Nothing But the Truth

BRIAN: Our final story for the hour picks up where Fred Hoxie left off, with one of the court battles he talked about. It involved the Hualapai tribe of Northwestern Arizona, who in the years between the two world wars, went head to head with the mighty Santa Fe Pacific Railroad.

Because the Santa Fe’s tracks ran through the desert, the railroad was desperate to control any and all water sources along their line. They claimed rights to a spring that would later become part of the Hualapai reservation. And they had the chutzpa to charge the Hualapai for access to that water.

PETER: For their part, the Hualapai argue that they had been using the spring long before any settlers, not to mention railroads, came along. And so the land should belong to them. That claim invoked a legal principle dating back to the 1800s. But it had since fallen out of practice with reservations and shifts in Indian policy. It was known as Aboriginal Title. Anyone who claimed it needed only to point to where they were living at the time.

BRIAN: Historian Christian McMillan has written about this case. He told me that popular images of Western Indians as somehow outside of standard conceptions of property rights was central to the Santa Fe Railroad’s case.

CHRISTIAN MCMILLAN: So there are two things that they base their claim on, one a broad sense amongst Americans at the time that Indians, especially like the Hualapai, who were generally considered nomadic in a really pejorative sense of that word, couldn’t possibly actually have any claimable rights to a specific piece of land. Because they just flitted around the landscape. So that’s one sort of broad idea that many possess. The law really is based on that at the time. But then–

BRIAN: So Indians can’t really owned stuff.

CHRISTIAN MCMILLAN: Not all, not all Indians. I mean, you know, as you know, depending on where we’re talking about in the country and what time of American history.

BRIAN: Right, but at this moment with this tribe.

CHRISTIAN MCMILLAN: And yeah, who lived in this particular way, who were not farming massive amounts of land. They didn’t build buildings, et cetera. They are considered to be the lowest of the low when it comes to any kind of claimable property rights. But the Santa Fe also knew they had to have an actual legal basis for claiming this land.

And they claimed that they had bought this land from two settlers towards the end of the 19th century, before the railroad reached this land. And part of the dispute is over whether or not they bought this tract of land before the reservation came into being as a legal place from the executive order.

BRIAN: So the Santa Fe was there before the Indians.

CHRISTIAN MCMILLAN: That’s their claim. And what’s really fascinating about this is that as the case progressed, they started collecting depositions. And the two men whom they claim to have bought the land from both disavowed that claim and said, no, we could have never sold this land to the railroad. Because it was always Hualapai land.

BRIAN: Well, this isn’t just about land, and water, and the law. It’s about some pretty impressive human beings, as I understand it. I want you to tell me about one of them, this Indian activist named Fred Mahone. What’s the deal with him?

CHRISTIAN MCMILLAN: Sure. Fred Mahone was born towards in end of the 19th century, went to the on reservation school until he left for Chilocco Indian School in the Midwest. And then as did about 90% of the young men in the Indian boarding schools, Chilocco among them, shipped off to France to fight in the American Expeditionary Force during World War I.

When he came back to the United States after the war, he went to Southern California to look for work and somehow made contact with what was called the Mission Indian Federation, a really, frankly, radical Indian separatist group who wanted total sovereignty over their own affairs.

And Mahone became enamored of this message and really taken by other Indians in great numbers, frankly, standing up for what he believed to be their essential rights, which was their right to decide for themselves how to run their lives, and at base to claim their land, and to have their land be theirs and be in their control. And he latches on to the Peach Springs controversy, because it’s still going on in the early 1920s.

BRIAN: Well, it sounds like we need an actual lawyer here, right? Mahone was not an attorney, if I’m correct.

CHRISTIAN MCMILLAN: No.

BRIAN: But this guy, Felix Cohen, who worked for the Interior Department was an attorney. Tell me a little bit about Cohen and his conceptions of the law.

CHRISTIAN MCMILLAN: Cohen was a brilliant lawyer in many, many respects. Cohen picked up this case in the late 1930s, after the Department of Interior and the Justice Department lawyers had gotten a hold of the case and said there was no case. They looked at all the depositions that had been collected. They looked at the evidence. And their claim was at the Hualapai had no property right claim to this land. And this went on for 15 years before Cohen got a hold of it.

BRIAN: That they were operating with a same imagery as the Hualapai. They’re kind of feckless, mobile, not really developing that right.

CHRISTIAN MCMILLAN: Right. Cohen really picked up where Mahone left off. It was Mahone’s great insight and other Hualapais to document their land use on the Hualapai reservation. He interviewed Hualapai elders. He took photographs of grave sites, photographs of farms. He interviewed a dozen white settlers from the 19th century who were still alive in order to document Hualapai land use. Because he understood this was the key to the case.

Cohen, because of his role in the federal government, his expertise in federal Indian law, began to see that the evidence that someone like Mahone had collected could be used to revive these older ideas of Indian title that had not been applied in the 20th century. What began to happen by the end of the 1930s is the other tribes similarly situated to the Hualapai were also beginning to bring their cases through the courts. And by 1940 or so, there were about 100 cases making their way through the Court of Claims and the Appellate Courts.

BRIAN: So the decision comes down when?

CHRISTIAN MCMILLAN: December, early December 1941, I think three days after Pearl Harbor. And the essential ruling is that if an Indian tribe can prove that they’ve lived on a piece of land and used it since what the court called time immemorial, then they have an aboriginal claim, aboriginal title claim, to that land.

BRIAN: So what did that decision do for the broader image of Indians, and frankly, their right to use the land in any way they wanted to?

CHRISTIAN MCMILLAN: The most tangible way it changed Indian, images of the Indian in my mind, was allow Indians to claim historical ties to land and begin to erase this idea that Indians disappeared from the landscape, to erase this idea that Indians like the Hualapai have no discernible property rights.

And Indian history, which up until that point, had no professional basis. There was no scholarship on Indian history, for the most part. Anthropology and Indians had had a long relationship.

BRIAN: And difficult one.

CHRISTIAN MCMILLAN: Long and typical relationship, focused on other things. And you know, some anthropologists famously thought that Indians had no history, that they lived in the present moment. And what they were doing in the 1920s and 1930s was what they called salvage anthropology, trying to create texts that would represent aboriginal worlds that were quickly, rapidly disappearing, and that history didn’t exist.

And what Mahone did, and then what Cohen solidified, along with the help of many others, of course, was to say that no, no, no. Indians have an actual material history in a place that needs to be legally recognized. And the only way to prove that is through historical research. But no one was really doing that until this case made it an imperative.

BRIAN: Christian McMillan is a professor of history at the University of Virginia and the author of Making Indian Law, the Hualapai Land Case and the Birth of Ethnohistory.

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PETER: That’s going to do it for us today. But we hope we can continue the conversation online. Visit us at backstoryradio.org. And let us know what impact images of American Indians have made in your life.

BRIAN: And while you’re there, take a moment to help us shape our next few episodes. Currently in the works are shows about presidential overreach, the history of shopping, and American fantasies about the future. We’d love to hear your questions and stories. You can leave a comment or send an email to backstory@virginia.edu.

PETER: We’re also on Facebook, Tumblr, and Twitter at BackStory Radio. Whatever you do, don’t be a stranger.

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BRIAN: Today’s episode of BackStory was produced by Tony Field, Nina Earnest, Andrew Parsons, Kelly Jones, Emily Gadek, and Robert Armengol. Jamal Millner is our engineer. We had help from [? Coley ?] [? Elhigh. ?] Special thanks this week to the Hualapai Tribal Council and Cultural Center, and to [? Francine ?] [? Deep. ?] BackStory’s executive producer is Andrew Wyndham.

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PETER: Major support for BackStory is provided by an anonymous donor, the University of Virginia, the National Endowment for the Humanities, the Joseph and Robert Cornell Memorial Foundation, the Arthur Vining Davis Foundations. Additional funding is provided by Weinstein Properties, by the Tomato Fund, cultivating fresh ideas in the arts, the humanities, and the environment, and by History Channel, history made every day.

KELLY JONES: Brian Balogh is professor of history at the University of Virginia. Peter Onuf is Professor of History Emeritus at UVA and Senior Research Fellow at Monticello. Ed Ayers is President and professor of history at the University of Richmond. BackStory was created by Andrew Wyndham for the Virginia Foundation for the Humanities.

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