'An Indian Cannot Get a Morsel of Pork...' - A Retrospective on Crow Dog, Lone Wolf, Blackbird, Tribal Sovereignty, Indian Land and Writing Indian Legal History
26 Pages Posted: 12 Feb 2010
Date Written: September 1, 2002
Lone Wolf v. Hitchcock, one of the many landmark Indian law cases wrongfully decided in the United States, can be discussed on a number of levels. One place to start is with the role that the case played in depriving many Indian tribes of their lands. Lone Wolf's infamous holding that Congress has “plenary power” over Indians and can dispose of Indian lands at will is a decision that, more narrowly construed, refused to apply the Fifth Amendment's Takings Clause to protect Indian property rights. But another place to begin is with Lone Wolf's place in Indian legal history. The contemporary field of federal Indian law is explicitly historical; it is one of the few areas of the law where cases over a hundred years old are routinely cited for legal principles that govern modern cases.
Any legal history of Lone Wolf, or any other major case, should not focus on the holding of the case, a holding which is now discredited, but rather on the basic place of the Indian nation in the making of American legal history and, in turn, the meaning of that legal history to the Indian nations. Indian activity brought *88 thousands of cases to American courts in the nineteenth century and even more in the twentieth century. Such cases have a significant role in defining the place of Indian nations in relation to the American state, not just doctrinally, but also politically and socially. And this place does not turn on the narrow holding of each case. Rather, the cases take on symbolic meanings, often representing complex Native American positions on particular matters at particular moments in history. Some cases, like Lone Wolf, are carefully thought out and move forward in a deliberate way. Others, especially criminal cases, are more defensive, pursued by Indians hoping to avoid the death penalty or prison sentences, which too were often a death penalty for Indians in the nineteenth century.
What follows is our rethinking of the meaning of Lone Wolf as legal history through the examination of Ex parte Crow Dog and In re Blackbird, two very different cases in which the authors have become en-gaged. In Crow Dog's Case: American Indian Sovereignty, Tribal Law, and United States Law in the Nineteenth Century, Sidney Harring brings to light American Indian sovereignty, tribal law, and United States law in the nineteenth century. While the book centers on one well-known “sovereignty case,” it attempts a sweeping view of late nineteenth century cases in federal Indian law. But looking back at the book after ten years, questions arise, such as: What about the thousands of other contemporary late nineteenth century cases in Indian law? What do they mean? The broader question is: How do legal historians construct the categories of their various interpretive schemes? Particularly suspect here is the obvious problem of the “great case” approach to legal history, which suf-fers from the same difficulties as the “great person” (or “famous dead judges”) approach to legal history. Because great cases like Crow Dog and Lone Wolf concentrate on primary source materials, they are relatively easy to write about. At the same time, these cases are landmarks in Indian legal history, and therefore they deserve close analysis. However, the focus of scholarship on a handful of major cases, which happen to become doctrinally significant, may distort our understanding of Indian legal history.
Keywords: Government Indian Ralations, Tribal Law, Reservation, Indian Law, Tribal Sovereignty
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