States' Rights, Welfare Rights, and the 'Indian Problem': Negotiating Citizenship and Sovereignty, 1935-1954

Law and History Review, Volume 33, No. 1, 2015, DOI: org/10.1017/S073824801400056X

Posted: 14 Mar 2015

See all articles by Karen Tani

Karen Tani

University of California, Berkeley

Date Written: December 11, 2014

Abstract

Starting in the 1940s, American Indians living on reservations in Arizona and New Mexico used the Social Security Act of 1935 to assert unprecedented claims within the American federal system: as U.S. and state citizens, they claimed federally subsidized state welfare payments, but as members of sovereign nations, they denied states the jurisdiction that historically accompanied such beneficence. This article documents their campaign, and the fierce resistance it provoked, by tracing two legal episodes. In 1948, through savvy use of both agencies and courts, and with aid from former government lawyer Felix Cohen, reservation Indians won welfare benefits and avoided accompanying demands for state jurisdiction; the states, in turn, extracted a price -- higher subsidies -- from the federal government. Arizona officials re-opened the dispute in 1951, by crafting a new welfare program that excluded reservation Indians and suing the federal government for refusing to support it. The 1954 dismissal of the case was a victory for Indians, but also leant urgency to efforts to terminate their anomalous status. Together these episodes illustrate the disruptive citizenship claims that became possible in the wake of the New Deal and World War Two, as well as the increasingly tense federal-state negotiations that followed.

Keywords: Legal history, Federalism, Native Americans, sovereignty, citizenship, states' rights, administrative law, welfare, welfare state, New Deal, civil rights, welfare rights, grants-in-aid, Equal Protection

Suggested Citation

Tani, Karen, States' Rights, Welfare Rights, and the 'Indian Problem': Negotiating Citizenship and Sovereignty, 1935-1954 (December 11, 2014). Law and History Review, Volume 33, No. 1, 2015, DOI: org/10.1017/S073824801400056X. Available at SSRN: https://ssrn.com/abstract=2577523

Karen Tani (Contact Author)

University of California, Berkeley ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

HOME PAGE: http://www.law.berkeley.edu/php-programs/faculty/facultyProfile.php?facID=15050

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