In the winter of 1831, Alexis de Tocqueville watched as a boat full of
Choctaws floated across the ice-filled Mississippi on their way to exile in
the West. "I believe that the Indian nations of North America are doomed to
perish," the French aristocrat warned.
Then he predicted something else just as awful: The law would give its
blessings to the project.
Tocqueville, it turned out, was wrong on both counts: Indian people didn't
disappear, and the law - finally - relented in its attack. But the day was
still far ahead when tribes would turn a legal apparatus that sought to
crush them into a vital tool for their own survival.
Today, the wisdom of Indian law could fill a large library. No one has
spent more time thumbing through its volumes than Rennard Strickland,
Philip H. Knight Professor of Law at the University of Oregon, who has
dedicated a career to studying the ups and downs of Indian legal fortunes.
In Washington, D.C. recently to address the American Anthropological
Association, he spoke candidly in a coffee shop near the same White House
where presidents from Jackson to Truman have hatched dubious Indian
policies with names like Removal, Allotment and Termination.
"At the end of the 19th century, not just the Five Civilized Tribes but
[everyone] across the country believed that Indian law, Indian legal
systems, and tribes were, as Angie Debo says, 'on the road to
disappearance,'" Strickland began. "This was something that was gone. There
would be no more. And tragically, numbers of Indians came to believe that."
A legal historian, Strickland cited the Major Crimes Act of 1885 as a huge
obstacle to practicing tribal law. The act grants federal jurisdiction for
crimes like murder, arson, robbery and rape in Indian country. Though
Native courts are hobbled by competing jurisdiction, he added, "so many
people make the mistake of thinking that only criminal issues are in fact
law, when most of what any society does, the ongoing day to day, is civil."
An Indian presence in legal codes, said Strickland, of Cherokee and Osage
descent, endures even today.
"The strongest thing you see in Cherokee or any other tribal law is the
persistence of tribal value structures, whether or not it's specifically
enforced in a legal code. You see particularly the value of consensus, the
importance of respect for conflicting views and the desire to develop a way
that people who may have some basic differences can continue to work
together for the tribe."
Strickland, ranging on subjects from sovereignty to tribal courts to Mr.
Tocqueville, described himself as an "Okie from Muskogee." Behind the
folksy self-portrait is a nimble mind that has authored or edited books on
Indian law, Native art, Cherokee history - even a handbook for avoiding
"teacher malpractice" in the legal trade. Former dean of the Oregon law
school, he is a member of the executive committee of the board of editors
charged with revising the latest edition of Felix Cohen's "Handbook of
Federal Indian Law", due to appear in 2005.
Strickland doesn't believe for a moment that federal law is the basis of
Indian policy. In fact, it's the other way around. "Law changes from
generation to generation," he explained. "If it is in the broader societal
interests to open land to settlement, a way is found to legally do that."
The long-term result "from generation to generation, [is] an interpretation
of law that varies," a fact which explains why tribes have careened from
assimilation to IRA, from Termination to self-governance over the years. As
the professor quoted a late-19th century journalist, "'The court reads the
Still, said Strickland, trends in the past 50 years have been largely
positive. Much of the credit he gives to World War II veterans returning
from overseas. "The soldiers had come to know other Indians; they had seen
that the world was not just bifurcated, it was not just an
Indian/non-Indian world." Faced with Termination, they put their worldly
experience to use by protesting, lobbying, even testifying on Capitol Hill.
"The new generations of young lawyers and not-so-young lawyers," he said,
"couldn't have done it absent that determination."
One result of their work has been a second look at a number of legal sacred
cows. Strickland offered as an example the formidable Curtis Act (1898),
which the BIA long used to deny a court system to Oklahoma Indians. It took
one of his former students, Geoffrey Standing Bear, to argue in Muscogee
(Creek) Nation v. Hodel that funds be allocated to create Muscogee courts.
After the BIA resisted, Standing Bear appealed to an Interior Department
review board, only to be denied. In 1998, the D.C. Circuit court overturned
the decision, saying the Oklahoma Indian Welfare Act (1936) included a list
of acceptable enterprises, among them a tribal court system.
The victory was founded almost on an accident. "What I think happened was
they simply listed the things the tribes could do out of the original
Wheeler-Howard Act (1934)," Strickland mused, "which the Oklahoma tribes
had been exempted from, and nobody spent much time thinking about what is a
long list. But the court said, 'It's here. It says they can. How could you
choose not to fund this if we've got a federal statute that authorizes them
to establish their own court systems?'"
The movement today "is being driven by second, third, and, in some cases,
fourth generation Indian lawyers," concluded Strickland, currently at work
on a book about tribal advances in the modern era. "I think all the Indian
experience, not just the Cherokees, is the importance of holding on, to
believing in your central values and not allowing yourself to be destroyed.
The remarkable thing about the whole American Indian experience is that
Native people have held on."
Tocqueville, for his part, believed he had met the last of the Iroquois.
But Class III gaming and P.L. 638 funds were beyond his ken. So, too, was
an idea called "Indian sovereignty" - an ages-old notion revived just a