Syllabus: Legalization of American Indians (Spring 2001)

Professor Peter d'Errico

Course description

"Federal Indian law," as it is called in the cases and statutes, is a framework imposed by the United States government for its own purposes on peoples who were present before the United States and who are still present. In this context, the difference between "American Indian" and "Native-American" is nonexistent. Both are names given by outsiders. There are no American Indians or Native Americans. There are many different peoples, hundreds, bearing their own names.

"Legalization" is a name for the process of incorporating into a legal system that which exists outside and independent of the system. "Legalization of American Indians" means the process by which United States law reached the lives of peoples who were in existence prior to that law.

The Western system of government by law is the product of long and bloody struggles among the peoples who came to colonize this land and later imposed "federal Indian law" on the indigenous peoples. Some say the system developed into its present form by incorporating information indigenous peoples offered to the colonists. In any event, the legal system that created "federal Indian law" did not come full-blown into the world. It has a history and that history is still happening. A study of the "legalization of American Indians" sheds light on that history as it is intertwined with the ongoing histories of the indigenous peoples to whom it is directed.


Laura Tohe, No Parole Today (Albuquerque, NM: West End Press, 1999)

Ella Cara Deloria, Waterlilly (Lincoln, NB: University of Nebraska Press, 1988)

Rennard Strickland, Tonto's Revenge (Albuquerque, NM: University of New Mexico Press, 1997)

Jill Lepore, The Name of War (New York: Alfred A. Knopf, 1998)

Course Packet: Selected edited cases and articles.
Bibliographic information for course packet materials.


What's in a name? "American Indian" / "Native American" What's in a process? "legalization"

VIDEO: "Indians, outlaws and Angie Debo" A segment from the PBS television program: The American experience; 1988. A profile of historian Angie Debo. Focuses on her research in the 1930s uncovering a statewide conspiracy that deprived the Oklahoma Indians of their oil-rich lands and the efforts of officials and business interests to suppress her findings.

History - WhoseStory?

To understand that/how past, present, and future are constructed as perspectives and discourses.


Laura Tohe, No Parole Today
Jill Lepore, introductions, Prologue, & Part One, The Name of War
Louis Sahagun, "Violent Crime Besieges Reservations"
Thomas Clavin, "Holding On: Grounds for Survival"
Mark Stevens, "Chief Joseph's Revenge"
"National Indian Heritage Month, 1996"
"Ishi: The Last Yahi" A Rattlesnake Productions film presentation, 1992. Presents further research by Jed Riffe on Ishi, the last surviving member of the Yahi Native American tribe in northern California; an extension of research first presented in the book: Ishi, the last Yahi, a documentary history / edited by Robert F. Heizer and Theodora Kroeber

Now You See It, Now You Don't

To gain an overview of the field of United States "federal Indian law."


Rennard Strickland, chapter 3, Tonto's Revenge
Peter d'Errico, "Native Americans in American Politics"
Poodry v. Tonawanda Band, 85 F.3d 874 (1996)
The Mashpee Conflict" Directed by: Mark Gunning & Maureen McNamara, 1984. In August of 1976, the Wampanoag Indians of Mashpee filed a land claims suit in federal district court that set off a period of social and economic turmoil in the town. The suit, which was decided against the Wampanoags and upheld by the Supreme Court on appeal, claimed that three-fourths of the town had been taken from the Wampanoags in violation of the 1790 Federal Indian Non-Intercourse Act. This documentary examines the historical development of this confrontation and its effects on the small Cape Cod town of Mashpee

Politics of difference

To examine some notions of equality and inequality in discourses of racial difference.


Elizabeth Cook-Lynn, "A Centennial Minute from Indian Country; or Lessons in Christianizing the Aboriginal Peoples of America from the Example of Bishop William Hobart Hare"
Wilcomb E. Washburn, ed., "Orders of the Massachusetts General Court" and "The Spanish Requirement"
Tzvetan Todorov, "Equality or Inequality"
Steven T. Newcomb, "Pagans in the Promised Land"
Ian F. Haney López, "White by Law"
Davis v. Sitka School Board, 3 Alaska 481 (1908)
"The Faithkeeper" Mystic Fire Video, 1991. Faithkeeper Oren Lyons, a chief of the Turtle Clan of the Onondaga Nation, discusses ancient Native American prophecies of the ecological disasters now faced by society. Lyons speaks of respect for nature, of the spiritual basis of law, the importance of participating in community, and of our responsibility to future generations.

Christian nationalism

To understand the way(s) in which United States law is built upon notions of Christian supremacy.


Johnson v. McIntosh, 21 U.S. 543 (1823)
Cherokee Nation v. Georgia, 30 U.S. 1 (1831)
Worcester v. Georgia, 31 U.S. 515 (1832)
Louis Filler and Allen Guttmann, "The Removal of the Cherokee Nation" (excerpts)
Horace Greeley, "Georgia and the Indians"
Joseph C. Burke, "The Cherokee Cases: A Study in Law, Politics, and Morality" (excerpt)

Domestic Colonialism

To understand the relationship between the United States and indigenous peoples as a form of colonialism.


Vine Deloria, Jr., and Clifford Lytle, "The Evolution of Tribal Governments"
Steven Tullberg, "The Creation and Decline of the Hopi Tribal Council"
Philip S. Deloria, "The Era of Indian Self-Determination: An Overview"
Walter L. Williams, "United States Indian Policy and the Debate Over Philippine Annexation: Implications for the Origins of American Imperialism," The Journal of American History, Vol. 66, No. 4. (Mar., 1980), pp. 810-831.
"Broken Rainbow" Direct Cinema, 1985. Academy award winning documentary about the forced relocation of 12,000 Navajo Indians currently taking place in Arizona. Although the Federal government claims to be setting a land dispute between the Hopi and Navajo tribes, this film clearly illustrates that the relocation will only serve to facilitate energy development. Broken Rainbow speaks for all Native people who are struggling to survive as individuals and as separate cultures in the face of Western technology.



"Circumpolar peoples, from a Russian perspective," Prof. Vaschenko.

Property and Economy

To examine concepts and functions of property in communal and 'private' economies; and conflicts between these forms of economy.


Jill Lepore, part two, The Name of War
William Cronon, "Bounding the Land" and "Commodities of the Hunt"
Wilcomb E. Washburn, "Indian Land and its Allotment"
Francis Paul Prucha, selection from "Dependency"
M. Annette Jaimes, selection from "Federal Indian Identification Policy"
Ward Churchill, selection from "The Earth is Our Mother"
"River People" Filmakers Library, 1990. The story of David Sohappy, a native American spiritual leader who was sentenced to a five-year prison term for selling 317 salmon out of season. Explores the historic conflict over the resources of the Columbia River and the political controversy involving fishing rights and the right to religious freedom.

Law and Society

To explore different concepts and practices of power and authority, comparing 'tribal' and 'state' systems.


Jill Lepore, part three, The Name of War
Wilfred Pelletier, "Two Articles"
Walter Miller, "Two Concepts of Authority"
James W. Zion and Robert Yazzie, "Indigenous Law in North America in the Wake of Conquest"
David Holmstrum, "Indian Traditions Help 'Drunk Town' Shed its Image"
"A Conversation with Philip Deere" Union Video Project [1979] Phillip Deere, Muskogee/Creek medicine man, traditional spiritual leader, adviser to the American Indian Movement, was interviewed during the 1979 Mashpee Wampanoag sovereignty conference.

Cultural [Re]Appropriation

To explore issues of 'intellectual property' involved in cultural production, reproduction, appropriation, and repatriation, with regard to sacred objects, arts, crafts, and literature.


Rennard Strickland, chapters 2, 4, 6, Tonto's Revenge
Dennis Fox, "Indian Arts and Crafts Act: Point"
Kay Walkingstick, "Indian Arts and Crafts Act: Counterpoint" O
Native American Graves Protection and Repatriation Act (NAGPRA)
Indian Arts and Crafts Act: Cause of action for misrepresentation of Indian produced goods
Misrepresentation of Indian produced goods and products
"Imagining Indians" Documentary Educational Resources, 1992. Using an eclectic mix of interviews, staged scenes and graphic imagery, this film represents a Native American's view of the disparity between self-perception and the white culture's principally Hollywood-inspired interpretations of American Indians.

Social Relations

To explore some issues raised by the difference between 'tribal' kinship relations and statist 'individualism.'


Ella Cara Deloria, Waterlilly
Elizabeth Cook-Lynn, "The Big Pipe Case"
Leonard B. Jimson, "Parent and Child Relationships in Law and in Navajo Custom"
Indian Child Welfare Act
Peter d'Errico, "Traditional Navajo clan practices"
"Great Spirit Within the Hole" KTCA-TV, Minneapolis, Minn., 1983 A documentary of American Indian prisoners and their religious practices.


Passed, Presence, and Futures

To explore the nature of memory, presentation, representation, imagination, and self-determination.


Jill Lepore, part four and epilogue, The Name of War
Rennard Strickland, chapter 7 and Afterword, Tonto's Revenge
Elizabeth Cook-Lynn, "Why I Can't Read Wallace Stegner"
"The Story of Alkali Lake: The Honor of All" Native American Public Broadcasting Consortium, [199-?], originally 1986. A dramatization of how the Shuswap Indians of British Columbia focused on the break-up of their culture and their dependence on alcohol and turned themselves around.

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