Ragsdale, Fred L., Jr.

English

University of New Mexico

Volume 26 
Issue 3 Summer 1986 
Summer 1986 
Irredeemable America: The Indian's Estate and Land Claim, Imre 
Sutton, Ed. 
Fred L. Ragsdale Jr. 
Recommended Citation 
Fred L. Ragsdale Jr., Irredeemable America: The Indian's Estate and Land Claim, Imre Sutton, Ed., 26 Nat. 
Resources J. 647 (1986). 
Available at: https://digitalrepository.unm.edu/nrj/vol26/iss3/10 
This Book Review is brought to you for free and open access by the Law Journals at UNM Digital Repository. It has 
been accepted for inclusion in Natural Resources Journal by an authorized editor of UNM Digital Repository. For 
more information, please contact amywinter@unm.edu, lsloane@salud.unm.edu, sarahrk@unm.edu. 
IRREDEEMABLE AMERICA; THE INDIANS' ESTATE
AND LAND CLAIM
Imre Sutton, Ed.
Albuquerque: University of New Mexico Press. 1985.
Irredeemable America is a collection of essays that tries to bring some
order out of the chaos of the Indian Claims Commission. As in all col-
lections of essays, there is a broad range here, from the informative, brief
history of the Claims Commission by Harvey D. Rosenthal, to the un-
readable nonsense about international law by Roxanne Dunbar Ortiz. On
balance, however, most of the pieces are interesting and informative,
particularly those that relate personal experiences. Ralph Beals' The An-
thropologist as Expert Witness is especially interesting for its glimpse of
the academy and of the conflicts created when scientists must face the
adversarial system. Colleagues divided, as did research, depending upon
which side was footing the bill. The picture of the activities of forensic
anthropologists, forensic historians, and fornesic geographers highlights
the obtuseness of the process, perhaps more than any other aspect of the
book.
The approach of the book is interesting. It attempts, like Rashomon'
to give a many-sided perspective to a process that has its roots firmly
intertwined with the history of the United States. One assumes the editor
thought that, through this multifaceted approach, a whole would emerge
from complex legal, social, and moral issues. Unfortunately, this ap-
proach fails. It fails because there are some vital essays missing. The
first missing essay might be entitled "Why?" Why did the United States
have to pay Indians for land that had been taken in the remote American
past? Although Wilcomb Washburns' article has a page on the early history
and Rosenthal's article is descriptive of the Indians' legal struggle, there
is no article setting out how Indians came to possess the aboriginal title
upon which the government's obligation to pay rested.
Aboriginal title is largely the invention of Chief Justice Marshall.2
Because of the unique situation that has evolved in the United States over
the need to have confirmed paper title, a body of law had developed that
recognized rights in property that protected a variety of users. The equiv-
alents of the Enclosure Acts could not dispossess the unwashed in Amer-
ica. Every American would have title, or at least evidence of title, by
1. RYUNOSUKE AKUTAGAWA, RASHOMAN AND OTHER STORIES. (1970)
2. Johnson v. McIntosh, 21 U.S. (8 Wheat) 543 (1823).
NATURAL RESOURCES JOURNAL
having a deed. When the Supreme Court had to address the issue of the
nature and extent of Indian property rights in 1823, 3 the body of unique
American property law that had developed came to bear, not as law, but
as social and political considerations. How could people who exercised
dominion over land be denied any right in that land? In response to this
problem, Marshall devised the doctrine of aboriginal title to recognize
Indian dominion and made it coincide with his own desire as a federalist
to have federal control over the western frontier. Marshall's doctrine had
a dramatic effect on the expanding west. The continuation of the treaty
process until 1871' was less a recognition of Indian tribes as domestic
dependent nations than a need to ensure that Indian title be extinguished.
While one realizes that it is beyond the scope of the book to give a
history of the complex legal relationship between Indians and the United
States, a chapter detailing the land and status relationship is vital to give
the process itself meaning. The very existence of land rights makes the
relationship unique because those rights exist not from grace, but from
law. The second missing essay is more personal. Of the fourteen named
authors, none is an Indian. While this may be a realistic reflection of the
number of Indians in the various disciplines represented, it also misses
one of the very important aspects of the entire process. For many res-
ervation Indians, the claim docket was an inheritance-a promise that
somewhere down the road we would be paid for the taking of our land.
When the Chemehueves received $1,300 each in 1970, it was the death
of a dream. A lawyer we did not know, in a city we had never seen, had
determined that the money was to be divided per capita between all lineal
descendents. We couldn't use the money for development or education,
and the lineal descendents disappeared back into the suburbs of Los
Angeles. Almost every Indian I know has similar stories about the claims
settlement, and it would have been appropriate to have at least one Indian
write about the process.
In spite of these failings, the book is valuable for anyone interested in
Indian policy or the history of the United States. As the book makes
clear, the Indian Claims Commission not only failed in its purpose; it
may have created more problems than it solved.
Fred L. Ragsdale, Jr.
Professor of Law
The University of New Mexico
Member, Chemehuevi Tribe of Indians
3. Id.
4. The Appropriations Act of March 3, 1871 ch. 120, § 1, 16 Stat. 544, 566 (codified as 25
U.S.C. 17).
[Vol. 26


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