The Journal of San Diego History
SAN DIEGO HISTORICAL SOCIETY QUARTERLY
Summer 1984, Volume 30, Number 3
Thomas L. Scharf, Editor
Raymond Starr, Book Review Editor
American Indians, American Justice. By Vine Deloria, Jr. and Clifford M. Lytle. Austin: University of Texas Press, 1983. Bibliography. Indexes. 262 Pages. $9.95 Paper.
Reviewed by Donald L. Fixico, Assistant Professor of History, University of Wisconsin-Milwaukee, author of the forthcoming Termination and Relocation: Federal Indian Policy, 1945-1960.
Since Felix Cohen’s magnum opus, Handbook of American Indian Law, published in 1942, a handful of volumes on federal Indian law have sporadically appeared in print. This collaborative effort by Vine Deloria Jr. and Clifford M. Lytle is the most recent endeavor to give interested readers, especially laymen, a readable book on the addressed subject. The two authors have done well as a team in presenting a survey of the complex legal status of American Indians. Their book is an easy-to-understand view of federal Indian law, but readers should bear in mind that this study is the combined interpretation of two attorneys who are also professors of political science. Usually attorneys write for each other, but Deloria and Lytle purposely wrote for a wide audience. The result is an extremely useful book that may be used as a classroom text and/or as a reference work to explain simply the complex legal cases and plethoric legislation pertaining to Native American people.
Court cases and legislation relevant to Indian rights are frequently analyzed to explain the distinct legal status that Native Americans possess, but which other citizens do not have under the Constitution. To help sort out the numerous cases and laws, a helpful list of cases, a subject index, and a bibliography are included at the back. One hindrance is the absence of detailed footnotes, but the authors compensate for this by citing their sources throughout the text.
Structurally, the volume consists of nine chapters. Each addresses a particular area, e.g., federal responsibilities to Native Americans, defining Indian country, tribal courts, roles of attorneys, criminal and civil laws, and Indian legal rights. The first chapter sets the tone of the book by presenting a historical overview of the evolution of federal-Indian legal relations. This chronological methodology helps to better present the following chapters. Simultaneously the authors explained historical cases and early laws, thereby showing the development of current Indian legal status. This is the essence of the book’s style in covering a large difficult subject.
The weakest part of the study is chapter eight on the judicial civil system in Indian country. Much material on this topic is found in other chapters. In its place a section on treaty-making and agreements between the tribes and the United States would be more useful. With close to 400 agreements negotiated, one wonders how they were created and to what extent treaties guarantee Indian rights? Other neglected areas include heirship to allotted lands, taxing mining companies, and the legalities of leasing mineral rights. Inadequate coverage was given to the “Winters Doctrine,” the landmark water rights case involving tribal reservations. The current issue of federal tribal recognition for Indian fragmentary groups was also unaccounted for.
The extraordinary aspect of this work is the simplified legal explanation of Native American tribal law as it coincides and overlaps with federal Indian law. Lytle and Deloria have clearly shown the evolutions of federal Indian law from early legislation, and contemporary tribal law developing from traditional native law. The authors’ purpose of explaining “the judicial system, its roots in both the tribal traditions and Anglo-American law, and its present configuration in Indian Country,” has been achieved.
The book will be useful as a classroom text on contemporary Native American society, and it provides answers to many pertinent questions about federal Indian law.