] the governments involved [to turn] less to the courts and to Congress and

https://indiancountrymedianetwork.com/news/business/early-pioneers-of-indian-gaming-had-same-goal-to- help-their-people/ (last accessed July 19, 2017).

418 Interview with Carole Goldberg; and Interview with Bob Anderson, by author, by phone, November 13, 2015.

419 Paul Brodeur, Restitution: The Land Claims of the Mashpee, Passamaquoddy, and Penobscot Indians of New England (Boston: Northeastern University Press, 1985), 706. For the court opinion, see Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1975). For background information on the case, see Francis O’Toole and Thomas Tureen, “State Power and the Passamaquoddy Tribe: ‘A Gross National Hypocrisy?’” Maine Law Review 23 (1971): 1-39. For a similar case concerning the Oneida in New York State, see George Shattuck, The Oneida Land Claims: A Legal History (Syracuse: Syracuse University Press, 1991).

420 See Maine Indian Claims Settlement Act, 94 Stat. 1785 (1980).

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more to the negotiating table.”421And indeed, the most overpowering and paternalistic foundational principles of Indian law remain in place: perhaps most salient are the conception of tribes as domestic dependent nations, the congressional plenary power doctrine, and the trust doctrine. Native Americans do not like to think of themselves as wards of the federal government. Who would? Indian rights lawyers have used the trust doctrine as a ‘necessary evil’ in their arguments to protect tribes from state and corporate incursions into tribal sovereign powers. Clearly, this specific practice does little to correct continuing structural imbalances. Yet, to this day, tribes still need the protection of the federal government in order to face corporate and State interests—their most dedicated opponents.

Potential developments in this area are already in sight, as tribes push back and demand reform. Few have attempted to debunk the trust doctrine. But recently, several strides have been made to try and start dismantling the concept of plenary power as it applies to Indian nations.

The Standing Rock Sioux, for instance, took a stance against the doctrine in the context of the

Dakota Access Pipeline.422 Another example involves a controversy over water rights on the

Crow Reservation in Montana, which are threatened of extinguishment in exchange for a monetary compensation. The tribe and its counsel have argued that lack of tribal consent to the deal precludes congressional plenary power from being lawfully applied, which has the potential to challenge the very legitimacy of the doctrine.423

421 David H. Getches, Negotiated Sovereignty: Intergovernmental Agreements with American Indian Tribes as Models for Expanding Self-Government,” Review of Constitutional Studies 1, no. 1 (1993-1994): 121-122.

422 Cf. Peter D’Errico, “Yankton Sioux Challenges ‘Plenary Power’ Doctrine in DAPL Case,” Indian Country Today, February 27, 2017, available at https://indiancountrymedianetwork.com/news/opinions/yankton-sioux- challenges-plenary-power-doctrine-dapl-case/?mqsc=ED3874161 (last accessed July 19, 2017).

423 Interview with Tom Luebben. For a description of the issue in the period following the water settlement concluded between the Crow Tribe, the federal government, and the state of Montana, see Gale Gourey Toensing, “Crow Judge Denies Petition to Stop Water Settlement Act Vote,” Indian Country Today, March 18,

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The enduring existence of these doctrines makes it complicated for tribes to freely exercise right of self-government, and force constant back and forths between tribal and other governments as tribes seek to maintain or reaffirm autonomy over their lands and people, thereby reminding us that tribal sovereignty takes on more diverse meanings than we sometimes care to admit. As the Harvard Project on American Indian Economic Development, a project co-hosted by Harvard University and the Native Nations Institute at the University of Arizona and anchored in research and consultation with tribes across the country, has amply demonstrated,

“the Native resurgence in recent decades has been as much about building the legal, administrative, and managerial capacity to self-govern as it has been about asserting Native identity and culture.”424 For instance, guidelines have been designed in order to foster bilateral

(sometimes multilateral) cooperation between the interests involved on tribal lands.425 This requires an effort on our part to stop reinforcing stereotypes about Native Americans as helpless, agency less, noble savage, greedy or as people who are not allowed, for instance, to be economically successful.426 Yet, we would do well not to forget that individual tribal members

2011, available at https://indiancountrymedianetwork.com/news/crow-judge-denies-petition-to-stop-water- settlement-act-vote/ (last accessed July 19, 2017).

424 Dennis K. Norman and Joseph P. Kalt, Universities and Indian Country: Case Studies in Tribal-Driven Research (Tucson: The University of Arizona Press, 2015), 149-150. For more publications by the Project, see http://www.hpaied.org/publications-and-research.

425 See, for instance, Harvard Project on American Indian Economic Development, On Improving Tribal- Corporate Relations in the Mining Sector: A White Paper on Strategies for Both Sides of the Table,” April 2014, available at http://www.hpaied.org/sites/default/files/documents/miningrelations.pdf (last accessed July 19, 2017).

426 On this point, see, for instance, Alexandra Harmon, Rich Indians: Native People and the Problem of Wealth in American History (Chapel Hill: University of North Carolina Press, 2010).

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living on certain reservations still struggle to even establish a business merely because of antiquated laws which have not been repealed.427

Whether in the period examined here or at any other time in American history, the historical record makes it clear that tribal sovereignty, including its legal iterations, can neither be fully restored nor abrogated. It will never be permanently stable, but it remains alive and dynamic. Indeed, the very conditions of its existence are contained in a myriad negotiations with conflicting visions of politics, law, social and economic life, culture, and spirituality. Its longevity is a testimony to a possible set of plural practices which can only be preserved and potentially developed further through human action on institutions and education, while realizing that it will always have to grapple with competing visions of the use of land and natural resources, among other things. Thus, the work of Indian rights lawyers alongside that of tribes is in itself an exercise in tribal sovereignty at work and an expression of competing visions which ultimately have to do with the management of a national society. Perhaps, then, its most potent tool is the strengthening of diplomatic relations between all segments of society, even when adversarial litigation is involved. Individual tribes will decide on a case-by-case basis.

Opposition to tribal interests also sheds light on the fact that competing visions of an ideal American political, legal, and cultural system have always pushed against each other in order to make room for themselves. To the question posed in the introduction to this dissertation about whether the United States is and/or can be a plural state, I answer in the positive—albeit not in a post-civil rights liberal framework, but, rather, as one that is less comfortable to accept and that this country seems more often tempted to sweep under the carpet of its own imagination:

427 This is the case, for instance, for residents of the Navajo Reservation, on which establishing an individual business can mean risking to lose one’s land as collateral if the business fails, thereby discouraging people from trying in the first place. Interview with Steve Shirley, by author, Shiprock, NM, September 29, 2015.

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as a complex set of visions of government placing different sovereigns center stage (whether it is tribes, the federal government, or States). This, in essence, makes it all the more challenging to see potential ways to resolve or even enforce rights of tribal sovereignty, but it reflects reality better than locking ourselves up in the illusion that it is not there.

Even lawyers who represented Indian nations (and sometimes individuals) during that time have struggled with the ways in which Indian law has evolved over the past half century. Many of these then new Indian rights lawyers consider ‘casino lawyers’ as a species of ‘crooks’ working for a version of Indian life that does not qualify as a true and worthy Indian sovereignty fight.

More profoundly, such exercises of tribal sovereignty make it difficult to reconcile with what these lawyers have fought against in the larger social system, namely the imbalanced distribution of resources. If Indian law enabled them to pursue a redistributive vision of social justice, its contemporary iterations sometimes point to some kind of ‘failure’ of their initial project.

Scholars and practitioners have celebrated the Supreme Court for reviewing Indian rights cases at a higher rate than ever in American history.428 But preliminary research on an isolated period of the court’s processing of Indian issues already shows that this is not the case. By delving into the Supreme Court’s record on cases involving tribal issues, Reid Chambers (former

Associate Solicitor for Indian Affairs in the Department of the Interior and longtime Indian rights lawyer) located over 250 cases reviewed by the Supreme Court between 1865 and 1926.429 Many of these cases dealt with questions pertaining to Indian land allotments. For the periods between

1890 and 1900 and 1900 and 1910 alone, he found that “there were about as many cases

428 Robert S. Pelcyger, “Justices and Indians,” 29. See also Wilkinson, American Indians, Time and the Law. See the appendix to the latter for a detail of these cases.

429 For an inventory of these cases, see the Appendix, “United States Supreme Court Cases Dealing with Indian Affairs, 1865 to 1926” (courtesy of Reid Chambers).

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involving Indian law decided by the United States Supreme Court as there were in the 1970’s and 1980’s. . . . And between 1910 and 1920, there were over one hundred Indian decisions by the United States Supreme Court, roughly two and one-half times as many as are being decided in the present decade.”430 This is important because if, as Chambers points out, “the Indian law principles . . . being applied in Oklahoma in the late 1970’s and 1980s’s in this baker’s dozen of cases . . . actually apply principles that were confirmed and developed in cases involving

Oklahoma Indians around the turn of the century or before,” then we must ask whether—and, if so, how—the Court’s decisions in these cases have seeped into modern Indian law. Given that the ‘Civilized Tribes’ of Oklahoma tribes were displaced there from the Southeast as part of the

Indian Removal policy designed by the Founding Fathers and implemented by Andrew Jackson post 1830, this could tell us much about ways in which contemporary Indian law adjudication reproduces assimilationist policies of the first part of the 19th century.

It is both impossible and unwarranted to conceive of or carve a general framework for

Indian rights. But it is useful and necessary for lawyers (and tribes, I would argue) to think about the deeper underpinnings of Indian law practice and adjudication as a direction to aim toward whenever a tribal nation or individual decides to use the law for protection of their rights, particularly because its difficult history is inscribed in every one of its pores. If philanthropic foundations stifled the organizations which could potentially have carved alternative ways of rethinking Indian law in the long term, Felix Cohen’s vision of Indian rights was no less successful for it failed to build a following even among his own protégés (some of whome became some of the most prominent Indian Claims Commission lawyers). It has also seemingly

430 Reid Peyton Chambers, “The 1988 Chapman Address: Oklahoma Indian Law—Cases of the Last Decade and Opportunities for the Next Decade,” Tulsa Law Journal 24 (1989): 706, emphasis in original.

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been difficult for scholars to avoid streamlining Cohen’s thinking about Indian rights. It is more challenging to think of ways in which it can be liberated further, and it would be idealistic to believe that a resolution of its inherent tensions inherent will ever be solved for it is intrinsically embedded into the fabric of the society which created it. When we look closely, history seems to show—and repeatedly so—that although some of the major conceptions of what American society should ‘be like’ as articulated by its disagreeing segments are indeed incompatible and irreconcilable, they have nonetheless somehow managed to continue existing side by side.

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Bibliography

PRIMARY SOURCES

Interviews and Personal and Email Communications

Cited Interviews

Interview with Bob Anderson, by author, by phone, November 13, 2015. Interviews with Russel Barsh, by author, by phone, November 7 and November 21, 2016. Interview with Reid Chambers, by author, by phone, November 11, 2015. Interview with Rick Collins, by author, Boulder, CO, November 29, 2016. Interview with Tim Coulter, by author, Helena, MT, October 2013 and by phone, January 31, 2017. Interview with Greg Dallaire, by author, by phone, September 28, 2016. Interview with Loretta Danzuka, by author, Shiprock, NM, September 29, 2015. Interview with Ada Deer, by author, by phone, December 14, 2016. Interview with George Duke, by author, by phone, October 30, 2015. Interviews with John Echohawk, by author, Boulder, CO, November 7, 2013 and May 8, 2017. Interview with Tom Fredericks, by author, Louisville, CO, September 26, 2016. Interview with Carole Goldberg, by author, by phone, June 15, 2017. Interview with Bruce Greene, by author, Boulder, CO, September 28, 2016. Interview with Charlie Hobbs, by author, by phone, November 4, 2015. Interview with Arthur Lazarus, by author, by phone, November 12, 2015. Interview with Arlinda Locklear, by author, by phone, November 4, 2016. Interview with Tom Luebben, by author, by phone, July 18, 2017. Interview with Steve Moore, by author, Boulder, CO, January 28, 2015. Interview with Mason Morisset, by author, by phone, September 20, 2016 and March 20, 2017. Interview with Robert Pirtle, by author, by phone, September 23, 2016. Interview with Frank Pommersheim, by author, by phone, December 2, 2016. Interview with Monroe Price, by author, New York, NY, January 27, 2014. Interview with Ray Ramírez, by author, Boulder, CO, December 3, 2014. Interview with Lee Sclar, by author, by phone, November 3, 2016. Interview with Steve Shirley, by author, Shiprock, NM, September 29, 2015. Interview with Mary Ellen Sloan, by author, Salt Lake City, June 5, 2015. Interview with Jerry Straus, by author, by phone, November 13, 2015. Interview with Mike Taylor, by author, by phone, September 23, 2016. Interview with Bill Thorne, by author, by phone, June 8, 2015. Interview with Jana Walker, by author, Helena, MT, October 2013. Interview with Charles Wilkinson, by author, Boulder, CO, November 19, 2015 and November 16, 2016. Interview with Al Ziontz, by author, by phone, November 19, 2015.

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Cited Personal Communication

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Interview with Brenda Anderson, by author, by phone, October 13, 2015. Interview with Howard Belodoff, by author, Salt Lake City, UT, June 4, 2015. Interview with Bethany Berger, by author, by phone, November 12, 2013. Interview with Katherine Belzowski, by author, Window Rock, AZ, September 28, 2015. Interview with Lateigra Cahill, by author, Shiprock, NM, September 29, 2015. Interview with Mike Chiropolos, by author, Boulder, CO, December 3, 2014. Interview with Rick Collins, by author, Boulder, CO, December 3, 2014 and November 29, 2016. Interview with John Echohawk, by author, Boulder, CO, June 3, 2014. Interview with Ian Fisher, by author, Boulder, CO, March 20, 2015. Interview with Sage Garland, by author, Window Rock, AZ, September 28, 2015. Interview with Louise Grant, by author, by phone, November 2, 2015. Interview with Richard Guest, by author, by phone, November 24 and 30, 2015. Interview with Richard Hughes, by author, by phone, October 8, 2015. Interview with Scott McElroy, by author, Boulder, CO, July 1, 2015. Interview with Scott Peck, by author, Boulder, CO, November 13, 2015. Interview with Harry Sachse, by author, by phone, November 29, 2016. Interview with Richard Schifter, by author, by phone, November 19, 2015. Interview with Tom Schlosser, by author, by phone, September 20, 2016. Interview with Rob Thompson, by author, by phone, November 7, 2016. Interview with Richard Trudell, by author, by phone, September 29, 2016. Interview with Gloria Valencia-Weber, by author, by phone, December 9, 2015. Interview with Matt Van Wormer, by author, by phone, October 21, 2015. Interview with Therese Yanan, by author, Farmington, NM, September 29, 2015.

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Sam Deloria, unsuccessful contact. David Getches, deceased. Fred Hart, unsuccessful contact. Ralph Johnson, deceased. John T. McDermott, declined.

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Uncited Email Communications

Russel Barsh, e-mail message to author, September 27, 2016. Howard Belodoff, e-mail messages to author, June 4, 8, and 9, 2015. Reid Chambers, e-mail messages to author, September 19 and 20, 2016. Rick Collins, e-mail messages to author, December 4, 2014 and September 9, 2015. Steve Moore, e-mail messages to author, December 3 and 4, 2014; January 29, 2015; May 28 and 31, 2015; and September 23, 2015. Tom Schlosser, e-mail messages to author, September 21, 27, and 28, 2016.

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For United States v. Washington, 384 F. Supp. 312 (W.D. Wash., 1974): Transcripts of Proceedings, August 27, 1973, Tacoma, WA, held by the Northwest Indian Fisheries Commission.

Oral Argument of David Getches, pp. 18-30 Oral Argument of Al Ziontz, pp. 30-42 Oral Argument of James B. Hovis, pp. 42-49 Oral Argument of Mike Taylor, pp. 49-53 Oral Argument of Lester Strittmatter, pp. 53-59

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―――. Handbook of Federal Indian Law. Washington, D.C.: U.S. Department of the Interior, 1942.

―――. Handbook of Federal Indian Law. Washington, D.C.: U.S. Government Printing Office, 1945.

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Price, Monroe E. Law and the American Indian: Readings, Notes and Cases. Indianapolis: The Bobbs-Merrill Company, Inc., 1973.

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Compilation of Indian Rights Cases Decided by the Supreme Court between 1865 and 1930

Chambers, Reid Peyton. “United States Supreme Court Cases Dealing with Indian Affairs, 1865 to 1930.” Courtesy of Reid Chambers, sent to author by email (see Appendix).

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Congressional Hearing

U.S. Congress. Senate. S. 961, S. 962, S. 963, S. 964, S. 965, S. 966, S. 967, S. 968, and S.J. Res. 40 To Protect the Constitutional Rights of American Indians: Hearings before the Subcommittee on Constitutional Rights of the Committee on the Judiciary. 89th Cong., 1st sess., June 24, 1965.

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Price, Monroe E. Objects of Remembrance: A Memoir of American Opportunities and Viennese Dreams. New York: Central European University Press, 2009.

Zah, Peterson, and Peter Iverson. We Will Secure our Future: Empowering the Navajo Nation. Tucson: University of Arizona Press, 2012.

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―――. “Larry Itliong Tapes II: How the Fil-Am Labor Leaders Didn’t Sell Out, and His Comment on Cesar Chavez.” October 28, 2013. Accessed May 3, 2017. http://aaldef.org/ blog/larry-itliong-tapes-ii-how-the-fil-am-labor-leader-didnt-sell-out-and-his-comment- on-cesar-chavez.html.

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―――. Messages from Frank’s Landing: A Story of Salmon, Treaties, and the Indian Way. Seattle: University of Washington Press, 2000.

―――. “The Salmon People, Judge Boldt, and the Rule of Law.” Experience 16 (Winter 2006): 35-39.

Wilkinson, Glen A. “Indian Tribal Claims before the Court of Claims.” The Georgetown Law Journal 55 (1966-1967): 511-528.

Williams, Robert A., Jr. The American Indian in Western Legal Thought: The Discourses of Conquest. New York: Oxford University Press, 1990.

―――. Like a Loaded Weapon: The Rehnquist Court, Indian Rights, and the Legal History of Racism in America. Minneapolis: University of Minnesota Press, 2005.

Wolfson, Warren D. “Oral Argument: Does It Matter?” Indiana Law Review 35 (2001-2002): 451-456.

Wood, William. “The Trajectory of Indian Country in California: Rancherías, Villages, Pueblos, Missions, Ranchos, Reservations, Colonies, Rancherias.” Tulsa Law Review 44 (2008- 2009): 317-363.

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Appendix

United States Court Cases Dealing with Indian Affairs,

1865-1926431

431 Courtesy of Reid Peyton Chambers.

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