# 034 Chapter from Dissertation Rewriting History and Proving Property Rights: Hualapai Indian Activism and the Law of Land Claims in the 20

Download 159 Kb.
Size159 Kb.
  1   2   3   4   5   6   7   8   9   10

# 034

Chapter from Dissertation

Rewriting History and Proving Property Rights: Hualapai Indian Activism and the Law of Land Claims in the 20th Century

Proving property rights for hunting and gathering peoples, people who, to Western eyes, simply wandered like animals, has been tough. It still is. The idea that wandering people, so-called nomads, had no valid claims to a specific area of land has a long pedigree in America.1 But in 1941 with United States v. Santa Fe Pacific Railroad Company—the case in which the Hualapai people asserted their rights to their homeland—that started to change.2 Slowly, Indian land claims—what Felix Cohen, the founder of modern federal Indian law, called the “backwash of a great national experiment in dictatorship and racial extermination”—began to be taken seriously.3 The change was not irreversible; indigenous people worldwide still have tremendous difficulty winning land claims cases. But the Hualapai case was a start of a new way of thinking about Native people, their property, and their past. The complicated Hualapai case took a long time to get to court. Lawyers and legal scholars, bureaucrats, courts, historians and anthropologists, Hualapais and other Indians, Attorneys General, and Secretaries of the Interior went at it for close to thirty years. In 1946, exhausted after working on the claim for six years, Cohen wrote to a colleague, telling him, “This is really the most complicated case I have ever handled.”4

The notion that Indians had discernable, legitimate claims to the land they had occupied since, as it was called in the standard legal phrase, “time immemorial,” was a hard pill to swallow at the beginning of the twentieth century.5 In theory, treaties, land cessions, and several Supreme Court decisions granted that Indians had some rights to their land. But these were, in large measure, expediencies, crafted to gain access to Indian land. To be sure, buried within these contrivances were essential principles that could (and would) be used to rethink Indian property rights, but it would take some time to excavate them. Beyond the legal principles there was the Indians’ belief that the land was theirs based on long time occupancy and a set of mytho-historical stories that tied Indian people to a place. Yet, until well into the twentieth century Indians’ own ideas about their past and their “property” mattered very little to anthropologists and historians, and much less to courts.

That the legitimacy of Indian land claims was beyond the ken of most involved in Indian affairs at the beginning of the twentieth century should come as no surprise. The Indian population was at its nadir in North America. Laments (and cheers) about the vanishing Indian were common. Political and legal rights were fragile. The BIA worked in earnest to stamp out Indian culture through its nationwide system of boarding schools, field matrons, and other assimilation campaigns. And, most devastating of all, the Indian estate was quickly disappearing as a result of allotment, leasing to non-Indian ranchers, farmers, and oil companies, and land cessions.6 The BIA, often in league with covetous non-Indians provided the means, overseeing the transfer of tens of millions of acres.

The Supreme Court of the United States sanctioned it all. Lone Wolf v. Hitchcock is the most notorious case in the cannon of federal Indian law, and surely one of the Court’s most anti-Indian decisions. Lone Wolf, decided in 1903, declared that Congress had plenary, or total, power over Indian peoples—treaty rights and Indian title made no difference, Congress could do with Indian land what it wanted. Despite their protests to the contrary, and their treaty, The Court decided that Kiowa consent was not needed to open up their land to non-Indians. Thus, despite having voted against opening their nearly three million acre reservation to leasing, the Kiowa’s land base shrunk to 3,000 acres over the next generation.7 As the case made its way through the courts in the first few years of the century, prominent investigative journalist George Kennan described the state of anxiety amongst Indians and their friends: “If this decision will be sustained…, it will mark the beginning of a new departure in our Indian policy. There will then be no legal bar to the removal of all American Indians from their reservations and the banishment of every man, women, and child of them to Alaska and Porto Rico [sic].”8 Lone Wolf was a mighty blow to all Indians. Over the next thirty years, tribal land holdings shrunk on an order of magnitude that still leaves one breathless: 138 million acres whittled away to 52 million.9

It was in this climate that the Hualapai began to fight to retain their reservation, a fight that would eventually lead to a Supreme Court decision that is widely considered a landmark in federal Indian law, and that I will argue was a formative moment in the development of Native activism, reconceptualized the writing of Indian history, and ushered in the international land claims era in which we now live.

Between the World Wars, as the case made its way through the legal system, Indians and lawyers developed a way of talking about Indian land and the Indian past that was intelligible to the courts, shaping the writing of Indian history for the rest of the century. In the 1920s and ‘30s, when historians wrote very little about Indians, and anthropologists were concerned with ritual and religion, not time and the past, history was left to Indians and their lawyers. Because so little light had been shined on the Hualapai past as they began to fight for their land a history of the tribe had to be written for the first time.

The Hualapai case is unique in many ways, but it also serves as a stand-in for the many other instances of Indians litigating land claims through the 1920s and ‘30s. And yet it’s more. The Hualapai’s long fight to retain control of their land not only mirrored other tribe’s legal struggles over lost land, squandered resources, and general chicanery, the results of the Supreme Court’s decision had a direct effect on the writing of Indian history. If it’s true that the great outpouring of Indian history that resulted from the Indian Claims Commission (ICC) marks the more or less formal birth of ethnohistory then the discipline was conceived during the Hualapai case. The seemingly simple provision in the Supreme Court’s opinion that proving occupancy from time immemorial was the evidentiary bar the Hualapais had to leap in order to have a valid claim to their land had far reaching effects. When the Supreme Court said that Indian occupancy of land was a “fact to be determined as any other question of fact,” and the Indian Claims Commission adopted this standard as its basis for determining Indian title to land, ethnohistory began.10 One measure of the case’s impact: in 1956 the Department of Justice, afraid Indians would bleed the Treasury dry, worked hard to bar all claims based on aboriginal occupancy from being heard by the ICC.11

As much of this started to become clear to me, as I began to see that what began with the Hualapai case had its culmination in the 1990s in Mabo v. Queensland and Delgamuukw v. the Queen, the leading cases in Australia and Canada, respectively, I began to wonder: how did a case that looked from the beginning like a sure loser become one of the most important cases in federal Indian law? How did the Hualapai case give hope to other Indian people? How did the evidentiary standards of the case become the basis for decisions in the Indian Claims Commission? How did it come to pass that the Canadian Supreme Court in 1973 called this case—a case that originated from the protests of a small tribe in northwestern Arizona in the 1920s—the major decision of the twentieth century on Native rights? And finally, why did the Australian Supreme Court, in 1992, turn to the Hualapai case to answer key questions in deciding the contours of its own Native title jurisprudence?12


D’Arcy McNickle, the Salish novelist, founder of the National Congress of American Indians, and a former colleague of Felix Cohen’s at the Bureau of Indian Affairs, remembered when Cohen took the Hualapai case to the Supreme Court and attempted something that “had never been attempted before.”13 He rewrote history and won. But he hadn’t done it alone. In fact, Cohen became involved rather late. For twenty years before he took the Hualapai’s case to the Court in 1941, Fred Mahone had been fighting for the Hualapai’s land—documenting tribal land use, writing petitions, and badgering politicians. His cause consumed his life. Mahone was a Hualapai, a veteran of the Great War, and a pioneer Indian civil rights activist. Like many of the delegates present at the first meeting of the National Congress of American Indians in 1944, Mahone was one among the thousands of unknown Indians who between the Wars built the foundations for the post-World War II American Indian renaissance. No one knows who Fred Mahone was—not historians anyway; he’s a well-known and complicated figure on the Hualapai reservation. Like the stories of most Indians in the twentieth century, Mahone’s singular pursuit of justice for his people is totally unknown. Like the lawyers involved in the Hualapai case, and indeed Mahone himself, who dug Hualapai history out of the archives, and the memories of the Hualapai, I, too, have pieced together Mahone’s life from the records left behind in archives and memory.

It was not until I got into the archives that I realized how unsettled certain questions in Indian law were and how much effect the activism of one tribe could have on what was—and still largely is—a relic of a colonial mentality. While many of the strictures of assimilation were firmly in place and quite active in the 1920s, so, too, were there dozens of tribes working hard to hold on to their land and culture. But, researching how tribes were “holding on to their land and culture” was too vague; a study based on the experiences of many tribes would have lacked texture, characters, and the level of detail I wanted to explore and discuss. Writing with any degree of intimacy or certainty about just how Indian people in the early twentieth adjusted to, and affected, change would have been impossible. Then, to my continued amazement, I found Fred Mahone. His story and the Hualapais’ became the medium through which this story of Indian activism and the residue of colonial law in the 1920s and beyond would come alive. The questions Mahone and the Hualapai raised in the 1920s and early 1930s about their land rights cut to the core of Indian history: land dispossession and all that entails—loss of subsistence and the adjustment to new forms of work and economy, loss of place, the erosion of family and band ties, the upsetting of gender norms, powerlessness in the face of a strong state. The list goes on. The Hualapai wondered why their centuries of living in the same place meant nothing when compared to the rights of a railroad? Why was a reservation created for them in 1883 if they really had no claim to their land? Beginning in earnest in the 1920s and 30s, many other tribes besides the Hualapai raised similar questions.

For most of the 20s, the government brushed aside the Hualapai’s concerns; government attorneys generally worked hard to preserve the rights of the railroad, and snuff out those of the Hualapai. But in the early 1930s, with the advent of the Indian New Deal, that started to change. Lawyers and others working for the Department of the Interior and the Bureau of Indian Affairs began to take the Hualapai’s claims seriously. They took the Hualapai’s case to the Supreme Court. Along the way significant change occurred. For example, fundamental questions about the nature of the Indian past and what it meant to the law were first asked and answered and Indian activism began to have a profound effect on policy. But, most important of all, a return to older ways of thinking about Indian people became impossible. History works, at times, like a ratchet and pawl. While there is slippage backwards, certain pushes forward cannot be reversed.14 This was one of those times.

The angles from which I tell this story are several. At times, we are on the Hualapai reservation, while at others in Washington, D.C. The story that follows is as much about Indians and their encounter with colonial law as it is about white lawyers and their defense and partial destruction of that same colonial law. In asking the question: which came first, Indian activists or concerned lawyers? I come down decidedly in favor of the Indians. Very simply put, Fred Mahone and the Hualapai would not let their land go and they held on until someone with more power cared. Without Hualapai activism the case never would have gone to court. Likewise, the Hualapai case never would have made it to court were it not for a group of lawyers gathered together by John Collier.

The Hualapai case has traveled the globe. To date its principles have been adopted in Canada, Australia, New Zealand, South Africa, and Malaysia. Wherever and whenever indigenous land claims are litigated the shadow of the Hualapai case falls over the proceedings. While what follows is largely a narrative history of the case, its legacy is important, too. Thus, after telling the complicated story of how the case made its way from the reservation to Washington to the Supreme Court, I make an effort to discern where it went next, to determine just what its impact has been around the world. It turns out that that story is even more complicated. And could fill another book. Yet, without tracing the case’s trail through subsequent domestic and international land claims the story of its importance would be woefully incomplete. Indeed, were the Hualapai case not to have had an impact beyond its own set of facts its story would hardly be worth telling. That the facts of the case are not unique serve to make it a universal story.

Download 159 Kb.

Share with your friends:
  1   2   3   4   5   6   7   8   9   10

The database is protected by copyright ©essaydocs.org 2023
send message

    Main page