Felix Cohen
Blast from the Past: Felix Cohen’s “Bill of Particulars”
The early 1950s featured truly awful federal leadership in Indian affairs, with Dillon Myer serving as Commissioner and Oscar Chapman as Interior Secretary. The leadership of the American Association on Indian Affairs wanted to produce a high-profile “bill of particulars” that would condemn the government’s terminationist actions. Other national activists resisted, worrying that direct political attacks on Interior Department leaders would backfire. While they debated, Felix Cohen wrote a 34 page memorandum detailing federal abuses, a paper he would shape into his classic Yale Law Journal article, The Erosion of Indian Rights, 1950-1953: A Case Study in Bureaucracy.
Here is the bill of particulars:
Blast from the Past: Sen. McCarren’s Bill to Repeal the Indian Commerce Clause
The same Termination-era Congressional leader that brought us the McCarren Amendment also attempted to repeal the Indian Commerce Clause. Here is a file that includes the 1951 and 1953 bills (also the Cohen memoranda mentioned below):
Felix Cohen helpfully pointed out that this silly idea had no chance of passing:
It’s still likely that Congress would possess “plenary power” over Indian affairs even in the absence of the Commerce Clause power, see Kagama. Discuss.
New Scholarship on Felix Cohen
Here is “‘Felix Cohen Was the Blackstone of Federal Indian Law’: Taking the Comparison Seriously,” by Adrien Habermacher, forthcoming in the British Journal of American Legal Studies.
Here is the abstract:
This paper explores thoroughly the many facets of Rennard Strickland’s comparison between Sir William Blackstone, author of the 1765-69 COMMENTARIES ON THE LAWS OF ENGLAND, and Felix Cohen, architect of the 1942 HANDBOOK OF FEDERAL INDIAN LAW. It consists in a side by side analysis of both authors’ master works, political and educational projects, as well as general contribution to jurisprudence. It reveals that despite the stark differences between Blackstone’s work on the English common law from his professorship at Oxford in the late 18th century, and Cohen’s endeavors on the US federal law concerning Native Americans as a civil servant at the turn of the 1940’s, there are remarkable similarities in the enterprises of legal scholarship the two jurists took on, the larger political projects they promoted, and their role in the development of legal thought. The idea that “Felix Cohen was the Blackstone of Federal Indian Law” has stylistic appeal and could have been little more than a gracious way to celebrate Cohen. An in-depth comparative examination of legal history and jurisprudence however corroborates and amplifies the soundness of the comparison.
Karen Tani on Indian Affairs from 1935-1954
Karen Tani has published “States’ Rights, Welfare Rights, and the ‘Indian Problem’: Negotiating Citizenship and Sovereignty, 1935–1954” in the Law & History Review.
Here’s the abstract:
Starting in the 1940s, American Indians living on reservations in Arizona and New Mexico used the Social Security Act of 1935 to assert unprecedented claims within the American federal system: as U.S. and state citizens, they claimed federally subsidized state welfare payments, but as members of sovereign nations, they denied states the jurisdiction that historically accompanied such beneficence. This article documents their campaign, and the fierce resistance it provoked, by tracing two legal episodes. In 1948, through savvy use of both agencies and courts, and with aid from former government lawyer Felix Cohen, reservation Indians won welfare benefits and avoided accompanying demands for state jurisdiction; the states, in turn, extracted a price–higher subsidies–from the federal government. Arizona officials re-opened the dispute in 1951, by crafting a new welfare program that excluded reservation Indians and suing the federal government for refusing to support it. The 1954 dismissal of the case was a victory for Indians, but also leant urgency to efforts to terminate their anomalous status. Together these episodes illustrate the disruptive citizenship claims that became possible in the wake of the New Deal and World War Two, as well as the increasingly tense federal-state negotiations that followed.
Subscribers may access the full article here.
Prof. Tani blogged about the article at the Legal History Blog.
Kevin Washburn on Felix Cohen, Anti-Semitism, and American Indian Law
Kevin Washburn (Arizona) has posted “Felix Cohen, Anti-Semitism, and American Indian Law,” forthcoming in the American Indian Law Review, on SSRN. Here is the abstract:
Felix Cohen and his work is discussed in several new books, including an important intellectual biography of Cohen by Dalia Tsuk Mitchell. Using the Mitchell biography as a starting point, this essay discusses an important episode in Cohen’s life, involving apparent anti-Semitism at the Department of Justice, which is not adequately explored in the otherwise excellent biography by Mitchell. As a result, Cohen remains a mystery in some respects. The essay also discusses some of the paradoxes of Cohen’s key involvement in federal Indian policy and the contemporary importance of some of his legacies in American Indian law.
Book Review of Christian W. McMillen’s “Making Indian Law: The Hualapai Land Case and the Birth of Ethnohistory”
My short book review of Christian W. McMillen‘s excellent book, “Making Indian Law: The Hualapai Land Case and the Birth of Ethnohistory” (Yale University Press) is available for download here. My review appears in the American Indian Culture and Research Journal.
The Shinnecock Tribe and the Handbook of Federal Indian Law
The Shinnecock tribe has an interesting argument in favor of their federal recognition. From the East Hampton Star:
“The Shinnecocks have since sued the Department of Interior in federal district court to be placed on the list. They maintain it is illegal to not place them on the list after they have received federal judicial recognition.
“The tribe also filed an amended complaint incorporating documents that show that the tribe was listed in a 1914 Department of Interior report to the United States Congress as a tribe in New York State subject to federal jurisdiction with federally protected lands. This was reaffirmed in other department lists dated 1929, 1938, and 1941, according to the Shinnecocks.
“Mr. Gumbs noted that the tribe was also included in a book “The Handbook of Federal Indian Law,” compiled by Felix Cohen for the Department of the Interior in 1945, which includes the Shinnecocks in its listing of tribes in New York State. The tribes listed here and in the other department lists have all since been added to the department’s current list of federally recognized tribes or have successfully sued to be placed on it without having to go through the Bureau of Indian Affairs review, he said.”
More details of the tribe’s claims are here.
Felix Cohen’s “On the Drafting of Tribal Constitutions”
By David E. Wilkins, Felix S. Cohen, Lindsay G. Robertson
A newly discovered document sheds light on Indian self-governance Felix Cohen (1907–1953) was a leading architect of the Indian New Deal and steadfast champion of American Indian rights. Appointed to the Department of the Interior in 1933, he helped draft the Indian Reorganization Act (1934) and chaired a committee charged with assisting tribes in organizing their governments. His “Basic Memorandum on Drafting of Tribal Constitutions,” submitted in November 1934, provided practical guidelines for that effort.
Largely forgotten until Cohen’s papers were released more than half a century later, the memorandum now receives the attention it has long deserved. David E. Wilkins presents the entire work, edited and introduced with an essay that describes its origins and places it in historical context. Cohen recommended that each tribe consider preserving ancient traditions that offered wisdom to those drafting constitutions. Strongly opposed to “sending out canned constitutions from Washington,” he offered ideas for incorporating Indigenous political, social, and cultural knowledge and structure into new tribal constitutions.
On the Drafting of Tribal Constitutions shows that concepts of Indigenous autonomy and self-governance have been vital to Native nations throughout history. As today’s tribal governments undertake reform, Cohen’s memorandum again offers a wealth of insight on how best to amend previous constitutions. It also helps scholars better understand the historic policy shift brought about by the Indian Reorganization Act.
David E. Wilkins is Professor of American Indian Studies and Adjunct Professor of Political Science, Law, and American Studies at the University of Minnesota, Twin Cities, and coauthor of Uneven Ground: American Indian Sovereignty and Federal Law. Lindsay G. Robertson, Professor of Law at the University of Oklahoma, is the author of Conquest by Law: How the Discovery of America Dispossessed Indigenous People of Their Lands.
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