Felix S. Cohen
On a Proposed U.S. Attorney for Indian Country
Some commentators have proposed that there should be a United States Attorney’s Office for Indian Country (h/t Indianz). Any kind of dedicated law enforcement structure for Indian Country would be a dramatic improvement, but there are still serious issues that must be addressed. This is an interesting proposal, and it should be looked at from a historical perspective.
The proposal recalls Title 4 of H.R. 7902 of the 73rd Congress, the original bill of the Indian Reorganization Act, in which the drafters (primarily Felix Cohen) proposed a Federal Court of Indian Affairs. As we all know, that part of the bill went nowhere. As Vine Deloria and Clifford Lytle noted in 1984, the federal court of Indian affairs would bring the federal courts to Indian Country, the framers of the bill recognizing that Indians had extreme practical difficulty in appearing in federal court due to georgraphic isolation.
That geographic isolation remains, as does the difficulty in traveling to appear in federal court. Part of the reason, according to present and former U.S. Attorneys, that the declination rates in Indian Country crime are so high is this geographic isolation. Any proposal must acknowledge this factor and take steps to respond.
Another practical diffculty, not present in the same degree in the 1930s as it is now, are the jurisdictional quandries created by the checkerboarding of lands and jurisdiction. Questions about the jurisdiction of the proposed USAIC will be raised by the USAs already in Indian Country (ND, MI, WA, ID, AZ, NM, and so on). Declinations also result from the added difficulty of proving Indian Country status as an element of the crime committed. The new USAIC will not help this problem.
We continue to firmly believe that any Indian Country law enforcement program must involve the reaffirmation of tribal criminal jurisdiction. Expansion of federal capacities, while an improvement, cannot solve the problem.
Review of Tsuk Mitchell’s Book on Felix Cohen
Here is Steve Russell’s review in Wicaso Sa of Dalia Tsuk Mitchell’s wonderful book, “Architect of Justice: Felix S. Cohen and the Founding of American Legal Pluralism” — russell-review-of-tsuk-mitchell
An excerpt:
Mitchell’s telling of Cohen’s career is a must read for American Indian intellectuals–that is, Indians who think theory matters. In our time, we fight our own battles, but there is no need to reinvent the thoughts of our late Jewish ally. All of us who find ourselves thrust willy-nilly into the sovereignty wars because of where we come from stand on the shoulders of the Felix S. Cohens as well as the Vine Deloria Jrs. It’s an honorable place to stand, and this book illuminates many of the reasons why.
Agreed.
The Myth of the Model IRA Constitution?
I’ve always taught my federal Indian law students that many — if not most — of the tribal constitutions adopted in the years immediately following the Indian Reorganization Act were imposed on the tribes by the Bureau of Indian Affairs. These were the model IRA constitutions. If you look at the constitutions adopted around that time, you see a lot of similar features: lack of separation of powers, no tribal courts, Secretarial approvals for everything up to and including breathing. But as Blake said, he who generalizes is a fool.
Recent works of scholarship challenge that notion that the Bureau imposed model constitutions. First, Elmer Rusco’s chapter in American Indian Constitutional Reform and the Rebuilding of Native Nations. And now David Wilkins’s introduction to the new book, Felix S. Cohen’s On the Drafting of Tribal Constitutions. Elmer Rusco’s 2000 book on the IRA, A Fateful Time, argues that the BIA considered thrusting model constitutions at tribes, but rejected the plan in favor of an outline. Wilkins notes that it appears some tribes did receive a model constitution from the BIA (the one reproduced as Appendix A in the Cohen book), and others received a model corporate charter or the outline.
It would be worthwhile to do a survey of the 181 tribes that voted to accept the IRA. What do their constitutions say?
Dalia Tsuk Mitchell’s Book on Felix Cohen Wins National Award
From Legal History Blog:
The 
Littleton-Griswold Prize for the best book in American law and society will be awarded to Dalia Tsuk Mitchell for Architect of Justice: Felix S. Cohen and the Founding of American Legal Pluralism (Cornell Univ. Press, 2006) at the annual meeting of the American Historical Association in January.
We will be hosting Prof. Tsuk Mitchell at the Center this spring to discuss her book, along with Sam Hirsch of Jenner & Block, Riyaz Kanji of Kanji & Katzen, Christian McMillen of the University of Virginia, and Sam Deloria of the American Indian Graduate Center. That day’s panels will be discussing the legacy of Felix S. Cohen.
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.
Turtle Talk 
You must be logged in to post a comment.