This land is my land

The arid mesas and gorges bordering the western edge of the Grand Canyon in northwestern Arizona have been home to the Hualapai Indians for at least 900 years. Yet in the late 1800s, the Atchison, Topeka and Santa Fe Railroad claimed the land was theirs, granted to the company by the United States government as an incentive to build one of a number of transcontinental rail lines that were opening the western territory to settlement.

“There’s a long, long history of legal justifications for dispossessing native people from their land,” explains Christian McMillen, assistant professor of history. Before a landmark land claims case in 1941, however, a native tribe had little legal recourse in defending its entitlement to historically occupied land.

While native people often eschew human ownership of land as property, indigenous groups around the world depend on the land for their livelihood. In his new book, “Making Indian Law: The Hualapai Land Case and the Birth of Ethnohistory,” McMillen documents the story of how a persistent Indian activist and a lawyer with new ideas moved the United States Supreme Court to set an international legal precedent.

Fred Mahone was just out of the service after World War I when he started wondering how entities such as railroads and cattle ranchers could lay claim to land his Hualapai people considered their own. Legal theories at the time perceived Indians to be nomadic people having no real claims on land, so the Bureau of Indian Affairs considered native land claims to be insubstantial, and courts paid little more than lip service to such cases.

Mahone, however, started documenting Hualapai history and land use. He interviewed older people on the reservation and talked with white residents living in the area in order to prove that his people had occupied this land for centuries.

Meanwhile, an attorney named Felix Cohen was hired by the Department of the Interior, the parent agency of the Bureau of Indian Affairs. “Cohen began to radically reconceptualize Indian law in a whole variety of ways,” McMillen explains. “One of them was in land claims, believing that occupancy in a place, whether you’re nomadic or farmers, actually means something.”

Cohen became involved in the Hualapai case and, backed by Mahone’s documentation, successfully argued it before the United States Supreme Court. In so doing, Cohen “revolutionized the law of land claims by pushing an entirely new interpretation … that [the Hualapai’s] historic occupancy gives them a claim to this land,” McMillen asserts.

The decision “really provides for the first time a way for native people, particularly nomadic, formerly nomadic or nonagricultural people to make claims against their government for land that is either under threat of being taken away or has been taken away,” McMillen says.

More significantly, this United States Supreme Court decision has had an international impact. It has successfully been applied in high court cases in Canada and Australia in which aboriginal groups used historical research to prove title to their land. More recently, native peoples in South Africa, Malaysia and New Zealand have taken this legal recourse against their own governments in similar cases.

What emerged out of this 1941 Supreme Court case was not just a victory for the underdog. In this case, McMillen says, “Indians and lawyers reconceived of the discipline of history itself in support of aboriginal land claims.”