Thursday, April 8, 2010

Berger on Williams v. Lee and the Debate over Indian Equality

Williams v. Lee and the Debate Over Indian Equality has just been posted by Bethany Berger, University of Connecticut School of Law. It is forthcoming in the Michigan Law Review (2010). Here's the abstract:
Williams v. Lee (1959) created a bridge between century-old affirmations of the immunity of Indian territories from state jurisdiction and the tribal self-determination policy of the twentieth century. It has been called the first case in the modern era of federal Indian law. Although no one has written a history of the case, it is generally assumed to be the product of a timeless and unquestioning struggle of Indian peoples for sovereignty. This Article, based on based on interviews with the still-living participants and examination of the congressional records, Navajo council minutes, and Supreme Court transcripts, records, and justice’s notes, reveals an unexpected complexity in both Indian and non-Indian contributions to the case and the era in federal Indian policy from which it emerged.

This history shows that both Williams and the policy developments that surrounded it emerged from consensus about the need for Indian equality and equal opportunity in the 20th century, but Indian and non-Indian debate about whether equality meant full assimilation and termination of the special legal status of tribes, or continued respect for the ability of Indian peoples to govern themselves. It makes this debate concrete through the story of the Williams family, for whom the state collection action and the resulting seizure of the family sheep herd struck at the heart of Navajo lifestyle and culture. It further connects the case to the momentous debates over African American integration generated with Brown v. Board of Education (1954) and Cooper v. Aaron (1958). Ultimately, I argue, Williams v. Lee and the self-determination movement that followed it represent a choice by American Indians to insist that respect for tribal status was necessary to ensure Indian equality in the modern era. This history and its results provide an important lesson today as federal Indian policies are increasingly attacked as fundamentally inconsistent with fairness and equality.

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