Wilcomb E. Washburn: Red Man's Land - White Man's Law, 2nd Edition

After berating myself for waiting so long to read Washburn’s Red Man’s Land - White Man’s Law, I found a used paperback Second Edition. This edition is from 1995, and I did not wait 37 more years to get around to it. But even a 1995 edition is dated when compared to the 2008 American Indians and the Law by Bruce Duthu.

I probably appreciated some of the historical background more this time around, even though it did not change any. I have gone to work for an Indian Nation since reading the First Edition. So my perspective has changed considerably.

I was not happy with the way Washburn brought the story up to date. He still ended a lot of his sections with an “only time will tell how the Nixon policies will work out”, sort of message. The only thing new in the Second Edition is a two page “Preface”, and a 30 page “Afterword”. He took each of his 1970 hanging endings and updated them to 1995. That was moderately interesting, but felt cheap. I would have preferred that the new endings be placed in the original chapters.

I can give Red Man’s Land - White Man’s Law, Second Edition a qualified recommendation. The historical background is pretty interesting. But the relationships among Indian Nations, the Federal Government, and various State Governments are still evolving. The Bruce Duthu book highlights the contradictions and reversals of the last thirteen years since the Second Edition was published. And my job experience is showing me that the Duthu book will be dated soon.

N. Bruce Duthu: American Indians and the Law

I was a little put out with myself for taking so long to read Washburn’s Red Man’s Land, White Man’s Law. So I picked up a newer book, American Indians and the Law by N. Bruce Duthu. This book was published in 2008 as part of the Penguin Library of American Indian History. And I read it right after buying it.

American Indians and the Law left me confused about the state of Indian sovereignty. But I don’t think that Is Duthu’s fault. I think he accurately described the current situation. While the Congress and the Executive Branch over the last twenty years have been doing much to recognize and respect sovereignty, the Supreme Court has been handing down decisions eroding sovereignty. The result is that Duthu describes a very unsettled and confusing legal situation.

Unlike other minority groups, Native American’s are given a special status in the US Constitution. Their tribes are recognized as sovereign entities. The Constitution grants Congress the power to “regulate Commerce … with the Indian Tribes”. A key point, one reinforced by the Supreme Court under John Marshall in the early 19th Century, is that individual states do not have authority to regulate or deal with Indian tribes.

As sovereign entities, Tribal governments hold a status similar to State governments. They are subordinated to the Federal government in matters of international relations, and inter-governmental relations. But they historically have not been given the same respect as State governments.

It is routinely accepted that a State can enforce its laws on citizens of another state. If I am caught speeding in Texas, I can expect to pay a fine even though I am a full voting citizen of Oklahoma. Not so with Indian governments. Generally the Supreme Court only allows a tribe to enforce its criminal laws on members of the tribe.

The situation is fuzzier with civil actions. In general, Tribal courts have been denied jurisdiction involving commercial matters. On the other hand, they have generally been granted jurisdiction when enforcing their environmental laws and regulations. Duthu believes that this is because society has given Native American’s a special image (perhaps well deserved) reflecting respect for nature.

Duthu believes that there are two main causes for the Supreme Court’s eroding of tribal sovereignty. First is what he calls “A preferred creation story about nation building”. His theory is that George Washington, Chief Justice John Marshall, and other founding fathers believed that Indians were a savage, primitive and dying race. Their belief system encouraged replacing the dying race with Western legal systems, philosophy, religion, and social structure. Duthu sees a problem. Although the Indian culture has not died out, the current Supreme Court is acting like it should have. The second cause according to Duthu is a persistent strain of racism.

There is no doubt that American Indians and the Law helps expose the issues related to Indian tribes as sovereign nations. Most of non-native America is completely oblivious to the whole issue. Even after living in close proximity to numerous Indian nations in Oklahoma for the last 34 years, I can’t say that I understood anything about their governments. So Duthu’s book has done much to awaken me. The confusion I still feel is much more associated with the legal ambiguities, than with Duthu’s writing.

Wilcomb E. Washburn: Red Man's Land - White Man's Law

I bought Red Man’s Land – White Man’s Law by Wilcomb E. Washburn before going into the Army in 1971. It has languished on my bookshelves, or in a box, ever since. At the time, my intentions toward non-fiction were much greater than my actions. At the same time I bought (and read) Dee Brown’s Bury My Heart at Wounded Knee. I had thought Washburn’s book would be another look at American history from the Native American perspective.

It turns out that Red Man’s Land – White Man’s Law is more a “current affairs” sort of book. And I waited 37 years to read it. Oops! Think of waiting 37 years to read Friedman’s The World is Flat, or Hot, Flat, and Crowded. Big mistake.

Actually, the book does have a lot of historical background, although at a summary level. His “Theoretical Assumptions” chapter gives a pretty good view of the religious underpinnings of European attitudes toward Native Americans in the early years after discovery. As I read “From Discovery to Settlement” I found myself thinking how poorly the analysis stacked up to newer books like Charles C. Mann’s 1491, Nathaniel Philbrick’s Mayflower, or David A Price’s Love and Hate in Jamestown. And his chapters on the Eighteen and Nineteenth centuries do not compare at all well with Allan W. Eckert’s contemporaneously written The Winning of America series. Of course Eckert used five 600 page books to tell the story of the Eighteenth and first third of the Nineteenth centuries.

Washburn goes to some effort to allay the “myth” that American’s unfairly stole land from Indian tribes. He points out that they were always meticulous in paying for land acquired through various treaties. I was stunned! As Eckert would point out, yes, they did always find someone to pay. But they did not always try hard to find someone with the authority to sell. From Washburn’s apparent perspective, you would be perfectly justified in buying my neighbor’s house from me, and be pleased with the bargain price I gave you.

Washburn does a good job describing the see-saw effect of vacillating federal policy toward the Native American tribes. Some years they were trying to destroy the tribes and assimilate the members. Others they were trying to bolster the tribal government. I had a pretty fair understanding of the creation of tribal rolls, allocation of individual plots, and sale of “surplus” lands that took place at the time of Oklahoma land-runs and statehood. I did not have as good a feel for the how the Indian lands were still held in trust by the federal government after allocation.

I was surprised to see the swings in policies taking place as recently as the Roosevelt (FDR), Kennedy, and Nixon administrations. Interestingly enough, Washburn showed a lot of optimism for the changes planned by Nixon. He showed a very strong (pre-Watergate) appreciation for Nixon. But this was where my mistake in waiting so long to read the book really came home hard. I’ve got a whole string of 37-year-old unresolved issues. I know they’ve been resolved, and probably reversed a time or two. But I don’t know how they really came out.

One area of Washburn’s book really struck me as hilarious. (Not that he meant it to be.) He makes a big point of a significant segment of White America adopting Indian values. He points to the growing movement of Hippie Communes sprouting in the Southwest, often in close proximity to Native American communities. Funny, I think of Hippie Communes as a silly anecdote in recent history, not a major social movement.

Much of my negative feeling toward Red Man’s Land – White Man’s Law is my own fault. I obviously waited way too long. But it also makes me question the value of saving other “current affairs” books for very long. I should probably try to find the 1995 Second Edition, both to see how Nixon’s policies worked out, and to give Washburn to same opportunity to apply hindsight that I used in reading his book.

Thomas L. Friedman: Hot, Flat, and Crowded

Wow! I’ve read fun books, exciting books, and informative books. Thomas Friedman’s Hot, Flat, and Crowded just might be an important book. I enjoyed his The World Is Flat, although I was way behind the world in reading it. I thought he made some very clear and coherent points about the international market place, and how silly some politicians sound railing against forces of economics and free enterprise. So when I heard him pitch his new book on Good Morning America, I thought I ought to pick it up.

Freidman’s subtitle for the book is “Why we need a green revolution – and how it can renew America.” I’d summarize it as a discussion of global warming and the energy crisis in a context of a global economy. I’ve always been skeptical of global warming. Taking Michael Crichton’s perspective (in State of Fear), it seems that if you keep adding concrete and asphalt around measurement sites, you will record temperature increases, regardless of what is happening globally.

Freidman starts by making his case for five major problems we face today. First, the global economy is creating too many countries just like America, consuming resources as Americans do. Second, our dependence on oil increases power of dictators in oil rich nations, shutting down democracy movements, and incidentally funds anti-American terrorism. Third, global warming is impacting more than just polar bears, it is affecting weather patterns accentuating both droughts and flooding in different areas. Forth, the loss of biodiversity is accelerating, and can only be stopped locally, taking into account local economic impacts. Fifth, in today’s global economy, an area cannot climb out of poverty without access to reliable electricity.

After Friedman discusses the seriousness of our current state, he starts making suggestions about solutions. Off the top he spends a chapter saying that the solutions won’t be easy. Then he describes what he calls the Energy Internet – ideas about smart appliances optimizing energy use, and flexible utilities buying surplus user power. One of my favorite quotes (and a chapter title) is “The stone age didn’t end because we ran out of stones.” I take his point to be that we don’t have to wait to run out of coal and oil to move to renewable energy sources.

Renewable energy sources are the point of Friedman’s book – why we need them, how to get them. The two points that were most convincing to me were reducing the expansion of global warming, and de-funding petro-dictators. I thought his most telling argument on global warning was to look at it from both sides. If global warning is real, and we do nothing we can agree that the consequences could be disastrous. If global warming is a false alarm and we take action anyway, we could take leadership in a new industry, and de-fund sponsors of anti-American terrorism. That’s not really such a bad consequence.

I have a couple of complaints. He referred to the formula “RE < C – renewable energy cheaper than coal”, and said it was too simple a goal. He offered a new formula “REEFIGDCPEERPC < TTCOBCOG – a renewable energy ecosystem for innovating, generating, and deploying clean power, energy efficiency, resource productivity, and conservation < the true cost of burning coal, oil, and gas.” He said he offered the new formula “tongue in cheek”, but then he kept using it throughout the rest of the book.

Friedman also is a big believer in heavy gas taxes to drive changes in our behavior. I already don’t like what it costs to fill my tanks. I could compromise on price floors that he also suggested. The idea is that with a guarantee that prices won’t drop back down like they did in the 1980s, investors and inventors can better predict a market for renewable energy technologies. Of course that’s an easy compromise for me. Considering the global economy described in The World Is Flat, it’s hard to imagine oil prices going back down.

Obviously I can’t make all of Friedman’s points in a relatively short review. Suffice it to say that with Hot, Flat, and Crowded he came a long ways toward converting a skeptic. I can see his point that we are on the cusp of a major market in new technologies. America can lead or fail. Failing does not look attractive from an economic perspective, even if we did not have an ecological perspective.