Uneven Ground: American Indian Sovereignty and Federal Law (review)

Uneven Ground invokes a double metaphor: David Wilkins and Tsianina Lomawaima, two of the leading figures in the field of American Indian Studies, argue that the phrase captures the undulating topography of federal Indian law, particularly its inconsistent and indeterminate nature. Drawing from an older definition of the term "uneven," however, they also look on jurisprudence as an unequally empowered process. Indeed, it is this disparity of power that has allowed opponents of tribal sovereignty to make it appear fragile, easily manipulated, and even untenable.

In seven detailed chapters devoted to the doctrines of discovery, trust, plenary power, reserved rights, implied repeals, and sovereign immunity, as well as disclaimers in tribal-state relations, Wilkins and Lomawaima convincingly demonstrate that tribal sovereignty is firmly grounded in legislative, juridical, and constitutional precedent. In so doing, they cover a large swath of history, from the initial Indian-European encounters to more recent struggles over fishing rights in Washington State.

The authors fashion the following compelling interpretations: the doctrine of discovery was intended merely to guarantee the preemptive right of the United States to purchase lands made available for sale or exchange by tribes; the trust doctrine acknowledges treaty- or agreement-guaranteed federal responsibilities to protect and enhance tribal assets but should not be equated with wardship; plenary power was fashioned to reserve the preemptive and exclusive power of Congress vis-à-vis the states in matters relating to tribal governments; the doctrine of reserved rights testifies to the inherent powers of tribes and was intended to limit the reach of the federal government into intratribal affairs; the notion of implied repeals is made null and void by the trust doctrine, good faith commitment, and exclusive authority of Congress; disclaimers historically affirmed the nation-to-nation relationship between tribes and the federal government by circumscribing state power; and sovereign immunity embodies the right of tribes not to be sued without a waiver of that immunity.

Uneven Ground offers what Lomawaima and Wilkins call an "indigenous perspective" on federal law. Although it can be seen as a polemical treatise, a kind of amicus curiae in support of tribal sovereignty, it is not iconoclastic. Indeed, their argument reminds this reviewer of the rhetoric employed by the National Indian Youth Council during the early 1960s. Just as the council's calls for justice appealed to democracy and self-determination, Lomawaima and Wilkins predicate their argument on their faith in the rule of law—American principles all. The recognition of the sovereign rights and powers of tribal nations, in other words, is woven into the very fabric of the federal system. Tribal sovereignty should, therefore, be seen as integral to, rather than an aberration from, the history and identity of the United States as a nation.

Wilkins and Lomawaima have produced a richly textured and well-documented volume that will be valuable to academics and lay readers alike. Given the complexity of their subject matter and the detail they use to build their case, however, it is not for the faint of heart. In the end, Lomawaima and Wilkins left this reader with a desire for additional studies of the unequal power relations that structured federal–Indian affairs in the past and that continue to do so in the present. Scholars would do well to further interrogate the question of how opponents of tribal sovereignty are able to set discursive boundaries, to define that which is considered legitimate interpretation of legal doctrine and that which is not, and to perpetuate the underdevelopment of Native North America.