- American Indian History on Trial: Historical Expertise in Tribal Litigation by E. Richard Hart
RICHARD HART has done the historical profession and the Indian law community an enormous service. This book—a combination memoir and litigation history—spans Hart's forty-year career as an expert witness on behalf of American Indian tribes. It is an excellent summary of four major cases, three of which examine federal intent with regard to reservation status and boundaries and one involving tribal recognition. A fifth section contains a brief overview of western water rights litigation featuring his work on this issue at Zuni and Klamath.
The bulk of American Indian History on Trial contains compelling and clearly presented descriptions of the specific historical questions Hart was assigned to answer by attorneys representing four tribes. The clarity of those questions and the precision of his answers are instructive. Tribal litigation turns on defining the central issue of the case and then—if historical evidence is to play a significant role in resolving the dispute—framing a question that will support a responsive narrative. For example, in 1832 in Cherokee Nation John Marshall asked, "Do the Cherokees constitute a foreign state?" Were he present, Hart might have been charged by the attorneys with responding to this historical question: "When, if ever, have the Cherokees acted as a foreign state?" Answers to historical questions do not determine outcomes—as Cherokee illustrates—but they do force judges to respond to reality rather than misguided cultural assumptions.
The four questions at the heart of Hart's narrative are:
1. Did the 1873 executive order creating the Coeur d'Alene reservation convey to the tribe an interest in the "beds and banks" of Coeur d'Alene Lake?
2. When the Wenatchi tribe signed the Yakama Treaty of 1855, did it obtain the Wenatshapam Fishery on the Wenatchi River?
3. Are the Amah Mutsun people of San Juan Bautista, California, an Indian group worthy of recognition by the United States as a federal tribe?
4. Did the executive order signed by President Chester A. Arthur in 1883 creating the modern Hualapai reservation extinguish the tribe's title to land west and southwest of the borders described in [End Page 182] that document? (The tribe viewed those lands as part of its aboriginal homeland.)
Hart masterfully explains the broad legal context for each of these questions. By doing so he demonstrates that resolutions of big issues of justice and equity usually rest on clear and well-documented answers to small historical questions. He also makes clear that this type of historical research is slow and (because it is created for each dispute) expensive. Most of the cases remained unresolved for years, even decades. Tribes without resources or knowledgeable legal teams suffer the fate of most poor people who enter courtrooms: they lose. And, Hart notes, precise historical answers do not necessarily resolve cases. The Wenatchi could only win a right to fish; they did not win title to the fishery itself. The Amah Mutsun community remains unrecognized after decades of struggle. Nevertheless, the message of Hart's narrative is that documenting tribal experiences is essential if the legal process—however flawed—is to move forward.
Anyone considering work as an expert witness should read this book, even if the tribes and issues involved do not overlap with the cases discussed here. Hart "shows" rather than tells us how to be an expert. His narrative demonstrates that experts must rely on archival sources rather than secondary "experts" or historical theory. He shows that historians must be prepared to use all possible sources: material culture, baptismal records, cartographic information, and oral testimony. And by identifying the questions that drove his work, he illustrates that successful experts do not argue. Instead, they impress the court with their credibility—a credibility earned through thoroughness and by acknowledging and discussing contradictory evidence and opposing arguments. As flawed as they are, courts view themselves as fair-minded and neutral. Experts must adapt themselves to that environment.
There is probably another volume to...