Writing the Wrongs Against American Indians

One of the bitter ironies of American history is that the near-extermination of the native people of North America was carried out behind a legal facade. Treaties were signed to assure “perpetual peace and amity” at the same time that bounties were paid for the scalps of dead Indians. Within a century after the frontier wars ended in defeat and displacement, the worst crimes against the Native Americans had been papered over.

Among the efforts to right these wrongs was the so-called Indian Claims Commission, a short-lived and little-noticed experiment in jurisprudence that is the subject of “Wild Justice.” Between 1946, when President Harry Truman signed the act of Congress that created the commission, until 1978, when its last remaining cases were transferred to the federal judiciary, virtually every tribe in the United States brought claims to the government that had once oppressed them.

“Wild Justice” focuses on one particular outrage against the Chiricahua Apaches of the American Southwest, the tribe of such legendary warrior-chiefs as Cochise and Geronimo, and shows how the American system of justice worked (and didn’t work) in dealing with its grievances.

The ordeal of the Chiricahuas began in 1886 when the armed resistance of a few tribal warriors was finally crushed by the United States Army, and every man, woman and child of the tribe was declared a prisoner of war, loaded onto sealed trains and dispatched to Army bases in Florida, Alabama and Oklahoma, where they were interned for the next 27 years.

“When they were finally released,” the authors point out, “few remained who remembered their people’s homeland.”

That, of course, was the whole point of the internment. “The first idea was to cause their extinction as an ongoing tribe and the loss of their culture by scattering them among various forts,” the authors explain. Even when the government relented and the last surviving Chiricahuas were released from captivity, they were sent to reservations where they remained under the not-so-benign authority of federal bureaucrats.

As early as 1911, one remarkable Chiricahua named Asa Daklugie, his first name was given to him at the boarding school in Carlisle, Pa., where Indian children were sent to “sever the intergenerational threads of tribal custom,” proposed to sue the government for the millions of acres of land that were taken from the tribe without a penny of compensation.

But it was not until 1946, when the Indian Claims Commission was created, that the Chiricahua and other tribes with similar grievances finally found a way to make their voices heard. But it was only the beginning of a new ordeal, as the authors of “Wild Justice” show us in exhaustive detail. The litigation over the tribal claim for false imprisonment--”one of the most notorious, and disgraceful, chapters in the history of the relationship between the United States and the North American Indian,” as their attorneys declared--lasted even longer than the 27-year captivity that prompted the claim in the first place.

About two-thirds of “Wild Justice” is devoted to the long course of litigation by the Chiricahua, and the focus shifts from the tribe itself to the tribe’s attorneys and the nuances of their legal arguments. Still, the story plays out in more places than just the courtroom, and it becomes clear that history and politics were as important as legal precedent in deciding the cases. Indeed, the jurisdiction of the Indian Claims Commission extended to “claims based upon fair and honorable dealings that are not recognized by any existing rule of law or equity,” a mandate that required the commissioners to “distinguish between the law and the right,” as the authors put it.

“The incredible legal odyssey had resulted in total recoveries of about $22 million,” they report, “about 40 times more than originally sought.” But “Wild Justice” ends on a less than celebratory note. A total of about $1.3 billion has been awarded by the Indian Claims Commission and its successor, the Court of Claims, which averages out to less than $1,000 per person for the current population of Native Americans. By contrast, a citizen of Japanese ancestry who was interned during the Second World War is eligible to receive a payment of $20,000--and a formal apology.

The saga of the Chiricahua and the workings of the Indian Claims Commission are recounted in “Wild Justice” in a clear and compelling style that owes something to both Michael Lieder, who is a legal scholar, and Jake Page, who is a novelist. The book is full of high drama and colorful detail and yet remains faithful to the historical record and the fine points of the law. Indeed, the intellectual discipline that the authors bring to their work only heightens the sense of outrage that is at the heart of “Wild Justice.”