Making Indian Law

Making Indian Law: The Hualapai Land Case and the Birth of Ethnohistory

CHRISTIAN W. MCMILLEN
Copyright Date: 2007
Published by: Yale University Press
Pages: 304
https://www.jstor.org/stable/j.ctt1nq874
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  • Book Info
    Making Indian Law
    Book Description:

    In 1941, after decades of struggling to hold on to the remainder of their aboriginal home, the Hualapai Indians finally took their case to the Supreme Court-and won. The Hualapai case was the culminating event in a legal and intellectual revolution that transformed Indian law and ushered in a new way of writing Indian history that provided legal grounds for native land claims. ButMaking Indian Lawis about more than a legal decision. It's the story of Hualapai activists, and eventually sympathetic lawyers, who challenged both the Santa Fe Railroad and the U.S. government to a courtroom showdown over the meaning of Indian property rights-and the Indian past.At the heart of the Hualapai campaign to save the reservation was documenting the history of Hualapai land use.Making Indian Lawshowcases the central role that the Hualapai and their lawyers played in formulating new understandings of native people, their property, and their past. To this day, the impact of the Hualapai decision is felt wherever and whenever indigenous land claims are litigated throughout the world.

    eISBN: 978-0-300-13523-7
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-xii)
  4. Introduction
    (pp. xiii-xviii)

    Proving property rights for indigenous people has been tough. It still is: indigenous people worldwide, especially hunting and gathering peoples, who to Western eyes simply wandered like animals, have tremendous difficulty winning land claims cases. The idea that wandering people, so-called nomads, had no valid claims to a specific area of land has a long pedigree. But in 1941, withUnited States v. Santa Fe Pacific Railroad Company—the case in which the Hualapai people asserted their rights to their homeland—that situation started to change. Slowly, Indian land claims—what Felix Cohen, the founder of modern federal Indian law,...

  5. Maps
    (pp. xix-xx)
  6. Part I: Keeping the Country Whole

    • 1 The Hualapais
      (pp. 3-11)

      No one knows just how long the Hualapais have lived in the northwestern corner of the Colorado Plateau. Science tells us one thing, and Hualapai origin stories another. Anthropologists and archaeologists disagree about just where the Hualapais came from: some scholars say they came from the west and the south when Yuman speakers of the Colorado river delta began to spread out around A.D. 1; others argue that the Cerbat people who preceded the Hualapais, after oscillating between nomadism and sedentism as the climate shifted from wet to dry periods between A.D. 850 and 1250, eventually settled, started to farm,...

    • 2 The Conflict
      (pp. 12-16)

      On its long ramble across New Mexico and Arizona into California the Atchison, Topeka, and Santa Fe Railroad cut across millions of acres of Navajo, Pueblo, Hopi, Havasupai, Yavapai, Hualapai, Chemehuevi, and Mojave land. The land grant awarded to the railroad perforated Hualapai country just a few miles south of Peach Springs—the tracks can be found these days by looking on a map for old Route 66, where it arcs north off I-40 toward the Colorado River. Continuing west after leaving Flagstaff, the railroad heads out into Arizona’s lonely backcountry, reaching the boundary of the Hualapai reservation at the...

    • 3 The Hualapai Awakening
      (pp. 17-35)

      Fred Mahone, shortly after leaving Chilocco Indian School and before shipping out for France, took time in the summer of 1918 to reflect on the past and think about the future. Whiling away the time at Michigan’s Selfridge Field, Mahone put pencil to paper in the language he had only recently learned to write and announced to the world, “I am a full blooded born from . . . Ancient descendent who has gained three fourth of an education.” From that moment, far from his home in Arizona, Fred Mahone became the voice of the Hualapais. He urged: “Let us...

    • 4 The Government Versus the Hualapais
      (pp. 36-49)

      Fred Mahone and the Hualapais had good reason to be worried. In 1919 the government hashed out plans for a survey of their reservation—the last piece of the last unsurveyed railroad grant in the country. When first contemplated by the General Land Office the survey appeared routine—simply a matter of allocating the even-numbered sections to the tribe and the oddnumbered sections to the railroad. Any worries about title were brushed aside. As far as the GLO was concerned, the matter had been settled: the railroad had filed its map of definite location—which simply meant that it had...

    • 5 Taking Hualapai Land
      (pp. 50-58)

      The Justice Department’s resolve was more apparent than real. What looked like commitment from Washington turned out to be collusion with the railroad. In March 1930 Herbert Hagerman, who during the consolidation discussions of the mid-1920s had mediated between the ATSF and the BIA and successfully brokered an agreement that avoided a suit, was hired by the BIA to finish working out a deal with the railroad and finding a solution to the Hualapailand problem. Hagerman came primed for the job. Before his official appointment in March as Special Commissioner of Indian Affairs, he had already met with the railroad’s...

    • 6 Writing Indians out of Their Land
      (pp. 59-70)

      When government attorneys declared the railroad’s claim superior to the Hualapais’, and when Hubert Work, Charles Burke, and Herbert Hagerman so readily favored consolidation, they did so reflexively, giving their decisions little thought. It had been easy for them—as it would be for others later—to write the Hualapais out of their land.

      The lawyers, courts, and bureaucrats did not write in a vacuum, and such keywords as ‘‘roam,’’ ‘‘wild,’’ ‘‘wander’’ were part of a larger discourse about Indians. Native peoples had a difficult, if not impossible, time mounting effective land claims in an intellectual climate in which, as...

    • 7 The Hualapais and History
      (pp. 71-85)

      As far as Ray Tokespeta Winifred was concerned, the Hualapais’ historic presence was not in doubt: “We can see the different signs or marks on numerous walls of rocks. This shows we live here long before the white people came to this country, or long before Columbus discovered American in the year 1492.”¹ But the Hualapais were burdened with proving their historic ties to Peach Springs and saddled, too, with the notion that their current presence on the reservation did not amount to much. They had to challenge the government’s narrative of invisibility. As they mounted their challenge, the government’s...

    • 8 Land and Law
      (pp. 86-103)

      Why did the attorneys in the case routinely work against the Hualapais? Was it because, as the legal historian and counsel for the British Crown inIn Re. Southern Rhodesia(1918), the Right Honourable Earl of Birkenhead, put in 1926, “As a rule, the settlement by white people of a country already occupied by natives raises problems of extreme complexity”? The short answer is yes, and the attorneys in the Hualapai case gave easy answers. By the early 1920s those extremely complex problems had been heard in courts and been debated by public officials in Australia, Canada, New Zealand, Rhodesia,...

    • 9 Saving Hualapai Land
      (pp. 104-122)

      In the fall of 1931 tensions were high on the reservation. Any optimism generated by the spring hearings had vanished. The unsettled land dispute wreaked havoc, and the Hualapais’ distrust of the government grew. Not only was there bad news from Washington, but Fred Mahone worried that violence might break out at home. The Hualapais and Superintendent D. H. Wattson were engaged in a war of words over Hualapai livestock on the eastern portion of the reservation, and Mahone warned that it threatened to turn ugly. In what he claimed was simply a range restoration effort, Wattson attempted to move...

  7. Part II: Making Indian Law

    • 10 Building a Case
      (pp. 125-143)

      The attorneys who worked with John Collier and implemented the Indian New Deal saw federal Indian law so differently from their predecessors that it was as if they were a separate species. The difference in practice was simple: Ethelbert Ward, E. C. Finney, John C. Gung’l, Seth Richardson, and G. A. Iverson did their best to discourage litigation and weaken the Hualapais’ position before the courts. Felix Cohen, Richard Hanna, and Nathan Margold worked hard to get cases to court and win. They revolutionized Indian law.

      Nathan Margold was a brilliant lawyer. Though no stranger to civil rights when he...

    • 11 The Case in Court
      (pp. 144-158)

      Judge David Ling dismissed the government’s case on 1 March 1939. Carl Hayden was delighted—that same day he telegraphed the railroad’s lead attorney, Joyce Cox, to offer his congratulations and a couple of days later wrote to say, “I am certainly pleased that your suit has had such a successful termination and I only hope that there now will be no further difficulty.” John Collier was “shocked” and said that the “court bowled us over like tenpins.”¹ And the Department of Justice began a campaign to ensure that an appeal by the Hualapais would fail.

      At first, there was...

    • 12 The Supreme Court and the Power of History
      (pp. 159-165)

      Convincing the Court to grant certiorari would not be easy. The petition—jointly authored by Cohen, Margold, Hanna, and Brophy—not only had to persuade the Supreme Court to hear the case, but it also had to make up for deficiencies in the work done by Littell and MacDonald. The petition critiqued their brief in subtle but important ways. The thrust of the argument was the same: the Hualapai have occupancy rights that all Indians in the formerly Mexican territory also possess. But whereas Littell and MacDonald had chosen to craft the opening of their brief to show that the...

    • 13 In the Wake of Hualpai
      (pp. 166-184)

      In April 1942, Felix Cohen and Fred Mahone finally met. In his mid-fifties now, Mahone began a new spring for the first time in more than twenty years not consumed by the effort to protect his people’s property. Appointed by the Hualapai tribal council to aid in documenting Hualapai land use and to help individual Indians file land claims, Mahone showed Cohen the land he had helped save. Mahone and Cohen, along with Abe Barber from the General Land Office, spent part of April and May together. They toured “the claimed area,” Cohen recalled, “in an old jalopy for about...

  8. Notes
    (pp. 185-270)
  9. Index
    (pp. 271-284)