by John H. Vinzant. El Paso: LFB Scholarly Publishing, 2009. 188pp. Hardcover. $62.00. ISBN: 9781593323301.
Reviewed by Renee Ann Cramer, Program in Law, Politics, and Society, Drake University. Email: renee.cramer [at] drake.edu.
The value in this book lies in its attempt to bring federal American Indian law into the conversation scholars have about the role of the Supreme Court in policy-making. As such, specialists in American Indian law would be better served by reading any of the several other volumes on the Supreme Court and federal Indian law currently published (Canby 2009; Duthu 2008; Getches 2004), or the recent classics in the field (Wilkins 1997; Wilkins and Lomawaima 2002; Williams 2005 ), but students of judicial policymaking interested in seeing a novel application of their debates, or interested to learn a bit about federal Indian law, may want to pick up this slim volume.
Vinzant clearly elaborates the competing views on the question of judicial influence on policy. His introduction summarizes the arguments made by Dahl, Chayes, Horowitz, Rosenberg, and Melnick; and his second chapter introduces the relationship of the debate over judicial activism and restraint to questions of the proper role of the Supreme Court in policymaking. This introductory chapter is a nice, if not exceedingly nuanced, literature review of the field. Vinzant closes the chapter with a question and an interesting and compelling claim. He asks, “What conditions exist for effective judicial influence?” (19). And he answers, “I utilize a study of Indian policy and focus on two specific areas: tribal legal and political protections from individual state power and the creation of the federal trust responsibility to determine judicial effective influence” (ibid). His reason for focusing on Indian policy is compelling; as he points out, such a focus “provides an opportunity to examine changes in federal policy goals, the use of precedent, and an unbroken chain of years of judicial involvement” (ibid.). And, in the next four chapters, as a corrective to what he views as a shortcoming in the literature Vinzant engages in textual analysis of key Indian law doctrine from four periods in the history of US-Indian relations.
In other words, Vinzant’s work rests on the assumption that federal Indian law is a unique lens through which to view the debate over the proper role of the Supreme Court. This is a novel approach within federal Indian law scholarship, which usually seeks to understand what the Court is doing, and why, and how it impacts reservations and tribal peoples, not how these understandings contribute to theories and understandings of the Court.
Prior to such an analysis, though, Vinzant’s third chapter, a “Brief History of Federal Indian Policy,” offers a survey necessary for anyone not already grounded in the history and reality of tribal politics and law. He cites from [*824] standard and well-accepted sources: Paul Prucha, Vine Deloria, Jr., and Charles Wilkinson, and tells a rather uncontroversial story of American Indian law and politics.
Throughout the remaining chapters, Vinzant notes the tension that the Supreme Court has encountered in adjudicating much tribal law, the tension between assimilation and separatism. As Stephen Cornell’s work has aptly shown, not only has the Supreme Court encountered this tension, but so have legislators, tribal governments, and reservation residents. In many views, this tension is the over-riding paradigm within policymaking for/against/with/on American Indian populations. Vinzant argues that the Court’s decisions have clearly responded to shifts in legislative intent regarding assimilation and/or separatism, and that when legislative intent has been clearer, the Court’s latitude in policymaking has been constrained. However, since a constrained Court also relies heavily on precedent, and precedent on issues of American Indian law is famously confused and diverse, we have a paradox – a Court seeking constraint with unlimited precedent upon which to draw, especially in the absence of clear congressional intent, or, more likely, in the presence of untenable Congressional intent.
It is the presence of untenable Congressional intent, and Vinzant’s lack of attention to it as a matter of later jurisprudence, that might be disturbing to a close reader of American Indian law. While at times the clear intent of Congress is to aid tribal self-governance, at other times the clear intent is disenfranchisement and forced assimilation. Rob Williams has famously written that the Rehnquist Court is the most racist, anti-Indian Supreme Court in American history; certainly a similar argument could be made about several of the Congresses that have taken up American Indian issues. I would like Vinzant to make more of the disparity between Congressional intent and justice in regards to tribal issues than he does. In fact, a more normative focus would be welcome in general, as he argues that one of the goals of the book is to “improve” policymaking, but the definitional aspects of such an improvement are lacking.
Vinzant’s subtle and nuanced treatment of the trust relationship and the doctrinal strands developing (and deviating from) such a relationship is quite good. I would like to see an extension of that nuance to his treatment of judicial policymaking in this realm, in general.
But, as a whole, this book is not about American Indian law, and his treatment of the cases, though often nicely done, is truncated. A reader would get a good sense of doctrinal development, and a deep treatment of one or two aspects of federal Indian law, from this book, but the point of the manuscript is not to illuminate Indian law. It is, rather, to illuminate judicial policymaking. Using tribal law as a focal point, Vinzant intervenes in the Dahl-Rosenberg-Melnik debate, and finds the following:
1. Clear expressions of Congressional intent will make it less likely the Supreme Court will engage in effective policymaking.
2. The presence of competing tribal/state interests will make it more likely that the [*825] Court will effectively influence policy and side with state interests.
3. Clear expressions of court precedent will make it less likely the Court will engage in effective policymaking (33).
I am not certain that these findings will surprise many Court scholars, just as I am not certain that his analysis of Supreme Court Indian law will surprise many Indian Law scholars. This book, then, is a useful introduction to both topics, but not the final word in either. It is clearly not meant for specialists, but for the general, interested reader. I imagine its effective use in a variety of classroom settings.
And herein lies a larger trouble.
I would feel comfortable assigning this book an in introductory class on judicial policymaking, or on federal Indian law, with the enormous exception of how poorly edited it is. This is not a critique I enjoy making, and I try not to nit-pick texts; however, the sheer number of truly horrendous typographical, punctuation, and grammatical errors make this book nearly un-assignable. I could not imagine the hypocrisy of asking my students to attend to these details, while assigning a book that clearly does not. The book is part of a series in Law and Society edited by Melvin Urofsky; the poor copy-editing reflects badly not only on the author (who did not attend to galleys, clearly), but also on the series itself. If subsequent editions are published, I urge the author and editors to rectify the significant copy-editing errors, starting with the last page, on which the text reads, “This dissertation attempted to identify factors” (171). Attention to fixing these details would have made the volume more accessible to general readers interested in American Indian law, and judicial policymaking.
Canby, William C. Jr. 2009. AMERICAN INDIAN LAW IN A NUTSHELL. San Francisco: West Publishing.
Chayes, Abram. 1976. “The Role of the Judge in Public Law Litigation.” HARVARD LAW REVIEW. 89:1281-1316.
Cornell, Stephen. 1988. RETURN OF THE NATIVE: AMERICAN INDIAN POLITICAL RESURGENCE. New York City: Oxford University Press.
Dahl, Robert A. 1957 “Decision-Making in a Democracy: The Supreme Court as a National Policy Maker.” JOURNAL OF PUBLIC LAW. 6 (Fall): 279-95.
Deloria Jr., Vine. 1969. CUSTER DIED FOR YOUR SINS: AN INDIAN MANIFESTO. New York City: The Macmillan Company.
Duthu, N. Bruce. 2008. AMERICAN INDIAN LAW: THE PENGUIN LIBRARY OF AMERICAN INDIAN HISTORY. New York City: Viking Adult.
Getches, David. 2004. CASES AND MATERIALS IN FEDERAL INDIAN LAW. San Francisco: West Publishing.
Horowitz, Donald. 1977. THE COURTS AND SOCIAL POLICY. Washington DC: Brookings Institution. [*826]
Melnick, R. Shep. 1983. REGULATION AND THE COURTS: THE CASE OF THE CLEAN AIR ACT. Washington DC: Brookings Institution.
Prucha, Francis Paul. 1984. THE GREAT FATHER: THE UNITED STATES AND THE AMERICAN INDIAN. Lincoln: University of Nebraska Press.
Wilkins, David E. 1997. AMERICAN INDIAN SOVEREIGNTY AND THE UNITED STATES SUPREME COURT. Austin: University of Texas Press.
Wilkins, David E. and K. Tsianina Lomawaima. 2002. UNEVEN GROUND: AMERICAN INDIAN SOVEREIGNTY AND FEDERAL INDIAN LAW. Norman: University of Oklahoma Press.
Wilkinson, Charles F. 1987. AMERICAN INDIANS, TIME, AND THE LAW. New Haven: Yale University Press.
Williams, Robert Jr. 2005. LIKE A LOADED WEAPON: THE REHNQUIST COURT, INDIAN RIGHTS, AND THE LEGAL HISTORY OF RACISM IN AMERICA. Minneapolis: University of Minnesota Press.
© Copyright 2009 by the author, Renee Ann Cramer.