Architect of Justice: Felix S. Cohen and the Founding of American Legal Pluralism (review)

As an Indian graduate of a top-twenty law school that offered no course in federal Indian law, I found it necessary to teach myself some really esoteric doctrines that could have real impact on my life for as long as tribal enrollment retains any meaning. One of the first things a person in my position discovers, even today, is "the Bible": Felix S. Cohen's Handbook of Federal Indian Law. In our time, Cohen's name is part of the title and the updating is normally handled by a panel of American Indian lawyers. In Cohen's time, during the coming of the Indian New Deal, he was in fact the lead author, and bouncing back to our time it quickly becomes a head-scratching puzzlement "how a Jewish guy from New York became the guru of federal Indian law" (ix).

Dalia Tsuk Mitchell, a law professor at George Washington University whose first language is Hebrew, came to wonder the same thing, and she spent years in Cohen's papers searching for the answer. This book is the result, and it comes at a time when the intellectual enterprise that led Cohen into Indian law and policy is in the face of every Indian lawyer who hopes to defend tribal sovereignty from foes of Indians (who call it economic advantage based on race) and friends of Indians (who call it social disadvantage based on race). "Friends of Indians," history teaches us, should never be confused with Indian allies, among whom Cohen was a giant.

Indian law, it turns out, became Cohen's focus because of the tasks put before him during John Collier's tenure at the Department of the Interior and because of the Indians he met in the process of discharging those tasks. I think it is safe to characterize Cohen as pro-Indian like Collier, but less paternalistic than Collier in pursuing policies. Cohen's life work revolved around what currently travels under the trendy buzzword diversity, but is better styled legal pluralism out of respect for the intellectual roots of the core concept of multiple sovereignties with more horizontal relations than vertical.

While serving the New Deal, Cohen fought losing battles on behalf of Jewish refugees fleeing genocide and on behalf of Alaska Natives trying to maintain fishing rights against the claim that absentee-owned corporations could exploit Alaska's fisheries more efficiently. On the American Indian front, he won some battles and lost some, but he always held fast to the position that tribal governments have a place within U.S. federalism no less significant than state governments, and certainly never subservient to state governments. The existence of Public Law 280 is evidence that Cohen sometimes failed, but he succeeded in committing the U.S. government to a historical/legal paradigm that remains more or less in place to this day, requiring diminutions of tribal power to be done in an explicit manner just as grants of federal power under the originalist view of the Constitution must be explicit.

Most of what we think we know of Indian law today was born in Cohen's pluralist vision of tribal self-government and federal obligation, two policies that Cohen did not consider at all inconsistent. He believed in a jurisprudence of group rights more or less independent of obligations as between groups. As, for example, in labor law, where he argued for broad union control over funds, subject only to the "requirement that the unions act as trustees both for their members and for the community at large" (55). Such a regime would allow "to the union the opportunities for error from which self-discipline and political genius may emerge" (55).

Cohen argued for group rights in a time of individual rights, and that is the fate of the Indian lawyer today. Indian tribes, he held, may have had their external sovereignty extinguished (meaning primarily their power to raise armies and conduct foreign policy...