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*This paper has been prepared with the insights and advice of Ann Catherine Boyce, Ada Deer, Michael Green, Rayna Green, Yvonne Knight, Oren Lyons, Alan Parker, David Warren, and Petersen Zah. Gratitude is expressed to them for their ideas, suggestions, and criticisms. All shortcomings or errors are my own.

1Thomas C. Patterson, America's Past: A New World Archeology (Glenview, Ill.: Scott, Foresman, 1973), pp. 22-27.

2See, for instance, E.B. Leacock and N.O. Lurie (eds.) North American Indians in Historical Perspective (New York: Random House, 1971); Wendell H. Oswalt, This Land Was Theirs (New York: John Wiley, 1978); or Robert F. Spencer. Jesse D. Jennings, et al., The Native Americans (New York: Harper & Row, 1978).

3See, for instance, Wilcomb E. Washburn, The Indian In America (New York: Harper & Row, 1975), pp. 67-110.

4Finnish, Magyar, Basque, and Estonian are the non-Indo-European languages spoken by contemporary Europeans.

5For an excellent discussion of this topic, see Ronald Sanders, Lost Tribes and Promised Lands: The Origins of American Racism (Boston: Little, Brown, 1978).

6Margaret Aston, The Fifteenth Century: The Prospect of Europe (New York: Harcourt, Brace & World, 1968), pp. 9-48.

7Wilcomb E. Washburn, Red Man's LandlWhite Man's Law: A Study of the Past and Present Status of the American Indian (New York: Charles Scribner's Sons, 1971), pp. 3-23.

8I am indebted to Professor Henrietta Whiteman, a Southern Cheyenne and chairperson of the Department of Native American Studies at the University of Montana, for this priceless tale.

9Louis Hanke, Aristotle and the American Indians: A Study in Race Prejudice in the Modern World (London: Hollis & Carter, 1959), pp. 1-27.

10Dr. David Stinebeck, professor of American Studies at the University of Rhode Island, discussed this topic at a lecture delivered at Dartmouth College in 1975.

11This attitude permeates the early anthropological theory of Sir Edmund Tylor in England and of Lewis Henry Morgan in the United States.

12Michael Dorris, Native Americans: Five Hundred Years After (New York: Thomas Y. Crowell, 1975), pp. 3-11.

13For an excellent discussion of this topic, see Robert F. Berkhofer, Jr., The White Man's Indian: Images of the American Indian from Columbus to the Present (New York: Alfred A. Knopf, 1978).

14For a full examination of the effects of Old World diseases on American Indians, see Alfred W. Crosby, Jr., The Colombian Exchange: Biological and Cultural Consequences of 1492. (Westport, Conn.: Greenwood Publishing Co., 1972). Indians continue to have higher incidences of certain diseases than the general population. According to Indian Health Trends and Services (1974 Edition, U.S. Department of Health, Education and Welfare, Public Health Service, Health Services Administration, Indian Health Service, Division of Resource Coordination, Office of Program Statistics, DHEW Publication No. (HSA) 74-12,009, pp. 13-48), diseases that are more prevalent for Indians include tuberculosis (a rate of 157.4 cases per 1,000 population for Indians compared with a rate of 17 cases per 1,000 population for the U.S. population as a whole), cirrhosis of the liver, otitis media, and influenza. It is also interesting to note the early American theory that God sent smallpox and other diseases to clear out Indians. For a fuller discussion, see Roy Harvey Pearce, Savagism and Civilization: A Study of the Indian and the American Mind (Baltimore: The Johns Hopkins University Press, 1965), pp. 1-35.

15E. Wagner Stearn and Allen E. Stearn, The Effect of Smallpox on the Destiny of the Amerindian (Boston: Bruce Humphries, 1945), pp. 44-45; also, Robert M. Utley and Wilcomb E. Washburn, The Indian Wars (New York: Simon and Schuester, 1977).

16Eva A. Speare, The Indians of New Hampshire (Littleton, N. H.: Chester Printing Co., 1936).

17For a thorough discussion of the methodology of Native American demographic estimation, see Henry Dobyns. "Estimating Aboriginal American Population: An Appraisal of Techniques with a New Hemispheric Estimate," Current Anthropology, vol. 7 (1966): 395-416; also, Wilbur R. Jacobs, "The Tip of the Iceberg: Pre-Columbian Indian Demography and Some Implications for Revisionism," William and Mary Quarterly, 31 (1974): 123-32.

18However, as has been pointed out, Indians still contract these diseases at a disproportionately high rate.

19Washburn, Red Man's Land/White Man's Law, p. 10.

20For a full discussion of all aspects of American Indian law, see Monroe E. Price, Law and the American Indian: Readings, Notes and Cases (Indianapolis: Bobbs-Merrill, 1973).

21See, for instance, Imre Sutton, Indian Land Tenure: Bibliographic Essays and a Guide to the Literature (New York: Clearwater Publishing Co., 1975), pp. 23-44.

22Institute for the Development of Indian Law, Old Problems—Present Issues: Nine Essays on American Indian Law (Washington, D.C.: Institute for the Development of Indian Law, 1979), p. 7.

23Ibid., p. 1.

24Ibid., p. 1.

25Act of July 22, 1790, I Stat. 137, 25 U.S.C.A. 177. The Final Form of the Non-Intercourse Act is found in the Act of June 30, 1834, c/61, #12, 4 Stat. 730. One might speculate that the newly created federal government used this act as a means of asserting its own sovereignty, paralleling federal, as opposed to state, authority with the already established sovereignty of Indian nations.

26Richard Peters (ed.), The Case of the Cherokee Nation Against the State of Georgia: Argued and Determined at the Supreme Court of the United States (Philadelphia: 1831) pp. 153-56.

2731 U.S. (6 Pet.) 515 (1832).

28Russel L. Barsh and James Y. Henderson, The Road: Indian Tribes and Political Liberty (Berkeley: University of California Press, 1980), p. 286.

29For a detailed case study of oral historical testimony, see Roxanne Dunbar Ortiz (ed.), The Great Sioux Nation: Sitting in Judgment on America (Berkeley: Moon Books, 1977).

30Congress, in an obscure rider to the Indian Appropriations Bill (U.S. Statutes at Large, 16:566, March 3, 1871), outlawed further treaty-making with Indian tribes. Thereafter, reservations were created by executive order; see "Tribal Property Interests in Executive Order Reservations: A Compensable Indian Right," Yale Law Review, 69 (1960): 627-42.

31Approximately 155 million acres remained in tribes located in what are today forty-eight contiguous states at the time treaty-making ceased.

32See Robert A. Trennert, Jr., Alternative to Extinction: Federal Indian Policy and the Beginnings of the Reservation System, 1845-51 (Philadelphia: Temple University Press, 1975).

33Second Annual Address to the Public of the Lake Mohawk Conference (Philadelphia: Indian Rights Association, 1884), pp. 6-7.

34D.S. Otis, The Dawes Act and the Allotment of Indian Lands, Francis Paul Prucha, (ed.) (Norman: University of Oklahoma Press, 1973), pp. 5-6.

35Arrell Morgan Gibson, The American Indian: Prehistory to the Present (Lexington, Mass.: D.C. Heath and Co., 1980), pp. 500-503.

36Institute for Government Research, The Problem of Indian Administration (Baltimore: The Johns Hopkins University Press, 1928).

37Gibson, The American Indian, p. 536.

38U.S. Statutes at Large, 48:984-88, June 18, 1934.

39For a discussion of some of the problems of conception and implementation of the Indian Reorganization Act, see Angie Debo, A History of the Indians of the United States (Norman: University of Oklahoma Press, 1970), pp. 339-42.

40Annual Report of the Secretary of the Interior, 1934, pp. 78-83.

41U.S. Statutes at Large, 67:B132, August 1, 1953.


43U.S. Statutes at Large, 67:588-90, August 15, 1953.

44Barsh and Henderson in The Road: Indian Tribes and Political Liberty note that the Indian Reorganization Act policy of repurchasing allotted reservation lands was adopted only a year after the twentieth century low point in the price of U.S. farmland (1933) (p. 289).

45Of the larger reservations, only the Menominee and the Klamath were actually terminated. For a discussion of the history of the policy in the former case, see Deborah Shames (ed.), Freedom with Reservation (Madison, Wisc.: National Committee to Save the Menominee People and Forests, 1972).

46Felix Cohen, Handbook of Federal Indian Law 1971 (Washington, D.C.: U.S. Government Printing Office, 1958), p. 123. (First edition, 1940).

47Some tribes or confederacies (e.g., Hopi and Iroquois) have on occasion demonstrated their conviction that they retain some of the prerogatives of external sovereignty through acts such as separate declaration of war on the Axis powers in 1941 and the issuance of tribal passports for certain types of international travel. The latter have, in recent years, been accepted by at least the European nations.

48Institute for the Development of Indian Law, Old Problems, p. 3.

49American Indian Policy Review Commission, Final Report, vol. 1 (Washington, D.C.: U.S. Government Printing Office, 1977), p. 622.

50Charles Kappler (ed. ), "Treaty of Hopewell with the Cherokees, 1785," in Indian Affairs: Laws and Treaties, vol. 2, pp. 8-11.


52Cherokee Nation v. Georgia, Worcester v. Georgia, Holden v. Joy.

53McClanahan v. Arizona Tax Commission, Fischer v. District Court.

54lnstitute for the Development of Indian Law, Old Problems, p. 5.

55U.S. Statutes at Large, 43:253, June 2,1924.

56163 U.S. 376 (1896).

57272 F. 2nd. 131 (10th Cir., 1959).

58Ibid., p. 134.

59U.S. Statutes at Large 82:77-81, 1968.

60Hearings on S.961-968 before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 89th Congress, 1st session.

61Hearings before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 91st Congress,1st Session, p. 15.

62As always, unless expressly specified, tribal sovereignty prevails.

63It remains unclear whether or not this amendment applies retroactively to those states already operating under 280.

6498 S. Ct. 1670 (1978).

65Ibid., p. 66.

66U.S. Statutes at Large, 88:2203, 1975.

67Ibid., Title 25, Section 450(a) 1 and 2.

6898 S. Ct. 1011 (1978).

69U.S. vs. Wheeler, 98 S. Ct. 1079, 1086 (1978).

70Trans-Canada Enterprises Ltd. v. Muckleshoot Indian Tribe, District Court for the Western District of Washington, Civ. no. C77-882M (July 27, 1978), as quoted in Barsh and Henderson.

71Barsh and Henderson, p. 291; see also Russel L. Barsh and James Y. Henderson, "The Betrayal: Oliphant v. Suquamish Indian Tribe and the Hunting of the Snark," Minnesota Law Review, 63 (4) (April 1979): 609-37.

72Samuel J. Brakel, American Indian Tribal Courts: The Casts of Separate Justice, American Bar Foundation, 1978, p. 8.

73Frederick J. Martone "Of Power and Purpose," Notre Dame Lawyer, 54 (5) (June 1979): 831.

74Robert G. McCoy, "The Doctrine of Tribal Sovereignty: Accommodating Tribal, State, and Federal Interests," Harvard Civil Rights, Civil Liberties Law Review, 13(2) (Spring 1978): 376.

75Ivan B. Rubin, "Federal Indian Law: Criminal Jurisdiction in Indian Country," Annual Survey of American Law, New York University School of Law, Issue 3 (1977): 517-33.

76McCoy, "The Doctrine of Tribal Sovereignty," p. 394.

77Implications of Civil Remedies under the Indian Civil Rights Act," Michigan Law Review, 75(1) (November, 1976): 230.

78Ibid., p. 325.

79Keith M. Werhan, "The Sovereignty of Indian Tribes: A Reaffirmation and Strengthening in the 1970's," Notre Dame Lawyer, 54(1) (October 1978): 5-26.

80Alvin J. Ziontz, "After Martinez: Civil Rights Under Tribal Government," University of California at Davis Law Review, 12 (March 1979): 35.

81Dario F. Robertson, "A New Constitutional Approach to the Doctrine of Tribal Sovereignty," American Indian Law Review, 6(2): 391.

82U.S. v. Wheeler, 98 S. Ct. 1079, 1086 (1978).

83Michael P. Gross, "Indian Self-Determination and Tribal Sovereignty: An Analysis of Recent Federal Indian Policy," Texas Law Review, 56(7) (August 1978): 1225.

84Credit for much of the material on the various legal views of the Indian Civil Rights Act goes to the painstaking research of Ann Catherine Boyce, currently a student at Dartmouth College.

85It should also be noted that under a 1966 amendment to the Judicial Code, tribes need no longer depend on the federal government to represent them in court, and may file suit themselves when the United States refuses to fulfill its obligations as trustee.

861970 Census of Population Subject Reports: American Indians (Washington, D.C.: U.S. Department of Commerce, 1973). Many have suggested that this figure is an undercount. If so, the 1980 census should record a considerably larger aggregate population.

87Barsh and Henderson, The Road, p. 289.

88Dee Brown, Bury My Heart at Wounded Knee (New York: Holt, Rinehart & Winston, 1971).

89Thomas Berger, Little Big Man (New York: Dial Press, 1964).

90One might conclude that the trend continues with the popularity of Ruth Beebe Hill's Hanta Yo (Garden City, N.Y.: Doubleday, 1979); though generally panned by knowledgeable critics from an anthropological or tribal perspective, or both, the book has attracted a wide readership among the uninformed public.

91For an interesting set of articles on this subject, see J.O. Waddell and O.M. Watson, The American Indian in Urban Society (Boston: Little, Brown 1971).

92Joan Ablon, "Relocated American Indians in the San Francisco Bay Area: Social Interaction and Indian Identity," Human Organization, 23 (1964): 362-71; and for Denver, Theodore Graves and Martin Van Arsdale, "Values, Expectations and Relocation," Human Organization, 25 (1966): 300, 307; also Robert Weppener, "Urban Economic Opportunities: The Example of Denver," in The American Indian in Urban Society, Waddell and Watson (eds.).

93J.H. Stauss and Bruce A. Chadwick, "Urban Indian Adjustment," American Indian Culture and Research journal, 2 (3) (1979): 23-38.

94Theodore Graves, "The Personal Adjustment of Navajo Indian Migrants to Denver, Colorado," American Anthropologist, 72 (1970): 35-54.

95N. Scott Momaday, House Made of Dawn (New York: Harper & Row, 1976).

96Stauss and Chadwick, "Urban Indian Adjustment," p. 36.

97U.S. Statutes at Large, 84:1437-39, 1970.

98U.S. Statutes at Large, 85:688-92, 1971, For an excellent critique of the Alaska Native Claims Settlement Act, see joint Federal-State Laud Use Planning Commission for Alaska, Policy Recommendations (Anchorage: 1979).

99U.S. Statutes at Large, 87:700 ff., December 22, 1973.

100See Passamaquoddy Tribe v. Morton, 528 F. 2d. 370 (1st Cir., 1975).

101See Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974); this case established that federal courts could rule on violations of the 1790 Non-Intercourse Act, and opened the door to subsequent litigation.

102See American Friends Service Committee, Uncommon Controversy: Fishing Rights of the Mackleshoot, Puyallup and Nisgually Indians (Seattle: University of Washington Press, 1970).

103"Washington v. Washington State Commercial Passenger Fishing Vessel Association," U.S. Law Week, 47 (50) (July 2, 1979).

104For an excellent summary article, see M.C. Nelson, The Winters Doctrine: 70 Years of Application of "Reserved" Water Rights to Indian Reservation, Arid Lands Research Paper no. 9, (Tucson: University of Arizona Press, 1977), NTIS PB U.S. 564 (1908).

105Winters v. United States, 207 U.S. 564 (1908).

106C. Herb Williams and Walt Neubrech, Indian Treaties/American Nightmare (Seattle: Outdoor Empire Publishing Co., 1976).

107Larry Light, "Backlash in Congress Seen as Indians Push Claims," Congressional Quarterly Weekly Report, Dec. 2, 1978, pp. 3385-88; eleven bills were introduced in the 95th Congress to restrict Indian hunting, fishing, and land claims rights, including HR 13329.

108See 73 Wash. 2d 677, 687, 440 P.2d. 442, 448 (1968), as quoted in Wilcomb E. Washburn, School of Law, Duke University, 40 (1) (Winter, 1976).

109Barsh and Henderson, in The Road, make an extremely interesting observation pertinent to this point: "The federal government did not, historically, create the sovereignty of tribes. Acts of Congress limited, modified, and channelled tribal powers, usually without tribal consent. The termination of what Congress created should therefore result in an increase in tribal self-governing powers. Instead, Congress has acted as if the termination of tribal dependency results in the dissolution rather than the emancipation of the tribes" (p. 285).

110The text goes something like this: Two men were coming down the pier after a day of crab fishing. The White man had a lid on his crab bucket, but the Indian didn't. Said the White man to the Indian: How come all your crabs don't get out?" Replied the Indian, "They're Indian crabs! As soon as one starts to crawl out, the others pull him back down."

111Lawrence Rosen, Foreword to The American Indain and The Law., p. 1. Thirty-eight percent of Indians identifying themselves in the 1970 census had incomes below the poverty line; in the poorest areas of Arizona and Utah, this figure reaches upwards of 65 percent. Death from tuberculosis, dysentery, and accidents occurs four times more frequently among Indians than among the rest of the population. Employment for reservation men, averaging 18 percent nationally, climbed well above 30 percent in many areas.

112Office of Special Concerns, Office of the Assistant Secretary for Planning and Evaluation, Department of Health, Education and Welfare, A Study of Selected Socio-Economic Characteristics of Ethnic Minorities Based on the 1970 Census, vol. 3: American Indians, HEW Pub. No. (OS) 75-122, July 1974. In educational achievement, 34 percent of Indian males were high school graduates (compared to 54 percent of all U.S. males); percentages were 1 point higher, respectively, for Indian females and all females. In income levels, 64 percent of rural Indian men earned less than $4000 per year; 46 percent of urban Indian men earned less than $4000 per year; only 31 percent of all U.S. men earned less than $4000 per year.

113Testimony of Margaret S. Treuer before Subcommittee on Rural Housing and Development, Committee on Banking, Housing and Urban Affairs, U.S. Senate, April 1 1980, p. 3. A 1970 Census Bureau report on housing characteristics indicated that 62.4 percent of the housing units on Indian reservations were substandard, compared to 12.9 percent of the total U.S. population. In March 1978 the General Accounting Office issued a report on Indian housing that estimated that fully 60 percent of all Indian families were living in substandard housing.

114Conference on Energy Resource Development and Indian Lands, American Association for the Advancement of Science, 1978, p. 26.

115Ibid., p. 25.

116Wallace Stegner, "Rocky Mountain Country: Arabs of the Plains," Atlantic Monthly, April 1978, p. 56.

117American Indian Policy Review Commission, Final Report, p. 622.

118Barsh and Henderson, The Road, p. 284.

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