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Scholars rewrite classic Indian law handbook

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CAMBRIDGE, Mass. - As red-gowned law students celebrated graduation on a festive Harvard Law School campus June 5, Professor Joseph Singer prepared for a summer assignment of immense importance for all of Indian country.

Singer, a mild, precisely spoken teacher of property law at this elite Ivy League school, is one of seven senior editors who will meet in Albuquerque, N.M., this July to pull together the final draft of a new version of Felix S. Cohen's "Handbook of Federal Indian Law." The Cohen Handbook makes a classic case for tribal sovereignty, and the update is bound to continue the fight. If everything stays on schedule, the new Handbook, published by Matthew Bender, will appear in 2004.

With chapters by up to 35 leading scholars, the book will crystallize the thinking in a field that has been energized by what many leaders see as a hostile and unprincipled Supreme Court. Singer expects that a number of essays, including his own, will subject recent court decisions to intense criticism.

The Handbook will provide an overview of Indian law and an explanation of tribal sovereignty for lawyers, judges and even, its writers hope, the Supreme Court, but it will also try to reach the general public. "The educational role," said Singer, "is equally important."

Although the Handbook has been updated before, most recently in 1988, its potential importance at this juncture could come close to the impact of its original appearance in 1941. No single reference for Indian law existed when in 1939 Interior Secretary Harold L. Ickes asked Assistant Interior Solicitor Felix S. Cohen to make sense of what were then some 4,000 treaties and statutes and thousands of judicial and administrative rulings.

Cohen, the son of a Russian immigrant philosophy professor, was already a major force in restoring tribal self-government. He had drafted the Indian Reorganization Act of 1934, which ended the Allotment Era and provided for tribal constitutions. In addition to legal experience, Cohen brought wide learning and philosophic training to the new assignment.

His humanity and wry humor shows through the first sentence of the text; "Indians are human beings, and like other human beings become involved in lawsuits." His starting point in the U.S. Constitution might strike many current Indian legal thinkers as paternalistic, but there is no question that his spirit was ahead of his time, and even further ahead of the current Supreme Court.

The Handbook poses four principles of Indian law, not totally compatible. First is political equality of the races; since all Indians are U.S. citizens in the eye of the Constitution, they are protected from racial discrimination. Hence "Indian law" cannot be race-based; it can only be justified in terms of "the existence of Indian tribes."

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The second principle, then, is that tribes are sovereign political bodies with powers of self-government. Quoting Chief Justice John Marshall, Cohen traces this sovereignty to "original natural rights" and "the accepted rule of international law." The third principle, however, is that tribes are "subject to the control of the Federal Government." The Constitution, through the Commerce Clause and federal treaty-making power, excludes the states from any role, unless Congress delegates one to them.

The fourth principle expounds on the reason for keeping states out of Indian affairs. Only the Federal government could be trusted to protect Indian interests, to the extent any non-Indian could be. In a touch that seems unmistakably Cohen's, the Handbook observes about the Federal trust relation, "To the cynic such legislation may frequently appear as a mechanism for the orderly plundering of the Indian." But "at least the theory" of Indian law is that "the government owed a duty of protection to the Indian in his relations with non-Indians."

These principles might in theory be consistent, but concluded the Handbook, the fact that they weren't provided the material for the following 650 pages.

Cohen retired from Interior in 1948, receiving its highest honor, and went on to a distinguished teaching career at Yale Law School and the City College of New York's Department of Philosophy. He died at the height of his powers in 1953, at the age of 46. He never wrote the comprehensive work of jurisprudence for which his students hoped, and a selection of his broad range of essays, published in 1960 as "The Legal Conscience" (Yale University Press), is pocked with footnotes recording how the Supreme Court was already beginning to erode his principles of Indian law.

The new edition will track the Supreme Court's continued eating away of sovereignty. Although essays will be new, Singer said the book would retain some of Cohen's language.

The other lead editors are already preparing for the summer push. Editor-in-chief Nell Jessup Newton, dean of the University of Connecticut Law School, has July blocked off in her calendar, said her secretary while unsuccessfully trying to schedule an interview before press time.

The other lead editors are Bernard Strickland of the University of Oregon, Carole Goldberg of UCLA, John LaVelle, wrapping up a year at the University of South Dakota and heading to the University of New Mexico, Judy Royster of the University of Tulsa and Robert Anderson of the University of Washington.

Reached by phone while grading final exams, Anderson said, "We've got a good draft."

"Everybody is working hard on it," he said.